1

I. Introduction The landscape of IL has evolved dramatically over last few decades. Its no longer the specialty of government officials and limited to state-to-state relations. Five key issues to consider in each section and problem: 1. Is there a transnational component to the issue? 2. Which other legal orders or actors might be involved? 3. Are there any transnational law rules that might apply? 4. What exactly is the force of these rules? 5. How are the rules you find pertinent applied? The Classic Model: The Law of Nations has 3 features: 1) Covered a narrow subset of international legal issues: 1. Public international law: the law existing between nation states as sovereigns. 2. Later, added permanent international organizations and international human rights. 3. Excluded private international law. 2) Presented a fairly simple legal order (limited: Actors, Sources, Principles, Dispute resolution methods). 4. Actors: States, later UN 5. Sources: Those listed in 38(1) of Statute of International Court of Justice and later soft-law (treaties, CIL, GP, judic decisions, scholars) 6. Basic principles: state sovereignty, international comity, bases for international jurisdiction and sovereign immunity. 3) Had well-defined boundaries. 7. Separated public and private international law. 8. Fundamental difference between international and domestic law. Transboundary transactions and disputes among private parties were still relatively rare. Developments: 1) Other areas have become more important. Public international law has expanded: human rights, international criminal, environmental, refugee and trade law Private international law has gained importance: globalization, field diversified. Public and private international law have blended. 2) Legal order has diversified and become more complex Actors: larger heterogeneous group of states, intergovernmental organizations multiplied (NATO, OECD, EU, WTO, OAS, ASEAN), non-state actors are gaining influence in international law making and pressuring government: NGOs, business corporations: with own rights and responsibilities. Sources have multiplied and diversified: Larger number of treaties covering more subjects (bilateral and multilateral), customary international law has developed, international tribunal decisions have increased in number, publications on international legal issues, regulatory law on international level issued by international organizations and agencies (like IMF and WB), domestic law now deals w/ transboundary issues, private international law and treaties on international business. Jurisdiction: not just territoriality and personality anymore, but also over transboundary business activities, exercise of personal jurisdiction in private litigation and enforcement of criminal law beyond national borders. International tribunals and dispute resolution mechanisms have grown: ICJ, UN Commission of Human Rights, etc., mainly in public intl law realm, but European Court of Justice and dispute resolution body of WTO outside of classic public intl law. International arbitration regime growing + ad hoc institutions. International cases adjudicated in domestic tribunals. 3) Blurring of boundaries between public (among states and IGOs) and private international law (between private parties) and international and domestic law. What is Transnational law See pics in course pack o Definition: all law which regulates actions or events that transcend national frontiers. Includes both public and private international law. Includes civil and criminal aspect. Includes national law and international law. o Public international law: Law of Nations: law applicable only between nations (inter nationes): statehood and state succession, state rights and responsibilities, treaty making and customary international law, war and peace, law of the sea. o Private international law: Conflict of Laws: international issues arising between private individuals: which state has jurisdiction, whose law applies (choice of law), judgment recognition? o Supranational law: Law that is superior to national law (very little of this kind): EU Law, UN SC resolutions (?), WTO Law (?)

2 o o
Domestic law: National rules applicable to international activities or events. Comparative Law: Comparative study of laws.

Part One: Foundations: The Law of Nations o Classical view of public international law: Law between nations Actors: only sovereign nation states Authority: certain rights and privileges and duties and responsibilities, plus idea of comity. Sources: longstanding customs and treaties Dispute resolution: besides diplomacy and war, lacked permanent institutions, ad hoc: arbitration International and domestic law fundamentally different. Reflected Western tradition due to European imperialism, which was forced upon the whole world and reflects much of: 1) 17th and 18th century natural law 2) 19th century positivism and nationalism o Oversimplified view I. ACTORS: SOVEREIGN NATION STATES o 1. WESPHALIAN ORIGINS Trad regime of IL is called the Wesphalian System, which is where the 30 year war peace treaty was signed 1648. Treaty is important b/c it changed the entire power structure of Europe from the traiditional medieval system to a Sovereign State System. Medieval Euro Order: 3 main features o 1. Coexistence of Spiritual (Pope) and Temporal (Emperor) authority competed for political supremacy o 2. Feudal (top-down) organization of political power. Authority was delegated from supreme ruler to nobility and so-on creating feudal triangles o 3. Power was more personal than territorial defined by how much loyalty you could command All this created complex and overlapping power structure/struggle. Political power was widely dispersed and overlapping with conflicting loyalties and obligations. o Neither Pope or Emperor were strong enough to guarantee lasting order. Decline of Med Order: 13-16th century Temporal weakening: Great interregnum 1254-73 civil war in Holy Roman Empire no universally recognized emperor. Weakened Emporers Position yielded power to princes who went from inferiors to rivals Spiritual weakening: o Great Schism 1378-1417 2 rival popes o Reformation 1517-onward Together these events destroyed most of the papacys power on an international level 30 Year War Early 1600s finally led to self-destruction of old order. Destroyed most of central Europe and killed up to 50% in some areas w/ disease etc i. The Westphalian Origins Location of Peace Treaty that ended the Thirty Years War in 1648 (Treaty of Munster and Osnabruck), established Westphalian Peace. o Consensual, reciprocal agreement to make peace: for the common benefit of the community. Equality among states, States may make alliances: for preservation and security of all. NEW ORDER Hobbes Sovereign State 1648 Treaty ushered in new period of international relations and new legal and moral principles were needed Treaty legitimated right of sovereigns to govern their people free from outside interference, whether interference was political, legal, or religious. Defined in great detail what each sovereign ruled (great quieting of title across continent) Inaugerated the organizing principle of the sovereign state: Domestic Power and International Independence. Hobbes: The Leviathan (1651) (celebration of the sovereign State): Justified Sovereign State: Their must be a single Mortall God, which under the Immortal God, people owe deference. There must be a strong internal authority that could command everyone and to direct their actions to the Common Benefit o People are inherently self-interested, so need a strong institution to call the shots.

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By suggesting that the Key actor was sovereign State (with all loyalty was due internally and with independence externally) Hobbes helped dissolve old systems ties and helped forge new simple allegiances. Grotius: The Law of War and Peace (1625) (theory of law and order for inter-state relations): Founder of international law (system worked well for 300 years in Europe until the World Wars): treaties, diplomacy, arbitration, and laws of war: defined State powers, rights and duties. Disagreed with Erasmus and John Ferus that all Christians must be forbidden to use arms. o Grotius secularized international law. Although did not go as far as the irreligious and faithfully unscrupulous princes of Machiavelli. Treated the sovereign State as a reasonable person. Authentic law of nations which was based on mutual consent of sovereigns acting in the context of a great society of States (consensual theory). Secularized international law and morality in order that all people would adhere to it: sovereigns made rules and were obliged to abide by them (legally and morally binding). o All Treaties fulfilled and interpreted in good faith (express or implicit) Nations had an obligation to fulfill their promises: binding on all the people. o Nations agree to be bound by law (contractual and implicit through international custom): In self-interest to abide: rely on community for well-being. Social contract theory among states States usually agree to some fundamental laws: made for the benefit of all. Better if you can rely on contracts Quasi-liberal/quasi-laissez faire regime among states. Natural Law Theory o War should be carried out only within bounds of law and good faith. Should not be undertaken except for enforcement of rights. o Allowed for states to make peace and alliances among themselves. Interaction btwn Hobbes and Grotious theories: o Both came to concept of sovereign state, but Grotious indirectly The apparently inherent conflict btwn sovereignty and IL was resolved and balanced by notions of contract and covenant. What inherent conflict? Consensual theory of international politics o Leo Ross: Beginning of international constitutional law, enactment of common regulations by concerted action. Beginning of a transformation Most important developments: o 1) was a public act that disregarded the international authority of the Church o 2) marked abandonment of hierarchical structure of society and shift to co-existing equal states which there is no authority above. Notion that all states form a world-wide political system: law and power operating between states, not above.

ii.

The Criteria for Statehood Montevideo Convention (1933) criteria has changed little over last century and Monte__ still considered traditional definition Art 1-4. Art 1 criteria - State as a person of international law 1) Permanent population 2) Defined territory 3) Government 4) Capacity to enter into relations with other States Art 2: Federal state constitutes a sole person in IL Art 3: Political existence of state doesnt depend on recognition by others. Even if not recognized, a state has right to: defend independence and interest (internation) and govern itself in whatever manner domestically Art 4 all states are equal not based on power of each state possesses, but on principle that its defined as a state. Crawford: 1) Permanent population: rule doesnt relate to the nationality of the population. Only a state can grant nationality to its population. No min required.

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Issues with creation of new state. Do residents retain nationality of old state or become stateless until granted nationality until new state grants. 1) New state is not required to grant nationality to all persons resident in its territory. Defined territory:states are territorial entities, but a territory is defined in terms of governmental control, rather than land ownership. a. No size or contiguity requirement Government: must maintain law and order and establish basic institutions. All the other criteria depend on government (ie. Gov control defines the territory) a. Suggested/implied conclusions: 1) To be a state, entitys govt must control territory to exclusion of others 2) No estab def of what effective control is, but must have basic institutions and maintain law/order 3) In specific cases, must consider: 1. Whether statehood of entity is opposed under title of IL. IF YES, effectiveness of govt more closely scrutinized 2. If govt doesnt effectively control, did it obtain authority by consent of previous sovereign 3. There is diff btwn creating new state, and the extinction of established state. Std for effective govt may be stricter for new state. Capacity to enter into relations with other States: Not a requirement to be a state, rather, its a property of being a state. Independence: central to statehood. a. Independence from other political power is a hallmark of being a state, although not listed in Montevideo Convention. 1) Does not include puppet states or agency of another State. o Equality of state: if recognized as a state, have formal equal status in the law (Article 4) Could be used as a test for statehood. a.

2) 3)

4) 5)

II. Authority A. Part One: Classic View: The Classical Understanding of Sovereignty i. What Does Sovereignty Mean? Brierly, The Law of Nations (1955): Sovereignty is a bundle of rights claim: an aggregate of particular and very extensive claims that states habitually make for themselves in relations with other states. o Power to judge own controversies, enforce conception of right, increase its armorments w/o limit, treat nationals however it wants, .....sovereignty isnt the essence of statehood, its merely a term for all the claims a state makes. Philpot, Revolutions in Sovereignty (2001): Sovereignty = supremacy: final authority that cant be legitimately opposed. Territoriality: sovereign over the people within its borders External sovereignty: other states may not interfere or influence governance within the sovereignty (no trespassing). The Island of Palmas (Permanent Court of Arbitration 1928) (I: does a territory belong to first discoveror even if never exercises control, or to state that exercises control for a long time. H: the later continuous and peaceful display of territorial sovereignty is as good as title occupation must be effective. Sovereignty entails certain duties including the protection of those within the territory must act as guardian to some extent.) Sovereignty means: o Independence: right to exercise therein, to exclusion of other States, the functions of a State. o Duties of sovereignty: obligation to protect. Cant claim sovereignty after leaving and never returning. Did not fulfill duties. Need to display functions of state continuously and peacefully. o Must exercise sovereignty: to maintain control, have to be capable and willing and if necessary, to show up to exercise sovereignty. Someone has to be there to be in charge. ii. Rights and Privileges Sovereignty is a default rule of power: you have the power unless you give some of it out.

1. Sovereign Equality: Between states in international order.

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Simpson, Great Powers and Outlaw States (2004): No state is legally superior to another. Only legal superior is international law itself. Some scholars say this notion is jus cogens. Bound only by rules to which they consent. o State autonomy in domestic sphere (can organize communities on any basis they wish) and pluralism and diversity in international system as a whole. o Gives rise to right to territorial integrity (UN Article 2(4)) and right to self-defense (Article 51) o Prohibition on use of force secures sovereign equality. o Equal right and access to treaties. Counterbalances other inequalities. UN Charter, Article 2: The UN is based on principle of sovereign equality. UN cant interfere in matters that are essentially within the domestic jurisdiction of any state o But Security Council. UN General Assembly Declaration 2625 (1970) (not binding): States have equal rights and duties: Territorial integrity and political independence inviolable.

2. Immunity from Outside Interference

Internal sovereignty: complete control over inside of territory External sovereignty: right to be free from outside interference. Oppenheim I, International Law (1992): GR: all states are obligated not to violate the independence, or territorial and personal authority of other states. Also duty to restrain agents from violating. Cannot allow for one state to enter another, intervene in the management of internal or international affairs of other state, etc., without consent (territorial sovereignty). May enter territory through consent however. No hot pursuit on land but possibly ok in water???? Pg 48. Self-help generally not permitted. Cannot abduct criminals Nicaragua v. USA (ICJ 1984) (US supported rebels in Honduras that fueled civil war in Nicaragua) No right of intervention. o The support was interference: principle of non-intervention accepted as international norm (customary intl law): non-intervention forbids all States to intervene directly or indirectly in internal or external affairs of other States. Cannot use coercion. Rights that cannot be interfered with: choice of political, economic, social and cultural systems or foreign policy o Intrusion to self help especially bad bc only more powerful states can do it. UN General Assembly Resolution 2131: Declaration on Inadmissibility of Intervention in Domestic Affairs of States and the Protection of their Independence and Sovereignty and in Declaration 2625. In old order, Germany killing Jewish citizens was not a violation of the duty to protect its own citizens, and thus non-intervention would hold. Traditional order gives enormous amount of leeway to even bad states.

o o

3. Power to Exercise Jurisdiction (power to act through law)

3 kinds of jurisdiction Legislative: power to make rules Judicial: power to adjudicate disputes under rules (power of courts) Enforcement: to execute laws, enforce decisions. Lotus (Permanent Court of International Justice 1927) [Judicial Jurisdiction](France v. Turkey: collision of French and Turkish ships at high seas. Turkey arrests captains of each ship and sentences both. Turkey has jurisdiction) o Lotus Presumption: States can exercise jurisdiction as long as it doesnt violate a rule of international law - dont need a affirmative basis in international law for exercising juris. Juris is territorial: o States cannot exercise power in territory of other states (absent permissive rule) o Cannot exercise juris outside own territory (absent permissive rule) o But doesnt prevent exercising power in own territory, even if events/crime occurred elsewhere Burden on France to show violation of IL, but cannot here because b/c territoriality of crim law is not binding rule of IL. o o o

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Rules of international law are binding on States if they have consented through conventions, or customary international law. Only rule really is that cant exercise jurisdiction in territory of another State. Presumption against restraints: have not consented to restraint. Liberalism, laissezfaire system. Burden on France to show international law that prohibits Turkish jurisdiction. Court requires plausible link however (Limits general principle....(criminal limitation???)): EFFECTS: once established that effects of crime occurred/extended to turkey (here Turkish Vessel), then exercise of crim presecution legitimate. Events happened on a Turkish ship, so like happened in their territory, and exercised jurisdiction in Turkey. Not clear this rule would carry over to if it was not on a Turkish ship. Jurisdiction based purely on citizenship of victims may not hold. o Restraint on states is comity: not legally binding but sometimes works. o Whats the diff between each type of juris? Greater for judicial than legiS? lotus only to judicial? Territoriality American Banana Company v. United Fruit Company (1909) (Antitrust violation claimed by P (AL corporation): American Banana company (NJ) prevented competition to monopolize banana trade: all acts happened in Panama or Costa Rica. Dismissed for lack of jurisdiction) (no longer completely good law) o GR: Legislative jurisdiction is territorial and power to make laws/govern acts ends at your territory (can extend to high seas where no one is sovereign). o Statutes are presumed to only apply w/in territory of state, unless clear legis intent to extend abroad If not, then would be unjust interference with authority of another sovereign (violation of territorial sovereignty) o Affirmed in EEOC v. Arabian-American Oil Co. (1991): federal statutes apply within territorial jurisdiction of US only, unless a contrary Congressional intent is clear. Nationality Blackmer v. US (1932) (US citizen living in France failed to answer subpoena, guilty of contempt) o US statute: an judge may issue a subpoena to US citizen even when abroad and citizen must come back. o Personality Principle: States may retain authority over its citizens, by virtue of their citizenship even when not in their territory... is based on the states own definition of its citizens obligations and duties, rather than territoriality. o Note distinction: not trying to regulate behavior in another territory o Congress can establish duties to citizens of US, prescribe penalties for disobedience (like obligation to pay taxes) o This is a matter of the construction of the statute, rather than territorial limits, b/c Citizenship: domestic law of states who they consider citizens. IL: 2 provisions 1) International law determines whether citizenship granted to an individual by a state is entitled to recognition by other states. o Relevant when S1 exercises right to protect citizen, and S2 refuses to recognize asserted citizenship: Nottebohm case (German citizen living in Guatemala. Bought citizenship from Liechtenstein during WWII. When returned to Guatemala, not allowed to enter as a German enemy alien. ICJ found that Nottebohm lacked genuine bond of attachment to Liechtenstein, so Guatemala didnt have to recognize his naturalization there) IL apparently requires some bond of attachment when citizenship contested 2) Provides min protection for stateless people

4. Judicial Immunity: Sovereigns/official state actors are immune from Jurisdiction in Each Others
Courts

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The Schooner Exchange v. McFaddon (1812) (Napoleon forcibly took a ship owned by US citizens, turned it into naval ship. Ps brought libel action to reclaim it when it arrived in US port. No jurisdiction) o Implied promise that sovereign is exempt from jurisdiction: the ship was a public armed ship, which is under immediate and direct command of the sovereign, and US was at peace with Napoleon. Principle of public law. Exemption can only be denied through explicit claim and exercise of jurisdiction. Stems from sovereign equality. 100 years later: sovereign immunity hardened into international law. o Jurisdiction is exclusive and absolute sovereign power BUT all sovereigns consented to relax jurisdiction for sovereigns, foreign ministers, foreign troops allowed to pass through, etc. o Private individual is subject to jurisdiction of country it enters though. o Only remedy is to approach political branches: but unlikely to find help there against peaceful ally. Special rule for ships in ports too Other rights: control over States airspace and territorial seas, to enter treaties and participate in making of customary international law, become full-fledged member of international organizations, to wage war, establish diplomatic and consular relations with other states. iii. Obligations 1. Environmental Detriment to Other States Trail Smelter case (1905) (Smelting Company in Canada caused damage in Washington . Intl Joint Commission investigated problem. Canada responsible for damage found. Settled under convention: set terms of arbitration.) o International law: no State has the right to use or permit use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the (1) case is of serious consequence and the(2) injury is established by clear and convincing evidence. Creates basis of all international law. Governments must agree to how to fix the problem under the convention. o This law came from customary international law at this time. Perhaps stems from nonintervention rule. 2. Diplomatic and Consular Protection Case concerning US Diplomatic and Consular Staff in Tehran (ICJ 1980) (Militants attacked US embassies, seized inmates as hostages, etc. Iran did not intervene. Iranian authorities then endorsed the actions later. Iran violated international law and owed reparations). o Before endorsement, militants actions were not imputable to state, but Irans conduct violated international obligations under Vienna Conventions of 1961 and 1963 and 1963 convention on Consular Relations (multilateral treaties): required receiving state to protect embassies, prevent attack + put end to it quickly on diplomatic agent, protect archives and documents, ensure freedom of movement, etc. Iran did not prevent the attacks or persuade withdrawal. Whats STD of culpability? Ct says Iran was more than neg. is neg sufficient? Seems to be a very high std of care had duty to take every appropriate step to end attacks o Art 29 State shall take all appropriate steps to prevent attack o Inaction with regard to the 2 American nationals was breach of obligations of 1955 Treaty of Amity, Economic Relations and Consular Rights (bilateral treaty). o These obligations were not only contractual but also under general international law. o When Iran endorsed the actions: violations of Vienna Conventions were even more serious. o No enforcement mechanism, but had official declaration by ICJ: could possibly justify sending in troops or other countervailing measures. Can use the declaration politically. The Protection of Aliens James Hathaway, The Rights and Refugees under International Law o 16th century: bilateral treaties for safe passage and basic civil rights of merchants. o Late 19th century: bilateral agreements to protect aliens in own territory. Diplomatic protection from home states and some sort of international protection in the States in which you go. o Implemented through domestic laws of state parties.

3.

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Certain human rights universally guaranteed to aliens as general principles of law: respect for life and physical integrity, personal and spiritual liberty w/in socially bearable limits, resident aliens have reasonable public duties. Widespread nature of these bilateral agreements they became GPIL. o Under the GPIL: Aliens cant require State to take action to vindicate loss. The rights were rights of national states, not the individuals, the nationstate, not the individual must make the claim.. Couldnt compel the State to share damages with them. [example of the separation of IL and private law in trad regime?] Real injury is the mistrust and lack of safety felt by other foreigners similarly situated (loss of commity?), so GPIL doesnt require state to restore alien to pre-injury position, but loss of trust occurs when no compensation is given. US (on behalf of Harry Roberts) v. Mexico (General Claims Commission 1926) (Harry Roberts arrested for assault on a house, in jail for 19 months and was subject to rude and cruel treatment. Mexico owed indemnity) o US brought claim under convention of 1923. o Arrest ok: aliens obliged to submit to proceedings properly instituted against them in conformity w/ local laws o No GPIL on acceptable length of detention, so looked to domestic law and saw it violated MX law.....indicating violation of IL o Standard of treatment fell below ordinary standards of civilization even though treated same way as Mexican prisoners so violated international law. Standard basically arises from customary international law. o Harry Roberts has no legal claim to the money. Still state-state Westphalian order at this time. 4. Liability for Breaches of International Law Basic state responsibilities under international law are today codified (non-binding) in Responsibility of States for Internationally Wrongful Acts (Intl Law Commission 2001) Outlines when State has committed internationally wrongful act, attributes conduct to State, provides for remedy. (loose summary below) Blueprint for later international convention by the UN States are responsible for acts or omissions that violate IL or breach an int obligation Breach/violation determined in regard to Int law, not states domestic law where it might be legal Conduct will be attributed to state if done by state or agents or by instruction States must cease act, offer assurances not to repeat, make full

5. Addendum: Comity Commity: Altruistic practice of extending good-will among sovereigns, even when outside legal obligations, because things just work better than when countries ruthlessly pursue immediate self-interests. Joseph Story, Commentaries on Conflict of Laws (1834): Comity is not binding rule of mutual good will. Important because international system has little law and most things have to be done on a cooperative (comity) basis. Can invoke/request/argue for comity in a court of law. Not actually a binding principle III. Law: A. Part One: Classical View: Custom, Treaties, and General Principles o John Austin defined law as command of a sovereign to its subjects which can be enforced by coercion. Under this definition, international law is not law bc there are only co-equal states. This def is to narrow, bc law can be self-imposed rules and enforced by coercion of coequals. o Brierly, The Law of Nations (1955) Sources/origins of IL: 1) Doct of fundamental rights essentially the doctrine of natural rights applied to states. 5 trad accepted rights: self-preservation, independence, equality, respect, and intercourse. Basic rules and principles that are valid independent of anybodys consent. 2) Positivism: international law is sum of rules to which states have consented to be bound (treaty or through customary intl law). Prevailing view since Grotius. It is a minimalist approach, which doesnt

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explain the fact that there are some rules of IL that not every country has consented to, but are still enforced. i. The Traditional Catalog *****READ CAREFULLY**** Statute of International Court of Justice, Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. 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 et bono, if the parties agree thereto. Restatement 3d (Foreign Relations) Law 102: Sources of International Law (not binding law) 1) Rules of international law that has been accepted by international community: o Customary law o International agreement o Derivation from general principles common to major legal systems of the world. 2) Customary international law resulting from general and consistent practice of states followed by sense of legal obligation 3) International agreements that create law for the states that may lead to creation of customary international law 4) General principles common to major legal systems Restatement 3d (Foreign Relations) Law 103: Evidence of International Law Judgments and opinions of international judicial and arbitral tribunals Judgments and opinions of national judicial tribunals Writings of scholars Pronouncements by states that undertake to state rule of international law when not seriously challenged by other states Precedent is not part of these lists because no authoritative single court or court system that everyone agrees to be subject to. Historically, system was based on civil law system, which doesnt recognize the theory of precedent. Legislation is also not on the list: no legislator or governing body. There is a debate over weight to give restatement [whats the takeaway of this section?] o Hartford Fire Insurance Co. v. California (1993) (Scalia dissent relies on Restatement (Third), because in this case he believes it accurately reflects the applicable principle) o US v. Yousef (2d Cir. 2003) (3rd restatement is a treaties or commentary it is not a primary source which judges can rely solely on for propositions of customary law...bc the authors add their own flavor in some cases proposing better laws rather than what current state is. o [my Q: since it is work of leading scholars can it be relied upon as evidence under 38?] ii. Customary International Law CIL is unique to IL. Its not made by legis or by cts, but rather by consent of international community (formal enactment not required) o CIL is source of signal strength and flexibility that allows formation of rules by behavior w/o difficult formal process Issues/challenges: 1) interpretation, and 2) methodology in establishing customary international law: evidence of a general practice accepted as law. Key elements of formation: (art 38) Custom is evidence of a gen practice accepted as law...so to use, one must prove the rule/custom has been: o 1) followed as a gen practice Considered objective inquiry look to see if states really: a) followed. b) Consistently? c) Long enough period? o 2) accepted as law More subjective determination determine why practice has been followed? Bc states feel an obligation? or merely out of courtesy/covenienc must be accepted and conceived of as an obligation The Paquete Habana (1900) [ (1) How does USSC ascertain CIL? (2) what effect does it have on the rule?]

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(2 Spanish fishing boats seized by US off coast of Havana. Sold at auction. Spanish owners want money). By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. [traced the history of the rule from earliest sources through increasing recognition...final establishment in our own country and generally in civilized world] 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 eivilized nations, and, as evidence of these, to the works of jurists and commentators 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 the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Ct also looks to eminent scholars as evidence This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter. Customary international law: by consent of civilized nations of the world, independently of any treaty. Court found consistent state practice (doesnt mean without breach) through looking at actions, diplomatic practice, military manuals. Looked at treaties from the 1400s. Looked at scholarly works from all over (impartial writers): used as evidence of consent of civilized nations and an established rule: these opinions not binding but all agreed. o Britain looked at the practice like a rule of comity: BUT Court says Britain eventually agreed to the law too. Need more than just comity: need to find that states are doing something as a matter of law: out of a sense of obligation rather than moral or political grounds (opinio juris) International law is part of our law and must be ascertained and administered by the courts of justice (customary international law is binding on us) Big players play a big role in international customary international law. Customary international law is very hard to establish. o Even though SC found customary international law, it is not binding on any other nations courts (more power if were an ICJ opinion). Default consent system created: you have to say actively that you do not want to be part of the customary international law that seems to be developing: loudly, clearly, consistently. Newly emerging states must abide by the customary international law that exists when it is created, cannot opt out. James Shaw (2003) [what is state practice?] State practice covers any act or statements by a state from which views about customary law are inferred. States behavior in practice is basis of customary intl law, found through looking at activity of all its actors (executive/legis/judicial) using a variety of sources (newspapers/historical records), can also look at international resolutions, etc. Practice of international organizations may be evidence of customary intl law with reference to states relations to the org. Minority view: mere claims as opposed to actual physical acts are not state practice. Shaw Rejects minority view: claims and conventions of stases should be evidence of state practice, bc the process of claims and counter-claims is one recognized method by which states communicate their understanding of Int. Rules and norms....so in that sense they are physical acts. o Recognizes that not all acts/claims have same weight o What about torture? See pg. 99. Opinion Juris necessary: state believes that its activity is legally obligatory not merely a moral commitment or curtesy. Hard to pinpoint when the it becomes part of IL. Change is rarely smooth- norm. spastic. iii. Treaties (The most important source of public international law): DEF: VCLT an international agreement is one concluded between states in written form and governed by int law.

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Chapter focus: (1) treaty making process; (2) fundamental rules in Vienna convention; (3) Treaty interpretation Treaties that are governed by international law are among states and governed by the Vienna Convention. International agreements that are not technically treaties: executive agreements and contracts (governed by private law). Advantages: Rules are in written form, so are clearer; clearly binding b/c of consent; can be made by governments when a need arises. Disadvantages: have to make an investment to write the treaty, limited in scope: cant do much beyond what it purports to do, have to update them when things change David Bederman, International Law Frameworks (2006): The labels on a treaty dont matter much (conventions, pacts, protocols, declarations, etc.). Whats important is that the treaty rules are followed: look at the substance of the agreement. Attempted distinctions: Legislation-contract duality has important consequences, but not good basis for trying to categorize. Codifying CIL new legis: tries to explain if it will gain Internat. Support- rarely does Bilateral v. Multilateral only sensible distinction: Treaty-making process o Anthony Aust, Modern Treaty Law and Practice (2000) : Parties 1st negotiate terms of treaty. 2nd, they adopt the text (negotiating states). 3rd. Ratification act where states consent to be bound on international plane (not a constitutional process) 1. Negotiation of Treaty 2. Adoption(text final) (VCLT 9): negotiating states express agreement with the form and content of text Negotiating states a. Does not amount to consent to be bound yet. Really just signals end of negotiation. No legal effect. Art 9 (classic rule) All states must consent Since WWII normally only req agree of specified maj states unless bilateral treaty now, unanimity rule is now restricted to the adoption of bilateral treaties Is consent of all states needed? 3. Signature by representative of state with full powers (VCLT 18, 81). Does not mean State finds it binding yet or is bound to ratify, just intent to make the treaty binding. States will start their internal process that will make the treaty binding. Article 18: international law obligation not to defeat the object and purpose of the treaty unless state has made clear it no longer intends to become a party to the treaty. 4. Rights and obligations prior to entry into force a. Certain obligations may arise during interim period if treaty provides b. Obligation not to de.feat the object and purpose of a treaty prior to its entry into force: (art 18) - obligation last until a state makes it clear it no longer intends to become a party....unless there is unnecessary delay for entry into force. 5. Ratify treaty:the international act where States establish on international plane consent to be bound. a. adoption becomes binding through this process (VCLT 11, 82). b. Consistes of: signature and either: (1) exchange of signature w/ other state (bilateral) or ledging with the depositary (multilateral) c. Necessary: bc other states might need time to give consent to be bound. Might need (1) internal legislation, (2) parliamentary approval (3) or just time to consider implications of treaty. d. Not same as treaty becoming legally binding.... 6. Entering into Force (VCLT 24, 84): Treaty becomes in force when the treaty terms say it does: generally for multilateral treaties there is a number of ratifications needed to come alive....if no express provision enters into force when all negotiating states have consented to be bound (ratified) States who join later are entering into a treaty that is in force already. Only applies to parties to the treaty. Means a treaty is generally in force, and for those states that have consented to be bound by it (ratified it). Vienna Convention on the Law of Treaties (1969, in force in 1980) Most countries are members (US not party, but tends to agree that VCLT reflects customary international law) Preamble: Written with principles of international law embodied in Charter of UN in mind: o

12
Equal rights and self-determination of peoples, sovereign equality and independence of all States, non-interference into domestic affairs of States, prohibition of threat or use of force and universal respect for, and observance of, human rights. Purpose: promote purposes of UN: maintain international peace and security and develop friendly relations and achievement of cooperation among nations. Customary law continues to govern questions not addressed.

Applies to: written, international agreements, between States, that are governed by international law (Article 1 &2) Article 3 international agreements NOT covered: int. agreements btwn states and other subjects, or Not in writing. How different from art 5? 4 - Not retro active. (1980 on) 5 applies to treaties constituting international orgs + treaties adopted within initernational orgs. 9 adoption occurs when all states consent, unless: 2/3 maj vote for adoption or 2/3 vote for diff process. 24 entry into force occurs when and in manner provided by treaty itself, or default when all negotiating states consent to be bound (ratify) Article 26: Parties must perform treaties in good faith. Article 27: Parties may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Article 31: Treaties should be interpreted in good faith in accordance with the ordinary meaning given the terms in context and in light of its object and purpose can look at preambles and annexes. Also interpret in light of subsequent agreements, practices, related agreements, and relevant rules of international law. Art 33 interp if in 2 languages- both languages equal unless otherwise specified; version in non-authenticated language only controls if so specified; terms presumed to have same meaning in all languages; INVALIDITY OF TREATY 46 cant claim consent to be bound invalid bc it violated internal (constitutional) laws regarding competence to make treaties UNLESS violation was manifest and concerned an internal rule of fundamental importance Example?? o 47 cant claim consent invalid bc rep was subject to a restriction, UNLESS restriction made known to other states Treaty void if: 48 (Error regarding a fact or situation assumed to exist can invalidate: not of own fault. Error in wording of treaty not sufficient 79), 49 (Fraud by other state induced signing), 50 (corruption of representative directly or indirectly by another negotiating State), 51 (coercion of representative ), 52 (Coercion of state), 53 (if conflicts with preemptory norm of general international law (jus cogens)). TERMINATION/SUSPNESION OF TREATY Article 54: can terminate or withdraw from treaties in conformity with provisions of the treaty or by consent of all the parties. 56 if no provision cant withdraw or renounce unless: you establish parties intended possibility of withdraw/renounce OR right to denounce can be implied from treaty.....MUST give 12 months notice. Article 60: Material Breach - (bilateral is sufficient to terminate in part or whole) (multilateral sufficient to terminate w/ unanimous agree of other parties, terminate w/ regard to defaulting state, term by a state particularly affected by breach, any party if breach affects essential nature of treaty) Termination or suspension of operation as a consequence of material breach: repudiation of the treaty that is not sanctioned or violation of provisions essential to accomplishment of the object or purpose of the treaty. 61 impossibility from permanent disappearance or destruction of an object indispensable to treaty. Temp impossibility only ground for suspension not termination. Cant cause impossibility yourself by breach. 62 - Fundamental change in circumstances NOT BASIS FOR WITHDRAWL UNLESS: circumstances were essential basis for treaty; change radically transforms the obligations. Fund change not sufficient if: treaty sets boundary or occurs from breach of party.

13
o 63 severance of diplo only sufficient ground if diplo/consular relations is indispensable for application of treaty. 64- jus cogens - If new norm of IL emerges conflicting treaties are voided. EX pg 113 VCLT only applies to treaties where both or all parties have consented to it. Treaty-interpretation: US v. Alvarez-Machan (1992) (abduction (paid by Feds) of Mexican doctor that helped in torturing DEA head. Question of whether D can be indicted/tried in US court given US-Mexican Extradition Treaty. Not violation of treaty) o Plain meaning of treaty: Applies when extraditing someone. Does not disallow other manners of bringing someone to court from another country. o History of negotiation and practice: Mexico was on notice that US abducted people, so should have made an explicit term in treaty if didnt want it. o No customary international law that speaks to abductions in this case. o Dissent: this reading defeats the purpose of the Extradition Treaty. Should not allow abductions. Violates territorial integrity of a country and Mexico said would prosecute.

ALVAREZ -Claims violation of extradition treaty (if we violated treaty, would need to repair violation which would be the return of D in this case)

I: whether abduction breached the treaty H: No R: look to V.C. treaty interpretation rules

o Look at object and purpose [express or implied] Maj(Rehnquist)-thinks only pertains to extradition(procedure for o
extradition)...Stevens-thinks it regards all cross-boarder movements of criminals, and that all such movements should be by extradition. Renquist counter Cites 100yr old decision that says forcible abduction doesnt hinder prosecution, Mexicans should have known this, and if they wanted to exclude this then they could have written this into the treaty. Is case really applicable? Cause not done explicitly by the US govt agents Doesnt treaty supercede, previous precedent? Still how do we fill the gaps VCTL-stevens- background rule should be...GPIL: countries cannot violate another countries sovereignty abduction clearly violates MX sovereignty. o MX:treaty that allows abduction flies in face of GPIL you shouldnt interp it in this way o Rehnq-says still doesnt violate the extradition treaty... Stevens- much more int law friendly Rehnq- basically ignores presumption that treaties are among friends...makes our interp look as lopsided as

Art 38 - GP law recognized by civilized nations What type of law? iv. General Principles of Law (rare) broad principle of domestic law o Originally intended to look to o CTs have also used Int law they think are broadly excepted.... Gen principles how general What are the civilized nations o Drafted while colonization existed, since then its broken down now 193 nations in UN that are co-equal sovereigns o How do you deal with this vast cultural differences? Italy v. Venezuala 31 years is past limit for every country didnt have to decide. If 11 years, then GP wouldnt really have helped bc so many nations would be on both sides Oil Platforms Treaty between sha and US o Revolution but treaty still stands...most treaties withstand tremendous turmoil and upheavals Dont know how much Iran and Iraq each mined...

Looks at domestic law of 5 countries...not even close to looking at the civilized nations....cant look at all of the naitions...BUT SHOULD HAVE LOOKED AT IRAN LAW to make sure GP applied here is in accord with IRANs GP. o Should have cast net more broadly...maybe Islamic law, some far east countries (japan/china), S. Am.

14

GPL relevant where there is no law covering the point more likely to arise in Int law bc system is relatively undeveloped Fewer decided cases No method for legislation to provide rules for new situations o Article 38 Provision The General principles of law recognized by civilized nations Is a source of law to close gaps. Various opinions on section 1. An affirmation of natural law concepts 2. Sub-heading under treaty and customary law incapable of adding anything new to international law unless it reflects consent of states 3. Reiterating fundamental precepts of int law, which have already been set out in treaty and customary law 4. MOST accept GP Do constitute new source of law, but fairly limited in scope Does not have to be international law. Examples: good faith, estoppel. Cant say civilized nations anymore, and not clear how generally or widely shared the principles have to be. Mostly see uncontested general principles. Gap-filling function. Italy v. Venezuela (Mixed Claims Commission 1903) (Italian citizen sues Venezuela money damages for property rights violation 31 years after injury) o I: is suit proscribed by passage of time? H: Yes, Every country has some form of prescription (statute of limitations), but longest anywhere is 30 years. Prescription has universal application, which Equity demands/not arbitrary Provides order for nations Helps ensure evidence still reliable No hardship on Plaintiff The Case Concerning Oil Platforms (Iran v. US) (ICJ 2003) (Iran and Iraq laid mines, but Iran-US have 1955 bilateral treaty saying that they would not impede commerce) I:can Iran be held responsible even if Iraq cant, and can Iran be held respnble for indivisible harm caused by both [is joint and Sev liab a GPIL?] H: Simmas separate opinion: tortfeasors are jointly and fully liable for the damage qualifies as GPIL under Art 38. R:Considered common law of: [US, Canada, Germany, france, swiss] Found: All countries apply in very consistent manner Seems like a fair principle greater injustice would be not compensating injury at all Issue how many countries needed to establish consensus/consent? Need to look more broadly to find a general principle: should look beyond 5 Western countries. Consent fictitious otherwise.

v.

Judicial Decisions

I: Should the ICJ issue an advisory opinion, even when parties dont want to litigate issue in ct. Basically use previous decisions as precedent...but technically not precedent and Not Binding..... Reasons: o Consistency o Predictability Teachings of leading books....

Art 38: Apply judicial dicisions, subject to Art 59, as subsidiary means for determining rules of law. Jud decis: Not actually sources of law, rather means to determine its rules.

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Article 59: decisions of ICJ are not precedent, binding only between the parties in particular case. Used to ascertain the law, not binding. No stare decisis in international law. Reasons: 1) theoretical: international law is based on consent of the parties, 2) practical: international court could bind the rest of the world with its views, 3) Historical: international law was shaped by Western civil law countries where judicial decisions arent binding in the official sense. Legal Consequences of the construction of a Wall in the Occupied Palestinian Territory (ICJ 2004) (I: Can ICJ give advisory opinion [ especially when parties dont consent to juris]) H:Advisory opinion of ICJ: cites its earlier decisions to say that an advisory opinion is ok to give such an opinion: R: looking at 1950 decision o Lack of consent no bearing on ICJs juris in giving advisory opinions [even where legal question pending] bc as adv op. is not binding No state can prevent adv. Op. which UN wants bc ICJ is organ of UN which is entiteled to request Are circumstance where might refuse o Actual dispute existing not sufficient reason for IJC to decline ICJ has contentious jurisdiction and has ability to render advisory opinions (organs of UN can request these). Advisory opinion doesnt bind anybody, so lack of consent does not matter. Andreas Zimmermann, The Statue of the International Court of Justice: Int Law: in theory precedent not binding, no stare dicis o Reality: ICJ: 1) hesitates to overrule decisions, 2) ofetre refers to previous decisions/reasoning even advisory opinions with diff parties In reality, precedent is used. Legal systems must abide by prior decisions for predictability, stability and consistency. Reasons for this: Judgments are logical application of legal norms to given facts o Must ensure consistency to provide predictability o Its a necessity that earlier case law is respected

vi. Teaching of the Most Highly Qualified Publicists (top scholars of the world)
Is it an actual source of law???? ICJ: teaching of most highly qualified scholars is subsidiary means for determing rules of Int law [not true source of law] o Writings are considered valid on their own, not on basis of sources like domestic treaties.... Rely on objectivity of scholars- if not objective not highly respected Not sources of law in technical sense, but have researched and summarized international law that is out there. 38(1)(d) of ICJ: look to scholars as evidence of what the law is. Anthony DAmato, Collected Legal Papers III (1995): Different from US treaties and authorities, which are based on case authority or become legitimate through citations in judicial opinions. International law tests look for a general statement of an international norm. The writers are more like a judge: use thousands of events to come up with consistent doctrine to explain them. They are neutral, disinterested and objective. US v. Yousef (2d Cir. 2003): the writings of leading publicists themselves, publicists' writings are not true sources of international law, though they may be useful in explicating or clarifying an established legal principle or body of law. o Doesnt necessarily constitute strong evidence of state of law RATHER, they shed light on a particular question of international law only when recourse must also be had beyond the opinions, decisions, and acts of States, and only then to a lesser degree than to more authoritative evidence, such as the State's own declarations, laws, No democratic legitimacy. ONLY USE as secordary source as evidence of establish practices of states Flores v. Southern Peru Copper Corp. (2d Cir. 2003) (Court did not give expert affidavits evidentiary weight) These affidavits more like supplemental briefs: advocating for a position (partisan) not the type of writings that should be considered...not objective

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Scholarly works are not speculation of what law ought to be but are evidence of what the law really is - distinctly given 2ndary role. Experts must be neutral, reliable and trustworthy. vii. Integrating the Sources Important to understand how sources of law evolve and intereact o Example: environmental law 1920s no law whatsoever cts had to look to domestic law to derive rules Eventually sufficient # states recognized as GPIL 1950s - As more recognized, some crystallized rules became customary 1970s - Codification occurred by one body....didnt end role of custamory law 80s explosion of treaties Process would be impossible w/o gen principles jumpstarting process of Int law formation.

IV. Dispute Resolution: A. Part One: Classic View: The Ad Hoc Approach i. Among Sovereign States A) War o The Melian Dialogue, Thucydides ( Athens tried to get X to surrender with show of force X asked to remain friends/allies on terms favorable to A. A refused and destroyed X. In absence of international law, can only negotiate, if that fails, do nothing/war.

B) Just War o Hugo Grotius, The Rights of War and Peace (1625): Law of nature: favors war in case of necessity. Voluntary Law of Nations doesnt disallow war: solemn war is ok (just cause and conducted in particular way), even war not solemn is not condemned. May have to repel force by force and to repel violence and wrong. War must be between states however and is not per se wrong. o Neff, War and Law of Nations (2005): midevil theologians constructed just war theory w 5 criteria: 1. by sovereigns - in defense of others, 2. waged by lay men (no damage to civilians) 3. well-defined objective 4. just cause war must be based on valid legal claim [strictly objective question since only 1 side could have valid claim, war cannot be just on both sides. Also, war could not be just if alternative peaceful solution existed] and 5. for right intent (must be waged out of love/to enlighten, not out of hate)(subjective what are personal reasons? Glory, revenge = unacceptable). Constrains war to some degree. C.) Ad Hoc Arbitration (legal mechanism to resolve issues other than war) There really is no enforcement mechanism.. ...would have to go to war to recover. o Originally no formal institution, only papacy between catholic states occasionly o Origin of modern international arbitration: US and UK concluded Treaty of Amity, Commerce and Navigation (Jays Treaty) (1794): agreed to settle questions by joint commissions: 1-2 representatives chosen by each country, who then chose neutral third or fifth member o The Alabama Arbitration (British allowed Confederates to take Alabama out of their port) US & Brt set up arbitration tribune of 5 reps. 1 US, 1BR, 3 selected by neutral countries. Selected rules to govern arbitration (int law), although Brt said not actually accepting as its version of int law just abiding by for this Arb. No pre-fabricated institution to resolve issues. No enforcement mechanism: To enforce, US could have put diplomatic and political pressure, appealed to good will, or Britain just would look bad. Today, US could go to UN. Even with pre-fabricated system, would have to rely on other sides good will, etc. No guaranteed enforcement. o The Permanent Court of Arbitration under Hague Convention (1899): not a permanent court, only institutional framework and mechanism for setting up arbitration tribunals. each party selects 2 members, who select a 5th. Fell into disuse, but experiencing a revival of sorts.

17 ii. Dispute resolution - Among Private Parties Harold Berman, Law and Revolution: Used to have specialized courts for merchant class that

characterized by: 1) Procedural speed and 2) efficiency, 3) equity, 3) informal stark contrast from formal royal cts. o were they private or state? private? Procedural [sorta quasi state backed up, but privately administered. The states took over with the consolidation of power in 18th century....now there has been a revival of private arbitration in international commercial law ] Cases often same day Gave merchant til Monday to find 6 people that the wine is his Hilton v. Guyot (1895) (Americans did business in Paris. Were sued in French commercial court, judgment against. They took all property out of France. Frenchmen wanted US to enforce judgment. Not enforced) o Advantages of suing in state court: have state enforcement behind the judgment and an established court system, procedure and rules. o Disadvantages: Ps problem if D wont pay judgment and leaves the country. Enforcement power limited to the state. Ps must win in other courts too, where assets are located. o No treaties, customary international law that governs enforcement of judgments. o But comity, says that in principle, US will recognize judgment: if certain conditions are fulfilled: voluntary appearance, no fraud or prejudice, due process met (under the laws of that State), if court system is generally recognized as trustworthy, Court has jurisdiction under their laws. o BUT there is also a reciprocity requirement, which was not met here. Court finds reciprocity in works by US scholars, foreign authors and from practice of the majority of European countries. Maybe like a general principle. o Dissent: should apply principle of res judicata, based on domestic law. Uniform Foreign Money Judgments Recognition Act 1962: Most U.S. states have adopted this act. Hilton codified, except no reciprocity needed. o Applies to final and conclusive foreign judgments o Recognizes: foreign j which awards $. F.J. is enforcible in same manner as in that state granted full faith/cred o Not conclusive if: Granted by non-impartial tribunal or no due process Granted by tribunal w/ no P or SMJuris o Deny recognition if: No meaningful notice to D Fraud COA is against pub policy Conflicts w/ another final + conclusive J Proceedings contrary to agreement btwn parties Juris based on personal service + forum very inconvenient.

Now: enforcement of foreign judgments depends on state law. State courts decide if there has to be reciprocity: usually not, just ask if there is due diligence on the judgment and then accepts them. Requires: personal and subject matter jurisdiction in system that provides impartial tribunals and procedures compatible with requirements of due process of law. Should also give notice, be absent of fraud, the cause of action/claim for relief cannot be repugnant to the public policy of this state, cannot conflict with another final and conclusive judgment, cannot be contrary to an agreement between the parties, and the foreign court was not seriously inconvenient forum for the trial of action.

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UFMJRA- applies only to international Whats diff from Hilton? 1. Doesnt mention/req reciprocity 2. Important that it is a Uniform act American statute domestic law We use our own interp of what to respect- Maj of Hilton lost this debate.... Now we think in terms of state law, not even dealing with Fed law... 3. Basic principle: will treat it like FF/C clause...basically codifies Hilton will accept unless defective attitude remains. Today 1. State law is applied (domestic) 2. No reciprocity required.

Where do you take your dispute? P goes to French Ct here no international ct to go to.....only other alternative is American ct. o Not ideal, bc one will have a home field adv. Lays foundation of recognition of judgment particularly money Js Issue of US fed ct: o Can it go to the merits of the case?....or simply recognize the judgment and give it res judicata o Maj and Dis agree on treating as res judicata Disagree about: what are the conditions to approve the judgment: What body of law do you look at to determine if we will enforce: o Maj: Commity consults international practice what are other nations doing? o Dissent: bases on domestic law? o Presumption in favor of enforcement

where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact. The defendants, therefore, cannot be permitted, upon

2 stages of questions to think about: 1. Separate or not? 2. Where does it rank in comparison to domestic law? Dualism [IL between states. DL within state] must consider: o mutual influence between the two o the possible incorporation of IL into Dom law o Rank of IL compared to DL different kinds of Domestic Law Must distinguish between Customary and Treaties..... Hilton ct we are wiling to recognize judgments based on commity Agreements: o There must be due process though doesnt have to be ful extent here in US Disagreements o Maj Gray commity is a mutuality principle o Dissent We determine whether to accept foreign judgements based on domestic law...we dont need commity o In long run, disenters were more correct now, its a matter of

V. Domestic Effects:

19 A. Part One: Classic View: Monism and Dualism

i. ii. These are ideal types: dont exist in purity in the real world. The Traditional Dichotomy Monism: international and domestic law are part of one unified system of law. o International law can be directly applied and is automatically a part of your own law. o Default: international law is part of our law unless it conflicts. Dualism: international and domestic law are in 2 separate systems. o International law is between states, domestic law is within states. o Laws cannot be integrated automatically and need an act of legislature to implement. Dutch: Monist and ranked on constitutional level. binding (become domestic law) .....Art 94 (only applies to customary law) German: customary international law: monist, doesnt speak to treaties (but dualist) Britain: Treaties: dualist (transformation: need act of Parliament), customary international law: monist (doctrine of incorporation) o [Treaties] - Based on principle that only parliament can make laws ....needs approval even though executive sets it up....traditional for British based countries o South African: like British Argentine: monist w.r.t. human rights treaties, which are of constitutional rank. o Strong emphasis on human rights Give select (enumerated) treaties direct effect. Bosnia and Herzegovina: European Convention: monist w.r.t human rights treaties, not clear about other international laws o Applies Euro convention ..... US: sounds monist [based on the text of Const is monolist FOR TREATIES wanted to give treaties direct effect - because as a young nation we wanted to make a lot of treaties that would help protect us. o o Art. 2, 2: Treaties are supreme law of land: monist. But must be self-executing (most are not). International law doesnt prevail over Constitution (treaties or customary international law) o Paquete Habana: international law is part of our law (as long as firmly established customary intl law). o Literature says US in practice is more dualist. o Conscious decision to be different from Britain, thus wrote in monist language. Foster v. Neilson (1829) (Dispute over land: whether title to land was confirmed by treaty between US and Spain. Had not) o Treaty language said that it had to be ratified and confirmed by act of legislation. The treaty did not affirm the titles, but said the states shall: not self-executing. o This treaty was more like a contract: promise to change the law, not actually changing it or creating any new rights. Self-executing treaties can immediately be put in force (monism) Non-self-executing treaties cannot and must be implemented to domestic order (dualism) o But still enforceable between states, just not in federal court. o Distinguishing self-executing and non-self execting Marshal looks at trteaties as mainly contractual...between states...others SPLITS US VIEW INTO BOTH MONO AND DUALIST IN REGARD TO TREATIES o HOW DO YOU TELL SELF EXECTING V. NON? Marshall says ...here: not is confirmed ....shall be confirmed NOW: Does the senate say? Orpresident? Does the treaty say legis approval needed? Is language specific enough to directly apply? Is the matter politically sensitive If yes cts will shy away for calling it self-executing Ie: int. covenant on civil and political rights. Same are mixed with portion that are self executiong and othtres that are not. Very often the treaty will say so.....and the senate will explicitly

Senate usually states outright if a treaty is self-executing or not when ratifying.

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Politically sensitive treaties are less likely to be self-executing. Some treaties are partially self-executing. Customary international law is no doubt directly applicable (Paquete Habana), but may not create a cause of action: binding by acquiescence though. (gets into courts more directly) o Default rule we follow But where does it rank? Gen Principles: We dont know.

iii. The Rank of International Law in the United States Treaties (if self-executing) Constitution says treaties are supreme law of the land, which means on level with federal law and prevails over state law. Murray v. Charming Betsy (1904): An Act of Congress should never be construed to violate international law, if it can be construed otherwise in cases of doubt we will read domestic law so that not in conflict) Whitney v. Robertson (1888) (Treaty with DR saying that imports should be treated as favorably as similar items from other States. Hawaii not charged duty on molasses, importer from DR was. Statute imposing duty beat out treaty) o Last in time between federal statute and treaty holds. o Consequence: in violation of treaty, treaty still binding in international sphere, just not in domestic sphere. VCLT 27: cant use domestic law as excuse for failure to perform a treaty. Lose political credibility but treaty is not really enforceable. Reid v. Covert (1957) (Constitution trumps treaties) o If a treaty is unconstitutional, then bound outside, but not internally. Treaties even if self executing cannot violate the constitution No enforcement domestically as statute....but doesnt necessarily invalidate our obligations to other nations..... Customary International Law Clear that customary international law if ascertained and recognized, is on par with federal law and trumps state law. Earlier customary international law loses to later federal law. If federal law is earlier, probably it still wins out over customary international law. Yousef dicta: Restatement (Third)s saying that customary international law might trump prior inconsistent statutory law is without merit or foundation. Shows did not consent to the customary international law. Can CIL override fed statutes? Not sure...bc CIL is weaker than treaties... Judicial Decisions (see Part Two) Very problematic though

TREATY MAKING POWER IN US Art 2 2 the president shal have power, y and with the advice and consent of the senate to make treaties, provided that 2/3rds of the senators present consent. o President makes treaties but they only become binding with 2/3rds approval of Senate. Issue 1 can president + senate make treaties that are squarely in states realm of power? Missouri v. Holland (1920) (Missouri says that a statute enforcing treaty is unconstitutional under 10th Amendment. Held: is constitutional) if treaty valid, then statute is valid as proper and necessary. Treaty-making power is authorized in Constitution. o Treaty-making power is broader than statute-making power: Article 6 says laws pursuant to the Constitution, BUT treaties under the authority of US. o So can make treaties about things that Congress may not be able to do directly through law-making (they are limited to Article I enumerated powers). Limits: (1) cant be expressly prohibited by the Constitution, and (2) here, there was no invisible radiation of the 10th Amendment that was violated. Dicta: this case was about a national interest of very nearly the first magnitude. o Probably just means that the treaty must involve an international subject. B. Alternative Forms of International Agreements

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Congressional Executive Agreement: President and passed by both houses of congress by simple majority (just like a statute). o Avoids blockages in Senate, ensures more broadly based majority support in the legislature. o Binds US internationally o Subject to the enumerated powers: can't go beyond Article I. Sole Executive Agreement: made by President alone (no congressional involvement). o Has to be covered by sole executive power or authorized by delegation of Congress. Allows executive to move quickly. o Validity in principle is accepted. o Probably ranked above state law. These are not treaties in the domestic sense, but are in the international sense usually (usually in writing, governed by international law).

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C. Part Two: Modern View: The Blurring of Lines The Modern Interplay Between International and Domestic Law US was member of Vienna Convention of Consular Relations of 1963. Art. 36 is self-executing with regard to rights of individual and consulate. US also was member of the Optional Protocol that gave jurisdiction to the ICJ for matters arising out of the Convention. 36(2) conformity clause: exercise Art. 36 in conformity with laws and regulations of receive State, but must enable full effect to given purposes for which the rights accorded under this article are intended. Setting the Stage: The Case of Angel Breard o Breard v. Greene (1998) (Breard convicted of murder in jury trial. Was not allowed to bring up Vienna Convention violation in habeas motion b/c had been procedurally defaulted when did not raise in state court. ICJ issued provisional order to US stating that US should take all measures to ensure Breard was not executed) Procedural default rule wins out: ICJs interpretation of an international treaty is given only respectful consideration (not binding) Convention does not trump procedural default rule due to Art. 36(2) conformity clause (Convention applied in conformity with local law) and because the AEDPA was passed after the treaty (1996): last in time rule. Also, no real effect on the outcome: Breard did not plea guilty and instead testified against attorney advice. Dissent: should examine the record more fully, arguments could have merit: should give more time for briefing. The Second Round: The Brothers LaGrand o La Grand case (ICJ 2001): ICJ found US had breached Art. 36 obligation vis--vis Germany and the LaGrand brothers. Also breached obligations under Art. 36(2): did not permit review and reconsideration of conviction of German nationals who were not informed of their rights. US should allow review and reconsideration, taking into account violation of rights set forth in the Convention. Round Three: The Avena Group (Mexico brought suit in ICJ in 2003. ICJ again issued provisions measure to stay executions) o Case Concerning Avena and other Mexican Nationals (Mexico v. US) (ICJ 2001) (Mexico had over 50 nationals on death row) Those that did not exhaust all remedies yet still had time for review and reconsideration of conviction and sentence, so did not discuss them. Those whose convictions and sentences were final: US had breached obligations toward them. Remedy: US must reopen the state and federal law procedures to allow review and reconsideration: whether the violation of Art. 36 prejudiced the Ds. Applied only when Art. 36 violation was a consequence/fault of the State. ICJ wouldnt accept clemency as remedy (too discretionary): needs to be remedied through judicial process. o After this decision, the US withdrew from the Optional Protocol (promissory clause giving ICJ jurisdiction) Under Vienna Convention on Law of Treaties: can withdraw if implied by nature of the treaty (ICJ jurisdiction: default is over states who consent, so obviously optional, but usually 12 months notice must be given). Affects US: US has most citizens abroad at any one time: US cant sue other countries for violations of Vienna Convention Round Four: Implementing Avena? o Medellin v. Dretke (2004) (Medellin, one of the convicts on death row covered by Avena was granted certiorari by Supreme Court, but then was dismissed without decision on merits awaiting outcome of Medellins petitions to state court. If won, then would render Supreme Court case moot) o Sanchez-Llamas v. Oregon (2006) (Sanchez-Llamas was not a part of the Avena case.) The ICJs decisions in Avena did not overturn Breard: Procedural default rule still remains law of the land. ICJ decision is not binding precedent:

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Treaty interpretation is the province of the judicial department of the US, headed by the Supreme Court. ICJ interpretations are not binding, even on itself (Art. 59). US further withdrew from optional protocol, so does not recognize ICJ jurisdiction. Dicta: ICJ interprets Art. 36 in civil law manner, without understanding of the adversarial system. Procedural default rule still holds b/c Art. 36(2) says that Convention is applied in conformity with local law Ginsburg concurrence: Bustillos lawyer knew of the Vienna Convention and yet did not raise it: that is not fault of the State, which is a prerequisite to reconsideration in Avena. Breyer dissent: Vienna Convention is self-executing. I CJ provides expertise and uniformity in treaty interpretation. Only asks to override procedural default rule when it was the failure of the US or a state to inform a D of their Vienna convention rights. o Torres v. Oklahoma (Okla. Ct. Crim. App. 2004) (concurrence: Should give full faith and credit to Avena decision. Optional Protocol gave ICJ jurisdiction. Give deference in treaty interpretation to Executive Branch and Senate who ratified treaty. State Department also turned to ICJ to provide binding resolution of disputes under the Vienna convention. Must look at Vienna Convention claims on the merits to give fair and just review to Torres case). o 4 options for Supreme Court: continuum of deference: Full faith and credit model: gives to ICSID tribunal awards. Arbitration model: NY Convention requires recognition of international tribunal judgments Foreign judgment model (Hilton v. Guyot): good faith if meets standards Charming Betsy model: can read federal statutes in manner consistent with international law obligations. Should at minimum give Hilton v. Guyot treatment: at least binding between the parties to the judgment. o Medellin v. Texas (2008) (Medellin: lost in Texas state court, back in Supreme Court: Named person in Avena) Avena does not apply: Medellin was not a party in front of the ICJ: only states can be parties, so res judicata does not apply. Dissent: But Medellin is sort of a party: Vienna Convention creates individual rights, Mexico was suing on his behalf too. Missing the point of the Vienna Convention. The Avena judgment is not binding domestic law: The remedy for non-compliance with ICJ decisions under Art. 94 of UN Charter is to seek recourse with the Security Council (US would veto sanctions or remedies), which provides only a non-judicial remedy. Further, Art. 94 is not self-executing so the ICJ judgment is not self-executing. Senate would have expressed if they wanted ICJ decisions to have direct effect. Dissent: But the Vienna Convention is self-executing, and the UN Charter Art. 94 says that nations will undertake to comply with ICJ decisions: thats binding language, and the Optional Protocol: US submitted to ICJ jurisdiction: doesnt make sense to make a self-executing promise, promise to accept ICJ judgment and then say the judgment is not self-executing. States can decide how to deal with ICJ decisions. US is bound by international law. o Bush wrote a memo stating the US would discharge international obligation under Avena by giving effect to decision after the first time Medellin was brought to Supreme Court. Texas said Bush did not have constitutional authority to tell state courts what to do: violation of separation of powers doctrine. Medellin v. Texas (cont.): Only Congress can unilaterally make a non-self-executing treaty into a self-executing one. President does not have this power under Article II. No congressional acquiescence to allow this. President cannot commandeer the courts, can only ask state courts to follow ICJ decisions for comity reasons. o Germany Constitutional Court: prefer interpretations of international law by international tribunals over other possible readings, even if Germany was not a party to the proceedings before the ICJ. Coda: The End of the Long Road States win: do not have to abandon procedural default rules. But US has started programs to get federal and states to comply: nearly 90% compliance now. Congress could have amended the death penalty act, but didnt (filibuster). Texas did not follow Avena ruling and executing Medellin, but agreed to support future federal court review of claims of prejudice by persons subject to Avena resulting from failure of consular notification. The Blending of Public and Private Elements in International Law

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Iwanowa v. Ford Motor Company and Ford Werke (D.C.N.J.1999) (Iwanowa was taken by Nazis from Russia, sold to Ford Werke for forced unpaid labor. Sued both Ford and Ford Werke under ATCA and unjust enrichment) o 12(b)(6): claims were non-justiciable and international comity required dismissal (dismissed with prejudice) 4 treaties post WWII: reparations owed the allied powers. Yalta and Potsdam: US, UK, and USSR met and agreed that Germany must pay losses caused to allied nations during course of war. Paris Reparations Treat: Distribution of reparations between nations who were not part of Potsdam Conference. Was supposed to satisfy any and all claims held by a nation or its nationals against Germany or German companies. Left claims by nonrepatriable individuals open (not Iwanowa) Halt of reparations Transition Agreement: state bankruptcy: deferred payment of share of reparations until later date London Debt Agreement: Enable Germany to rebuild without worrying about reparations. Defer reparations until regained financial health. Also deferred claims by nationals. Two-Plus-Four Treaty: Final settlement of the problem of reparations. o Court did have subject matter jurisdiction: ATCA creates subject matter jurisdiction and private cause of action. Forced labor violates the law of nations: slavery is an erga omnes violation. Law of Nations applies to individuals for piracy and slave-trading (not torture). Doesnt really matter though because Ford Werke was de facto state actor: like an agent of the German Reich. o Claims against Ford (US) (private law: unjust enrichment) barred by statute of limitations: time began running from the Two-Plus-Four Treaty in 1991. German SoL: 3 years, US: 7 years o Nonjusticiable claim: cannot sit as ultimate judge on foreign policy issues: better left to executive branch. o International comity: German government has taken position that foreign citizens may not assert direct claims for war-time forced labor against private companies. International and Comparative Law Arguments in US Courts Lawrence v. Texas (2003): Kennedy looked at foreign laws to overturn Bowers: European Convention on Human Rights proscribing homosexual conduct were invalid. Such prohibitions rejected elsewhere. o Scalia dissent: court should not impose foreign moods, fads or fashions on Americans. Justice OConnor: promotes foreign and international law use by Courts: look at how foreign courts or legislatures have reasoned to reach a rule. House of Representatives Resolution proposed in 2004: keep foreign and international law out of courts. Larsen, Importing Constitutional Norms from a Wider Civilization: Lawrence and the Rehnquist Courts Use of Foreign and International Law in Domestic Constitutional Interpretation (2004) o Uses of foreign law in actual opinions o Expository: to contrast and thereby explain a domestic constitutional rule. No problems with this use. o Empirical: derives general rule of decisions from domestic sources. Looks abroad to see what the effect of the proposed rule might be and to ascertain whether the effect will comply with constitutional principle the Court derived through domestic sources: use in Glucksberg of example of Netherlands where physician-assisted suicide is allowed. No problem with this use. o Substantive: what the substantive content of a constitutional rule is or ought to be. Looks at foreign and international cases. Reason-borrowing Not used Moral fact-finding: No constitutional backing for this use: finds that Western Europe thinks that something is wrong, so it should be unconstitutional in the US, etc. Could wait for the legislature to incorporate foreign and international law: but they dont do it. Supreme Court is accused of cherry-picking. Eighth Amendment most susceptible to international perspectives: unusual needs probably a world-wide perspective. Baker v. Canada (1999) (Jamaican citizen entered Canada on visitor visa and remained illegally. Had 4 children, 2 were dependent on her for support. She was mentally ill. Was denied exemption for humanitarian and compassionate reasons. Immigration Act does not expressly incorporate International Convention on the Rights of the Child)

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Supreme Court of Canada said that although Convention has not been implemented by Parliament, the values reflected help inform contextual approach to statutory interpretation and judicial review. Legislature is presumed to respect the values and principles enshrined in international law. Convention shows importance of rights and best interests of children. UN Declaration of the Rights of Child also shows this principle. Guidelines issued by Minister recognize the Conventions approach: humanitarian and compassionate considerations o Dissent: Convention not implemented, so should not have to take best interest of child as primary consideration under the Immigration Act. Affects balance of Parliamentary tradition. Gives executive power to bind citizens without the necessity of involving the legislative branch. South African Constitution: MUST consider international law, may consider foreign law. o

B. Part Two: Modern View: State Clubs and Non-State Players i. Rise of new states : State recognition: o Why does it matter: Get protections of being a State: UN collective security, non-intervention, can enter into treaties. o Stefan Talman (2004): Constitutive theory (as opposed to Montevideo Convention view): a state is only a State with recognition. Positivist view based on idea of consensual system of legal relations. Non-recognition has status-preventing effect. Problem with constitutive theory is that it makes statehood relative. But states are natural-born and should not be relative subjects of international law treated by existing States: at odds with sovereign equality. States have international responsibilities, even if not recognized. Recognition is just evidence of statehood. International legal personality of a State and its rights and obligations depend on ability to satisfy criteria for statehood. o Taiwan History: Became part of Chinese Empire in 1683, ceded to Japan in 1895 under Treaty of Shimonoseki, restored to Republic of China in 1945 in the Cairo Declaration (1943) by the Allies (affirmed by Potsdam Proclamation of 1945). 1928 civil war in China, 1949: Republic of Chinas forces retreated to Taiwan: not puppet but genuine revolutionary government. During Korean War (1950), Truman had fleet patrol the Taiwan Straits to prevent attacks from either government on the other. Japan in 1951 during the Peace Treaty renounced all claim to Taiwan. Republic of China signed Mutual Defence Treaty with US (1954), naming Taiwan as part of China. Under Montevideo Convention Taiwan has permanent population (23 million), territory and government (democratically elected). Not clear that Taiwan can enter into foreign agreements: Cant with China, US wont either. Less than of the world gives Taiwan an embassy (relatively powerless states, but sovereign equality), not part of UN. WTO has allowed Taiwan as a member (beneficial to members: can trade with Taiwan with low tariffs, China was not part of WTO at the time and does not have veto vote

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there anyway), but WTO calls Taiwan part of a customs territory, so not really saying Taiwan is a separate state. Taiwan maintains full diplomatic relations with the Holy See and 23 States Members of the UN. Visa applications to Taiwan not provided by Chinese embassy. UN General Assembly request for Taiwanese representation in UN: Belize, Burkina Faso, El Salvador, etc. addressing UN Secretary-General. Not a very impressive group, but Taiwan supports these countries and thus asks for political support in return. China can veto Taiwans entry into the UN.

State Succession o Cassese (2005): Revolutionary changes in government do not bear on identity of a State: international acts performed by a government are binding on the State. All rights and obligations persist. (Iran) Changes in territory may affect legal personality Dismemberment, merger, or incorporation. Seceding part may acquire international statehood. If continuation, rights and obligations will persist, with adjustments. (Russia) Less clear when a State replaces another one on a territory: whether rights and obligations of the former State are transferred to the other international subject, but assumption is that it takes on the rights and obligations in principle, with some adjustments. (Czech Republic) Entirely new state: clean slate. (US) o Customary law, codified in 2 treaties: 1978 Vienna Convention on Succession of States in respect of Treaties Localized treaties that impose obligations and confer rights with regard to specific territories: these attach to a specific territory, so are not affected by mere fact of State succession (binding on new entity). Non-localized treaties: Newly independent States (successor States that was a dependent territory on predecessor State): clean slate principle: not bound by treaties in force for the territory at the date of succession (anti-colonialist) Other States: continuity: binding on successor State. Human rights treaties: must be respected by successor State (individuals should continue to be protected). 1983 Vienna Convention on Succession of States in respect of State property, Archives and Debts (not yet in force) If public assets, the State that holds control over the territory where assets are located succeeds the previous territorial State with regard to ownership. Same for State archives. Public debt: if a State break up: State debt passes to successor States in an equitable proportion. Membership in international organizations: Merger: apply for admission as new State (but in practice, no admission required). Break up: all apply for membership, except for if one is a continuation of the old State. Secession: apply for admission as new State. o USSR: Russia claimed that it was the continuing state of USSR. Continuity depends on objective criteria: geography, how they view themselves, admission into UN, consent by other states, etc. and subjective criteria: size of the State and the history Objective: Letter to UN from Permanent Representatives of the USSR consenting. Russia behaved as the continuing State and the other Commonwealth states supported Russias continuance. Russia also retained membership of international orgs. Subjective: Russia was treated as the same state, but under a different name and shrunken in size. It was the largest in size of the remaining countries. Armenia, Azerbijan, etc. applied as new members of UN by 1972. Estonia, Latvia and Lithuania were admitted as new members to UN in 1991. Implied that Russia assumed all treaty and other international obligations of USSR. But had to adjust its rights and obligations due to territorial changes (loss of coastline, etc.) Other republics, as successor States, also maintained some rights and responsibilities: through Treaty on Succession, decided each would pay a fair share of the debt, and right to fair share of property. Accepted in UN as such: prevented fighting over Security Council seat.

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Inherited all prior debt, rights, obligations and treaties. Adjustments: since some treaties, etc. depended on territory (coastlines, borders, airspace), had to adjust. Intergovernmental Organization (IGOs) First IGOs: mid to late 19th century: narrowly circumscribed in purpose, few in number. o League of Nations in 1920: established international platform to diffuse conflict on the scale of WWI, but there were bad starting conditions (US refused to participate: Senate, rise of totalitarianism in Europe). Broke down in face of German and Japanese aggression. Purpose: To facilitate cooperation, to resolve intl problems that individual governments cannot solve by themselves. Founding documents are (usually multilateral) treaties: agreements between states governed by international law. Member states join IGOs as a measure against internal problems. Also gives internal legitimacy for difficult policies. o Costs: considerable overhead to maintain representatives, give up some measure of sovereignty. Structure: founded on treaties that sets up organs, procedures, and how to ratify, etc. They have legal personality. One of main issues: question of political legitimacy: making decisions that impact lives of individuals around the world. Transparency problems. Post-WWII: European Union, NATO, International Labor Organization (ILO), WTO. Now 251 IGOs (from123). o UN (foster peace and security for member states) Kant (1795): Promoted idea of states entering into a civil constitution for security reasons (need a league of peace to end all wars forever). Law of Nature: sovereign states act in their own self interest which is uncontrolled and leads to war, etc. Work through mutual promise not to tolerate the use of violence by any member: the rest of the members would collectively stop that member. Cassese (2005): History behind structure of UN US plan: resort to military force in international relations banned, removal of traditional system of unilateral action, major role to powerful allies, promote economic and social cooperation, dismantle colonial empires. British plan: world council umbrella over regional councils to safeguard world security, maintain colonial empires. US won out: more powerful, but compromised by peace-loving nations. Started drafting in 1941 by US and Britain, and finally presented in San Francisco in 1945: 50 nations joined: multinational treaty. Key provisions: amendments required 2/3 majority, establishment of central organ (Security Council): 5 permanent members with veto power, provision on domestic jurisdiction (along with non-interference), right to individual and collective self-defense, General Assembly, Economic and Social Council (ECOSOC) became principal organ, provisions on colonial matters, and prevalence of obligations under UN charter over conflicting obligations. Purpose: **maintain peace and security** (Art. 1), Art. 2: settle or adjust international disputes by peaceful means, develop friendly relations among nations based on respect for principle of equal rights and self-determination of peoples, foster economic and social cooperation, and promote respect for human rights and fundamental freedoms. Organization General Assembly: each State having one vote on matters within the province of the Organization. Important decisions decided by 2/3 majority of members present: recommendations for maintenance of intl peace and security, election of SC members, admission of new members, etc. Other decisions by simple majority. Resolutions not legally binding per se. Seems like legislature, but does not make law. Completely hortatory: what they hope States will do: statement of political, economic goals supported by numerical majority of nations of the world. Can send peace-keeping troops. Security Council: 15 members (Big Five: China, France, UK, Russia, and US), others elected every 2 years by GA. Limited competence: maintenance of peace and security. Decisions: affirmative vote (or abstention) of the 5 permanent members (veto power). Can be legally binding.

ii.

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Make recommendations or decide what measures shall be taken to maintain or restore intl peace and security. Economic and Social Council (ECOSOC): mainly advisory function, no rule-making powers Trusteeship Council: for only colonial matters (dont need anymore) ICJ: 15 members elected by S.C. Can issue advisory opinions and hear contentious cases. Secretariat + Secretary General: negotiators between parties but no official job description. UN charter written like a Constitution: states can opt in or out, contains supremacy provisions. Like a treaty: require ratification and signature. START HERE Reparations for Injuries Suffered in the Service of the UN (ICJ 1949) (UN has capacity to bring international claim as international person: textual argument: it has organs and special tasks, members have obligations, it can enter agreements with host states, and the UN is a subject of international law and capable of possessing intl rights and duties. Pragmatic argument: the UN has to be able to provide adequate protection in order to do what it is set up to do (like necessary and proper clause)) If UN were not found to be an international person, then only the agents home country could bring a claim. Even as international person, UNs and home countrys claims co-exist. UN does not have the presumption of power like a State has, but only the power granted it under the charter. Defendant State does not have to be UN member (first crack in the idea that intl law is purely consent-based). Certain Expenses of the UN (ICJ 1962) (Advisory opinion: GA had the requisite power to deploy peace-keeping forces and member states had to pay their fair share of the expenses. Member states could only argue that an activity was ultra vires (beyond the scope the Charter), but not about the internal power allocation rules) The Cold War hampered the effectiveness of the UN for a while, people were not paying dues, and the Security Council does not have its own troops. The Purposes, Structures and Powers of IGOs o OECD (maintain sustainable economic growth for member states, foster economic development) States may join by invitation only. No judicial organ, has other organs though (Secretary-General, etc.) Unanimous decision-making: maintains more sovereignty (everyone has a veto), binding on all Members (if execute under constitiutional procedure of each state). o WTO (reduction of trade barriers (tariffs, etc.) to foster free flow of goods around the world, to raise standards of living, ensure full employment, etc.) States may request to be members. Ministerial Conference as main organ (meets at least once every 2 years), General Council, dispute resolution body, Council for Trade in Goods, Council for Trade in Services, Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS), etc. Decision-making by unanimity (usually with a lot of arm-twisting b/c there are 150 states). Has legal personality, etc. iii. Non-Governmental Organizations (NGOs) Risen from 832 in 1951 to 43,958 in 1999. Characteristics: o Composed of individuals, but relationship with the individual and NGO is voluntary. o Have moral authority rather than legal authority. o Self-actuated nature: formed by groups of persons to pursue an interest in matters that cross or transcend national borders are not profit seeking., and influence must be earned. o ICJ allows NGOs to submit statements or documents in an advisory proceeding. o WTO permits amicus briefs (although not really in practice). o Rarely has ability to initiate cases: no legal personality in international law. o Article 71 of UN Charter: NGOs serve a consultative role for UN (although specifically refers to ECOSOC) In order to do so, must be of recognized standing w/in particular field or of representative character. Can be an international or national NGO

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NGO must have a democratically adopted constitution, and must have accountability to its members who exercise effective control. Problems: o There is distrust of NGOs influence over governments (pressure of interest groups) Most are rooted in West b/c NGOs require resources and money from voluntary donations of members, etc. BUT now there are transparency requirements: funding, members, etc. o NGO advocacy allows 2nd bite at the apple: allows 1 side to reargue their position in both domestic and then international fora. o NGO cannot fill in lack of democratic legitimacy in international setting, which is what they pretend to do. In democratic domestic setting, they fill the more appropriate role of being single-minded advocates. o Costly to consult with NGOs, may also change outcomes for good and for bad (lead govts to impractical agreements) Benefits: o NGOs allow for a more open and inclusive process of decision making to help overcome democratic legit. problems. Otherwise, handing over authority of important issues to institutions that are not representative. o NGOs can be the voice of the individual. o Legitimacy based on: state consent, procedural fairness, and substantive outcomes (Bodansky). o Keohane and Nye say that NGO representation in international governance institutions can help maintain their legit. NGOs help input legitimacy: promote accountability by monitoring governments, to make them aware of the peoples interest. BUT depends on their independence and integrity and whether consultation process assures fair balance of NGOs from different parts of the world. NGOs also give output legitimacy: give specialized expertise to ensure informed decisions, raises quality of policy deliberations so that choices available are better understood. European Communities Measures Affecting Asbestos and Asbestos-Containing Products (WTO 2000) (Appeal procedures: NGOs must apply for leave to file brief when not party or 3rd party to the dispute: specify nature of interest, be written, 3 page max., description of applicant: funding, members, etc. Brief: 20 page max, only legal arguments) iv. Individuals Individuals have rights and responsibilities under international law (most importantly in international human rights regime, also in refugee and asylum law and rules of nationality, which protects stateless persons). o Rights Origins: Minority Treaties of early 20th Century after WWI (Versailles Treaty of 1919). Hathaway: Goal: To require vanquished states to respect the human dignity of resident ethnic and religious minorities in order to avoid future international conflict (so were made to advance interest of states). Step beyond international aliens law that set standards for treatment abroad of a states own nationals. Minorities Treaties gave external scrutiny of relationship between foreign citizens and own government. Weakened state sovereignty: states could no longer do what they wanted with own citizens. Civil and political rights: access to public employment, right to distinct social, cultural, and educational institutions, language rights, and equitable share of public funding. Formal standing not granted, but could provide information to enforce interstate obligations. Welfare of individual was recognized as legitimate matter of international attention. Set new procedural ground: created international system of collectivized responsibility for enforcement of human rights. League of Nations served as guarantor of human right obligations. But only applied to states that were forced to accept these provisions as terms of peace. States are still the only parties. Human rights are now a fully recognized subfield in the international order. Started as purely soft law but has turned into Hard Law through treaties (At least the civil and political rights have come to be recognized as human rights norms in customary international law or in other multilateral instruments. UN Universal Declaration of Human Rights (General Assembly 1948) (Eleanor Roosevelts brainchild)

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Not binding: no legal force, not a treaty. No remedies provided (no enforcement mechanism). Format looks legislative, but is moral statement, and is clearly aspirational. Moral statements have force: shaming device, provides guilt, comity Soft law can turn into hard law over time: 1940 was not the right time to push a binding document on the world. No one would have signed. Provides rights: Traditional civil rights: life, liberty, security, freedom from slavery, from cruel and inhuman treatment, defendants rights. Socioeconomic rights: work, social security, standard of living, education, rest and leisure, etc. US/capitalist world: wants to limit the rights to civil rights. Other part of the world pushes for socioeconomic rights: that alone gives security and human dignity. Results in splitting of rights. Covenant of Civil and Political Rights (ICCPR) (1966, in force 1976) (almost all states members, US) Treaty: binding on states that ratify, but not self-executing (otherwise many states would not have signed) Mostly monist countries, like Argentina, have ICCPR as domestically binding but otherwise, not really enforceable. About half the States make the ICCPR truly binding. Rights: life, privacy, equal protection, etc. (basically same as first half of the UN Declaration) Establishes Human Rights Committee: 18 members to review State reports on measures adopted to protect these rights. Optional Protocol to the ICCPR (1976) (To achieve purposes of ICCPR) (US not part, ICCPR members) Binding only on states that have ratified both the ICCPR and the Protocol (separate treaty). Ratification means that the HRC may look into human rights violations brought by individuals. Provides remedy for an individual: the first time an individual is empowered to bring a complaint about the actions of a state to an international body. Gives standing and right to seek review. The HRC provides findings, but there is no real enforcement mechanism: rely on good will of states. Still like soft law: individuals must exhaust domestic avenues first, etc. Toonen v. Australia (1994) (Action against Australia, challenging Tasmanian laws that ban homosexual acts under the Optional Protocol of ICCPR) HRC found violation of privacy rights (Art. 17) and anti-discrimination clause of Art. 2, para. 1. HRC recommended the repeal of the Tasmanian laws. Despite no enforcement power, it is hard for a government not to follow the recommendation: shaming mechanism. Tasmania passed anti-discrimination protections that included sexual orientation. Reimann: Australia was behind HRC recommendations (Wanted Tasmania to change outdated laws), so this was an easy case for the HRC. Most cases are harder for HRC, when the State does not agree European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, in force 1953) History: regional regime post-WWII created by the Council of Europe (independent body that has larger membership than EU). Central and Eastern European countries are part. Britain has been in trouble the most (harsh reaction to terrorism and civil war). After the Iron Curtain fell, countries had to sign onto the convention in order to be able to join EU (+ had to show general good record of human rights). Created in response to Europes destruction due to war. Treaty: binding and establishes European Court of Human Rights, includes a procedure and an enforcement mechanism. Individuals can apply and the Court has jurisdiction regarding the interpretation or application of the Convention (quasi-Constitutional review of human rights): but must chose between European Court and UN Human Rights Committee.

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Domestic remedies still need to be exhausted. Judgments are final. Final judgments are binding (46). Committee of Ministers supervises the execution of the judgments. o The enforcement mechanism is effective: not a single case of open defiance. Political consequences would be huge: could be kicked out of EU. European Court provides just satisfaction if States domestic law only allows partial reparation (41) Prohibition against torture, rights to free trial, privacy, family life, non-discrimination. This list of rights if pretty usual now. European Court has a huge backlog of cases. Other regions dont put together such regional regimes b/c of costs (3rd world focus on clean water, etc.) or b/c dont want to give up sovereignty. Creates a longer process (supra-constitutional court): substantial systemic and transaction costs: cases extended another 5 years. Smith and Grady v. UK (European Court of Human Rights 2000) (British Air Force members dismissed after investigations into their homosexual status. They filed claims that UK violated their right to privacy under Article 8 of European Convention) Intrusive questioning into the personal lives of claimants violated Article 8 rights. UKs interference of Article 8 rights was not justified: o There was legal basis for the interference (cannot be by executive fiat but by legislative order): here, under Army and Air Force Acts 1955 and Naval Discipline Act 1957. o BUT once the claimants admitted to being homosexual, the inquiry should have stopped there (procedural issue). Also, the UK did not provide concrete evidence to substantiate the alleged damage to the military to justify the interference (substantive issue): did not show was necessary. o Had UK proved that homosexuals would damage effectiveness of armed forces, etc., then reason would not have been arbitrary and interference could be justified (legitimate aim of UK). o In addition, impact on claimants was substantial (grave interference): they lost their jobs and could not find jobs easily outside of the military, investigation was exceptionally intrusive. That impact outweighed the reasons given by UK for interference (survey mainly showed that people dont like homosexuals and dont want to work with them: not ok in democratic modern society) Ms. Smith awarded 59,000 pounds pecuniary damages, 19,000 pounds nonpecuniary. Mr. Grady: 40,000 and 19,000. Also, UK had to pay 32,000 pounds for litigation costs. o Damages of American magnitude and costs. o No punitive damages but seems to be punitive element. Other countries had stopped such policies in the military. European Court decisions: lots of facts (strong common law influence), balancing 2 characteristics: not margin of appreciation: using super strict scrutiny, allows for some element of political discretion AND proportionality: all interference must be made with maximum restraint and should be proportional to need Inter-American Human Rights System (1969): regional institutions and documents which safeguard human rights under auspices of the Organization of American States (OAS). US not a member. Inter-American Commission and Inter-American Court, oversees American Declaration on the Rights and Duties of Man (1948). Produce reports, request info from governments and receive complaints from individuals and orgs. 1981: American Declaration had binding force on US under OAS Charter, Commission had jurisdiction to monitor US observance of American Declaration. Courts jurisdiction limited to states that voluntarily appear before the court. May give advisory opinions. Individuals may not petition the Court directly. Responsibilities Criminal and civil responsibility for breaches of certain core norms of international law. Began with criminal responsibilities under the Nuremberg Charter (1945). Direct individual responsibility in cases of piracy and slavery: guilty of crime against international society punishable by international tribunals or by any state.

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Treaty of Versailles 1919: individuals accused of crimes against the laws and customs of war brought before military tribunals and individual responsibility of the Kaiser. Only a few trials. Nuremberg Charter 1945: individual responsibility for crimes against peace (planning, preparing, intiating, or waging war of aggression or war in violation of international treaties, etc.), war crimes (violations of laws or customs of war: murder, deportation to slave labor, etc.) and crimes against humanity (murder, extermination, enslavement, deportation, persecution, etc.). Establishes birth of international criminal law. Kind of like a treaty: agreement between 4 States (US, UK, France and USSR), but does not involve consent of the State to which the charter applied (Germany not a party) and no ratification. But treaty governs individuals, not Germany as a State. Not permanent, ad hoc tribunal Imposes individual liability: does not matter if acts were legal under domestic law where the acts were committed or if committed on own soil. No mitigation for officials (no state immunity) (7). Following orders may mitigate punishment, but not excuse (8). Can be tried in absentia (12). General Assembly in 1946 affirmed these principles. Genocide also crime under international law bearing individual responsibility. Genocide Convention 1948 International Convention on Suppression and Punishment of Crime of Apartheid 1973 1949 Geneva Red Cross Conventions and 1977 Additional Protocols I and II (armed conflict): penal sanctions for individuals that committed or ordered breaches (willful killing, torture or inhuman treatment, etc.). Protocol I: making civilian population object of attack, etc. Both individuals and superiors liable. International Law Commission in 1991: Draft Code of Crimes Against the Peace and Security of Mankind (revised in 1996): individual criminal responsibility with regard to aggression, genocide, crime against humanity, crime against UN and associated personnel and war crimes. Security Council condemned breaches of humanitarian law in response to Somali situation in early 90s. International Law Commission in 1994: Draft Statute for an International Criminal Court: Adopted in Rome Statute 1998 (in force 2002, 60 ratifications, not US). Rome Statute: treaty: free-standing international organization, cooperates with UN but created by separate international treaty. ICC: permanent institution, not ad hoc (different from Nuremberg Tribunal) (1) and has international legal personality (4). ICC jurisdiction: most serious crimes of concern to international community as a whole: genocide, crimes against humanity (directed at civilian population), war crimes and aggression. ICC has jurisdiction if either or both the accused is a citizen of a Member State and the crime happened on the territory of a member state (12). ICC has jurisdiction over individuals (25): orders, aids or abets, contributes (intentional), etc. No sovereign immunity (27). No excuse for carrying out an order (28), superior also responsible. Yugoslav and Rwandan War crimes tribunals under UN Security Council. Kadic v. Karadzic (2d Cir. 1995) (Croat and Muslim citizens of Bosnia-Herzegovina, as victims of rape, forced prostitution, forced impregnation. Torture and summary execution carried out by Bosnian-Serb military forces brought an ATCA and Torture Victim Protection Act (TVPA) claim against Karadzic, citizen of Bosnia-Herzegovina and President of self-proclaimed Sprska. Asked for compensatory and punitive damages, fees, and injunctive relief) OK to serve Karadzic with process when he was visiting UN in NY. Private individuals can be held civilly liable in intl law under tort law, even if not under color of law. Certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. Prohibition against piracy, slave trade and certain war crimes are examples where acts of private individuals violate international law. ATCA recognized by executive branch as holding individuals liable for violations of customary international law.

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Restatement 3rd of Foreign Relations Law (1986): individuals may be held liable for offenses against international law, such as piracy, war crimes, and genocide. Private individuals cannot be held liable for torture and unlawful killing (state action required): these crimes are defined by being done under color of law (also as defined under TVPA). Courts have given effect to the state action of unrecognized states. Enough question whether Sprska satisfies the criteria for a state, for purposes of international law violations that require state action: it controlled defined territory and populations, and entered into agreements with other governments, has government, own currency, etc. Besides, Karadzic acted under color of law by working in concert with the former Yugoslavia. On remand, Ps won $275M compensatory damages and $480M in punitive damages in default judgment. Enforcement issue: wont actually get this money, but got recognition of the crimes, day in court. Catherine MacKinnon: Kadic as step for human rights for women (at least in US). State is a male construct in an international sense. Public and private spheres hold womans rights in possession of male dominance. State stays out of private sphere: domestic violence, etc. are protected. Today, could bring cause of action in ICC, but ICC doesnt give private cause of action. Sosa v. Alvarez-Machain (2004) (Alvarez-Machan, the doctor that the US had abducted for torture of a DEA agent, sued the DEA and Sosa, who had been hired to abduct him, under the ATCA, b/c he was the wrong person) Action dismissed under 12(b)(6). ATCA gives jurisdiction but does not create a cause of action. Causes of action under the ATCA are limited to those firmly established claims that were of the kind the drafters had in mind in 1789: offenses against ambassadors, violations of safe conduct, piracy (personal liability for these causes of action). US was nervous about application of ATCA: brought against individuals and corporations, reaching too far. Kadic case would still have come out the same: genocide and war crimes are sufficiently hard core. Courts should require any claim based on present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with specificity comparable to 18th century causes. Restraint, no judicial activism: legislature can make causes of action and collateral consequences that may have implications for foreign relations: should be left to executive. UN Universal Declaration of Human Rights and ICCPR: Declaration is not binding and does not impose obligations. ICCPR is not self-executing, so binds US internationally but not in domestic courts. Reimann: But ATCA does not say violation of international law that is selfexecuting. That logic only works if had sued under ICCPR. Court was just trying to get out of the problem. No customary international law against arbitrary arrest (not arguing about the abduction in this case). If allowed cause of action on US conduct post abduction, would be many more cases under ATCA. Vietnam Association for Victims of Agent Orange v. Dow Chemical Co. (2d Cir. 2008) (US military used Agent Orange during Vietnam War to clear jungle. Caused illness and genetic damage. Sued US corporations under ATCA in US federal district court, saying use of poisoned weapons and causation of unnecessary suffering in war violated international norms. 12(b)(6): no applicable treaty, did not show customary international law: cause of action not defined with necessary degree of specificity) v. International Business Entities (became more international post-WWII) Rights o Treaties gave international business entities own rights, less dependent on state protection. o Case Concerning the Barcelona Traction, Light and Power Co. (ICJ 1970) (Barcelona Traction incorp. and HQ in Canada, operations in Spain. Payment suspended on bonds payable in Spain during Spanish Civil War, Spain did not allow transfer of money from Canada, went bankrupt. Belgium sued Spain in ICJ on behalf of Belgian shareholders)

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Protections of law offered to foreign investors (subject of diplomatic protections) are not absolute or unqualified (not erga omnes like laws against genocide, slavery, and racial discrimination). Obligations that State owes a company are not same as those owed shareholders (Canada could bring claim) Like privity of contract: duties only apply between specific parties. Any other outcome would create confusion and insecurity in international economic relations. ICJ recognizes the importance of corporations as potential victims and indirect claimants in intl law. o Corporations acquire rights under various treaties, including Bilateral Investment Treaties (BITs) Treaty between US and Argentine Republic Concerning Reciprocal Encouragement and Protection of Investment (1991) (some articles were self executing, some not) Most favored treatment clause: no less favorable than that according like investments, etc. to nationals or to other countries. (2) Fair and equitable treatment, no arbitrary or discriminatory measures (2) Give effective means of asserting claims and enforcing rights (2) Expropriation protection clause: No nationalization without proper compensation (4) Free flow of capital in and free flow of profits out (5) Dispute resolution mechanism: first try to consult and negotiate and can take to domestic court. If doesnt work: binding arbitration. Arbitral award: binding and final. International Center for Settlement of Investment Disputes (ICSID), using rules under UN Commission on International trade Law (UNICITRAL). (7) Benefit for Argentina: attracts foreign investments through provision of protection of investments. Before BITs, corporations had to ask sovereigns to bring cause of action. Responsibilities o Ratner, Corporations and Human Rights (2001) Corporations starting to be held liable for their activities that violate human rights law. Economic power of some corporations erode the power of the State, foreign investments have increased. Corporations have power over individuals. States sometimes dont have the resources to control them. States either wont or cannot monitor corporate behavior, could use corporations resources in its own abuse of human rights, and corporations have grown independent of state control. Creates deterrence: corporation, if in best position to prevent violation of HR, would do so if faced penalty. Responsibilities enforced through self-regulation, such as corporate-initiated codes of conduct, NGO monitoring, through statutes, regulations, policy directives (sanctions or litigation), soft international law, and through treaties. o UN Global Compact (1999): UN and transnational business community to promote good corporate practices in human rights, labor and environment. Annual report on how company is following the principles of the compact. Voluntary, no legal obligation and no enforcement. Only shaming mechanism. Derive 10 principles from Universal Declaration of Human Right, International Labour Organization (ILO)s Declaration on Fundamental Principles and Rights at Work, Rio Declaration on Environment and Development and UN Convention Against Corruption. o Doe v. UNOCAL (9th Cir. 2002) (Villagers in Myanmar sued UNOCAL under ATCA for indirectly subjecting them to forced labor, murder, rape and torture when constructing a gas pipeline there. Myanmar Military provided security for the pipeline and committed these crimes) UNOCAL can be liable as private actor Torture, murder, and slavery are jus cogens violations of international law. Forced labor, as modern day slavery, is a violation of law of nations. State action is not necessary for ATCA liability to attach in cases of slave trading, genocide, war crimes. Rape, torture and summary execution does not need state action when committed in pursuit of genocide or war crimes. Forced labor, as modern day slavery, does not require state action. Murder, rape and torture did not require state action here b/c occurred in furtherance of forced labor. UNOCAL can be found to have aided and abetted (no active participant requirement):

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UNOCAL was aware of Myanmars history of imposing forced labor on its citizens, so knew might happen. Borrow aiding and abetting standard from Intl Criminal Tribunals for Yugoslavia and Rwanda: mens rea requirement is that of actual or constructive knowledge that the accomplices actions would assist the perp in the commission of the crime. Similar as in tort law (Restatement). UNOCAL knew that hiring the Myanmar Military to guard the pipeline would have a substantial effect on the perpetration of forced labor (likely to happen). Use of international criminal law standard: most neutral, global, reliable source, or else would have to choose which countrys domestic law to use. Actus reus: UNOCAL profited from what the military did: encouragement on part of UNOCAL. Same for murder and rape, but not enough in record to show that there was torture. After Sosa case, UNOCAL settled: they were in deep trouble after this decision (PR, money, investors, etc.)

Part Two: Evolution: The Complexities of the Modern Order o Traditional order falls apart in 20th century with WWI and WWII: End of colonial empires Dissolution of USSR in 1980s, and then of Yugoslavia. o Horizontal expansion of international law to incorporate new states outside European tradition More states (almost 200, about 3x increase from 60) Nature of actors now: relatively small in terms of population, relatively poor, powerless, but diverse. Classic states are in minority and need cooperation of these smaller states: equality among nations rises in importance. State clubs: international organizations Non-state actors: NGOs, individuals and business enterprises o Vertical expansion to regulate new fields of international activity. Erosion of traditional notion of state sovereignty: relinquish some sovereignty to supranational bodies and weakening of complete sovereign immunity. Expansion of extraterritorial jurisdiction: regulate more and more matters beyond their boundaries, which may lead to clashes between competing jurisdictional claims. Private international law rising in importance: globalization Sources of international law diversified: multilateral treaties, regulatory matter, non-binding sources (soft law): UN Declarations, guidelines, principles in quasi-Restatement form by public and private institutions. Greater number of dispute resolution mechanisms: international tribunals, for both states and intl orgs and private actors. o Blurring of lines between public and private intl law and intl and domestic law. B. Part Two: Modern View: Authority: The Erosion of Sovereignty and the Expansion of Jurisdictional Claims i. Two trends in last half century: 1) Sovereignty no longer absolute states accept limits on their sovereign freedom. o Bound by certain fundamental norms of international law (preemptory and universal norms) Jus Cogens (binding law that is inescapable: no consent needed, and cant agree not to be bound, higher rank) Vienna Convention on the Law of Treaties (1969, in force 1990): Article 53: treaty is void if conflicts with a peremptory norm of general international law. Hathaway, The Rights of Refugees under International Law (2005): Jus cogens establishes an outer limit to the range of subjects on which states may legitimately contract. Some norms of international law that are non-derogable: stronger, higher and more powerful. Not source of law: rather hierarchical designation (higher law), gives greater enforceability to these norms Acquire status of universal law by operation of general principles or custom.

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NOT through character defined approach: cannot depend on political or ideological traditions (must be accepted by all) NOT through majority vote of General Assembly: these are not binding. Scholars dont make international law, but may be informative. Tribunals decide if laws are jus cogens, but this rarely comes up in international courts (ICJ), but many times in domestic courts. Like Constitutional law: higher b/c contain fundamental/basic rights, are more difficult to change, supremacy. Jus cogens are rarely violated. Plaintiffs make broad jus cogens claims, Ds resist these claims: says that you made most egregious kind of violation: knew violating fundamental norm, making it worse. Nicaragua v. US (ICJ 1986) (prohibition of the use of force is a rule of international law having the character of jus cogens, as embodied in UN Charter Art. 2: agreed by both parties) Kadic and UNOCAL: said that torture, murder, and slavery violated jus cogens. Articles on Responsibility of States for International Wrongful Acts (ILC 2001): States have an international responsibility when seriously breach an obligation arising from a peremptory norm. Erga Omnes (universal) obligations (jus cogens, norms of intl law, which create erga omnes obligations) Barcelona Traction case: Court decided that norms that protect foreign investments are not erga omnes, but rather between parties (inter partes). Examples of erga omnes obligations: refrain from acts of aggression, genocide, slavery and racial discrimination. Erga omnes obligations reflect a common core of norms essential for the protection of communal values and interests, which transcend bilateralism and parochial State concerns dominating traditional intl law. In practice however, the erga omnes obligations are still what ought to be followed, instead of what is Main problem: not clear what obligations are erga omnes: they are not agreed upon. Such obligations would give universal standing, so careful about what is labeled erga omnes. Bruno Simma, Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations erga omnes? (1993) Erga omnes obligations would presuppose universal agreement on certain values: enforcement then not up to discretion of individual states, and does not require consent (more like natural law) Other than prohibition of use of force, respect for human rights and a few others, not clear what other obligations there are in the penumbra. UN Charter is like erga omnes law. Jus cogens and erga omnes move us from the classic Westphalian regime that is based on consent (paradigm shift), but only affects a small part of international law. Bind themselves to regimes under which their sovereignty is curtailed (delegation of sovereign powers) Waging War: The UN System of Collective Security (give up right to wage war for system of collective security) Art. 2, 3-4: settle international disputes by peaceful means, refrain from threat or use of force. May use force only with Security Council authorization or in self-defense if armed attack occurs (51). David Bederman: Key to UNs collective security regime is the Security Council: backs up prohibition by allowing immediate economic sanctions (Art. 41) and military response (Art. 42). Purpose of Charter system: prevent or suppress dangerous regional powers from militarizing and challenging the authority of the Great Powers. Enforcement action: Security Council may declare violation of Charter Art. 39 and take action. Cold War deadlock: General Assembly was able to use UN peacekeeping forces under Chap. VI (but only if consented to by the host State). Problems: UN peacekeeping force used as buffer, but doesnt promote negotiation.

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2003 Invasion on Iraq (11/8/02: Security Council adopted Resolution 1441: Iraq in material breach of obligations under previous resolutions and gave Iraq final opportunity to comply with disarmament obligations, stating that they would meet again to consider the situation. Inspectors found Iraq was not meeting disarmament obligations. Security Council did not pass resolution for further action, but US began Operation Iraqi Freedom with an air strike) History: Iraq invasion of Kuwait UN Security Council Resolution 660 (8/2/90): condemning Iraqi action, demanding withdrawal UN Security Council Resolution 678 (11/29/90): Iraq did not comply, one final opportunity, authorized Member States to use all necessary means to uphold and implement resolution 660. UN Security Council Resolution 687 (4/3/91): formal cease-fire, Iraq must destroy WMD US justification (Taft and Buchwald): Security Council resolutions are like treaties, thus Resolution 1441 used language of VCLT Art. 60: material breach of treaty allows for suspending the operation of the treaty in whole or in part. o US says that Iraqs material breach suspended cease fire in 687, restoring authorization under 678 to use all necessary means to restore intl peace and security in the area. They could take action b/c they are a specially affected state as most prominent target of terrorism. o There was a reason thy 1441s language mirrored 678. o Para. 12 of 1441 different from past resolutions: did not require decision by Security Council Preemptive strikes for self defense are justified. US action not justified (Franck): 1441 stated that the Security Council would consider the situation again. US could not act before this happened. 687 was international agreement between UN and Iraq: individual members of UN were not the parties. Only Security Council can say that the case fire was over: use of force is only valid as a last resort and with prior, explicit authorization from the Council. France and Russia vetoed further decisions/actions. Further, use of force allowed under 678 was in order to liberate Kuwait (diff. situation). There was no imminent threat of armed attack, so not self-defense. Preemptive strikes are dangerous: not clear where line should be drawn. US still under obligation of UN Charter Art. 2. Carolene Incident (1842) (British set US steamship on fire that helped Canadian rebels fight against them. British claimed self-defense. US Secretary of State Daniel Webster rejected the claim: necessity was not instant, overwhelming, or leaving no choice of means and no moment of deliberation) 2004 Report by UN: challenges and change: Preventive military action (preemptive self-defense) should be put to the Security Council: risk to global order and norm of non-intervention too great to allow unilateral preemptive action. Security Council is full empowered to address full range of security threats. Humanitarian intervention: non-intervention principle cannot stop interceding in case of genocide (erga omnes violation). There is responsibility to protect, but exercised by Security Council. Regulating Trade: The WTO (give up deciding how States run their trade policies) Objective: reduce barriers to international trade on multilateral basis. History: General Agreement on Tariffs and Trade (GATT) (1948): ban quotas and force members to consolidate all trade restrictions into a tariff. Most favored nation mechanism: any tariff negotiated btwn. 2 countries automatically extend to all GATT members. Exceptions: GATT Art. XX, parties to regional trade organizations, and developing countries. National treatment requirement: imported products treated on = basis with domesticallyproduced goods WTO (Uruguay Round: 1986-1994), including Dispute Settlement Body (binding decisions): umbrella organization administering series of treaties: GATT and other treaties regulating trade.

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General Agreement on Trade in Services (GATS): Most favored nation clause and national treatment Shrimp-Turtles case (WTO Appellate Body 1998) (India, Malaysia, Pakistan and Thailand brought complaint against US on importation of shrimp and shrimp products. US had import ban on shrimp harvested with commercial fishing technology which may adversely affect sea turtles, unless harvesting nations were certified. Panel found that US violated Article XI of GATT and was not justified under Article XX of GATT) Panel did not follow steps of applying customary rules of interpretation of public intl law. Just focused on the design of the measure, not in light of Article XX. Used overly broad inquiry: object and purpose of whole GATT and WTO Agreement, instead of Article XX. Implicitly followed VCLT. 2) Should examine ordinary meaning of words of treaty US measure was justified under XX(g): sea turtles are an exhaustible natural resource. o Looked at WTO Agreement preamble: objective of sustainable development, GATT 1947 panel reports: fish were an exhaustible natural resource, Convention on Intl Trade in Endangered Species of Wild Fauna and Flora (US is not a party), past precedent (ICJ and own), general principles of international law (good faith) and customary international law. o US measure was narrowly focused. 3) In light of object and purpose US measure is arbitrary and unjustifiable discrimination under chapeau of GATT Art. XX. o Did not consider other measures to reach same protection (unilateral action). o Unequal treatment of countries (phased in requirements and provided materials to some) o Arbitrary: did not provide reasons for not certifying countries and no appeal: must have procedural fairness under WTO and GATT (good faith). Claimants win right to retaliate to amount of the value of exports lost, but no enforcement mechanism. Dispute Resolution Body cant award damages, otherwise countries could buy out of obligations. Making Law: The EU (regional delegation of law-making power over vast areas) History: European Economic Community (EEC) founded under Treaty of Rome (1957): create common market, establish cooperation to prevent another war: 6 members. Became European Community (1987): 27 members. EU established in 1994. Single European Act (1987), treaties of Maastricht (1992), Amsterdam (1997), and Nice (2000): created quasi-constitutional character. Increasing delegation of law-making power from member states to the Community. Limit: no common foreign policy nor command common military force. Political union: common consumer protection, environmental policies, and monetary matters. Organs: Council of Ministers: major policy-making body. European Parliament: shares legislative power with Council of Ministers. Commission: executive-political branch ensure member states compliance with EU law. European Court of Justice: limited jurisdiction: interpretation of Treaty of Rome, validity and interpretations of acts of institutions, interpretation of statues of bodies (not appellate). ECJ: French style decisions-making: short in facts, long, conclusory. Relationship between EC/EU law and state law: Van Gend & Loos v. Netherlands (ECJ 1960) (Brought claim against Netherlands for increasing import duty, which would violate EEC Treaty Art. 12: cant raise tariffs) EEC Treaty has direct effect in member States (matter of EEC treaty interpretation, thus giving ECJ jurisdiction), not determined by national constitutional law. o Big change: usually individual members can decide whether there is direct effect. Creating community law, which requires equal effect throughout the Community: more than just a treaty. National Courts are bound to apply rules of Community law directly, even over national laws that were last in time. o The Community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights. Article 12 is self-executing and creates individual rights/obligations that can be directly invoked. Costa v. ENEL (ECJ 1962) (Italy nationalized electric energy distribution company)

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EEC law wins over domestic law. o EEC Treaty has direct effect and becomes part of national legal system, and it also has higher rank (supremacy) over domestic law, even if subsequent national law. o States cannot overcome the permanent limitation on their sovereign rights under the Treaty through unilateral action. Amministrazione delle Finanze dello Stato v. Simmenthal (ECJ 1978) (Italy placed veterinary and public health fees on imported beef under their laws. EEC Treaty law conflict w/ subsequent natl law) EEC law can be enforced by all national courts, not just the constitutional court (Decentralized judicial review). o Every nation must apply Community law in its entirety to protect individuals rights, must set aside national laws which conflict with it. Nobody has tried to get out of EC: would have huge political consequences. Undecided whether EC law trumps national constitution. Also not clear whether positive obligations are directly enforceable, and whether EC law has direct effect between private parties (horizontal effect) or what effect EC law in form of regulations, directives has. Evolution of European Regime of Civil Jurisdiction and Judgments Recognition: like full faith and credit. Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1968) (Procedure to secure recognition and enforcement of judgments. Applies only to civil and commercial matters). European Council Regulation 44/2001 (2000): regulations are binding in entirety and directly applicable in all Member States. The Delegation of Sovereign Powers and Democratic Legitimacy Legitimacy comes from popular vote, but international organizations govern individuals lives without a vote. Eric Stein, International Integration and Democracy (2001): Intl Organizations are getting more powerful (states delegating more power), world is more democratized: conflict between these changes. Suggests increasing transparency, such as having NGOs as watchdogs, perhaps create an ombudsman to hear citizen complaints. States are no longer willing to grant each other complete immunity in their courts (Limitations on Sovereign Immunity) Foreign Sovereign Immunity (US: Foreign Sovereign Immunities Act of 1976, also customary intl law) End result: court lacks subject matter jurisdiction. FSIA: poorly drafted, difficult to understand. Foreign State: political subdivision or agency: all public organs, private entities if majority owned by government. Exceptions (1605): commercial activities of States are not immune, waiver. Not immune to arbitration. Not immune if makes counterclaim. No exceptions for violations of fundamental rights or jus cogens rights. These areas are in political terrain. Republic of Argentina v. Weltover (1992) (Respondents, Panamanian corp. and Swiss bank, refused to allow Argentina to reschedule payment for bonds that it backed. Respondents asked for full payment and brought breach-of-contract action in NY. SDNY and Ct. App. denied motions to dismiss under FSIA). No sovereign immunity because fell in exception to FSIA: Argentina was engaged in a commercial activity, acting not as regulator of market but in manner of private player. Look at the nature of the activity, not the purpose (didnt matter if Argentina had to issue debt due to economic instability). Further, there was direct effect on the US (link): NY was the chosen place of performance. Doesnt have to be substantial or foreseeable, just an immediate consequence. The Act-of-State Doctrine (US and few other countries: domestic law (case law), not immunity from jurisdiction, only from judicial scrutiny: on the merits. No constitutional or legislative backing, avoids stepping on toes) Limits: treaty provisions, perhaps when acts are commercial, if regime change, waiver. Banco Nacional de Cuba v. Sabbatino (1964) (US commodities broker had contract with CAV, which was nationalized by Cuban government, they remade contract with Cuba, but

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paid CAVs appointed receiver (Sabbatino). Cuba used Sabbatino for the money. Sabbatino argued that the expropriation was not legal) Under Act-of-State doctrine, assumed the expropriation was valid: Supreme Court refused to scrutinize the validity of Cubas actions. Doesnt stop the litigation. Constitutional origins of the doctrine: separation of powers: leave this politically sensitive work to the executive. Judiciary is not equipped to do this work. Second Hickenlooper Amendment: Foreign Assistance Act amended by Congress: tried to address cases where the claim or right to property is asserted. But has been narrowly construed by courts to only apply to expropriation of personal property later physically present in US, so has little effect in practice. Head-of-State Immunity (customary international law, affirmed by ICJ) Diplomatic and consular immunity: Vienna Convention on Diplomatic Relations of 1961 and VC on Consular Relations 1963. DRC v. Belgium (ICJ 2002) (Belgium issued international arrest warrant on sitting Foreign Minister of Congo under its criminal law for violation of jus cogens rights: made speeches inciting racial hatred) Foreign Minister protected under personal immunity: customary international law (Vienna Conventions dont specifically define immunities of Foreign Ministers): granted to ensure effective performance of their functions o Court looked at State practice: found no exceptions to immunity, international criminal tribunals legal documents and case law: no exceptions found. Only exceptions: can be liable under domestic law, if waive immunity, after office, or if international criminal courts have jurisdiction o Immunity ratione personae: Immunity continues as long as in office: gives immunity when traveling. But this immunity ends as your office ends. o Immune for acts done in official capacity. Concurrence: but need to balance interest of keeping immunity with detriment of international community and ability to act freely. Immunity should be recognized with restraint. Foreign Ministers should not be afforded same protections as heads of state, which is eroding as well. Serious international crimes cant be official acts. Ex Parte Pinochet (House of Lords 1999) (Spain tried to extradite Pinochet from England for crimes committed as head of state in Chile under Extradition Act 1989: torture and crimes against humanity. Pinochet was there for medical treatment) Lord 1: No immunity ratione personae and not acts in official capacity: torture is not a state function. The Torture Convention 1988 (Chile and UK members) gave universal jurisdiction: eroded/eliminated immunity for acts of torture or similar acts. Cant give immunity for act that intl law says is not legal. Lord 2: under customary international law: head of state will be liable if involved in serious international crimes, not just merely international wrongs in front of international criminal tribunals: Nuremberg, Tokyo Tribunal, War Crimes Tribunal, etc. In present case, in domestic court, only Torture Convention applies, but even there: immunity is not waived. Lord 3: agrees with Lord 2, but when torture rises to that of international crime (crime against humanity as defined by International Tribunal of Rwanda), that loses immunity under customary intl law. Immunity of civil servants of IGOs: convention on Privileges and Immunities of the UN 1946.

2) Jurisdictional claims have expanded beyond the territoriality and personality principle (Expansion of Jurisdictional Claims) o Restatement (Third) of Foreign Relations Law 402 (1986) (territoriality, effects, nationality and protective) o The Effects Doctrine (most widely recognized: requires intentional effects) US v. Aluminum Co. of America (Alcoa) (2d Cir. 1945) (Foreign companies formed international aluminum cartel. Limited: incorporated in Canada owned Alcoa, a Pennsylvania corporation. Overrules American Banana) Jurisdiction found: There was intent to regulated importation of aluminum into US AND was actual effect.

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Effect was intentional and real (not mere ripple effects). It is settled law that any state may impose liabilities for conduct outside its borders that has consequences within its borders which the state reprehends. Now codified in 6(a) of Sherman Act (1982): Sherman Act applies only when conduct has direct, substantial and reasonably foreseeable effect on trade or commerce, etc. o The Protective Principle (fight against terrorism: protect State from influence over a governmental function) Allows jurisdiction at an earlier stage that using the effects doctrine: before harm has occurred. US v. Yousef (2d Cir. 2003) (Yousef conspired to bomb World Trade Center, executed the plan, fled US. Tested bombs while in Philippines, plot to bomb US airline. Captured in Pakistan) Jurisdiction found: protective principle allows State to assume jurisdiction over non-nationals for acts done abroad that affect the security of the State. Plot to destroy the US commercial aircraft was to influence US foreign policy, which is a governmental function. o The Passive Personality Principle Israel v. Eichmann (Supreme Court Israel 1962) (Israeli Secret Service abducted Eichmann, Hitlers architect of the Holocaust, and flew him to Israel for crimes against humanity during Holocaust) Jurisdiction found: Jewish people connected to State of Israel, so satisfies the passive personality principle. US and other countries have steered away from passive personality principle. US v. Yunis (DDC 1988) (Hijacking of Jordanian civil aircraft with several American citizens on board.) Jurisdiction found: while have avoided passive personality principle, when perpetrate crimes unanimously condemned by universal community, they are aware of illegality of their actions, so prosecution is not unexpected. Thus, at least when taking hostages, jurisdiction applies. Most countries that have the passive personality principle extradite if the act was a crime on the territory where it was committed. o The Universality Principle (anyone who gets a hold of perpetrator can try them. Customary international law and on treaty level: universal jurisdiction over airplane hijackings. Like erga omnes effect on jus cogens norms) Israel v. Eichmann (Supreme Court Israel 1962) Universally acknowledged that piracy gives rise to jurisdiction. Some say can apply to other violations of law of nations. Universal jurisdiction should apply to crimes against humanity. Restatement (3d) of Foreign Relations Law 404: Has jurisdiction over offenses recognized by community of nations as of universal concern: piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and certain acts of terrorism. US v. Yunis (DDC 1988) Aircraft piracy and hostage taking are internationally condemned (looked at various conventions: Tokyo, Hague, Montreal, etc.): shows that universal jurisdiction attaches. Comity Limitations on the Exercise of Jurisdiction Timberlane v. Bank of America (9th Cir. 1976) (Antitrust suit: officials of Bank of America in US and Honduras conspired to prevent Timberlane from milling lumber in Honduras and exporting to US.) o Jurisdiction found: the actions were intended to affect American foreign commerce, it was sufficiently large an effect to be cognizable injury and the link to the US is strong: magnitude of effect on American foreign commerce to justify assertion of extraterritorial authority. o Balance the effects on US commerce with comity and fairness: Conflict of Law in Restatement (2d) of Foreign Relations 40: when 2 states have jurisdiction, each state should exercise restraint in good faith. Elements to consider: degree of conflict with foreign law or policy, the nationality or allegiance of parties and locations of principal places of businesses or corporations, extent to which enforcement by either state can be expected to achieve compliance, the relative significance of effects on US as compared to elsewhere, extent to which there is explicit purpose to harm or affect American commerce, foreseeability of that effect, relative importance to violations charged of conduct w/in US as compared with conduct abroad. o In this case, no conflict of law or policy with Honduran government. o On remand, DCC did not exercise jurisdiction under comity reasons. Affirmed. Restatement (3d) of Foreign Relations 403: State may not exercise jurisdiction when would be unreasonable. List of factors: link of activity to territory of regulating state (actual activity or effects),

ii.

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connections of parties to regulating state, character of activity to be regulated, etc. When conflict of laws: each state should evaluate its and other states interest in exercising jurisdiction and defer to other state if their interest is clearly greater. Hartford Insurance Co. v. California (1993) (19 States + private Ps filed complaint under Sherman Act against insurers for conspiracies to force other companies to change their terms to match their own. UK law allowed insurers to act this way) o Jurisdiction found: no real conflict of laws. US law says cant take the action, UK law doesnt say have to take the action, just allowed for it. US antitrust laws dont force the companies to act in violation of UK law. Comity rule applies when it is not possible for a party to comply with both laws. (does not apply Timberlane). o Dissent: If analyze the situation under Timberlane factors, comity clearly applies. Congressional did not show intent for jurisdiction to reach outside of territory (legislatures exercise comity when enacting laws by limiting the reach of their laws) Shouldnt construe act of Congress to violate law of nations if another construction remains (Charming Betsy) o Reimann: could have jurisdiction under effects doctrine. No plausible violation of intl law (Lotus principle) Wood Pulp case (ECJ 1988) (alleged intl conspiracy of US, Canadian, Finnish and Swedish firms that export wood pulp to European Community: created export associations that were exempt from antitrust laws in US. Charged with price-fixing, violating Art. 85 of Treaty of Rome) o Jurisdiction found: although main source of supply of wood pulp outside Community, sell to purchasers in Community, intent and effect of restricting competition w/in meaning of Art. 85. This conduct was implemented in EC. Conditions for exercise of comity were not satisfied: no contradiction between conduct required by US and that required by Community (like Hartford Insurance Co.) Hoffman-La Roche v. Empagran (2004) (Price fixing of vitamin sellers that led to higher prices in US and other nations) o No jurisdiction over claims of foreign purchasers: 6(a) only applies to harm caused in US. Congress would not have intended to draft this law so broadly (taking Scalia Hartford dissent approach, Charming Betsy). Had to limit jurisdiction to some extent: says is exercise of comity: foreign nation should be able to independently regulate its own commercial affairs.

B. Part Two: Modern View: The Diversification of Sources and the Rise of International Private Law i. The New Generation of Treaties (grown from 86 Post-Westphalia, to 1700 in last 20 year period of last century) Treaty practice has moved to multilateral regulatory agreements addressing complex economic, political and social problems that require cooperative action among states over time: trade, monetary policy, resource management, security, environmental degradation, and human rights. World-Wide Multi-Party Conventions o Convention on Prevention and Punishment of the Crime of Genocide (1948, in force 1951) (not self-executing) First major post-UN charter substantive intl treaty. Genocide is a crime under international law that should be prevented and punished in tribunal of State where act was committed or by international penal tribunal. ICJ deals w/ interpretation, application and fulfillment questions Plays more of a moral role than a practical role until recently. Not like Westphalian bilateral treaties that were like contracts between states to limit powers vis-vis each other. Multilateral treaty with global scope/ambition: unanimous adoption of this convention. Blueprint The Complexity of Multilateral Agreements o Declarations and Reservations to the Genocide Convention (US ratified in 1988) Main reservations: Art. IX: clause giving jurisdiction to ICJ, which is purely consent-based (want that specified) (not fatal to the treaty) and Art. XII: some states didnt want the convention to expand to other trust territories. US reservation #2: that the convention does not require legislation or other action by US that is prohibited by the Constitution of the US, as interpreted by the US.

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Objections to the reservations: Main objection to US reservation #2: VCLT Art. 27 states that you cant invoke internal law to override the provisions of a treaty, so countries say that US is going against international principle of treaty interpretation. Not clear then if this reservation would hold up in court. o Reservations to the Convention on the Prevention and Punishment of Crime of Genocide (ICJ 1951) (Reservations are allowed. Purpose and goal of the Genocide Convention is to get universal condemnation (want all States to sign). If did not allow reservations, States would not sign. However, reservations cannot go against the object and purpose of the treaty) o Vienna Convention on the Law of Treaties (1969) (codifies ICJ decision) Art. 19: reservations allowed unless prohibited by the treaty, if treaty only allows specific reservations, or if it is incompatible with the object and purpose of the treaty. Art. 20: default is to accept the reservation: must object in 12 months. Art. 21: If accepted: reservation applies to both sides. If a State objects and says the reservation defeats the object and purpose of the treaty and doesnt accept other State as signatory to treaty, then the treaty does not hold between them. If objects to the reservation alone, treaty is still in force between those 2 parties, but the Article at issue is removed from the treaty as between those 2 parties. o VCLT Amendment and Modification of Treaties Art. 39: Can amend by agreement between the parties Multiparty treaties: Art. 40: all parties must be notified (collective action problem). Organ that sponsored the treaty can present a new version: states can sign onto the treaty as amended, or stay parties to the old treaty. Creates 2 different regimes. The Changing Face of Customary International Law New Modes of Customary International Making? o Truman Proclamation on the Continental Shelf (1945): President Truman stated that US had jurisdiction over the continental shelf under the seas surrounding the US. Became universally accepted: others wanted jurisdiction over the continental shelf around them and the proclamation stated that boundary problems would be resolved between States. Something like customary international law in this example emerged quickly: legal claim preceded practice, unlike in Paquete Habana analysis (practice over long period of time ratified the rule). Now continental shelf jurisdiction is in a convention and is accepted as customary international law. o Nicaragua v. US (ICJ 1986) (US support of rebels from Honduras in Nicaragua. ICJ does not have general jurisdiction under UN charter: could not adjudicate rights under the Charter (noninterference), thus had to rely on customary international law) Customary international law: non-aggression. Both parties agreed, but state consent is not enough to make customary international law. Found through declaration by states, General Assembly declarations These are not binding but show opinio juris: proof of a legal rule. Court did not look for consistent state practice (they wouldnt have found it) Non-aggression is also jus cogens: its an absolutely essential element of our legal order and nonderogable. Reimann: you have to find a rule first and then say that it is jus cogens (thats a rank not a rule itself) There is international consensus so state practice doesnt matter (There wouldnt be any rules if state practice were determinative) Reimann: could have said it was a general principal, shared by civilized nations (but internal laws dont have a non-aggression principle). But what the court found should not have been called customary international law: but ICJ Art. 38 states that it will follow only the named traditional sources. o Enzo Cannizzaro and Paolo Palchetti, Customary International Law on the Use of Force (2005) Different kind of customary international law: 1) slow emergence: Paquete Habana w/ state practice over time and opinion juris, 2) claims of certain actors: Truman proclamation, 3) opinion juris of actors of international law, the structure of the international system, or a combination of principles and values in the legal order. Customary International Law in American Courts o Filartiga v. Pena-Irala (2d Cir. 1980) (The Filartigas son/brother was kidnapped and tortured to death by Pena in retaliation for his fathers political activities and beliefs. Had Pena served while in INS detention. Sued under ATCA, wrongful death statutes, UN Charter, Universal Declaration of

ii.

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Human Rights, UN Declaration Against Torture, American Declaration of Rights and Duties of Man, customary international law of human rights and law of nations) No treaty law showing torture is violation of international law, so had to look for customary international law. Torture is outlawed under customary international law: renounced in modern usage and in practice of nations, found expression in international treaties and accords: UN Charter, etc. Reimann: Courts use of Declaration of Human Rights, which is not binding or selfexecuting shows court is giving outcome-driven reasoning. Cant base customary international law on these sources. Although still state practice to torture, the condemnation of torture is consistent. Reimann: slippery slope when looking at what States say instead of actually do: States may stop signing such declarations/conventions if they will be bound by what they say. o Flores v. Southern Peru Copper Corp. (2d Cir. 2003) (Cooper Corp. created pollution. Flores relies on right to life and health to bring ATCA claim) No customary international law against intrastate pollution: not clear like in case of torture prohibition that pollution violates right to life and health. Right to live and health are not established as customary international law: The principles stated in declarations and covenants w.r.t. right to life and health are too abstract, are not clear, definite and unambiguous. Only treat relied on Ps that was ratified by US was ICCPR, which is not self-executing and does not specifically address environmental pollution. Soft law does not win the case, unlike in Filartiga: Flores could have brought suit in Peru: there was law governing this situation already, Peru Copper was fined by government, etc. already, no need to interfere. o Brownlie, Principles of Intl Law (6th ed. 2003): Courts are recognizing natural laws: like that against torture. o Hathaway, The Rights of Refugees under International Law (2005): Shouldnt leave human rights to customary international law. Should make hard-nosed conventions and then really enforce them. iii. Administrative Regulations (issued by international organizations) Derive force not from state consent (treaties) or consistent state practice (customary international law) but from the authority of the bodies which issue them: usually governmental organizations created through international agreements or agencies of existing governmental organizations (like UN). Benedict Kingsburg, Krisch, Stewart, The Emergence of Global Administrative Law (2005) o Regulations can be implemented directly against private parties or through implementing in domestic law. o Global administrative law: mechanisms, principles, practices and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies: to fill in accountability deficit due to emergence of these global administrative regimes. o Economic regulation, environmental regulation, specialized regimes, international security regimes. o Main administrative actors: administration by formal international organizations: UN, also informal cooperation by transnational networks, distributed administration by national regulators under treaties, etc., hybrid IGO-private administrations, and private bodies. How it works: states create IGOS. IGOs make substantive treaties. The delegated authority creates regulations that are binding. The regulations are either binding on the states or more likely implemented/adopted by the states. Problems of legitimacy and transparency: no democratic oversight, consumers are affected but dont get a way. International Convention for the Safety of Life at Sea (SOLAS (1974): Lifeboat regulations. International life-Saving Appliance Code iv. Non-binding Sources: Soft Law? (No force of law, but often invoked by advocates and considered by tribunals) The Use of UN-Declarations (etc.) in the Courts o Flores v. Southern Peru Copper corp. (2d Cir. 2003): UN General Assembly resolutions are not binding so not proper sources of customary international law: aspirational. General Assembly is not law-making body. Multinational declarations are also just statements of policy: not usually meant to be legally binding. Can only rely on treaties that are binding. o Advocates use these declarations to show that the position has foundation and that the claim should be taken seriously. International Principles of Private Law o Some say that the international principles created in various areas of private law stem from the lex mercatoria and are like Restatements (blackletter rules organized in a quasi-code, with the goal that

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these principles be accepted internationally and domestically. Not binding, but hope to guide decisionsmakers. o UNIDROIT Principles of International Commercial Contracts: UNIDROIT = International Institute for the Unification of Private Law (independent IGO founded in 1926). Applies when parties have agreed that their contract be governed by them. Not clear that courts will allow opting out of national law in this manner. Differences with US law: no Statute of Frauds, requires good faith negotiations, avoidance of excessive advantage. Is now a model for national and international legislators. o Arbitration Institute of Stockholm Chamber of Commerce SCC Institute Award (2005): Arbitrator awarded damages in accordance with UNIDROIT principles: UNIDROIT is a neutral law and it helps to fill in gaps: easier to go by in international law. o Should normally advise clients to follow both domestic law and UNIDROIT principles. The Rise of Private Law Public international law: law of nations Private International Law (Conflict of Laws: rules about international civil jurisdiction, choice of law, judgments recognition, and procedural issues arising in international case) o Private international law used to be a matter of domestic law, applied by each country for itself. But now, rules are enshrined in international conventions: Hague Conference for Private International Law (1893: now over 60 members) o Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) (US is a party, as are most important US trading partners, selfexecuting) Federal Rules of Civil Procedure Rule 4 incorporates the convention too. Authority or judicial officer competent under the law of the State (any lawyer) can forward the document to be served to the Central Authority, who will then transmit it to the Central Authority to the other State, then they will serve under domestic law rules, as long as find everything in order. They will send a certificate saying that process has been served. Can reject service if only states that it would violate sovereigns security or their sovereignty. For non-member states: must send request for service of process to their consul, rely on comity. o Volkswagenwerk v. Schlunk (1988) (Schlunk served complaint on VW America and added VW Germany, served amended complaint to VWoA as VWAGs agent: under Illinois state law, VWoA was an involuntary agent for service of process for VWAG. VWAG said that Schlunk violated the Hague Convention) Hague Convention does not apply: only applies if internal law of the forum state requires service of process be made apply. Convention creates a way to serve process abroad, if required to do so. By not complying with the Convention, Ps face consequences: internal law may have required service abroad, judgments may not be enforced abroad. VWAG had sufficient notice through VWoA of the service. Concurrence: Court makes the convention option, when it should be mandatory. Consequence: US citizens will have less protection when involved in litigation abroad. Reimann: Court should probably have looked to see how States applied the convention (VCLT). Problem with the decision: allows any country to avoid the convention through domestic service. Political costs. International Private Law (Substantive Rules) o Vast majority of private law rules are of purely domestic character, but a couple conventions on international sales o United Nations Convention on Contracts for the International Sale of Goods (1980) (ratified by over 70 countries, not UK or India, self-executing, on level of federal law: trumps UCC) Covers only contract formation and obligations under breach. Doesnt cover validity, warranty, property rights. Differences with domestic law: No Statute of Frauds, no consideration necessary, weakens parol evidence rule. Art. 95: can make reservation as to only Art. 1(b). Parties may also exclude application of the CISG (Art. 6): in US, default to opt out of CISG: uncertainty b/c international law and far less case law. o UN Convention on Limitation Period in International Sale of Goods (1994) (US party) o Asante Technologies, Inc. v. PMC-Sierra, Inc. (N.D. CA 2001) (Breach of contract suit: question of whether CISG applies. P and D were Delaware corporations, but D had principal warehouse, etc. was

v.

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in British Columbia, Canada. P had a clause in the contract saying that the law of the state was the applicable law. D had clause saying that applicable law was that of Canada) CISG applies: Ds place of business was Canada: P knew that D was in Canada, manufacturing, etc. were there and order was faxed there. Under Art. 10: place of business is that which has closest relationship to the contract and its performance. If want to opt out of CISG, have to show clear intent. Further, under either applicable law clause, CISG would apply (CA state law trumped by CISG and Canada uses CISG). Reimann: Better argument would be to point out battle of forms: no agreement on the applicable law, so default CISG applies. International Business Contracts o Parties make their own international private law by writing everything they deem relevant into contracts. o Civil law countries have shorter contracts, limited to the essential terms, Common law countries give longer and more prolix documents. o Langbein, Comparative Civil Procedure and the Style of Complex Contracts (1987): Van Heckes theory as to why common law countries have longer contracts: perfectionism, more case law and less codification so need to list statutory grounds, federalism means multiplicity of American jurisdictions, requiring more explication. Langbein: American civil procedure is to blame. It is inefficient, contract writers dont trust the judges (not professional like Germanys) and juries to make the right interpretation, pre-trial discovery makes litigation costly and drawn out so prefer to write everything into the contract to avoid litigation, adversarial process is overblown and confusing. Reimann: Not clear that contract-writing is really driven by fear of litigation.

B. Part Two: Modern View: Towards a Panoply of Specialized Tribunals? i. Litigation Among States: The International Court of Justice (successor of Permanent Court of International Justice 1921) Most disagreements between states are still settled on the political and diplomatic level, and still use force. Bederman, International Law Frameworks (2006): o Structure: 15 members: nationals of Security Council members in individual capacity. Elected by majority vote of UN. o Hears cases in plenary session: majority vote. o Jurisdiction over State disputes with consent of litigants only. 36(1): all matters specifically provided for in the Charter of the UN or in treaties and conventions in force). Most common way for jurisdiction: parties submit to compromis: States submit to jurisdiction. Other ways: through compromissory clauses written into bilateral and multilateral conventions: agree that disputes arising under the treaty will be submitted to the Court (about 300 conventions have this: US through Friendship, Commerce and Navigation (FCN treaties): Nicaragua case) Appellate review of decisions by other bodies through treaties or agreements Compulsory jurisdiction: declare w/o special agreement to submit to ICJ jurisdiction through an optional clause declaration under Art. 36 (subject to reservations of States), but works only if reciprocal. US: Connolly Reservation in 1946 Declaration: would not submit matters w/in domestic jurisdiction of US as determined by US and Vandenburg Amendment: excluded disputes under multilateral treaties unless all members of treaty were parties of the case or US consented. o ICJ will not hear cases that are moot, not ripe, or if there was failure to exhaust domestic remedies, but allows political questions. o ICJ can require provisions measures: to protect and ensure equality of parties (Art. 41). o May issue advisory opinions requested by organs of the UN or one of its specialized agencies: UN General Assembly, Security Council, and ECOSOC, but will not issue one if propounded by an inappropriate body. UN Charter: Chapter XIV: ICJ: o Art. 94: each member of UN promises to comply with and execute the decision of the ICJ, or other party can seek recourse to the Security Council. Art. 96: Advisory opinions allowed. Statute of the ICJ (1945): o UN countries are automatically parties to this statute. o Binding only between the parties w.r.t. the particular case (Art. 59): no stare decisis

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Jurisdiction only by consent, only between States Different terminology No discovery for ICJ No appeals o Ad hoc judges are allowed: if dont have a national on the ICJ, can ask for one. o Not truly adversarial: judges can ask questions. Breard cases (Paraguayan citizen arrested for murder in VA. Convicted and sentenced to death, lost appeals in state and federal court. Paraguay filed suit against US in ICJ asking that the conviction be voided and provisional measure be issued to prevent execution: US failed to advise Breard upon arrest of his rights under Vienna Convention on Consular Relations of 1963 Art. 36. ICJ issued provisions opinion that US should take all measures to ensure Breard was not executed pending final decision. Supreme Court declined to provide relief: Breard lost his right under Art. 36 by not raising the issue in state court: procedural default, Antiterrorism and Effective Death Penalty Act of 1996 was later in time so trumped Vienna Convention, and the consular help probably wouldnt have changed the outcome anyway. Governor of VA did not stay execution. Breard was executed. Paraguay withdrew request from ICJ) La Grand Case (Germany v. US) (ICJ 2000) (In 1984, 2 German brothers, who had lived in US since children, were arrested in Arizona for attempted bank robbery where bank manager was murdered. Sentenced to death. Had not been informed of rights under Vienna Convention Art. 36, did not raise this issue in state and federal appeal. German consular post found out about LaGrands in 1992. Tried to raise violation of Vienna Convention in filing habeas corpus, rejected due to procedural default. Germany wrote to try to prevent execution of LaGrands in 1999, but unsuccessful. One brother was executed. Filed in ICJ and requested provisional measure to suspend second brothers execution pending ruling. Supreme Court dismissed Germanys motion to enforce compliance with provisional measure due to jurisdictional barriers under domestic law. 2nd brother was executed) o US acknowledges breach of Art. 3, which prevented Germany and the LaGrands from exercising their rights. Art. 36 creates individual rights which may be invoked by the national State of the detained: violated American procedural default rule as applied violates Art. 36, para. 2 (internal laws and regulations must enable full effect to be given to the purposes of the Vienna Convention): prevented challenging convictions and sentences. o Art. 41 (provisional measures) has binding effect in light of object and purpose of the Statute. US did not exercise powers to give effect to the Courts provisional order: SC could have given preliminary stay, Governor of Arizona did not grant stay even though Arizona Clemency Board recommended a stay. o Germany asked for assurances that US would not violate the Vienna Convention in the future: US committed to ensure implementation of specific measures to ensure performance of obligations: created brochures to be distributed to federal, state and local law enforcement and judicial officials throughout the US and training programs. That was enough. ii. Litigation Among Private Parties: Domestic Court Jurisdiction in International Cases Threshold question: which countrys domestic courts should hear these cases? (no intl courts to hear the cases) o Traditionally, each country decides for itself under domestic law whether it has jurisdiction over the parties: Jurisdiction by Consent: Choice of Forum Agreements o M/S Bremen v. Zapata Off-Shore Co. (1972) (American co, Zapata, contracted with German corp. to tow their drilling rig with a choice of forum clause stating that any dispute arising would be taken to the London Court of Justice. Storm caused damage to rig. Zapata sued in US District Court. German Corp. started action in London Court Of Justice. Zapata appeared to contest jurisdiction and were denied.) Choice of forum clauses are presumptively valid unless enforcement is shown to be unreasonable under the circumstances. Freely negotiated in private international agreement, should be given full effect. Dissent: should exercise jurisdiction: Zapatas substantive rights adversely affected, plus incident happened near District Court, so witnesses, etc. are there. o Swiss Federal Statute of Private International law (1987): most foreign (esp. civil law) countries have statutes that regulate forum selection clauses: enforces forum selection agreements. EU members are bound by EC Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters Art. 23: forum selection agreements ok. o o o o

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Hague Convention on Choice of Forum Agreements (2005): not yet in force, but US first signer. Says that exclusive international forum selection clauses are binding and enforceable (if in commercial context). Judgments based on exclusive forum selection clauses must be enforced. o Parties can also designate choice of law clause: but may not violate forums public policy, with some other limits. Jurisdiction by Contacts: Fairness Limitations in International Cases o When parties do not choose a forum, jurisdiction in civil and commercial matters usually is based on connection between parties or underlying events and the forum state. US: jurisdiction in civil case requires connection between D or dispute and forum and must comply with 14th A due process clause (minimum contacts). o Asahi Metal v. Superior Court of California (1987) (Foreign Ds may require special treatment: Accident on motorcycle: products liability action against tube on tires manufacturer, a Taiwanese company, who then filed cross-complaint for indemnification from codefendant: tube valve manufacturer, a Japanese company. Only portion of case left after settlements was action for indemnity between Taiwanese company and Asahi.) No jurisdiction: Factors: burden on D, interest of forum State, Ps interest in obtaining relief. Burden on Asahi is severe: foreign judicial system. Interest of CA and P in having jurisdiction in CA is slight. P is not from California. Dont want to step on toes of other nations who may have jurisdiction: must consider the procedural and substantive policies of other nations whose interest are affected by the assertion of CA jurisdiction. Counterargument: But now if P has to sue in Japan, they bear the burden. Gary Born, Reflections on Judicial Jurisdiction in International Cases (1987): international assertions of jurisdiction call for modification of traditional Due Process standards. o Foreign non-recognition and burden of litigation should not really be issues: burden will be borne in international dealings by one of the parties, no matter what. o Good reasons for treating international cases differently: exercising jurisdiction over foreigners affects foreign relations o Should use caution when asserting long-arm jurisdiction and should require closer connection between forum and D than necessary in domestic cases: comity iii. International Arbitration: Not Just for States Overview: Three Forms of International Arbitration o State v. State Arbitration: ad hoc or preexisting framework (Permanent Court of Arbitration in Hague) o International Commercial Arbitration between Private Parties: normally through clause in contract where parties agree to submit disputes to arbitration. Sometimes ad hoc, but normally in prefabricated manner under auspices of private organization providing arbitral services for a fee: International Chamber of Commerce in Paris, London Court of Arbitration or American Arbitration Association. Trade-specific arbitration regimes too. Advantages: forum neutral and more specialized, arbitrators have greater business sense, avoids jury trials, procedurally more flexible, less hostile and less disruptive to business relationships, can be confidential (not per se guaranteed), can be more easily enforced (through NY Convention), tries to be speedier (target of 6 months), can usually avoid sovereign immunity problems (if agree to arbitration, most courts will say it is waived) Cons: Due process is weaker (but arbitrators usually will uphold due process), arbitrators may be more partisan than judges, they cost a lot (depends, could be cheaper than litigating), discovery may be limited (harder to compel unwilling witnesses), interim measures harder to obtain and enforce, no appeal (but State can still look at the arbitrability of the dispute and whether arbitration violates public policy), lesser role of public policy. o Arbitration between States and Private Parties: Arbitration clause in contract: avoids sovereign immunity problems. Treaties: like with foreign investment disputes under BITs o Must appoint Tribunal, decide in terms of reference (detailed code on terms of arbitration), choice of substantive law, procedural rules, and institution (if using prefabricated arbitration) The General Framework: The (UN) New York Convention (over 140 parties, US included: executed through Chapter 2 of US Arbitration Act, passed under ECOSOD) o Applies to recognition and enforcement of arbitral awards (made in one country and enforced in a different country) between private parties: ad hoc or permanent arbitral body decisions. States must agree to enforce arbitration clauses (decline to look at case if not court in arbitration clause) and must enforce arbitration awards (can make reservation stating that it will only enforce with reciprocity and can say only for commercial disputes).

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Can refuse to recognize arbitral award if the subject matter is not capable of settlement by arbitration under law of that country or if against public policy. In Particular: Foreign Investment Disputes o Treaties of Friendship, Commerce, and Navigation would have arbitration clauses. Now, BITs. o Treaty between US and Argentina Concerning Reciprocal Encouragement and Protection of Investment (1991) Investment dispute between a Party and a national or company of the other Party, etc. can be submitted for binding arbitration to the International Centre for the Settlement of Investment Disputes (ICSID) or elsewhere Dispute of interpretation or application of the Treaty will be submitted to arbitral tribunal for binding decision under arbitration rules of UNCITRAL o CMS Gas Transmission Co. v. Argentina (ICSID 2005) (Argentina entered into bilateral investment treaties (BITs) that promised fair and equitable treatment and non-discrimination, allowing for arbitration through World Banks ICSID process, and providing further provisions under an umbrella clause: to draw foreign investment. During financial crisis in Argentina (inflation damages capacity to export), government removed peso-dollar 1:1 ratio, froze tariff rates, etc. CMS took Argentina to ICSID stating that government actions resulted in expropriation (bankrupted their in-country operations), failed to provide fair and equitable treatment, discriminated against foreign investors, and violated the umbrella clause. Asked for $260M + interest) Argentina breached fair and equitable treatment clause: had to pay back foreign investors using the discounted cash flow methodology. Actions completely altered the business environment under which investment was decided and made: fair and equitable = stable legal and business environment. No expropriation: the gas distribution company was still managed by the investors: no real interference with how CMS did business. Only expropriation if destroy entire value of the investment. Domestic investors were affected too, but they may have taken out loans in pesos, not dollars. Actions were not arbitrary or discriminatory Argentina could not invoke necessity exception: only applies when there is collapse, not just economic change. Reimann: Argentina should have argued that a government is entitled to do whatever must be done to protect the consumer, since providing a public service. Further, should have stressed that CMS and other investors knew they were entering an unstable environment and were advised of the risks. o In face of these crises, world began to reexamine costs of BITs. Led to resurgence of Calvo clauses: a claimant waives the right to apply to his or her government or to another forum for protection if a claim is denied by local authorities (only local authorities can be sought to redress grievances) iv. Dispute Resolution in the WTO: Adjudication or Arbitration? WTO (1995) set up a new and much more formalized dispute resolution process. Qualities of arbitration: o Parties set up the panel, but cant have their own nationals on the panel. Pass report onto Dispute Settlement Body (which can only overturn with unanimity: doesnt happen b/c all WTO members are in this body). Does not have coercive or executive powers, but can use sanctions: compliance rate is very high. Qualities of adjudication: o Fairly adversarial, there is an appeals process (only on points of law), panel does much fact-finding and write an opinion that looks like a court opinion. No political or economic pressure: judicial independence: panelists serve in individual capacities. Clear timetable, solve disputes quickly (should take about one year, 15 months with appeal) Understanding on Rules and Procedures Governing the Settlement of Disputes: Panel should make findings to assist the DSB in making recommendations or in giving rulings provided for in the agreement. v. The Proliferation of Specialized Tribunals ICJ: only states can be litigants. Major international regional judicial and specialized tribunals o International: International Tribunal for the Law of the Sea, Tribunals of International Organizations o Regional: European Court of Justice, Andean Court of Justice o Human Rights: European Court of Human Rights, Inter-American Court of Human Rights and its Commission, African Court of Human and Peoples Rights o Criminal Law: International Criminal Court, International Criminal Tribunals for Former Yugoslavia and Rwanda o Economic law: WTO, NAFTA

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Arbitral Tribunals: Permanent Court of International Arbitration, ICSID, US-Iran Claims Tribunal, ad hoc tribunals. Effects of proliferation: o Pros: cross-fertilization: can look at each others work (should borrow only from similar cases), creates more international case law, states get more used to resolving disputes through law. o Cons: different jurisprudences may destroy unity of international law: differing decisions. One solution: to make ICJ ultimate appellate court. But ICJ is only based on case and only for state-state action. Courts should be more deferential to one anothers decisions. o

PREP FOR MIDTERM Incentive to study 1st part of court Not thing to outline for Downplaying.......importance Meant to be clear right or wrong..... Scores here are very high o o o