international law primer

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International

Law

a brief primer

by Nathaniel Burney

Nothing on this page

constitutes legal advice.All content is copyright

2007-2010

CONTENTS

I. The Sources of International Law Customary International Law Treaties, General Principles, and Other Sources Judicial/Subsidiary Sources of International Law

II. The Relationship Between International andDomestic Law Domestic Law vs. International Law Customary Law Treaty Law

III. Executive Agreements In General What the President Can Do Purely Executive Powers vs. Shared Powers

IV. States Definition Recognition of States Recognition of Governments Self Determination Sovereignty Over Land, Sea and Air

IX. International Environmental Law

X. International AgreementsThe Law of Treaties

Nonbinding International DocumentsCapacity to Enter Into TreatiesMaking a TreatyObservance of AgreementsInterpretation of AgreementsAmendments and ModificationsInvalidity of Treaties

XI. Human Rights Basics Some U.S. Mechanisms Related to Human Rights State Involvement Substantive Bases of Responsibility Substantive Human Rights Fundamental Human Rights Violations Procedure What to Do When an American is Tortured by aForeign Government


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V. Non-State Entities: Organizations, Corporationsand Individuals International Organizations Individuals and Nationality Corporations

VI. Jurisdiction

General Principles Prescriptive Jurisdiction Enforcement Jurisdiction Conflicts of Jurisdiction Extradition

VII. Immunity from Jurisdiction Sovereign Immunity The Act of State Doctrine Immunity of State Representatives

VIII. The Law of the Sea

Introduction Territorial Rights Transit Passage, Straits and Archipelagos

Suspension of Human Rights Duplication of Claims

XII. Settling Disputes Peacefully The First Rule of the Use of Force Is Not to Use It Settling Disputes Peacefully Dispute Settlement through the U.N. and other

international organizations International Arbitration Formal Adjudication: The International Court ofJustice

XIII. The Use of Force Introduction Analysis for All Use-of-Force Issues Self Defense Uses of Force Permitted by CustomaryInternational Law, but not in UN Charter Intervention

Humanitarian Intervention Intervention to Effect Changes Intervention Against Terrorism Intervention in Civil Wars Example: Nicaragua Necessity and Proportionality War Powers Resolution Collective Use of Force

"Lawfare"

I. THE SOURCES OF INTERNATIONAL LAW

Article 38 of the Statute of the International Court of Justice defines the sources of international law.Look at them in order, to find the law.

First, look to treatiesandother bilateral agreements to which sovereigns are signatories, andwhich govern the issue.

Second, look to multinational agreements among sovereigns, which govern the issue.

Third, look to customary international law.

a. General practices of states, accepted as if they were law.

b. Followed not out of habit or expediency, but because considered law.

Fourth, look to general principles common to mature legal systems.

Fifth, look to subsidiary determinations of law (e.g., Supreme Court decisions). Cases areimportant. They are used in real life.

CUSTOMARY INTERNATIONAL LAW

Customary international law is something done as a general practice not because it isexpedient or convenient, but because it is considered law, out of a sense of legal requirement(opinio juris).

Element 1: General practice.

Element 2: States do it out of a sense of legal obligation.

What you do becomes precedent. Your actions have a legal effect, even though you didntactually create a legal document.


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Anyorder or document issued by anygovernment entity can be used as precedent!

The Paquete Habana case relied on edicts and agreements as far back as1403.

Even when no binding document exists, there is such a thing as estoppel.White House memos can be just as precedental as a treaty!

Whenever considering whether something is custom, ask the following:

What constitutes state practice?

How much practice is required?

How much consistency is required?

Inconsistent state practices can be ignored if you look at the big trend.

Are dissenting and non-participating states bound by custom?

Do regional and special customs involve different requirements? May a special custom(one that conflicts with general custom) bind a state that has not supported it?

What evidence is required foropinio juris, the requirement that practice be accepted aslaw?

May treaties be invoked as evidence of customary law? May they create it?

Is there a normative hierarchy in customary law?

Would declarations of law adopted without dissent by the UN General Assemblyconstitute presumptive evidence of accepted international law, regardless ofactual state practice?

Would the adoption of recommended standards of conduct by the General Assembly oranother representative international assembly give rise to customary law if they

are generally followed by states?Those countries with the ability to do it have more influence than others when it comes to

creating custom. The U.S. is frequently in this position.

The Paquete Habana (1900)

A case about the Rules of Engagement, going into customary international law.

Rules of Engagement Before the military engages in an action, it isgoverned by standing instructions on what they can and cannot do.These are frequently classified, of course.

The Paquete Habana and the Lola were Cuban fishing boats that were seized by theU.S. during the Spanish-American war. The U.S. District Court said that theNavy had acted within its authority, under Federal statute.

The Cubans argued that customary international law prohibited us from seizing theships. The U.S. S. Ct. agreed, holding that international law is part of outlaw.

This established rule of international law had existed to protect peaceful fishermen fromwartime seizures. Coastal fishing vessels, their cargoes, and their crews, areexempt from capture as prizes of war. (As a result, every US ROE since thenhas said to leave fishing boats alone if involved in the peaceful act of fishing[but not if using fish to camouflage silkworm miss iles, however].)

Asylum Case (1950)

Under the Vienna Convention on Diplomatic Relations, when you get inside the walls ofan embassy, you are inviolable, because others cannot go in and get youwithout that embassy countrys permission. One inch outside, though, and


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youre out of luck. (Theres lots of tense chases here in DC for that reason,spies etc., and China doesnt let people within a mile of the US embassy.)

Note, there are several Vienna conventions. Lots of conventions of all sorts.Be specific which ones you are referring to.

A deposed Peruvian political leader sought asylum in the Colombian embassy in Peru.The Colombians granted asylum, and wanted to transport him through Peru to

Colombia unscathed, as a matter of law.Colombia relied on a treaty that Peru had not signed on to. Peru claimed it hadno legal obligation.

There was no bilateral agreement between Peru and Colombia.

There was no multinational agreement binding on Peru. Peru had evenrepeatedly repudiated the Montevideo agreement, so that it would havethe status of a nonconsenting state.

A multinational agreement can still be binding as customaryinternational law, even if you didnt sign on. Only if yourepeatedly repudiate it do you earn the status of anonconsenting state.

You do have the option of dissenting while international law isbeing formed, but your dissension must be active andpersistent.

Dont sit on your hands. Make your protest. Nobody is goingto tell you to do it, youre a sovereign. States can dowhatever they want. You have the ability to assertyour rights, if you choose, but that means youd betterdo so or else you may lose the right.

Certain fundamental rules, however (such as freedom from torture,slavery, apartheid, genocide, etc.) cannot be repudiated. Theyareperemptory norms.

International agreements are governed, not by contract law,but by the Vienna Convention on Treaty Law. Underit, states can do anything they want to agree to,unless it violates a peremptory norm.

Is there a rule of customary international law binding on Colombia and Peru?

The ICJ said cases went both ways. Colombia pointed to numerousand frequent examples where American countries allowed safetransport like this. However, the custom was only for politicalexpediency it was not done out of a sense of legalobligation.

Note Asylum has different meanings in international law contexts and U.S.domestic-law contexts. It can mean leaving people alone who are under theprotection of another countrys embassy (something the US refuses to do,same as Peru here). It can also mean we wont repatriate you to a country youfled for political/humanitarian reasons.

Mere uniformity of external regularity never justifies a conclusion of normativity. Governments

attach importance to distinguishing between custom by which they hold themselvesbound, and the mere practices often dictated by consideration of expediency andtherefore devoid of definite legal meaning. The inductive reasoning that establishes theexistence of custom is a tied reasoning: the matter is not only one of counting the

observed regularities, but of weighing them in terms of social ends deemed desirable.

Portugal v. India (1960) Customary relations between nations becoming binding. (Not, by the

way, related to the Anglo-Saxon concepts of adverse possession or easement.)


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ortuga a terr tory w t n n a, an n a wou n t et t e ortuguese move t e r military and ammo back and forth to the enclaves. India asserted the rightsthat England had enjoyed, and the right of passage only applied to civilactivities.

If you dont take the measures to assert your rights, and protest, you acquiesce. Youmay even create legal precedent for a customary international law contrary toyour interests.

The major seafaring nations, for example, sail right up to the 12-mile limit whencountries try to claim more sea territory. At the very least, they objectto those countries claims.

OPINIO JURIS North Sea Continental Shelf Cases (1969)

Germanys coastline was concave, so the Dutch/Danish method of equidistant lineswould have reduced German sea control drastically. Germany had actuallysigned an agreement to that effect at a party, but when it sobered up it decidednot to ratify it.

The agreement didnt say it was binding upon being signed, so it wasnt bindingon Germany until it was ratified. (Geneva Convention of 1958.)

That didnt mean Holland & Denmark couldnt argue that it was binding ascustomary international law, since everyone else was doing it.

There are 3 ways the treaty could have become binding customary international law:

The treaty re-stated a pre-existing custom.

The treatys rule crystallized customary law that had been in the process offormation.

The treatys rule generated a new customary law following its adoption.

Holland & Denmark argued that this treaty had generated a new customary law, a newnorm of international law binding on everyone.

That wasnt such a good argument, because Germany had repudiated thetreaty.

Also, there had been very litt le time since the treaty [customary internationallaw can be created in a short time, but the presumption is that it isnt].

Also, only a few countries were using this rule, and even then they hadresorted to equidistance out of frustration, not because they felt it wasa binding legal obligation.

Also, it was not apparent that the provision was a norm-creating provision. Itwas a secondary provision only.

Also, the treaty permitted reservations, and many countries had made theirreservations known. That was hardly acceptance of a norm-creatinglaw.

The ICJ therefore held that there was no customary international law for theDutch/Danish position.

Nicaragua v. U.S. (1986).

Customary law may be a source of international law in international disputes. It isseparate from treaty law and convention law, as it must be applied even if the

countries are parties to a treaty.

The court held that it is no longer okay to settle disputes with force, a customary norm.

Note Use of force can be justified three ways: (1) self-defense, (2)enforcement under Ch. 7 of the UN Charter, or (3) pre-UN rules ofnecessity & proportionality [the US and a few other countries assert


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s r pr nc p e rom me o me .

Back to Contents2007-2010 Nathaniel Burney

TREATIES, GENERAL PRINCIPLES, AND OTHER SOURCES OF INTERNATIONAL LAW

Treaties: International agreements are governed, not by contract law, but by the ViennaConvention on Treaty Law. Under it, states can do anything they want to agree to,unless it violates a peremptory norm.

Many countries dont have governments that work. But, presuming there is agovernment that works, one country can make an agreement with anothergovernment.

Problems are settled between the parties apology, reparation, etc. There are plentyof mechanisms to work out violations of international obligations. States aregrown-ups, they can deal with it.

General Principles of Law and Equity.

There arent that many of these:

Promises are binding there is an obligation to perform in good faith.

Clean hands you cant take advantage of your own wrongdoing.

Estoppel is always out there to slam you. Especially if you are foolhardyenough to attach a map to an agreement (dangerous).

Never agree to a document when there is something in it you dontunderstand. Its nice to be polite, but it is better to be right &

useful than to be liked & dangerously incompetent.

Two big ones: Considerations of Equity, and Considerations of Humanity.

All mature legal systems have equitable principles.

Meuse case, Netherlands v. Belgium (1937).

Belgium was prevented from suing France for breaching its agreement not to build adam, when Belgium had breached the same agreement.

Under Article 38, equity is part of international law.

Corfu Channelcase, United Kingdom v. Albania (1949).

a. Albania, the most xenophobic country ever, with a pillbox every half milein anticipation of an invasion that has never come, littered the Strait of Corfuwith mines. Then it didnt tell anyone. Some British ships got blown up, andthey also fired at British ships from shore batteries.

b. The ICJ held that elementary considerations of humanity are binding ascustomary international law. Therefore, laying mines require you to tell thosewho sail there. Failing to notify violates elementary considerations ofhumanity.


JUDICIAL/SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW.


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ere n e . ., we use s are ec s s, un e c v aw coun r es. r c e o e a u e othe ICJ, however, says that ICJ decisions are binding only on the parties to thedispute.

And yet, ICJ cases are cited over and over as representing international law. Notbecause of stare decisis, however, but because it was a well-reasoned casethat countries keep pointing to as evidence of international law.

It is not law just because the ICJ says so in one case. It may come to be regarded aslaw, however.

Often, arbitration tribunals and municipal courts (such as the US S. Ct.) are also cited assources of international law, even though their decisions are not binding on othercountries.

Foreign law journals (notU.S. law-school journals) and the U.S. Restatement of InternationalLaw are often cited.

These are never enough by themselves they are only academic opinions of what thelaw is. They are sti ll of some use, nevertheless.

UN General Assembly Declarations & Resolutions.

The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law

Filartiga v. Pena-Irala (2d Cir. 1980).

A Paraguayan official tortured to death a 17-year-old Paraguayan boy, becauseof the boys fathers political beliefs. The kids father and sister suedin U.S. District Court! Under the 1789 Alien Tort Statute, under whichonly aliens may sue, for a tort in violation of the law of nations(international law).

Note We also have the Torture Victim Protection Act, which alsoprotects Americans.

The District Court dismissed the case for lack of jurisdiction. the 2d Circuit,however, concluded that if torture violated the law of nations, and aliencould sue another alien in U.S. courts and collect damages.

To see if torture violates international law, the 2d Circuit turned to two UNGeneral Assembly declarations.

The Universal Declaration of Human Rights, one of the first acts of theUN, and arguably one of the greatest documents of all time(unanimous, abstentions from South Africa, USSR and otherSSRs, Yugoslavia, and Saudi Arabia), and which has beenembellished over time.

The 1975 Declaration on the Protection of All Persons from Torture.

A Declaration creates an expectation of adherence, and so far as theexpectation is gradually justified by national practice, a declarationmay by custom become recognized as laying down rules binding on allcountries.

These mere declarations have been foundations for treaties andconventions which took these rights and built on them andcodified them as international law. All of them say that tortureis a human rights violation. (Time was, torture was just goodpolice work, but no more. Now it is universally renounced.)Not only is this customary international law, but it is afundamental principle that cannot be limited.

So the 2d Circuit entered a judgment, and assessed compensatory & punitivedamages. The defendant escaped the US before the judgment couldbe enforced, but if he or any of his property returns it is subject to

jurisdict ion. (We actually deported him. Communications between the


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.

This was not a suit against the Paraguayan government because of an officialactor Paraguay had denounced the defendant, even though he hadbeen acting under the color of authority.

As result of this case, the Alien Tort Statute has been used more frequently.See the judgment entered against Radovan Karadzic [70 F.3d 232 (2d

Cir. 1995)] for genocide. (That case has a good discussion of thesources of international law and affirms that these are real rulesbinding on us, and states that certain forms of conduct violate the lawof nations regardless of whether undertaken by those acting under theauspices of a state or only as private individuals.)

Western Sahara Case (1975) General Assembly Resolutions cited for the proposition that

free-association and self-determination are norms of international law.

Texaco Overseas Petroleum et al. v. Libyan Arab Republic (1977) The legal value of UN

resolutions can be determined on the basis of the circumstances under which theywere adopted, and by analysis of the principles they state.

Arbitration decision. Texaco went to Libya, planned for the worst and got an agreementthat Libya wouldnt nationalize the oil fields or refineries.

Note A contract between a corporation and a foreign government is notinternational law. Its much better to get an agreement between theUS government and the foreign government. Otherwise, internationallegal standards wont apply unless there is some other way to getinternational jurisdiction, and you can easily wind up getting screwedby the foreign government.

Aside Be wary of even the most highly-paid corporate lawyers advice on

international law matters. In the experience of professional diplomats,many if not most corporate lawyers are clueless about the realities ofinternational law.

Texacos lawyers put in the contract that the applicable law was Libyan law that was inaccord with international law principles, and any blanks would be filled withinternational law, and disputes would be decided by international arbitration, notby the Libyan courts.

Libya tried to nationalize the fields and refineries, so they went to the InternationalArbitration Court. The court said that UN resolutions are of varying weight.Not all represent clear agreement. But Resolution 1803 of 1962 was a clearagreement that Libya would have to compensate Texaco. It had no unfettered

right to take the facilities without compensation.

They had to find Libyan law, but Surah 5 of the Koran was part of it, and it said you hadto perform your contracts.

Note There is no generally-recognized right to property in international law.


II. THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW

AND

THE RELATIONSHIP OF INTERNATIONAL LAW TO U.S. FOREIGN RELATIONS LAW


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,world. A problem with that, however, is that often our law is contrary to international law.

That is not an excuse for a violation, by the way. We may be obligated by our law tonot perform a promised duty, yet we will be liable for the breach. Shouldnt haveundertaken the obligation. Sometimes it happens because of internecine squabbles,but youre still going to have to compensate for the violation.The principle that a state cannot plead its own law as an excuse for non-compliance

with international law has long been established and generally recognized. In 1887,e.g., Secretary of State Bayard said: It is only necessary to say, that if a Governmentcould set up its own municipal laws as the final test of its international rights andobligations, then the rules of international law would be but the shadow of a name andwould afford no protection either to States or to individuals. It has been constantlymaintained and also admitted by the Government of the United States that agovernment can not appeal to its municipal regulations as an answer to demands forthe fulfillment of international duties. Such regulations may either exceed or fall shortof the requirements of international law, and in either case that law furnishes the test ofthe nations liability and not its own municipal rules.

Article 13 of the Draft Declaration of Rights and Duties of States adopted by theInternational Law Commission in 1949 says: Every State has the duty to carry out in

good faith its obligations arising from treaties and other sources of international law,and it may not invoke provisions in its constitution or its laws as an excuse for failureto perform this duty.

That standard makes sense. Nazis couldnt defend their actions by saying they didwhat the Reichstag said to do, and neither can you.

Some other countries constitutions say that international law is part of their law, andthat in the event of a conflict international law trumps as a matter of municipal law.

In Germany, e.g., if you can prove an international law violation, you win inGerman court. International law takes precedence over municipal law.

See also Italy, Austria, Greece, and France.

Other systems, like the US, dont acknowledge international law as precedental overmunicipal law.

See Switzerland and the Netherlands.

Lots of systems leave open the question of which rules prevail.

Also, in many countries, the substance of international law is not an issue of fact forthe jury, but a matter of law for the court.

We are bound to international agreements, even though our convoluted municipal lawmay result in failure to keep our end of the deal. In the United States, there are

conflicts at times between our law and international law.Customary international law is NOT the supreme law of the land here. Onlytreaties are.

So customary international law loses to municipal law. But first do allyou can to interpret the law in such a way that there is no conflict.

Customary international law is still important it just isnt as strongas treaty law.

Treaty law is even more complicated.

Treaties prevail over inconsistent state laws.

The Constitution prevails over inconsistent treaties.

When a treaty conflicts with a federal statute, the most recent oneprevails. And the treaty would have to be either self-executing oralready executed by Congress.

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You have to break this all down into customary international law and treatyinternational law.The United States is very complex here.

Customary international law.

In the Paquete Habana case, our courts applied customary international law,but note that it did not involve law contrary to US law. No controlling treaty ormunicipal law existed, and the S. Ct. said that, had a treaty orexecutive/legislative/judicial law existed, it would have trumped customaryinternational law.

The Constitution refers to international law in Article I 8: Congress has thepower to define and punish offenses against the law of nations. So the framersknew that international law existed.

Article 6 says the supreme law of the land includes the Constitution, lawsmade in pursuance thereof, and treaties made in the name of the US. Period.

Not state law, federal common law, judge-made law, etc. You cannot pleadsupreme law of the land to excuse a breach of international law.

Murray v. Schooner Charming Betsy(1804) An act of Congress is never tobe construed in a way so as to conflict with international law, if there exists aconstruction that doesnt conflict.

When there is indeed a conflict, we must apply the supreme law of theland, which the President is sworn to uphold. There is authority for thePresident, when there is a true conflict, to apply US law overinternational law.

Courts dont involve themselves in conflicts here its a politicalquestion for the executive branch. Under the Act of State doctrine,because of separation of powers, the courts just stay out of it.

There are potential conflicts between the executive and legislature,between the feds and the states.

The Constitution makes the President extremely powerful Chief Executive Officer of carrying out all executive functions,monstrous powers in foreign affairs, Commander in Chief ofarmed forces, head of state embodying the country ininternational activities.

The President also has an interesting power to receiveambassadors and other public ministers. This has been readto mean that the President alone has the power to recognizeanother country.

The legislature also got some international powers: it canborrow money, regulate customs, nationalization, define andpunish felonies, maintain & arm the navy, make rules for theconduct of the armed forces, power of the purse for theexecutive to pay for what it wants to do, and the power todeclare war.

Note Regarding declarations of war, there havent been allthat many declared wars in the many conflicts in our history.

Some say that a treaty where we say we will protect anothercountry is a de facto declaration of war. The NATO treatydoesnt require US commitment of forces, only such action aswe deem necessary to take care of a situation, becauseCongress was and remains jealous of its power to declare war.


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,responsibility for interpreting the Constitution.

The 10th Amendment may or may not give the states and thepeople some say.


Treaty international law.

Know the difference between Ratifying a treaty vs. Implementing or executingit. Different things.

A treaty that says the parties agree to is binding. A treaty that says theparties intendto is not binding.

Treaties are not made by Congress, but only by the President with ratificationby the Senate. Nevertheless, those treaties become the law of the land,regardless of what the House of Representatives or the Supreme Court mighthave said about it. The only check on this power is where powers are given to

Congress as a whole the power to declare war is one such power, whichCongress guards jealously.

If a treaty makes X a crime, Congress alone has the power to decide thepunishment the treaty provision has to be executed by Congress. Suchprovisions thus are never self-executing.

Missouri v. Holland(1920) Conflict between a treaty and state law. Unlikeacts of Congress, which are the supreme law of the land only if constitutional,treaties are de facto law of the land, and are binding on the states as well ason the federal government.

We had a treaty with England/Canada protecting migratory birds.Missouri sued to prevent a federal game warden from enforcing thetreaty. The S. Ct. held that state powers fall whenever they conflictwith the treaty.

This principle has been stated even more dramatically in years since.It is a slam dunk: the state loses. UnderBelmont, state linesdisappear; states dont exist so far as treaties and executiveagreements are concerned. The federal national interest is sosupreme that treaties and executive agreements always trump statelaws.

Note The rule doesnt apply when state action is required to

implementa treaty.Reid v. Covert(1957) If a treaty is contrary to the Constitution, then thetreaty fails. The Constitution trumps. Treaties and executive agreementshave the possibility of violating a constitutional provision and thus beinginvalid.

Watch out for clauses in international agreements that are contrary tothe US Constitution:

Interference with the power to declare war.

Prohibitions on free speech.

Restricting the rights of aliens (recall that the Constitutionprotects persons, not citizens).

Denying due process of law.


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.

Taking private property.

Limiting the right to travel.

Just because a treaty is agreed-to, it may still need a little more to make it the

supreme law of the land.Foster & Elam v. Neilson (1829) A treaty is equivalent to a legislative actwhenever it is self-executing. That means it operates of itself without aid ofany legislative provision. But, when the terms are contractual, the partiesmust execute it, so it requires an act of the legislature.

The US needed access to the Gulf of Mexico, and Napoleon neededmoney for his wars, and so was willing to sell the whole Louisiana tractfor $15M. But the land had French subjects and Spanish subjects.Titles were granted to different people for the same land, then the USgot it all. In order to secure the rights and privileges of the people on

the land, the US, Spain and France needed a treaty to settle it.

The treaty was alleged to give the King of Spain power to grant title toland even after the US took control. The language said that such agrant shall be ratified and confirmed. Did that meant it wasautomatically ratified, or did it need an additional act of Congress.

The treaty was contractual. Therefore, the contract must be actuallyperformed to get the end result. The treaty merely stated the intent ofthe parties to confirm a grant of land. It envisioned an additional act ofthe legislature to implement it before the grant was confirmed.

Self-executing treaties vs. Non-self-executing treaties.

An international agreement cannot take effect as domestic law withoutimplementation by Congress if the agreement would do something that is withinthe exclusive law-making power of Congress.

Thus, an international agreement providing for the payment of moneyby the US requires an appropriation of funds by Congress.

An international agreement cannot bring to US into a state of war.

An international agreement cannot make something a US crime.

An international agreement cannot raise revenue by imposing a newtax or tariff, but it can affecttariffs with most-favored-nation andsimilar clauses.

If an international agreement is silent as to whether it is self-executing or not,and the intention of the US is unclear, then look to things said by the WhiteHouse/State Department or by the Senate in ratifying it.

If a provision is non-self-executing, then the US is under an internationalobligation to adjust its laws and institutions (if necessary) to give effect to theagreement. (Wed get a reasonable time to do so before being held in default.)

Fujii v. California (1950) A California statute forbade aliens ineligible forcitizenship from owning or using real estate. The plaintiff relied on the UNcharter, in part, claiming that the statute violated human rights. This was heldnot to be enough, however. The charter was not a binding set of rules withoutsome other act. (He won on 14th Amendment grounds, anyway.)

Any agreement which itself requires further legislative enabling action by the

countries is non-self-executin .


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.

Note Im not talking about ratification by the parties. Ratificationis self-execution.

If you write in a provision describing how the US will fulfill itsobligations on its side, thats fine, but thats not binding as part of theinternational legal obligation.

You do have some power to go into who implements what.Its just a problem when the unilateral obligation is notrationally-related to the international agreement itself.

Note well If the agreement makes it enter into force, and the provision isself-executing, then it is binding even if it hasnt yet been implemented by thelegislature.

Whitney v. Robertson (1888) In the event of a conflict of a treaty with UnitedStates statute, the one that is most recent in time prevails.

The US and the Dominican Republic had a most-favored-nation

agreement, where the US would never give another country a betterdeal on sugar tariffs. If another country did get a better deal, then theDominican Republic would get the same treatment. The D.R. wasutterly dependent on sugar exports, so it was important that the treatysay theyd always get the lowesttariffs on sugar.

Congress then let Hawaii export sugar duty-free. The D.R. objected tothe duty its had to pay, and paid only under protest.

The S. Ct. acknowledged that treaties and statutes are both the law ofthe land. When there is a conflic t, it held, then the later in timecontrols.

The statute violates the international agreement, sure, but the US law

is whichever is most recent. The D.R. sti ll has the right to reparationsor other satisfaction, though.

Note A more recent treatyovertakes inconsistent prior legislationautomatically only if it is a self-executing treaty. Otherwise, itovertakes the legislation upon the passage of implementing legislation.

Charlton v. Kelly(1913) A breach of a treaty by one party makes the treatyvoidable by the other party.

The US and Italy had a mutual-extradition treaty. Usually, states dontagree to extradite their own natives, but this agreement said thats

what the parties would do. Italy refused to extradite its own nationalsto the US, however.

An American was going to be extradited to Italy under this treaty, andargued that because Italy had breached the agreement it was void, andso there was no need to extradite him.

The Supreme Court held that a material violation of an internationalagreement doesnt automatically void the agreement. A treaty isbinding until abrogated, so it was still binding and the US had toperform.

The executive branch decides when a treaty has been abrogated. Inthis case, they felt that it wasnt worth it. So the American got

extradited to Italy.



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III . EXECUTIVE AGREEMENTS

95% to 99% of all international agreements to which the United States is a party are ExecutiveAgreements.

The Constitution doesnt refer to executive agreements, but they have been enteredinto from the beginning.

Not the same as a treaty, but in terms of international law there is no difference.

In terms of municipal law, the difference is that executive agreements are notsubmitted to the Senate for approval. Treaties must be.

The 1972 Case Act requires that Congress be given a chance to look atexecutive agreements within 60 days. 1 U.S.C. 112b. All that happens,though, is that Congress recognizes the existence of the executive agreement there is no need for congressional approval.

If an executive agreement conflicts with the Constitution, the Constitution prevails.

If an executive agreement conflicts with state law, state law loses.

United States v. Belmont, 301 U.S. 324 (1937) The Soviets nationalizedeverything in Russia. American companies property was seized. ThePresident froze soviet bank accounts, as always, so that an agreement couldbe made where the soviets would drop their claims to the accounts, whichwould then be distributed among the United States citizens whose property hadbeen taken. Pennies on the dollar, but at least it would be something. Inexchange, the President recognized the soviet government.

Belmont was a private banker doing business in New York state. TheUnited States sued to recover the soviet deposits with him. The lowercourt held that this would conflict with the interests of New York state,

so it couldnt be done.

The S. Ct. held that the feds have sole and complete power overinternational affairs, so even if the result of federal action would becontrary to the controlling public policy of the state, the state stillloses.

New York didnt have the power to recognize foreign governments.Only the President could do that.

United States v. Pink, 315 U.S. 203 (1942) same holding. Whenever thereis a conflict between an executive agreement and state law, state law loses.

These are huge executive powers.

Nevertheless, it is important to establish good relations with state authoritieswho do things, because they are probably going to violate some executiveagreement along the line if theyre unaware of it.


When the President needs an executive agreement, he can do one of three things:

1. If the agreement is crucial to international and national agreements, he should get a

treaty.UN membership, NATO, extradition, taxes, postal matters. Only the really bigcommitments, nothing else.

2. The President may just sign the agreement as an executive agreement, based either

a. on his sole owers under the Constitution, or


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b. with congressional acquiescence if based on shared powers.

Regardless of which basis it is, neitherkind of executive agreementrequires congressional approval.

The statute books are full of acquiescences by Congress to let thePresident make executive agreements in certain areas.

So what happens when, even though the basis is sharedpowers, Congress was silent, and the President still did it?

What happens when Congress is vocally opposed to it, andthe President st ill does it?

3. Sometimes, in certain economic agreements, the President knows he could do atreaty or an executive agreement, but instead he does a fast-trackagreement.

The President makes the agreement, and it goes to the House and Senate fora strict thumbs-up or thumbs-down. They cannot make any modifications.

These are rare. NAFTA, GATT.


Purely Executive Powers, versus Shared Powers.

There are some, albeit very few, areas where the President has powers that he doesnthave to share with Congress. Congress opposition or acceptance is irrelevant regardless of how Congress votes, the President alone can do these things, such as:

Recognition of foreign governments.

Receiving ambassadors.

Most presidential powers here are shared with Congress. So most executiveagreements are Congressional-Executive Agreements. Congress has either supportedit or acquiesced to it. The President does it with Congress blessing.

Recall Youngstown Sheet & Tube, Trumans steel seizure case. Trumancommitted many troops to Korea, 50,000 of whom would die there, without apeep from Congress yea or nay. While that was going on, a steelworkersunion strike was planned. Hours before the strike, Truman ordered theexecutive branch to take over the steel mills and keep them running. The S.Ct. said his power to do this had to come from either the Constitution or astatute. No statute, not even any act of Congress existed from which this

power could be implied. Justice Jacksons opinion broke it down well (he wasfreshly back from the Nuremburg tribunal). There was lots of overlap betweenthe powers of the executive and the legislature here, which created a zone oftwilight (soon the be the name of a TV show) in between the areas where eachbranch clearly trumps. The lawyers job is to decide whether the President cango ahead or not. This case had many different opinions, only three of whichallowed the President to go ahead and do it. So Truman lost the Presidentdid not have the power to seize the steel mills. Only Congress could do it.

When there are shared powers, it is important to know whether Congress hasspoken on the area.

Usually, Congress winks at the executives actions, or activelysupports them. But this isnt always the case.

Merely because Congress has powers in an area, that doesnt meanthat the President doesnt.

Apply this analysis to conflicts in foreign affairs:


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Take, for example, the nonproliferation of nuclear weaponry. Nothingis more important tons of it is pouring over borders. Nucleardevices are all over. They arent technically weapons, but theyre justas deadly. Chemical & biological weapons are out there, too, andtheyre no joke either.

Because we arent part of an exclusive club here any more,

Congress justifiably is anxious that something be done aboutit and fast.

So Congress gives the executive branch funding and marchingorders to do something about it.

Executive agreements are handy tools for doing somethingabout it.

What if Congress hasnt spoken on a subject, and the President makes anexecutive agreement?

The President has a good record here, so its still okay.

If Congress vocally opposes it, however, and the executive agreementconflicts with a statute, then theres a problem.

The standard is notthe same as a conflict between a statute and atreaty. If the President lacks the sole constitutional authority to makethis executive agreement, and Congress shares the authority, thenCongress prevails.

Only once has a court addressed this problem. In 1948, the 4th Circuitdecided Capps, where Congress had passed a law to protect farmers.

The law said that should the President detect a possible tradeproblem, then the President was to order an investigation. Ifthe investigation turned up a problem, there were certain

things he could then do.Our ambassador to Canada noticed that a lot of potatoes werepouring in to the United States from Canada. The Secretary ofState made an executive agreement with Canada to permitunlimited potatoes, but only for seed purposes, not for eating.The Secretary of State took it upon himself to do this withoutgoing through the steps Congress had laid out.

This is clearly a shared power commerce and trade.Congress had spoken dont do X without doing Y.

Of course the Secretary of State likely had no knowledge ofthe statute, as it was only a few months old. The court

nevertheless still held that the executive agreement failedbecause Congress had said not to do it.

There was much citing ofYoungstown.

There was another case in 1981, Dames & Moore v. Regan, but itreally wasnt on point here. So Capps remains the only precedent here.


IV. STATES

Definition.

The nation-state is the fundamental entity of international law. States are not the onlyactors there are also people, corporations, international organizations, etc. butstates are the big ones.

A government is notthe same thing as a state.


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A government is a separate entity from the state.

Four Requirements:

1. DEFINED TERRITORY, OVER WHICH THE SOVEREIGN EXERCISESCONTROL.

Not every single river, stream and rock need be defined. Border

disputes are common.

Emerging states It is a common principle that emerging statesinherit the territorial borders they had before. Usually, the only otheralternative is bloodshed.

The former Yugoslavia did have a border agreement at first each entity would retain the borders it had prior toindependence. Had the nations of the world enforced thatborder agreement, much of the bloodshed and atrocities would

have been avoided.[1]

Still, the all bets are off approach seems to be the exception,

rather than the rule, for emerging states.2. DEFINITE POPULATION OF PEOPLE.

Can be a few hundred only, but you do need some people.

3. UNDER CONTROL OF ITS OWN GOVERNMENT.

If another state governs you, youre not a state yourself.

4. CAPACITY TO ENGAGE IN INTERNATIONAL DEALINGS WITH OTHERSTATES.

More on the 4 requirements:

States can give up any of these. Liechtenstein, for example, has given p allforeign-affairs power to Switzerland, yet it is still a state.

There was a U.N. meeting to determine who was to pay for a certainproject. The Swiss ambassador ran over to the Liech. seat and arguedthat the U.N. should pay for it, then ran back to the Switz. seat toargue that the beneficiary nations should pay for it.

You have to make decisions on whether an entity is a state or not, if you are toknow what to do in a situation.

Usually, this is not a problem. But sometimes...

The question of statehood arises particularly in the following situations:Break-up of an existing state into a number of states.

Secession or attempted secession by part of a territory of anexisting state.

Cases where foreign control is exerted over the affairs of astate, whether by treaty, unilateral imposition of authority, ordelegation of authority.

Cases where states have merged or formed a union.

Claims by constituent units of a union or federation to theattributes of statehood.

Territorial or non-territorial communities which have a specialinternational status by virtue of treaty or customary law, andwhich claim statehood for certain purposes.

The Restatement (Third) 206 states that the capacities, rights and duties of

states include the following:


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Sovereignty over its own territory, and general authority over itsnationals.

Status as a legal person, with the capacity to:

own, acquire, and transfer property;

make contracts and enter into international agreements;

become a member of international organizations; and

pursue, and be subject to, legal remedies.

The capacity to join with other states to make international law, ascustomary law or by international agreement.


Recognition of States.

Recognition is unnecessary for you to be a state, but it helps.Salimoff (1933) Recognition neither creates nor constitutes a state.

There is no duty to recognize a state, even if it meets the 4 requirements.

Recognition is discretionary.

Even if you dont recognize a state, you may still be obliged to treat itsauthorities and actions as if it is a state.

Is there ever a duty not to recognize a state?

Yes, in certain circumstances. As when the general international

consensus is that control has been wrested by force or threat of it.Like when Iraq invaded Kuwait, the United States and U.K. embassiesremained there for a very long time in horrid conditions, to emphasizethe nonrecognition of any incorporation into Iraq, and nonrecognition ofthe puppet government.

Other situations where you dont recognize a state:

Where recognition would be premature, as when an emergingstate is still in the throes of civil war. Wait until its reallyindependent.

Illegal states, founded on a violation of international law.Rhodesia, for example, was a fake South African apartheid

home-rule reservation.

States long for recognition, and savor it when they have it. They need foreignrecognition, even though it isnt necessary for statehood.

When the United States rebelled against England, we wanted recognition f romother countries. Other states were eager to recognize us, the Dutch first (tostick it to the English). France wanted to, but couldnt, because the smartBritish took control of the cities. In retrospect, they should have gone afterWashingtons army, but they didnt. Then Saratoga, the first time the brits gottheir butts kicked, showed that the rebels had something to back up their

independent entity . Only then could France intervene (and even then it wasway premature). And without the French fleet in the Hampton Roads, therewould have been no surrender, and there would be no United States.

Recognition was a major issue in our Civil War, as well. The Confederacy atfirst fought a defensive war. Then Lee said that the best way to win the war

and get foreign recognition was to invade the north. This was calculated to get


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British and French recognition. The blockade of the southern ports had putvast numbers of the British population out of work, and there was greatstarvation. The average subject, though, was still so appalled by the idea ofslavery that no matter how much it hurt the British refused to recognize theConfederacy, though they came very close. (Even though they were starving,human rights still mattered.) The driving force behind Antietam and Gettysburgwas foreign recognition by the French, British, Prussians, etc. (as well as that

little thing called winning the war, but thats a subject for another discussion).In the United States, recognition is a political power left up to the President alone.

There has to be a government in charge, for there to be recognition.

A government may be a hard thing to find, as in Somalia in the 1990s, eventhough it is there.

Finland wasnt recognized for a while, because all sorts of peoples lived there.Yugoslavia had the same situation, but went the opposite direction and

became so... balkanized... that it is not one state any more.

Because a government is not the same thing as a state, there is a differencebetween recognition of a state and recognition of a government. Also, you cando both yet still have limited or severed diplomatic relations (these mean little,other than that you dont like each other). See Recognition of Governments,below.

(Proposed) FIVE ADDITIONAL CRITERIA FOR RECOGNITION, developed followingthe Yugoslavian crisis that began in 1991. Recognition would be accorded in light ofthe states adherence to:

1. Peaceful and democratic determination of the countrys future.

2. Respect for all existing borders, both internal and external and change tothose borders only through peaceful and consensual means.

3. Support for democracy and the rule of law, with emphasis on the key role ofelections in the democratic process.

4. Safeguarding human rights, based on full respect for the individual andincluding equal treatment of minorities.

5. Respect for international law and obligations, especially adherence to theHelsinki Final Act and the Charter of Paris.

See, Slovenia had broken off and whipped the Serbs thoroughly.They got their own territory, people, post offices, etc. But the EEC,the US, and the UN said they had to do the above as well.

These criteria are NOT part of customary international law!

They are expedient, not law, and the EEC has gone back onrequirements in many cases.

This may be the beginning of a custom, but it isnt law yet.

Recognition isnt guaranteed, even if it would be okay.

Macedonia meets all 4 requirements for statehood. The UN peacekeepers arethere with the consent of the government. It looks like a state, acts like one.Yet nobody has recognized it, because Greece doesnt like the name (theyhave a border province with the same name, and they dont like theimplications, unsurprisingly). And the flag resembles Alexander the Greats

seal, so the Greeks dont like that either. So Greece hasnt recognized


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ace on a, an t gets ma at anyone w o even t n s o t. o mme ate yTurkey and Bulgaria recognized it.) But nobody else has recognized it.Lesson: Governments are made up of people. Bitter, petty people.

Even though a state is not recognized, not a de jure state, it still may haveresponsibilities and obligations as a de facto state.

Nonrecognized states can and do engage in activities that affect other states.


Recognition of Governments.

It is possible to recognize a state its borders and people at least yet notrecognize the governing authority. Like the United States did with Vietnam.

Foreign governments that are not recognized cannot sue in United Statescourts.

Guaranty Trust Co. of New York v. United States, 304 U.S. 126 (1938) Which government is to be regarded as the recognizedrepresentative of a foreign sovereign state is apolitical question, not

judicial. It is to be determined by the executive, whose decision willbe conclusive on all domestic courts.

There is no requirement under international law to recognize a foreign government.There are certain legal ramifications in your own country, but thats all. So go aheadand slap that government in the face by not recognizing it.

You can also recognize a government yet choose not to have diplomaticrelations with it. For example, we recognize Castros government in Cuba, we

just dont have any embassies there.Standards for Recognition of Governments:

Thomas Jefferson set the early stage for this following the French Revolution,instructing the U.S. envoy in Paris that it accords with our principles toacknowledge any government to be rightful which is formed by the will of thenation substantially declared.

For a long time, regardless of how the government was formed,whether by revolution or whatever, if it was formed by the will of thepeople then we recognized it .

During the 1800s, we had the simple standard that every nationpossesses a right to govern itself according to its own will, to changeits institutions at discretion, and to transact its business throughwhatever agents it may think proper to employ.

In the 20th Century, the United States got upset at the Latin-Americangovernments. There was a period of time when we didnt recognizegovernments ofrevolutionarycountries (like Mexico).

We developed an interesting dichotomy between de facto governmentand de jure government.

De facto the government that is actually there.

De jure the proper government, the lawful government.The one we like best.

This has resulted in a ton of awkward, difficult situations and


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pro ems.

The 1930 Estrada Doctrine (from the Statement of Mexican ForeignMinister Estrada) was that there is no need for recognition ofgovernments. Being the de facto government is enough. (Still,Mexico never recognized Franco as the de jure government of Spain.)

The movement now is to just focus on the de facto government.

When has a government emerged to the point where you can recognize it?

Have to be careful. If you do it too soon, you may be impermissiblyintervening in a civil war.

There were two warring camps over who represented the people ofSpain in 1936. The Nazis and Italians supported Franco as the lawfulgovernment, but they did so way prematurely (when the fall of Madridwas anticipated by many observers). Such premature recognition canconstitute impermissible involvement in the conflict. (Of course theNazis had no problems with violating international law left and right.

They act ively got involved in the conflict anyway.)

There is definitely a subjective element to this. Its still an emergingarea of law.

Restatement (Third) 203 Although you dont have to formally recognize thegovernment of another state, you still have to treat as the government whatever regimeis in effective control of the state (unless its control came about in violation ofinternational law).

What is the status of a government during the murky period of nonrecognition?

Tinoco Claims Arbitration (1923) Britain asserted claims against Costa Ricafor acts of the predecessor Tinoco regime, which had come to power by a coupand maintained itself in control for two years. Britain didnt recognize theTinoco regime. When it fell, the restored government nullified all of the Tinococontracts, including an oil concession to a British company. Britain arguedthat the Tinoco government was the only government in Costa Rica when theliabilities were created, and that its acts couldnt be repudiated. Costa Ricaargued that the Tinoco regime was not a government, and that Britain wasestopped by its nonrecognition of Tinoco anyway. The sole arbitrator (ChiefJustice William Howard Taft) held that a government which asserts controlthroughout the country with the acquiescence of the people becomes the de

facto government the nonrecognition of it by major powers has no effect onwhether or not it is the government. Also, the claim of estoppel was wrongbecause the British nonrecognition didnt dispute the existence of the Tinocoregime, and also because the successor government had not been led byBritish nonrecognition to change the governments position.

To hold that a government which establishes itself and maintains apeaceful administration, with the acquiescence of the people for asubstantial period of time, does not become a de facto governmentunless it conforms to a previous constitution would be to hold thatwithin the rules of international law a revolution contrary to thefundamental law of the existing government cannot establish a newgovernment. This cannot be, and is not, true.

It didnt matter that the government wasnt recognized. You couldntdeny that it had been in control.

This had been a deal between a British company, not the government,and Costa Rica. Britain stepped in to protect the company (rare, and

its usually a bad idea for a corporation to contract with a government


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anyway .

Ordinarily, changes in government dont change the statesobligations. The President signs for his state, not for himself. TheShahs agreements are still binding on Iran, and they have to gothrough the procedures to remove them if they dont like them.

RememberTinoco in dealings with nonrecognized entities they are

still the effective government of their states.

Control can be brief. Here, Tinoco only had thirty months. Itcant be just for a day, though.

You also cant take over a portion of a state and speak for thewhole state (with the small exception of obligations that arenormally incurred by government anyway).

Once in a while, unrecognized governments do things like sign agreementswith foreign governments, maintain diplomatic corps, etc.

Nonrecognized governments can engage in acts that will be recognized by UnitedStates courts.

Salimoff & Co. v. Standard Oil of N.Y., New York Court of Appeals 1933 Even though the Soviet government was not recognized by the United States,soviet confiscation of property within the territory of the USSR was binding onthe United States courts.

The property in question, oil land, was in the USSR. The de factopower in control of the Russian territory was the Soviet government.The land had been confiscated from Salimoff & Co., who claimed thatthe Soviet government was a band of robbers. The Soviet governmentwas not yet officially recognized by the United States, so what was thevalidity of its acts? The case was taken to court in New York State.

If a nonrecognized government is allowed to sue, then youdbe recognizing it. Here, however, neither party was the Sovietgovernment; the only parties involved were businesses.

The first thing to ask in a situation like this is Is a foreigngovernment (or its agency) a party directly involved? Thereare a whole array of analyses that will go wrong if you dontask this first.

1. Is the foreign government involved?

2. Is it a party to the court proceeding?

The USSR met all four requirements of statehood, and the Soviet

government de facto existed. Recognition does not create the state.So the New York court held that the Soviet governments actions did

pass title of the oil lands, and it was legally binding in United Statescourts.

Note that this was only property located within the USSR. We didntpermit the Soviets to confiscate assets abroad, such as bankaccounts in the United States.

Salimoff, read in conjunction with Tinoco, also means that successors ofnonrecognized governments are bound by their actions.

Upright v. Mercury Business Machines, New York appellate division 1961 Just because a government isnt recognized, that doesnt invalidate privateobligations arising out of dealings with that government.

The defendant company issued a note to pay for typewriters from East


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,workers). The note got passed around, and citizen Upright tried tohave it honored.

The defendant company rebuffed the poor schmo, claiming that EastGermany was not a recognized government, and the manufacturer ofthe typewriters was an instrument of that government.

However, the fact that the government was not recognized doesntinvalidate the typewriter sales transaction, even though themanufacturer was controlled by that government.

Fairness is also an issue here you cant transact with themanufacturer and then refuse to honor your own note, regardless of thevalidity of the manufacturer. You made the note, you honor it.

National Petrochemical Company of Iran v. M/T Stolt Sheaf(2d Cir. 1988).

Bizarre exception to the rule that nonrecognized governments cannot getaccess to United States courts.

Iran was trying to sue in United States courts over black-market shenanigans.The State Department wanted Iran to be allowed to sue, on this one occasion

only.

The executive has great powers here, to which the judiciary deferred.

On international law matters, a State Department amicus is actuallygiven weight by the courts.

A foreign government in exile is nota de facto government. It may be de jure,however.

It doesnt control a defined territory, thus it is not a state.It can be treated as a de jure government, however. The Polishgovernment in exile was very effective during WWII, acting out ofLondon.

You have to choose whether to take the status of de jure government in exile.

The PLO decided not to, because although it couldhave beenrecognized as such, that would be admitting that they werent actuallyin control.

The Palestinians have been doing everything they can to look like astate theyve got a flag, currency, passports, etc. But they arentnecessarily in control of their own territory, and theyre not really ableto engage in foreign relations. Maybe theyll be an independent statesometime, but Israel wont let that happen until theyre satisfied onsecurity . (Israel still makes agreements with the Palestiniansregarding extradition, however.)

State Succession.

The rights and responsibilities a state takes from its predecessor are onlythose which it can convince other states that is has succeeded to.

If a state has just undergone a change in government, therights/capacities/obligations of the state are unchanged.

Only a concern if the state acquired sovereignty over a territory from anotherstate (absorbed another state or part of it, or became independent).

Back to Contents

2007-2010 Nathaniel Burney


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Self-Determination.

The right of peoples to self-determination is undeniably a right under customaryinternational law, but the hard part is defining Self in self-determination.

One source of customary international law here is the United Nations

Declaration of Principles of International Law Concerning Friendly RelationsAmong States in Accordance with the Charter of the United Nations (1970).

The right to split away and form your own new government is onlyrecognized in terms of ending colonialism or ending foreignsubjugation.

The declaration is not meant to authorize or encourage anyaction which would dismember or impair, totally or in part, theterritorial integrity or political unity of sovereign andindependent states conducting themselves in compliance withthe principle of equal rights and self-determination of peoples,and thus possessed of a government representing the whole

people belonging to the territory without distinction as to raceor creed.

This is a big exception.

Self-determination is not just the right to break free and establish a new territory. Thereis also a middle course, a right of minorities to be themselves without being punished a right to participate in cultural, linguistic, etc., groups.

The problem is, that leads to more separatism. If every ethnic, religious orlinguistic group claimed statehood, there would be no limit to fragmentation.Peace, security and economic well-being for all would become even moredifficult to achieve.

Separatist groups may not have the right to rebel. Nor may they be entitled toforeign assistance. (They do, of course, have human-rights rights.)


Sovereignty over Land, Sea, and Air.

States are sovereign, and cannot interfere with other states without permission.Sovereigns are responsible for everything and everyone inside their territory. Citizensowe real allegiance to their sovereign state (IRS goes wherever you go, for example).

UN Charter Article 2, 7, says that you cant interfere with what a sovereign

does in its own territory, with the exception of enforcement.

Acquisition of Territorial Sovereignty.

How do you acquire territorial sovereignty? How do you get control over thisplot of land?

Borders are not set in stone, and there are many border disputesaround the world. But most border disputes are settled bynegotiations, not with tanks.

Borders have amazing legal ramifications. On one side of animaginary line drawn through the woods, youll be punished forbehavior that may be positively encouraged on the other.

Usually, without GPS or a surveying team, you cantdetermine which side of a border youre on.

To maintain your territory, you dont have to physically occupyevery square inch of land 24-7, but not a day goes by without

some action to maintain your borders.


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Title, in most cases, descends from discoveryof the land.

Island of Palmas Case (1928) oft-cited case here. Right onthe international boundary between the Dutch East Indies andthe Philippines sat the Island of Palmas. It had beendiscovered, but not settled, by Spain. It had been treated asDutch by the Netherlands for centuries. The United States got

Spains Pacific holdings, and the Treaty of Paris specificallyincluded this island (well, on the map only, it wasnt listed inthe document, but including something on a map thats part ofa document is dangerous this way. And the Dutch werentparty to the Treaty, so they wouldnt be estopped by the mapanyway). So was the island Dutch or American?

Spain had based its territorial claim on discovery(well, at least they were the first Europeans to sightit). But all they did was see it, they didnt set foot onit.

The Dutch claimed that it was theirs, based on acontinuous and peaceful display of sovereignty. Well,they hadnt occupied it either, but the Dutchgovernment had been having official relations with thetribal leaders there, and theyd had dealings with theisland from time to time. During the couple of hundredyears that this was going on, there was nary a peepout of Spain.

By discovery, Spain got inchoate title.

Thats just a preliminary right. You have todo something else within a reasonable periodfor title to vest. In this case, theyd have hadto occupy the island.

At the very least, Spain should have objectedto the Dutch activit ies. By failing to do so, itwas estopped from claiming sovereignty overthe island. And thus so was the UnitedStates when it took over Spains territories.

Spains claim of contiguity was a red herring here.(Its ours because its c lose to us.) Thats not afactor when islands are at issue. Maybe, however, ifpart of a land mass.

Legal Status of Eastern Greenland Case (1933).

In 1814, Denmark lost Norway and Sweden because ithad sided with Napoleon and lost (ironically, Swedensnew ruler had been a field marshal for Napoleon).Denmark still retained control over Iceland, Greenland,and some other islands.

For many years, nobody objected or disputedDenmarks claim to Greenland, not until the first halfof the 20th century. However, in the meanwhile,Norway secretly coveted Greenland. This was a bigdeal 840,000 square miles of territory.

In 1921, Norway disputed Denmarks claim. In 1931,Norway landed a military force on the island, sayingthat it had been terra nullius, and that now theyoccupied it. I dont see anybody here, and its mine

now.


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Denmark disputed this claim, and in good Nordictradition submitted it to ICJ arbitration.

Denmark based its claim on a peaceful andcontinuous display of sovereignty (having read theIsland of Palmas case). Itd been continuouslyasserting its rights, and nobody had disputed it until

1921.TWO REQUIREMENTS FOR PEACEFUL ANDCONTINUOUS DISPLAY:

1. Demonstrated will to be sovereign, AND

2. Display that sovereignty throughaffirmative actions not just by saying thatnobody else owns it.

Denmark had done little, but they had done what theycould they put their claims in internationaldocuments from time to time. From 1815 to 1914,there was no doubt about their claim, and evenbetween 1921 and 1931 Denmark had still doneenough for the arbiter to decide in their favor.

According to the court, Norway would havelost anyway, on 2 other unrelated grounds.

Norway had failed to object whensigning a multilateral agreement onherring, where the Danes had statedthat Greenland was theirs. What theyshould have done was eithernot signit, ormake a reservation (up in thecorner, state that your country does

not assent to that assertion).

Norway had expresslypromisednotto contest Danish sovereignty overGreenland.

Norways express promise not to contest Danish sovereignty over Greenland wereoral. Just some vague statements between ministers at a cocktail party. How couldthat possibly be legally binding on Norway?

Norways Minister for Foreign Affairs sent an official memo back to hisgovernment on July 22, 1919, stating: I told the Danish Minister to-day thatthe Norwegian Government would not make any difficulty in the settlement ofthis dispute.

The PCIJ considered it beyond all dispute that a reply of this nature given bythe Minister for Foreign Affairs on behalf of his Government in response to arequest by the diplomatic representative of a foreign Power, in regard to aquestion falling within his province, is binding upon the country to which theMinister belongs.

Understandably, lawyers get antsy when the appointed diplomats starttalking out of turn.

Norway replied that under its constitution, the foreign minister could not enterinto a binding international agreement on matters of importance withoutapproval of the King in Council. But the PCIJ rejected that claim. It wassufficient, the Court found, that the foreign minister acted within his province inreplying to an inquiry of the Danish government.

DONT DO BUSINESS ORALLY. PUT IT IN WRITING. Dont take the risk ofgetting stuck like this, especially because the conversations cant accurately

be reconstructed.


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Burkina Faso v. Republic of MaliFrontier Dispute (I.C.J. 1986) There are lots ofproblems in Africa resulting from political borders being drawn across tribal andgeographical boundaries. They can live with the borders as drawn, or make them allcontested (in which case bloodshed is unlimited). Here, bloodshed was avoided by anICJ settlement.

Malis President made a statement to the press that Mali wouldnt care ifBurkina Faso got the disputed territory. His handlers quickly covered for him,saying that it was a marvelous example of his witty nature. The ICJ held thatit wasnt binding anyway, because the statement was made to thepress, not indiplomatic channels.

El Salvador v. Honduras (I.C.J. 1992) A riverbed was the border. The riverbedshifted. So now where was the border? (This happens all the time on the Rio Grande,too.)

If the shift is gradual(accretion), then the bordershifts with the riverbed.

If the shift is sudden (avulsion), then the border is notchanged.

Footnote: The horrid bloodshed and war that led up to this case wasthe result of a soccer match! I kid you not.

Thalwig Doctrine Borders along rivers are usually in the middle of the NAVIGABLECHANNEL, not necessarily the same thing as the physical halfway point of theriverbed.

AIRSPACE/SEA TERRITORY (much more on this under Law of the Sea).

There is a right of innocent passage on water within the 12-mile limit (theterritorial sea).

There is NO right of innocent passage in AIRSPACE, even within the 12-milelimit/territorial sea.

Regularly-scheduled airline corridors and routes aside, everybodyneeds clearance for each plane going over each countrys airspace.

Countries vigorously enforce their airspace as their territory.

Use of force against violations must be PROPORTIONATE. Dont shootpeople down who pass in and out, or who are just dropping leaflets. You maynot even have the right to shoot the plane down, but try telling that to the Sovs.

When an incoming craft is high-speed, we ask for ID before it gets to the 12-mile limit, but thats out of caution, not technically international law.

Airspace goes all the way up into outer space above your territory.

These rules are real. Americans are dead because of them. Pilots diebecause countries wont let us fly over their airspace, and they run out of fuelover water. You have to get explicit permission to fly over someonesairspace, and often it isnt given.


V. NON-STATE ENTITIES: ORGANIZATIONS, CORPORATIONS and INDIVIDUALS

International Organizations.

Governmental(Public) International Organizations.


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These are established by states.

Given powers by states (specified in the organizations charter).

Powers include much of what states can do. For example, they maybe able to enter into treaties with states.

Non-governmentalInternational Organizations.

These are tolerated by states.

MultinationalCompanies.

Notcorporations that operate in several countries. (Those are transnationalcorporations.)

A truly multinational company is ownedby several countries.


Individuals and Nationality.

The individual has always been a factor in international law, with piracy if for no otherreason.

Individuals can be responsible to international law for their own actions as individuals,not solely their actions as government agents.

Crimes against international law are committed by men, not by abstractentities, and only by punishing individuals who commit such crimes can theprovisions of international law be enforced.

The official position of a defendant, whether as a head of state, or as aresponsible official in government, shall not be considered as freeing him fromresponsibility, nor in mitigating punishment.

DIPLOMATIC PROTECTION the state takes up a citizens claim on behalf of theindividual.

Mavromattis Palestine Concessions (Greece v. Great Britain) (PCIJ 1924).

A Greek citizen said he had been treated unfairly by Great Britain inviolation of international law, and he asked Greece to take up his casebefore an international tribunal.

Great Britain said an individual has no right to have a state take up hisclaim on the individuals behalf.

The PCIJ held that, by taking up the case of one of its subjects and byresorting to diplomatic action or international judicial proceedings onhis behalf, a state is in reality asserting its own rights its right toensure respect for the rules of international law. It just happens to beasserting that right through one of its subjects.

The decision to provide diplomatic protection is left up to the state. It is notthe individuals decision to make.

Only the state of which the individual is a nationalhas the right to providediplomatic protection.

Determining the nationality of the individual is therefore CRITICAL in asituation like this.

Tinoco Claims Arbitration case again.

Great Britain took up the corporations claim on its behalf againstCosta Rica.

Corporations have nationality, as do ships & planes. [Aside:Honduras Panama and Liberia have com eted to have the lowest


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safety s tandards and taxes, and most permissive liabilities law, forships and planes. This makes things even worse if you have aproblem on such a ship/plane.] Decisions about nationality areimportant.

The doctrine of diplomatic protection is alive and well, and is in constant use.

Nationality is important.

A state has prescriptive jurisdiction over nationals overseas. A state can givediplomatic protection to a national. Extradition treaties may provide that astate need not extradite its own nationals. Stateless people are at the mercyof a cruel world, its good to have backup.

Whatever your citizenship, the laws of your country can follow you whereveryou go, if your country so desires.

You need to know the nationality of people in a given situation, to know if thereare any applicable treaties.

If you are stateless, youre screwed. No state can intervene on your behalf,you have no protection. Youre an alien everywhere.

There is no international law obligation to let aliens into your territory.But once admitted, there are obligations on how you treat them.

Many refugees are stateless. Sure, theyre residents of some state orother, but they arent nationals. Thus, they are not entitled to thesame rights as nationals.

States cant arbitrarily strip you of nationality. Its okay for espionage ortreason, but not for little crap.

There is no rightof asylum, no matter what awful thing is happening to you.

Many states are signing agreements envisioning asylum, but it isnt customaryinternational law yet. Many states also say you cant be repatriated onceyoure in their territory, but they arent required to say that under internationallaw.

All cit izens are nationals, but not all nationals are citizens.

Citizenship is decided under municipal law, and doesnt affect howsomeone is treated under international law.

In some countries, only a tiny portion of the population are citizens(with rights like owning property, etc.), although most of the population

may be nationals.Nottebohm Case (Liechtenstein v. Guatemala) (I.C.J. 1955). Big-timeimportant case. Established the rules for when states must accept you as anational of X country. When must a state recognize your passport. (Nationalshave a right to a passport, but whether it is honored or not is different.)

Mr. Nottebohm was born and reared in Germany. At the age of 24, hewent to Guatemala, and lived & worked there for a long time.

He never became a Guatemalan national, however, because that wayhe could avoid taxes. (Countries have since gotten tired of thisloophole, but thats the way things worked then.)

After 34 years (it was now 1939), it was suddenly not a good time tobe a German national. So he went to Liechtenstein. There they hadsome minimal procedures for naturalization, and he went through them

to become a national. He took an oath of allegiance and paid backtaxes. Well, he didnt reall a the taxes, he ust left a securit


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deposit. He paid his fees, they waived the residence requirement, andhe was a Liechtenstein citizen.

Then he went back to Guatemala.

WWII began. In wartime, enemy aliens are frequently rounded up andput into interment camps where they are held to be traded for your ownnationals abroad. (Interment camps based merely on race, where your

own cit izens are put, are bad.) Mr. N. was picked up by theGuatemalans and sent to the USA for interment.

He said he wasnt a German, he was a Liechtensteiner. Had hispassport and everything. Guatemala didnt honor it.

Liechtenstein was outraged that its passport was being treated liketoilet paper, and sued Guatemala in the I.C.J.

The case never got to the legal issue of extradition, because first theyhad to decide whether Liechtenstein was allowed to assert diplomaticprotection and assert the rights of this individual. They could only dothat if he really was a Liechtenstein national.

Note, this wasnt a formal extradition, they were just deportingan alien. Extradition is when you send someone to anothercountry to stand trial for a crime.

Critical point international law leaves it up to each state to make therules for nationalization. Whatever the state says are therequirements, thats the requirements to be a national.

Critical point but, whether other states must recognize thatnationality is up to international law.

Nationality is a legal bond having as its basis a social fact ofattachment, . ..

a genuine connection of existence, interests and sentiments,...

together with the existence of reciprocal rights and duties.

Merely being a resident isnt enough for this genuineconnection.

Requirements:

At the time of naturalization, did the individual appear to havebeen more closely attached by his tradition, his establishment,his interests, his activities, his family ties, his intentions forthe near future, to this state than to any other state?

Here, the I.C.J. said no, his switch wasnt genuine. So Guatemaladidnt have to honor his Liechtenstein nationality.

Involuntary Nationality.

Some countries embrace you as a national whether you want them to or not.You walk through the airport, they say Welcome back, citizen, and the nextthing you know youve been sent into the army for your required service, at theage of 54.

This may violate international law.

You might be able to say there isnt a genuine connection.A state is not required to recognize a nationality imposed by another state onan individual against his will on the basis such as marriage to a national, aspecified period of residence, acquisition of real property in the states territory,

bearing a child there, or having a particular ethnic or national origin.


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renounced.

Dual Nationality.

United States ex rel. Merg v. Italian Republic(1955).

Mrs. Merg was born in the United States, and was an Americancitizen. She married an Italian, thereby becoming an Italian citizenunder Italian municipal law. (Not only had she married an Italiannational, she married a diplomat under Mussolini.) They wereassigned to live in Imperial Japan.

She tried to maintain her United States citizenship. Under UnitedStates law, she possibly could have maintained it.

At the end of WWII, her US cit izenship became very valuable. Whenwars are over, United States citizens who owned property in othercountries, and foreigners who had property in the United States, bringclaims in front of commissions where nationality is important. Shed

had a grand piano in Italy, which was destroyed during the war. TheUS brought a claim on her behalf for the value of the piano. Italyrefused, claiming that she was an Italian citizen, so the US couldntrepresent her. The Commiss ion had to decide whose national shewas.

First, looked at the peace treaty. That was no help.

Second, looked at the Hague Convention of 1930, which says youcannot ask state 1 to intervene against state 2 when you are a nationalof state 2.

States cannot assert diplomatic protection against another state whenthe individual is a dual citizen of both.

BUT, if you are before a third party, such as an international tribunal,there is a different test what is your DOMINANT nationality?

What is the country to which you have the most connections,your principle or habitual residence, economic bonds,social/family bonds, etc.

Applying these factors, the Commission decided that she wasprincipally an Italian cit izen. The United States therefore couldntmake a claim on her behalf for the loss of the grand piano.

Alexander Tellech Claim (United States v. Austria & Hungary) (1928).

Sad case. Commission held that a 5-year-old accompanying hisparents to Austria was voluntarily incurring the risk incident to residingin Austria, and voluntarily subjugated himself to the duties andobligations of an Austrian citizen.

The claimant was born in the United States of Austrian parents in1895, thereby acquiring both US and Austrian nationality. He lived inthe US until he was five years old, when he accompanied his parentsto Austria.

In 1914, at the age of 19, he was interred as an agitator engaged inpropaganda in favor of Russia. After 16 months in an interment

camp, he was impressed into military service.The Commission rejected a United States claim on his behalf, on theground that Tellech was a citizen of both countries and that he hadvoluntarily taken the risk incident to residing in Austrian territory and

subjecting himself to the duties and obligations of an Austrian citizenarising under the municipal laws of Austria.


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Heres a hypothetical situation. Say a citizen of the U.K. is a trader inSingapore. He bets the firms ass on the Nikkei, and loses. He flees toGermany. Should Germany extradite him to the U.K, or to Singapore?

The citizen would prefer to go to the U.K., since Singapore can be a

tad harsh in its punishments.

No problem. The U.K. simply drops its extradition request, andGermany happens to have an extradition