international law - steinhart - fall 2003

8/10/2019 International Law - Steinhart - Fall 2003

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International Law Outline

Steinhart

Fall 2003

I. INTERNATIONAL LAW BASICS

A. PUBLICVS PRIVATEINTERNATIONALLAW

I. Pu!li" International Law #governs activities of governmentsII. Pri$ate International Law #individuals, corporations

B. SOURCESOFAUT%ORIT&I. Statute o' the International Court o' (u)ti"e* Arti"le 3+

1. international conventions;2. international custom;3. general principles of law recognized by civilized nations;4. judicial decisions and teaching of publicists

II. RS ,-02. A rule of international law is one that has been accepted as such by the international communityof states:

1. in the form of CUS!"A#$ %A&;A. Customary international law results from a general and consistent practice of states

followed by them from a sense of legal obligation'2. by ()*#)A(!)A% A+#**"*);

A. for the parties theretoB. for others if they lead to the creation of customary international law

I. when such agreements are intended for adherence by states generally;II. A) are in fact widely accepted'

3. by derivation from +*)*#A% -#()C(-%*S C!""!) ! .* "A/!# %*+A% S$S*"S!0 .* &!#% 1/US C!+*)S2'

C. TWOT%EORETICALPERSPECTIVESOFINT/LLAW

I. Natural Law3necessary "!#A% limits necessary for humanity to create jus cogens'II. Po)iti$i)tloo4s to the practices of the states to create jus cogens'

D. BRIEF%ISTOR&OFINTERNATIONALLAW

I. %eague of )ations created after 5656 -eace reaty 1no US or USS#2

II. -ermanent Court of (nternational /ustice established 5675 at the .ague 1succeeded in 5689 by the(nternational Court of /ustice2III. (nternational "onetary 0und3established to promote monetary cooperation among nations and stability

in foreign echange'IV. 56< )ew $or4 Convention on the #ecognition = *nforcement of 0oreign Arbitral Awards3a decision by

an int>l arbitral panel sitting in a contracting country as if the decision were by that domestic court 1ta4eaward to local court and assets will be seized2

II. TREATIES 1CONVENTIONAL INTERNATIONAL LAW

A. BASICTREAT&EFINITIONS

I. Treatie) at International law #all international agreements1. ?ienna Convention on reaties sets forth rules governing treaties entered into force after /anuary

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2. Ca)e A"t* - USC ,--2! #reuires Secretary of State to transmit to Congress a copy of allinternational agreements

B. O7ESTICTREAT&LAW

I. reaties 1and implementing legislation2 are legitimate actions of Congress and override state law Ethe 5 thAmendment is not a barrier bBc too abstractG' "issouri v' .olland 15672 = Article ?( Supremacy Clause'

1. #ationale I necessary and proper for treaty power to have meaningful effect'II. )o treaty may violate eplicit provisions of the Constitution' #eid v' Covert 156@2' Js convicted of

murder and sentenced to death without a jury trial'

1. #ationale I )o US citizen should be deprived Constitutional #ights just bBc in another land'2. Concurrence 1/' .arlan2 I only capital offenses

III. he 0ourth Amendment does not apply to the search and seizure by U'S' agents of property owned by anonresident alien A) located abroad' United States v' ?erdugoFUruidez 15662

1. Khe peopleL only means the peopleof the US'2. )ot every constitutional provision applies to governmental activity in other nations 1even when

US has control such as unincorporated territory2'3. MU Constitutional rights do etend to aliens that reside within the territorial jurisdiction'

IV. State law is invalidated if the state law thwarts Congress> intent3even if the law does not directly conflict3to give -resident sole discretionary power to deal with a )ation' Crosby v' )ational 0oreign radeCouncil 172'

1. State statute barring Ds with Murma unconstitutional bBc invalid under later Congressional statutebBc the state law undermines the intended purpose and Knatural effectL of the Act MBC deprives

-resident of bargaining power with Murmese gov>t, power to spea4 for the US, = power to seteactly economic sanctions'

V. *ecutive agreements are eual to treaties as far as state law is concerned3eecutive agreements trumpinconsistent state law' US v' -in4 1568723%itvinov Assignment although not a treaty is int>l compact

between two gov>ts treatyFli4e enough bBc has a KtreatyL purpose'1. State lines need to disappear so U'S' can deal wB other nations as one unit;2. -resident is the sole organBone voice of foreign affairs

A. 1Steinhart2 MU remember that no DingsNI. courts interpret treaties;

II. courts determine customary int>l law;III. Congress regulates foreign commerce = declares war'

B. KSole organL power comes fromN

I. epress power to appoint = receive ambassadors3interpreted to epress powerof recognition of other gov>ts;II. commanderFinFchief I arms power;

III. Pre)i8ent a) 9)ole or4an: 5a;e) 7OST )en)e when "lo)e "onne"tion w< an

e6=re)) e6e"uti$e =ower

C. BLAC>LETTERPRINCIPLESOFTREAT&LAW1O7ESTIC

I. No un"on)titutional treatie) #eid v' CovertII. Later in ti5e rule3the second in time prevails'

1. MU the Court will use the magic of interpretation to ma4e inconsistencies disappear' See -%!case'

2. -roblem3An act of Congress 1majority of .ouse and Senate and signed by -resident2 canoverride something signed off by -resident and 7BH of Senate'

III. Pro=er ?uri)8i"tion o$er @1. DerrF0risbie octrine: here is nothing in the Constitution that reuires a court to permit a guilty

person rightfully convicted to escape justice bBc he was brought to trial against his will 1J cannotchallenge illegal seizure2'

2. !# U'S' v' #oucher: Court has consistently held jurisdiction is defeated where treaty is violated'IV. Sel'e6e"utin4 treat 8o"trine

1. e'inition)

A. )el'e6e"utin4 treat #becomes law in the US once it enters into force internationally'I. it can be easily given effect by eecutive or judicial bodies, federal or State,

wBout further legislation 1#S US 0oreign #elations law2B. non)el'e6e"utin4 treat #reuires additional legislation to implement'

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2. To 8eter5ine loo; toD

A. &hat was the intent from languageO 1language I 4ey2 1RS ,---1an int>l agreementis nonFself eecuting if the agreement manifests an intention that it shall not becomeeffective as domestic law wBout the enactment of implementing legislation2

I. Kuse your best effortsL E)onGII. Kshall as far as possibleL E)onG

III. Keach party agrees to enact and enforce such legislation as may be necessaryLE)onG

IV. Kthou shalt not discriminateL ESelfFeecuting, see Asa4ura v' City of SeattleG

V. present action3Kthe contracting states shall as far as possible facilitateL ESelfFeecuting3obligation )! aspirationG

B. I) it Con)titutional

I. not enforceable as US domestic law 1all provisions to pay money = that createcriminal liability; areas not traditionally under Congressional control2;

II. RS ,---11"an international agreement is nonFself eecuting ifimplementing legislation is constitutionally reuired 1all P2'

C. Are their )enate ECLARATIONS1contetual2 1RS ,---. Senate declarations arepowerful contetual evidence but not binding'2

D. Are their ?u8i"ial =re"e8ent)

E. What wa) the "onte6t 4enerall

I. contet of treaty;II. are there reservations;

III. alternative methods of enforcement;IV. conseuences of holding selfFeecuting'

V. purpose of the treaty;F. Fa"tor) in Peo=le o' Sai=an $ US e=t o' Interior

I. purpose of treaty and objectives of creators 1intent2;II. eistence of domestic procedures and institutions appropriate for direct

implementation 1practicability2;III. availability and feasibility of alt' enforcement;IV. short and long term effects of selfFeecuting vs' nonFself eecuting'

3. Pro!le5. Court) u)e )el' e6e"utin4 treat 8o"trine to 5ean OT%ER )tu''DA. Q does not have standing 1not within the protected class of the treaty2;B. treaty does not create private right of action 1but could be enforced by another gov>t2;

C. political R doctrine3private enforcement of treaty is politically charged or commitsenforcement of treaty to another branch of government' 1US v' -ostal, treaty says onlyflag ship has jurisdiction over high seas, US arrested Js drug traffic4ers, language soundsselfFeecuting, but held not probably bBc political R'2

4. E''e"t o' Sel'E6e"utin4 o"trine

A. reaty that is nonFselfFeecuting is not enforceable as US domestic law MU stillobligated to other nations 1binding ()*#)A(!)A% law2'

B. Some provisions may be selfFeecuting while others are not'

D. TREAT&INTERPRETATION

I. Inter=retation in Ca)e)

1. E6tre5e literal inter=retation o' treat thwart) 4eneral e6tra8ition treat3holds bilateraletradition treaty did not prohibit criminal jurisdiction over "eican national when 4idnapped J

in "eico for crime committed in "eico' United States v' AlvarezF"achain 1U'S' 56672'A. #easoned that since etradition agreement did not say Kthou shall not 4idnapL other

state>s nationals the treaty did not forbid it'2. Treat )a$e8 ! i4norin4 "on4re))ional intentU'S' v' -%! 1S'')'$' 56


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B. Treat 1-G #U) .R enclave and forum for all nations, welcomed nonFmemberobservers to participate; -%! is at U) .R as invitee in 56@83-%! observer mission toU) in )$'

C. %el8* AA inapplicable to the -%! !bserver "ission but remains valid to curtail any-%! activities in the US aside from the -%! !bserver "ission'

I. Con4re)) 5u)t o$erri8e treat AS CLEAR a) =o))i!le31. since no *-%(C( statement that the U) -%! !bserver "ission or the

U) .R agreement must be aFo4ay;2. says not withstanding any KlawL to the contrary MU not withstanding

any Ktreaty'L3. some Congress member>s intent not enough where others are unsure of

the lawBtal4 of political statement3where no member eplicitly statedthe AA was intended to override international obligations'

II. NO later in ti5e rule !l law'

B. /udge creates implausible statute purpose and deniesBs4ew legislative history of statue toSA?* the U) .R treat' US v' -%!

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3. Heneral Rule) o' Inter=retation 1Arti"le) 3- to 33

A. Arti"le 3-1-. A treaty shall be interpreted in good faithin accordance with theordinar !eaningto be given to the terms of the treaty in their "onte#tand in light of itsob$e"t and %&r%ose'

B. Arti"le 3-12. he contet for the purpose of the interpretation of a treaty shallcomprise, in addition to the tet, including its preamble and annees:

I. 1aan agree!ent relating to the treat whi"h was !ade between all the%artiesin connection with the conclusion of the treaty;

1. eample, side agreement of )A0A

II. 1!an instr&!entwhi"h was !ade b one or !ore %arties in "onne"tion withthe "on"l&sion of the treatA) a""e%ted b other %arties as an instr&!entrelated to the treat'

1. eample, if adopted by a subset of the parties MU accepted by all of theparties'

2. unilateral declaration and other parties allow itBaccept it'C. Arti"le 3- 13. here shall be ta4en in to account, together with the contet:

I. 1aan s&bse'&ent A()EE*E+ between the %arties regarding theinter%retation of the treator the a%%li"ationof its provisions;

II. 1!an s&bse'&ent -)ACICE in the a%%li"ation of the treatwhichestablishes the agreement of the parties regarding its interpretation;

III. 1"an releant )/0E F I+E)+AI+A0 0Aapplicable in therelations between the parties'

D. Su==le5entar 7ean) o' Inter=retation 1Arti"le 32. #ecourse may be had tosupplementary means of interpretation, including the preparatory wor4 of the treaty andthe circumstances of its conclusion,

I. in order to "onfir!the !eaning res&ltingfrom the application of article H5,!#;

II. to deter!ine the !eaning&.*) the interpretation according to article H5:1. 1aleaves the meaning a!big&o&s or obs"&re; !#2. 1!leads to a result which is !anifestl abs&rd or &nreasonable'

E. RS ,32J 1Co55enton Arti"le 32* courts in the US are more willing than those ofother states to loo4 outside the instrument to determine its meaning'

4. Coer"ion o' a State ! Threat or For"e 1Arti"le J2. A treaty is void if its conclusion has beenprocured by the threat or use of force in violation of the principles of int>l law embodied in the

Charter of the U)'A. I))ue) on Arti"le J2. Agreement generally 1at least wB physicalBarmed threat2 butdisagreement about nuisances of the rule'

I. oes Kthreat or use of forceL mean economic or political pressureOII. &hat is the date from which the rule invalidating the treaty procured by threat or

use of force operatesO5. o"trine o' Chan4e8 Cir"u5)tan"e) 1Re!u) Si" Stanti!u)

A. Arti"le -impossibilityB Kfundamental change in circumstancesL is a basis forterminating or withdrawing from treaty'

B. Arti"le 2 1-. A fundamental change of circumstances which has occurred wB regard tothose eisting A .* ("* of the conclusion of a treaty, and which was )!0!#*S**) by the parties, may not be invo4ed as a ground for terminating or wBdrawingU)%*SS 1presumption A+A()S changed circumstances2:

I. 1a the eistence of those circumstances constituted an essential basis of the"onsentof the parties to be bound by the treaty; A)

II. 1!the effect of the change is radi"all to transfor! the e#tent of obligationsstill to be %erfor!edunder the treaty'

C. Arti"le 2 12. A fundamental change in circumstances "A$ )! be invo4ed as aground for terminating or wBdrawing from a treaty:

I. 1a if the treaty establishes a BOUNAR&; !#II. 1!if the fundamental change is the res&lt of a brea"h b the %artinvo4ing it

either of brea"h of an obligation of the treat or an other intl obligation owedto an other %artto the treaty' 1hin4: unclean hands doctrine2

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D. I))ue) w< Chan4e8 Cir"u5)tan"e)

I. +ood bBc nice when deserved;II. Mad bBc cloa4 for getting out of treaty obligations'

III. &hat about radical change in gov>t of one partyO1. Some say never'2. Some say o4ay if both parties then agree bBc of the change in one party>s

gov>t unacceptable to continue wB the treaty'. O!li4ation not to e'eat the O!?e"t an8 Pur=o)e o' a Treat PRIOR to it) Entr into For"e

1Arti"le -+

A. Arti"le -+.A state is obliged to refrain from acts which would defeat the object andpurpose of a treaty &.*):

I. 1ait has signed the treator has echanged instruments constituting the treatysubject to ratification, acceptance, or approval, until it shall have made isintention clear )! to become a party to the treaty; !#

II. 1!it has e#%ressed its "onsent to be bo&nd b the treat, pending the entry intoforce of the treaty and provided that such entry into force is not unduly delayed'

B. I))ue) w< Arti"le -+

I. &hat does it mean to defeat the object and purposeO1. *asy eamples3would be a violation toN

A. build dam upstream while waiting for ratification of a sharingriver treaty;

B. ruin artifacts while awaiting ratification of a return artifacts

treaty;C. %andmine border li4e crazy while awaiting ratification of an

armsBno landmine treaty'2. MU what if sold land mines to H rdpartyO !r just put pollution in riverO

II. &hat to do in interim where sign but not yet ratifiedO1. US has signed and not ratified %!S of treaties3?C% itself, .uman

#ights Convention, etc'III. Article 5< implies obligations arise M*0!#* formal consent of a state 1against

pure consent theory of int>l law2'1. )!*3further away from pure consent theory of int>l law "!#*

controversy'6. Rule) in a Treat Be"o5in4 Bin8in4 on 3r8State) Throu4h International Cu)to5 1Arti"le

3+.nothing in articles H8 to H@ Edealing wB the rights of H

rd

parties under int>l treatiesG precludes arule set forth in a treaty from becoming binding upon a HrdState as a customary rule of int>l law 1ifrecognized as such2'

A. -arties CA) be bound even if never sign treaty3see )orth Sea Continental Shelf Casebelow'

7. Treatie) an8 (u) Co4en)

A. (u) Co4en)grounded in notion that certain communal rulesBmorals cannot becontradicted by agreement of the parties 1thin4 Ds void for public policy2'

B. Treatie) Con'li"tin4 w< a Pere5=tor Nor5 o' Heneral Int/l Law< (u) Co4en)

1Arti"le J0-)tra't o' the VCLTa treaty is ?!( if it conflicts wB a peremptorynorm of general international law from which no derogation is %er!ittedA) whi"h"an be !odified onl b a s&bse'&ent nor! of general international lawhaving thesame character'

I. Pro!le5) w< Arti"le J01. -ermitted by &.!"O2. "odified by &.!"O3. &ho decides when norm is violatedO Says whoO

C. Treatie) Con'li"tion w< a Pere5=tor Nor5 o' Heneral Int/l Law


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E. E5er4en"e o' a NEW Pere5=tor Nor5


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A. "ust say M!. K( reserveL A) Kas to this provision, ( am notboundL

III. )ilen"e # a"uie)"e 1J.unless the treaty otherwise provides, a reservation isconsidered to have been accepted by a State if it shall have raised no objection tothe reservation by the end of a period of 57 months after it was notified of thereservation or by the date on which it epressed its consent to be bound by thetreaty, whichever is later'

C. Re"i=ro"it 1Arti"le 2-1-A reservation established wB regard to another party inaccordance wB Ethe prior articlesG:

I. 1amodifies for the reserving state in its relations wB that other party theprovisions of the treaty to which the reservation relates to the etent of thereservation;

II. A) 1!modifies those provisions to the same etent for that other party in itsrelations wB the reserving state'

D. Re)er$ation ONL& 5o8i'ie) relation)hi= w< re)er$in4 )tate 1Arti"le 2-12hereservation does )! modify the provisions of the treaty for the other parties to thetreaty inter se'

E. I' o==o)e re)er$ation* re)er$ation 8oe) not a==l i' 8o not o==o)e entr into 'or"e

1Arti"le 2-13&hen a State objecting to a reservation has not opposed the entry intoforce of the treaty between itself and the reserving State, the provisions to which thereservation relates do not apply as between the two States to the etent of the reservation'

2. RS ,3-3 1RS Analo4ue to the VCLT on Re)er$ation)

A. 1- A state may enter a reservation to a multilateral int>l agreement U)%*SSI. reservations prohibited by agreement,

II. agreement proves only specific reservations not including one made,III. the reservation is incompatible wB object and purpose'

B. 12A reservation to a multilateral agreement entered in accordance wB subsection 152 issubject to acceptance by the other contracting states as followsN

I. 1a a reservation epressly authorized by the agreement does )! reuiresubseuent acceptance by the other contracting states;

II. 1!where application of the agreement in its entirety among the parties is anessential condition to their consent, a reservation reuires acceptance by all the

parties;III. 1" where a reservation is neither authorized nor prohibited, epressly or by

implication'1. 1iacceptance of a reservation by another contracting state constitutesthe reserving state a party to the agreement in relation to the acceptingstate as soon as the agreement is in force for those states;

2. 1iiobjection to a reservation by another Ding state does not precludeentry into force of the agreement between the reserving and acceptingstates U)%*SS a contrary intention by the objecting state'

C. 13A reservation established wB regard to another party in accordance wB subsection121" modifies the relevant provisions of the agreement as to the relations between thereserving and accepting state parties but !*S )! modify those provisions for theother parties to the agreement inter se'

3. O!?e"t K Pur=o)e

A. (s rejection to compulsorily dispute settlement in a human rights treaty incompatible wB

object and purposeOB. !n one hand want 0%*(M(%($3more V of parties, uantity'C. !n the other hand want S#(C approach3same universal rightBobligation, uality'

D. E6a5=le)

I. A reservation on a genocide treaty that adopts !)%$ for state actors and notprivate actors -#!MAM%$ inconsistent wB object = purpose bBc private actorsCA) be guilty of genocide and bBc states often acuiesce to genocide' 1Classhypo2

II. A reservation to ratify genocide treaty but to reserve on power of (C/ court toresolve disputes 1close case2'

1. $es violates bBc o = p I stop genocide and need enforcement to stop it'

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2. )o bBc (C/ provision is re5e8ialrather than )u!)tanti$e'A. US has a reservation li4e this to the genocide convention and

(C/ found it did )! violate object and purpose'E. A);

I. what is the object = purposeOII. does the reservation directly 1indirectly2 thwart the purposeO

III. is the reservation remedial or substantiveO4. HeneralRe)er$ation I))ue)

A. Can a reserving state be a party if other parties objectO

B. &hat is the effect of a reservationOC. &hen does a reservation violate the object and purpose of a treatyO

5. Re)er$ation) %=otheti"al. )uclear est Man reaty of 569H, the parties agree Wto prohibit, toprevent and not to carry out any nuclear weapon test, eplosion, or any other nuclear eplosion, atany place under its jurisdiction or control'L

A. State accedes to the reaty subject the following reservation: treaty shall )! bedeemed to inhibit the use of nuclear weapons in armed conflict' A accepts; M rejects; Cremains silent3What i) the law a5on4

B. Fir)t8oe) the re)er$ation $iolate the o!?e"t an8 =ur=o)e o' the treat

I. -robably no, between purpose of the treaty goal is disarmament andenvironmental protection' #eservation still allows disarmament and discouragesnew weapons with a smaller effect on environment 1only in war times2'

II. Mut perhaps yes, bombs in war still effect the environment and the treaty says Kor

any other nuclear eplosionsL so purpose may be to stop nuclear eplosions ingeneral3and then violates o = p'

C. A))u5in4 "on)i)tent w< o!?e"t K =ur=o)e 4o on*

D. As to A 1accepts2; A to I. Rule o' re"i=ro"itArti"le 2-1-"reate) re"i=ro"itwB regard to the

reservation between and A 1 and A can ta4e advantage of the reservation wBregard to one another2'

E. As to M 1rejects2; B to I. A);8oe) B o==o)e entr into 'or"e o' NTBT 'or

1. (f yes opposes entry into force, then there are )! treaty relations underthe )M between M = '

2. (f no does not oppose entry into force, then the provisions to which the

reservation relates do not apply under Arti"le 2-133re)er$ation=ro$i)ion) 8o not a==lF. As to C 1remains silent2; C to

I. Rule o' re"i=ro"it3Arti"le 201J. )ilen"e # a"uie)"eafter 57 months;reciprocity between and C 1 and C can ta4e advantage of the reservation wBregard to one another2'

(. A* B* K C to ea"h other 1A to B* A to C* B to CArticle 75 1723all the )a5e w< NOre)er$ation w< re4ar8 to one another

. Re)er$ation) Flow"hart

A. (s >s reservation inconsistent wB object = purposeOB. (f )!, then ASD3oes the Country in Ruestion object to the reservationO

I. (f )! 1country does )! object2, then reciprocity between the two states1M!. benefit from the reservation2'

II. (f $*S, then ASD3oes the Country in Ruestion oppose entry into force of thetreatyO

1. (0 $*S, 1does oppose entry into force2, then no treaty at all between and Country and Ruestion'

2. (f )! 1does not oppose entry into force2, treaty between and Countryin R eists MU )! reservation clause1s2'

C. (f $*S, then cannot be a party to the treaty'6. Re)er$ation I))ue)

A. -ractically the rejecting party gets the same treatment as 1suspension wB regard to thereservation2 as the accepting party under *AC. scenario'

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B. "ultilateral treaty has A%% different obligations wB regard to one another bBc ofreservations' 1?*#$ #(CD$ in real world2

7. Prore)er$ation non!in8in4 O=inion 15a?orit $iew #eservations to the Convention on+enocide 1Advisory !pinion2 1(C/2 15652

A. 7a?orit 15a?orit $iew

I. focus on "on)entII. convention considered a article on reservations 1even though one not

implemented23draft would have allowed limited reservations;III. understanding reached by the +eneral Assembly that some states would only

sign subject to reservations;IV. o!?e"t K =ur=o)e o' 4eno"i8e "on$ention #to condemn and punish genocide

as a crime under int>l law denying the right of eistence of entire human groups1which shoc4s the conscience of man4ind and results in loss to humanity2

1. principles binding customary law A)$&A$;2. intention I universal in scope3. &B such a general scopeBpurpose I states have )! interest of own

V. There'ore* intention to 4et AS 7AN& )tate) to a8o=t a) =o))i!le

1. "US allow reservations that are C!"-A(M%* with the object =purpose of the convention to allow the "!S amount of signatories'

A. to allow objection for minor reservations would thwart thatpurpose'

B. A) to allow A)$ reservation just bBc of state sovereignty

would ma4e the treaty>s !=- obsolete'2. (f a state does object to a reservation it !)%$ affects the relationship

between the reserving = objecting party'3. A signatory 1first step23may formulate precautionary reservations has

no immediate legal effect in regard to the reserving state 1just notice ofthe eventual intent to reserve2'

B. i))ent

I. )eed integrity of a treaty3core of treaty I obligation )! V of signatures;II. if don>t li4e a treaty, then don>t enter into it'

8. AntiRe)er$ation Non!in8in4 O=inion 15inorit $iew .uman #ights Committee, +eneralComment 78 156682

A. #eservations not be construed as reservations 1only interpretation2 unless eplicitly

noted;B. Re)er$ation) that o''en8 =ere5=tor nor5) are NOT "o5=ati!le w< o!?e"t K=ur=o)eM

I. for eample, State 5a NOT re)er$e the ri4ht toengage in slavery, torture,subject persons to cruel = unusual punishment, arbitrarily deprive persons oftheir lives or arrest and detail arbitrarily, to deny freedom of thoughts,conscience or religions, to presume guilty, to eecute pregnant women orchildren, to permit national, racial or religious hatred, to deny marriage, to denyminorities right to culture, etc'

C. LOTS o' li5it) on re)er$ation) 1no )u!)tanti$e re)er$ation)M

D. CANNOT 5a;e a re)er$ation )ain4 there will !e no re5e8 'or hu5an ri4ht)

$iolation) Qno =ri)) 8i)tin"tion !etween re5e8 an8 )u!)tan"e, nor can a State ma4ea reservation on ma4ing a report and have it considered by the Committee, not can a State

reserve the Committee>s competence to interpret the reuirements of the provisions of thetreaty;

E. No re)er$ation) re4ar8in4 =ro"e8ure)M

F. NO RECIPROCIT&;(. NO re)er$ation that will 8e'er to 8o5e)ti" lawM


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1:. Con$ention on the Eli5ination o' All For5) o' i)"ri5ination A4ain)t Wo5en 1CEAW

A. 0inland claims reservation is devoid legal effect 1blue pencil approach2;B. MU under ?C% = (C/ opinion Duwait )! a party wB regard to that reservation'

III. CUSTO7AR& INTERNATIONAL LAW

A. HENERALPRINCIPLES

I. A""e=te8 Cu)to5ar Law

1. Ba)i" E$i8en"e K Pro"e8ure

A. /udgments rendered by a judicial body are res judicata'

B. Circumstantial evidence is admissible'2. E)to==el3party that has acuiesced cannot challenge on those grounds later 1-reah ?ihear2'

II. U)a4e $) Cu)to5

1. usages may be conflicting;2. custom must be unified and selfFconsistent; custom I usage that has obtained the force of a law'3. Cu)to5 reuire)D

A. materially3must be a be a general recurrence or repetition of the acts which gave birth tothe customary rule;

B. psychologically3that the recurrence is the result of a compulsory rule; conviction1opinion juris2 means usage or practice has crystallized into custom'

III. RS ,-02 1"o55ent

1. 9=ra"ti"e o' )tate):includes diplomatic acts and instructions as well as public measures andother gov>t acts and official statements of policy' (naction may constitute state practice 1when

state acuiesces2; to crate customary law practice must be general and consistent' +eneral doesnot reuire universality only &(* acceptance' )! binding on state that dissents fromdevelopment;

2. o=inio ?uri) reuires a sense of legal obligation; only courtesy or habit )! sufficient MUopinio juris may be inferred from acts or omissions 1no eplicit statement that acting bBc of legalobligation is re>d2'

B. PROVINHINTERNATIONALCUSTO7AR&LAW

I. International Cu)to5ar Law 8oe) NOT e6i)t unle)) it i) =ro$e8 it e6i)t) 1hi4h thre)hol8

*?*#$.()+ is o4ay, state may act wBin sovereignty, U)%*SS there is a customary int>l normaffirmatively proved that limits that sovereignty' he %otus Case 1-ermanent Court of (nt>l /ustice2 1567@2

3collision at sea between ur4ish and 0rench vessel' ur4ey instituted criminal proceedings against

0rench national'1. I))ue.&ho has jurisdiction over the high seas 1has ur4ey improperly ta4en jurisdiction inviolation of international law2O

2. Fran"e/) Ar4u5entur4ey must find -*#"(SS(!) wB in int>l law for their actions 1to havejurisdiction over 0rench national on high seas2 1loser2'

A. no permission bBc no territorial control of high seas, nationality of victim insufficientbasis;

3. Tur;e/) Ar4u5entsays 0rance must find a -#!.(M((!) against what they did in int>l lawin order for it to be against int>l law 1winner2'

A. there is no prohibition on states eercising jurisdiction over persons, property, and actsoutside their territory3states can use discretion in this area'

4. %el8*RESTRICTIONS on the )tate)l prohibition against jurisdiction there'

B. )o eclusive jurisdiction of a flag vessel3if effects felt on another country then othercountry has jurisdiction'

C. 7u)t !e a )en)e o' UT& to ha$e int/l law #mere failure to criminally prosecute 1onlycivil2 out of courtesy insufficient'

5. Notetreat "an o$erri8e a 8e"i)ion o' an int/l "ourt 1 years later treaty limits jurisdictionon the high seas2'

. Relate8 Cla)) %=o) on (uri)8i"tion

A. Send poisoned chocolates from 0rance to ur4ey to 4ill ur4ish people3ur4eyprobably has jurisdiction;

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B. Securities fraud3harder case;C. Nationalit o' $i"ti5 alone not enou4h to 4roun8 ?uri)8i"tion30rench hire American

epatriate = seually harasses in 0rance against US law but not 0rench law3probably)! US jurisdiction'

II. Cu)to5ar law e6i)t)no ta4ing by nationalization of foreign assets wBout just compensation' he*AC!B%(M$A 1!-C!2 Arbitration 156@ 1o;a 'or > to "hoo)e law*152 %ibyan law (0

common wB int>l law; if )!, 172 then where inconsistent common principles of int>l lawgoverned'

B. Sour"e) o' Cu)to5ar Int/l Law

I. 1nonFbinding2 U) #esolutions = V of parties1. 5697 resolution Tpermanent sovereignty over national resources MU

pay appropriate compensationA. voting record3l law for natural resources of a State

after naturalization' Compensation should be settled under domesticlaw of naturalizing state A) its tribunals'

A. voting record35< votes for = 5 against MU applicableprovision; only t 4now it happened, it will neverhappen again'

II. Treatie) in Con)i)tent For5

1. RS ,-023unratified treatiesA. "ultilateral treaties may codify customary law;B. reaty vs' custom3treaty will win if later in time; but a new customary norm will

supersede inconsistent treaty obligations'

5H


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2. E6a5=le*prohibition on torture'III. Law)* Con)titution)* %i4h Court e"i)ion) in Variou) Countrie)

IV. Writin4) o' Pu!li"i)t)

V. Re)olution) an8 e"laration) in Con)i)tent For5)

1. ue)tion) 'or u)e o' UN Re)olution) 'or o=inio ?uri)

A. oes U) #esolution address %*+A% subjectOB. (s U) #esolution consistent wB practiceOC. &hat is the voting record 1general V and types of states that voted yes or no2O

2. Rationale 'or U)e

A. not binding but formative influence in development of int>l law;B. often first stage before formal treaty;C. often purports to epress already eisting customary law;

D. are official epressions of gov>ts concerned and are relevant and entitled to weight indetermination of customary international law;

E. 1evidentiary even for those not signatories2'VI. e"i)ion) o' International Tri!unal)

VII. Authoritati$e Co5=en8ia or RS o' Cu)to5ar Int/l Law

1. *ample, #S of 0oreign #elations %aw;2. MBC collected resource of relevant norms'

D. E7ERHENCEOFCUSTO71CASESAPPL&INHSOURCESTOISTINHUIS%CUSTO7AR&LAWwhat does a statehave to do to opt outO .ow can a state create its own normO

I. International law 8raw) in'eren"e) 'ro5 )ilen"e AN 'ro5 a5!i4uou) !eha$ior3estoppel by silencereuires states to state claims affirmatively; e)to==el SO =ower'ul "an o$erri8e treat' he emple of-reah ?ihear Case 156972 1(C/23hailand and Cambodia 1standing in the shoes of 0rance2 fighting over a

border' reaty that states that the border I watershed line' -arties relied upon map which was )! the#U* watershed line3hailand claims it never claimed the incorrect map; Cambodia claims it did and

that that has been the border'1. I))ue. Morder dispute3what to do wB the incorrect map treaty is based upon and subseuent

conductO2. e"i)ion

A. hailand had an opportunity to claim rectification of frontier at -reah ?ihear and did not3made complaints about !.*# border disputes and )! this one 1hailand claimsdidn>t have to mention bBc not eplicitly before the convention3court disagrees2;

B. hailand ( not enter any reservation wB 0rance wB regard to use of the map3did noteven uestion map until 56t respond'

3. %el8*Thailan8 i) =re"lu8e8 'ro5 "on8u"t 'ro5 a))ertin4 8i8 not a""e=t 5a= line 1e$en noton !a)i) o' 5a= ! "on8u"temple is in Cambodia'

A. NOTE3Hrdparties actions CA) be evidence of boundaries 1eamples, corporations,small localities, grazing rights, etc'2, but here just insufficient in light of entire record'

4. Rationale*stability and finality in borders; punishes stonewalling'

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II. Con)i)tent o!?e"tion to a "u)to5ar nor5 'ro5 the in"e=tion o' the nor5 allow) a State to o=touthe )orwegian 0isheries Case 1UD v' )orway2 1(C/2 156523border dispute over where the internationalwaters begin and )orway>s coastal waters end'

1. U> #border euals the lowFwater mar4 1ecept for bays2 bBc that is the int/l nor5'2. Norwa #northern territorial waters on basis of straight baselines drawn along the most seaward

points of the islands 1the Ks4jaergarrdL2 which line the coast' o!?e"tion to nor53. I))ue #relevant low water mar4 mainland or the s4jaergarrdO4. e"i)ion

A. %ow water mar4 Y 8 miles is the breath of the territorial sea;

B. )orway has a special coast full of islands 1Ks4jaergarrdL2;C. elineation of sea areas has an int>l aspect3not solely up to states;

D. )orway has objected historically to the norm 1since 5t in past due to )orway>s particular coast and UD has

acceptedBnever objected in past;I. UD as maritime power cannot feign ignorance3even if was ignorant own fault

1should have 4nown2'F. he )orway system is a well8e'ine8 an8 uni'or5 ))te5adopted and "on)i)tentl

a8here8 toin opposition to the customary norm'5. %el8*straight baselines from the s4jaergaard are o4ay as long as reasonable in the general

direction of the coast bBc )orway was a persistent objector from the beginning of the customaryint>l norm governing int>l waters'

E. CUSTO7AR&INT/LLAWAPPLIEINUS COURTS

I. Ba)i")

1. Arti"le -Congress the power Kto define offenses against the law of nationsL 1not widelyinvo4ed2

2. "ost agree -resident has wideFranging authority to declare official US positions on customaryint>l law' 1State ept'2

3. Courts may use int>l law to interpret domestic law'4. I' there i) NO "ontrollin4 )tatute* "u)to5ar int/l law win)

5. I' Con4re)) "learl o$erri8e) "u)to5ar int/l law* then Con4re)) win)

. BUT o'ten "ourt) inter=ret )tatue) in line w< int/l law 1Char5in4 Bet) =rin"i=le)a$e the

treatl law; therefore,unlawful under US law'

1. 7a?orit

A. An"ient rule o' nation) # coast fishing vessels pursuing their vocation of catching andbringing in fresh fist eempt from capture as prize of war 1not including fish cured orvessels that aid the war effort at all2;

B. Sour"e #history of practice 1since *nglish orders in 5s treatment of own citizens'

2. I))ue. oes the law of nations prohibit a state>s torture of its !&) citizenO

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3. 7a?orit

A. Sour"e)

I. US Pre"e8ent3.abana for noting that notion of comity turned to a settled ruleof law by the assent of civilized nations; Court) 5u)t inter=ret int/l law a) it i)TOA&

II. Treatie) 1whi"h US i) NOT a =artshows uniform state practice andagreement on the prohibition of torture'

1. American Convention on .uman #ights2. *uropean Convention on .uman #ights

3. Universal eclaration of .uman #ightsIII. Treatie) 1US =artU) Charter3treatment of own citizens matter of int>l

concern; applicable even though no wholly selfFeecuting'IV. UN Re)olution) 1NOT !in8in41e'g', eclaration on the -rotection of All

-ersons from Meing Subject to orture21. important bBcN1i' ha$e all 3 4oo8 "a)e 'or "u)to5ar int/l law

A. intended to declare custom;B. adopted by consensus;C. evidence in practice of states'

V. e'en)e) ! Non"on'or5in4 State) 1State Pra"ti"e

1. )! dissent that torture is o4ay3no one says, hey, ( have the right totorture my citizens 1even if they do it2;

2. torture is illegal on everyone>s boo4s'

3. CA))! allow unFclaimed state practice 1that torture happens but noone admits it2 to trump legitimate treaties -%US prosecution of tortureand formal revocation

VI. Pu!li"i)t)3affidavit on int>l law at the timeVII. Ho$ern5ent 1e6e" !ran"h A5i"u) Brie'3persuasive but not determinative3

gov>t would be embarrassed if a US court did not find torture violated int>l lawB. K+eneral assent of civilized nationsL I stringent command'C. %ere* nor5 i) "lear an8 a5!i4uou) an8 no 8i''eren"e !etween alien) an8 "itien)

Bl law so united as the limitations on a state>s powerto torture

IV. o define KtortL loo4 to int>l law that becomes a part of the common law of the US upon adoption of the

Constitution' 1!n remand2 0ilartiga v' -enaF(rala, *'')'$' 56t for money from individual acting in concert

wB usually unsuccessful bBc of immunity; Siderman eception'F. LIABILIT&OFINIVIUALSK CORPORATIONS

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I. So5e $iolation) o' int/l law e6i)t whether @ a"t) a) an in8i$i8ual OR in "on"ert w< 4o$/t' Dadic v'Daradzic 10'Hd2 156623Qs suing for JFMosnianFSerb leader for genocide, war crimes, and crimes againsthumanity'

1. Pro" %i)tor. dismissed for lac4 of S"/; int>l law hasn>t evolved to impose internationalobligations on individual citizens3not in concert wB Serbian #epublic'

2. I))ue. Can people acting individually, and not in concert wB the gov>t, violate int>l lawO3. 7a?orit

A. Fa"t)

I. Daradizic is -resident of selfFproclaimed MosnianFSerb republic wBin MosniaF

.erzegovina which eercises control over large parts of territory, commandsMosnianFSerb military forces, commands systematic human rights violations'

II. Qs sue for genocide, rape, force prostitution = impregnation, torture, otherinhuman treatment and wrongful death'

III. Daradizic was served in "anhattan'B. Sour"e) 1o' "u)to5ar law

I. *arly prohibition against piracy, then slave trade3precedent'II. *ecutive Mranch has said private person may be found liable for genocide, war

crimes, and other violations of human rights'III. #S 1publicists23individuals may be held liable for primacy, war crimes and

genocide'IV. Congress> intent

V. Heno"i8e&ES

1. U) declarations;2. reaties on +enocide 1+enocide Convention23etends to individuals;

VI. War Cri5e)&ES

1. +eneva Conventions3ratified by 5tO1. )tate #defined territory and permanent population under its control and

involves in relations wB other entities2. RSany gov>t if in ACUA% controlBsovereignty I de facto gov>t'

II. &as the actor 1Daradzic2 acting in concert wB or under color of law of a foreignstateO

1. 9"olor o' law: #a private individual who acts together wB state officialsor wB significant state aid 1from Z56

I. served !US(* the .R district of the U) and engaged on nonFU) business;

II. status as invitee of U) does not ma4e him immune from service process eceptin narrowly defined circumstances'

III. Sources3U) treaty = State epartment'(. )! head of state immunity bBc not head of state 1yet2

t;

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2. lac4 of judicially discoverable standards;3. impossibility of deciding wBout initial policy determination;

A. 5 through H3committed to judiciary bBc based on universalviolations of int>l norms wB judicially manageable standards'

4. impossibility of court>s underta4ing independent resolution wBoutepressing lac4 of respect for coordinate branches;

5. unusual need for deference to a political decision already made;. potentiality of embarrassment from multifarious pronouncement by

various departments on 5 Ruestion'

A. 8 through 93)o prior decisions6. no more suitable forum'

I. oubt the acts of *?*) a state official ta4en in violation of nation>s fundamental lawand wholly ungratified by that nation>s gov>t could properly be characterized as an act ofstate' 1cross reference to AC of SA* section2'

I. And here from our gov>t is o4ay wB Daradzic as Q'II. And act of state doctrine no on appeal'

4. A 5ultinational "or=oration that 5a;e) !u)ine)) 8e"i)ion) on hu5an ri4ht) $iolation) 7A&

!e )u!?e"t to lia!ilit 'or a"t) 8one in 'orei4n "ountrie) un8er the Alien Tort Clai5 A"t' oev' Unocal Corp 1C'' Cal 566@23Qs see4 injunctive and compensatory relief for allegedviolations of int>l human rights violations perpetrated in furtherance of Unocal, otal and"!+*>s joint ventureFpipeline' (n building drilling stations the military in Murma relocated andenslaved villages for the pipeline' "ilitary and "!+* get 0S(A; )! indispensable parties

A. 7a?oritI. S"/ over Qs claims against remaining Js 1corporations2 eit under the Alien

ort Claim Act 1ACA23corporations ! have obligations under int>l law;II. prudential act of state of concerns )! preclude Qs claims;

III. /oint Actors sufficient to meet state actor re>d if state is willful participant 1suchas conspiracy2

1. .ere, Qs allege joint venture = wor4ing in concert to use forced laborfor gas pipeline project'

IV. (f slave trading and forced labor, )! State actor re>d'1. .ere, sufficient allegations of slave labor for slave trading'

V. )! precluded by Act of State doctrine bBc it would interfere wB foreign policyefforts 1cannot directly invo4e bBc not State23nations CA))! assert a right to

torture or enslave own citizens'VI. (f Qs can prove that company acted wB gov>t to deprive Qs of rights and tofurther their financial interests, o4ay'

VII. A) Qs pled sufficient facts to override motion to dismiss;1. )! barred by S!% bBc factual uestions over tolling'

B. NOTEUnocal won at S/, then rev>d by 6thfor jury to decide if U)(CA% facilitated thehuman rights violations 1S! fact dependent S/ not often appropriate2

5. e$elo=in4 Stan8ar8 'or Cor=oration Lia!ilit

A. !n remand, district Court setSTANAR 'or "o5=an lia!ilit3I. shared goal or joint action alone insufficient;

II. reuires participated or influenced the unlawful conduct 1conspired orcontrolled2 "!#* than 4nowledge'

B. 6then banc, 17 for aiding and abetting, 5 for "!#*2I. aiding and abetting by subjecting Qs to forced labor;

II. in furtherance of joint ventureC. on S/, then SA)A# reuires 1compared to )azi camps2

I. 4nowledge = approval;II. -articipation or cooperation in the forced labor practices 1some control or active

steps2;III. benefit

D. waiting for *)(#* 6thto ruleN(. RELATIONS%IPBETWEENCUSTO7AR&INT/LLAWK TREATIES

5


19/55

I. Po))i!le 'or a treat to !in8 non)i4natorie) i' ALL 'a"tor 5et3not met here' )orth Sea ContinentalShelf 1(C/2 156962

1. I))ue. enmar4, )etherlands = +ermany trying to determine shares of the Continental shelf'2. ut"h. customary int>l law 1+eneva Convention where +ermany )! a party2 says basic rule is

if have opposite states or adjacent states split continental shelf in half; claims treaty binds *?*)nonFsignatories'

3. Her5an. no, treaty not binding to them A) does not apply to the landscape'4. e"i)ion

A. 0or a treaty to bind nonFsignatories must become CUSTO7AR& law an8 'ul'ill ALL

'ollowin4 3 FACTOR).I. 1- Treat =ro$i)ion 5u)t !e 'un8a5entall 9nor5"reatin4: in "hara"ter

such that regarded as forming basis of a general rule of law;1. .ere, Art' 9 did not pass bBc allows for special circumstances and

reservations 1but see prohibition against torture where )! reservationsallowed2'

II. 12 Wi8e)=rea8 =arti"i=ation Q)tate =ra"ti"ee6ten)i$e an8 uni'or5 )tate

=ra"ti"e 'ro5 )tate) who)e intere)t) are a''e"te8M

1. .ere, not widespread enough, not enough ratifications'2. &hose interests are Kspecially affectedLO

A. most powerful states;B. those most disadvantage by the norm'

III. 13 Pa))a4e o' Ti5e)o5e ti5e 5u)t =a))

1. .ere, not enough time, only years since effect; could be less if morestate practice but there isn>t'

A. )!*3where there is lots of state practice, less passage oftime is needed'

B. ani)h won on =rin"i=le BUT lo)t here !ds of Art 5 1self defense2 is unlawful 1unanimous23"ertainlNOT o;a i' not 'or )el' 8e'en)e;

4. .eld, a threat or use of nu4es )houl8 al)o !e "o5=ati!le w< the re/8) o' int/l law a==li"a!le inar5e8 "on'li"t, particularly wB those principles and rules of int>l humanitarian law, as well as

specific obligations under treaties which epressly deal wB nu4es 1unanimously2;5. %el8* threat or u)e o' nu;e) woul8 4enerall !e "ontrar to the rule) o' int/l law in ar5e8

"on'li"t AN "ontrar to =rin"i=le) o' hu5anitarian law BUT "annot "on"lu8e 8e'initi$el i'

)el' 8e'en)e woul8 $iolate "u)to5ar int/l law1@ to @3-resident deciding vote2'. i))entshould have loo4ed more at the security council as nuclear powers and their state

practices out to matter most3should have loo4ed at the broad tolerance of nu4es by nu4e powers'


20/55

I. omestic statues "US be read in light of int>l law EU)%*SS Congress eplicitly said to ignore int>llawG' -auete .abana

II. Alien tort claims act 1ACA2 applies to torture of aliens in another country' 0ilartigaIII. ?iolation of int>l law does not reuire a state actor to sue under ACA' DadicIV. Companies can be sued under ACA3standard in the air' Unocal

V. reaties can give rise to custom3H factors 52 normFcreating, 72 widespread state practice, = H2 passage oftime' )orth Sea Continental Shelf

IV. INTERNATIONAL ORHANIATIONS AS 9CREATORS: OF LAW

A. INTERNATIONALORHANIATIONS BASICSI. Created by treaty for purpose of accomplishing shared social or economic goals3forum for ideas; carry

out research and projects'1. &orld .ealth !rganization3to assist in reduction of disease;2. &orld Man43money for int>l capital mar4ets and loans for economic development projects;

II. Create law 1le ferenda T emerging norms2'1. 0or eample, U) Security Council has authority to impose legally binding P sanctions;2. (CA! has authority to impose safety regs' for aircraft and air navigation'3. Also propose general standards or rules for States to adopt or Ds to adopt'4. (nternational %aw Commission3draws treaties

III. S=e"ial Re4ional Entitie)

1. UN or Euro=ean Union3may also per persons under int>l law'2. UNfor int>l peace and security

A. +eneral Assembly main organ'B. *ach memberFstate has one vote'C. (mportant matters reuire 7BH majority; others simple majority'

D. Security Council primary responsibility for maintaining int>l peace35 members 1permanent3China, 0rance, #ussian 0ederation, UD and US and 5 rotating for 7 yearterms2; procedural matters reuire 6B5 and substantive matters reuire 6 votes and

permanent members3any permanent member may veto' Council has the -!&*#'E. (C/3principal judicial organ at the .ague'F. %ots of )+!s 1interFgovernmental orgs2 related to the U)'

3. I7F3world>s central monetary institution and forefront for cooperative int>l debt strategy;promotes int>l monetary cooperation and stability in foreign echange; members pay in and thenthat determines how much it draws and voting power'

4. Worl8 Ban;3goal to provide longFterm financing to countries in need of reconstruction after&&((; now developing nations to sustaining development; ma4es loans; must be member of ("0to be member of &orld Man4'

5. US strongly supported ("0 = &orld Man4 and still does'. Wor8 Tra8e Or4aniation 1WTOto help implement and facilitate trade agreements 1goals of

+A2; forum for future trade negotiations; consensus determinations; ecept \ for interpretationand waiver of obligations of member; +A members original members of &!'

6. Heneral A4ree5ent on Tari'') K Tra8e 1HATTtrade agreement to promote tradeliberalization through elimination of tariffs and other barriers' "embers must 52 apply trade

barriers on nonFdiscriminatory basis, 72 limits tariffs on specific items; H2 refrain fromcircumventing trade through other barriers; 82 settle trade conflicts via consultation and disputeresolution'

7. EUcommon trade policies; int>l mar4et wB free movement of goods, capital, persons, and

services; *uro currency'8. E5er4in4 Re4ional Or4aniation)

A. Or4aniation on Se"urit K Coo=eration in Euro=e3all *uropean states; cooperationon panF*uropean development and environment; consensus minus one for human rightsviolations'

B. A))o"iation o' SE A)ian Nation)36 rapidly developing for economic growth; socialprogress and cultural development; peace and stability, etc'

C. A)iaPa"i'i" E"ono5i" Coo=eration3fight global protectionism, increase regionaleconomic cooperation, preserve world>s liberal trading system'

D. Or4aniation o' A5eri"an State)3for western hemisphere to purse economiccooperation, human development, and security'

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E. Or4aniation o' A'ri"an Unitloose association of independent African states torespect the sovereignty and territory of each state, not interfere in other states, peacefulsettlement of disputes, dedication to emancipation of all dependent African territories'

B. UN ANT%ELAWOFFORCE

I. UN Charter 1-J!)%$ some types of force are legitimate'1. Arti"le 2

A. ] 5 Tbased on sovereign euality of A%% members'B. ] H3all !e!bers shall settle their intl dis%&tes b -EACEF/0 !eansin such a

manner that int>l peace and security not endangered'C. ] 83all members shall refrain in intl relations fro! threat or &se of for"e against

territorial integrit or %oliti"al inde%enden"e of an stateor in any manner inconsistentwB U)'

D. ] @3nothing contained in Charter shall authorize U) to intervene in matters essentialldo!esti" $&risdi"tionof any state'

2. Arti"le J- 1NOT a )ui"i8e =a"t

A. )othing prevents right of selfFdefense if armed attac4 occurs until Security Council hasta4en measures to maintain int>l peace and security' SelfFdefense shall be immediatelyreported to the Security Council and shall not affect authority of the SC to restore int>l

peace'3. Arti"le 33C shall deter!ine the e#isten"e of an threat to the %ea"e, breach of the peace, or

act of aggression and shall ma4e recommendations or decide what measures shall be ta4en to

maintainBrestore int>l peace'4. Arti"le - 1non'or"e3SC may decide what measures not involving the use of armed force are

to be employed to give effect to its decisions, and it may call upon members of the U) to applysuch measures3such as economic sanctions and severance of diplomatic relations'

5. Arti"le 2 1'or"e3if 85 nonFforce doesn>t wor4, C !a &se for"e >blo"9ades, et".? ne"essarto !aintain @ restore intl %ea"e and se"&rit.

. Arti"le J21-nothing in the present charter precludes the eistence of regional arrangements oragencies for dealing wB such matters relating to the maintenance of int>l peace and security ifconsistent wB U)'

6. Arti"le J31-SC shall, where appropriate, utilize such regional arrangements or agencies forenforcement under its authority'

7. An inter$ention 7A& =ro"ee8 w


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C. (s there a legitimate humanitarian reason 1not just ecuse2OD. &hen are the human rights violations sufficientOE. &hen are the motives sufficiently human rights relatedOF. (s their a humanitarian solution 1what to do when get in there2O

III. .*%- Sel' ocs' @F5 1U) Charter, Arts', 7HFH72, 55F58 1Arts' H6F52 65F7

C. INT/LLAWANT%EWARSIN>OSOVO* AFH%ANISTANK IRA

I. >o)o$o

1. Sel'8e'en)e3unli4ely

A. )ot a member of the U) A) did not attac4 )A! member'B. )o preFemptive self defense in Art' 53for eample, in 56l lawA. !f Duwait3material breach of ceaseFfire resolutions 1continued self defense of Duwait2

MU SC has occupied the field'B. !f US3must show threat is Kinstant, overwhelming, leaving )! choice of means and no

moment for deliberationL 1Caroline incident2I. preFemptive self defense 1Mush doctrine2 U)D)!&) at int>l law A) other

states objected 1not new norm2;1. that (ra>s support of terrorism triggered preFemptive self defense;

II. &ent A#!U) U) Security Council'2. %u5an Ri4ht)

A. Saddam is arguably the only man in the world who has committed every crime wBin

jurisdiction of (nt>l Criminal Court;I. US claimed (ra>s massive violations of human rights in itself justified regimechange;

B. MU3legality of humanitarian intervention is controversial 1legitimacy of interveningfor purpose of changing gov>ts is doubtful2;

C. .( generally limited to protecting nationals after entering;D. .( reuires "*A)S to match *)S;E. Slippery slope3why not have regime change wherever human rights violated'

I. MU Steinhardt3cannot use slippery slope to fail to address the easy case ofegregious human rights violations'

3. KLoa8e8 Hun: TheorA. #esolution 9@< 156623authorized member states to use Kall necessary meansL to restore

peace and security after (ra>s invasion of Duwait'

B. #es' 9


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1. 152 U) to determine breach warrants force; A)2. 172 limited to enforcement of #es' 9l criminal tribunal for crimes against peace, war crimes, crimes

against humanity'1. Arti"le Ghe official position of the Js, whether heads of state or responsible officials in gov>t

departments, shall not be considered as freeing them from responsibility or mitigating punishmentA. A )u=erior o''i"er i) re)=on)i!le 'or

I. an act committed by a subordinate;II. heBshe 4new or had reason to 4now the subordinate was about to commit or did

committee;III. A) superior failed to ta4e the necessary and reasonable measures to prevent or

punish subordinate'IV. D)!&%*+* [ -!&*# I responsibility'

2. Arti"le + 1)a5e a) ICT&an in'erior o''i"er who a"te8 =ur)uant to or8er) o' )u=erior )till

re)=on)i!le "ri5inall3!ut 5a 4o to 5iti4ation o' =uni)h5entif (nt>l tribunal determines

justice reuires'II. &u4o)la$ia K Rwan8a3created int>l criminal tribunal for genocide, crimes against humanity, war crimesand grave breaches 1Iwillful 4illing, torture or inhuman treatment, willfully causing great suffering orserious bodily injury or health injury, unlawful deportation, ta4ing hostages, etensive destruction andappropriation of property not justified by military necessity and carried out unlawfully and wantonly2'

III. A8 %o" Court) an8 Cha=ter VII o' UN Charter 1Int/l Con)titutional Law

1. Wa) the Se"urit Coun"il inten8e8 to e)ta!li)h a )tan8in4 international "ourt

A. UN Charter* Art 33SC hall determine the eistence of any threat to the peace, breachof the peace, or act of aggression and shall ma4e recommendations or decide whatmeasures shall be ta4en in accordance wB Articles 85 = 87 to maintain or restore int>l

peace = security'B. 7ea)ure) a$aila!le un8er -Kmay include complete or partial interruption of economic

relations and of rail, sea, air et cetera means of communication, and the severance of

diplomatic relations'C. oes the specification of one under 85 eclude the other 1a criminal tribunal2O

2. Foun8 e)ta!li)h5ent o' Int/l Cri5inal Tri!unal ! SC w


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D. ] H3reference to 85 = 87 )! limiting but illustrative;E. Can an e6e"uti$e !o8 8ele4ate ?u8i"ial =ower)

I. a4in to emergency police action rather than judicial 1]HH2;II. KmayL means language in 85 only illustrative for nonFforce eamples 1]H2;

III. the SC has resorted to the establishment of a judicial organ in the form of an int>lcriminal tribunal as an instrument for eercise of its own principal function ofmaintenance of peace and security3to restore and maintain peace in former$ugoslavia 1]Hl peace and security;

III. obligation to cooperate wB the -rosecutor>s !ffice is too hard a hit on statesovereignty and cannot be derived from the obligation to KcooperateL wB U)SC>s KdecisionsL 1U) Charter, Art' 72;

IV. %egitimacy of establishing the tribunals is a nonFjusticiable political R'IV. &u4o)la$ia

1. Statute of the (nt>l ribunal for the -rosecution of -ersons #esponsible for Serious ?iolations of(nt>l .umanitarian %aw Committed in the erritory of 0ormer $ugoslavia 1566H23U) Security

Council adopted #esolution to create (nt>l Criminal ribunal for $ugoslavia 1(C$2A. Arti"le -power to prosecute persons responsible for violations of int>l humanitarian

law committed in former $ugoslavia since 5665'B. Arti"le 2power to prosecute for following acts 1see page 57H supplement2;C. Arti"le 33power to prosecute for violating customs of war'

D. Arti"le 3(nt>l ribunal power to prosecute for genocide'E. Arti"le J3power to prosecute wrongs against civilian population'

2. 0ound establishment of Criminal ribunal wBin power of the Security Council' *cerpt fromecision on "otion for (nterlocutory Appeal on /urisdiction, -rosecutor v' adic 1(nternationalCriminal ribunal for former $ugoslavia2 15662

3. -GMus4o adic convicted to persecution and maltreatment in several internment camps; firstever trial of ethnic cleansing; 7 years imprisonment'

4. -+375 indictments against 6 individualsV. Rwan8a1. )ovember 56683U) Security Council provided for tribunal to prosecute genocide and other

ward crimes in #wanda;2. /une 566l disputes to which a Commission set up by the -arties, eitherpermanently or ad hoc, to deal wB a dispute, proceeds to impartial eamination of the dispute and attempts

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to define terms of settlement 1close to arbitration23is Ksusceptible of being acceptedL by the parties MUnot binding on them'

B. INTERNATIONALCOURTOF(USTICEgenuine role in settling int>l disputes and decisions are cited 1even thoughown statute says no precedential value2 and even though sometimes nations wal4 out' E*ven though US has neversubmitted to jurisdiction under an int>l court there is a world M*$!) the US'G

I. UN Charter

1. Arti"le) 2 throu4h

2. A%% members of the U) are parties to the (C/ statute'II. IC( Statute

1. Arti"le 2appointed for independence and moral character and competence in int>l law 1butopenly political process2;

2. Arti"le 31-3ONL& )tate) "A$ be parties'3. Arti"le 3J1-Court shall be open to the )tate) =artie) to the =re)ent )tatute'4. Arti"le 31-the jurisdiction of the Court comprisesN

A. all cases which the parties refer to it 1?!%U)A#$Bcompromis3by agreement tosubmit for a particular dispute2; A)

I. eample, may as4 court to resolve a particular dispute !# just as4 what law toapply'

B. all matters specially provided for the in the charter of the U) or treaties in force1"A)A!#$Bcompromissory clauses3a provision of a treaty reuiring submission offuture disputes under treaty to (C/2'

I. often in human rights treaties

5. Arti"le 312 The O=tional Clau)ethe States parties to the statute !a at A+ ti!e de"larethat the re"ognie as "o!%&lsor and w;o&t s%e"ial arrange!entthe jurisdiction of the Court inA%% legal disputes concerning;

A. the interpretation of a treaty;B. any R of int>l law;C. eistence of any fact which would constitute a breach of an int>l obligation;

D. nature and etent of the reparation to be made for the breach of an int>l obligation'. Arti"le 313may be made unconditionally !# on condition of reciprocity !# for certain time'6. Arti"le 31deposit declarations wB SecretaryF+eneral of the U) who will send copies to

parties;7. Arti"le 31J Tran)'erre8 (uri)8i"tiondeclarations under article H9 of the Statute of

-ermanent Court of (nt>l /ustice which are S(%% in force shall be deemed, as between parties, to

be acceptances of the compulsory jurisdiction of the (C/ for period to fun and wB terms;8. Arti"le 31C!U# decides whether C!U# has jurisdiction'1:. Articles H@11. Arti"le 3+Court )hall a==l

A. int>l conventions establishing rules recognized by contesting states;B. int>l custom3evidence by general practice accepted as law;C. general principles of law recognized by civilized nations;

D. judicial decisions and teaching of highly ualified publicists of various nations 1assubsidiary means2'

12. Arti"le J)! binding force ecept to parties in particular case'III. The O=tional Clau)e* Wal;in4 Out* Re"i=ro"it

1. Unite8 State) K the O=tional Clau)e. Roun8 I 1-

A. US accepted optional clause wB regard to States accepting SA"* obligation 0!#

treaties, Rs of int>l law, fact for int>l law breach A) reparation for int>l law breach MU)! to apply to

I. disputes the solution of which parties shall entrust to other tribunals by virtue ofagreements already in eistence or which may be concluded in the future;

II. disputes wB regard to matters which are essentially wBin the domestic jurisdictionof the USA as determined by the USA EKselfFjudging reservationL or KConnallyAmendmentG;

III. disputes arising under a multilateral treaty U)%*S 152 all parties to the treatyaffected by the decision are also parties before the Court, or 172 the USAspecially agrees EK?andenberg AmendmentG'

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B. #emain in force for years and then after until the epiration of 9 months then noticemay be given to terminate the declaration'

2. Unite8 State) K the O=tional Clau)e. Roun8 II 1-+)icaragua v' US 1(C/2 156s affairs15D soldiers on .onduras border2'

A. (C/ /urisdictionI. )icaragua recognized compulsory jurisdiction of the -ermanent court of (nt>l

/ustice in 5676;II. US3notified would )! comply wB declaration of 5689 will )! apply to

conflicts wB any Central American State or arising out of or related to events inCentral America; shall ta4e effect (""*(A*%$ and remain in force for 7years 1to foster dispute settlement process2 on April 9, 56s eclaration of 5676 accepted -C(/>s !ptional Clause viatelegram3MU instrument of ratification was never deposited'

2. MU absence of formality ( )! eclude operation of H912jurisdiction bBc constant acuiescence in U) publications relating tooptional clause -%US signed and ratified U) Charter3should notelevate form over substance'

A. i))ue 1J ?u)ti"e) )ai8 no ?uri)8i"tion o' Ni"ara4uaU)

documents had boilerplate language )! binding 1some couldsay )icaragua>s actions were intentionally ambiguous MUcourt did not2; how can acuiescence mean anything when not

binding 1what to protestsO2; also ! for acuiescence to wor4to disadvantage of nonFacuiescing state'

B. Perha=)desire to resolve ambiguities 0!# jurisdiction'II. i8 the A=ril thletter 8e=ri$e the Court o' ?uri)8i"tion o$er Ni"ara4ua/)

a==li"ation NO

1. the modification was actually a termination inconsistent wB the 5689declaration3at US> own volition stated formally and solemnly that anysuch change should ta4e effect only after 9 months after date of notice'

III. I' Ni"ara4ua "oul8 ter5inate at an ti5e* )houl8n/t Norwe4ian Loanli;e

re"i=ro"it allow US to ter5inate at an ti5e NO1. 0!#"A% conditions of creation, duration, and termination are )!subject to reciprocity3only scope and substance'

2. A) S(%% reuires reasonable notice for )icaragua to terminate and Hdays is )! reasonable notice;

IV. 7ultilateral Treat E6"e=tion NO

1. this involves customary law3principles of nonFuse of force, nonFintervention, respect for the independence and territorial integrity ofSA*S and freedom of navigation are M()()+ customary lawdespite conventional law in which incorporated;

2. claim before court )! confined to conventional provisions I cannotbe barred by treaty provision'

V. FCN Treat Co5=ro5i))or Clau)e

1. FCN Treat State)3Any dispute between the parties as to theinterpretation or application of the present reaty, not satisfactorilyadjusted by diplomacy shall be submitted to the (C/ unless parties agreeto another means'

2. US said3no claims under 0C) made in filing A) )icaragua had nottried diplomacy first 1re>d by reaty2'

3. Court re?e"te8 BOT%1 52 actual notice of claims bBc sued and 72forgives procedure bBc diplomatic channels wouldn>t wor43no treatyreuires a futile act2;

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1. Euro=ean Court o' (u)ti"e3sole judicial organ of *U created by treaty in 5665 = entered intoforce )ovember 566H' Court not answerable to any other entity' *ach member state gets one

judge' /udges appointed for staggered terms of 9 years' -resident of Court elected by others'!nly one judgment of court 1secrecy2' 6 advocates general, sit wB judges and deliberate and ma4erea)one8* i5=artial )u!5i))ion) NO APPEAL

2. Court o' Fir)t In)tan"e3established in 56


29/55

1. Affirmative duty to citizens A) disappearances just need enough circumstantial evidence toshift burden' ?elasuezF#odriuez Case 1(nterFAmerican Court of .uman #ights2 156


30/55

I. Ba)i")

1. -opular formal method of dispute resolution'2. Advantages3less formal and contentious than court proceedings 1easier to maintain diplomatic

relations2; more efficient and faster; can be final and biding 1no appeals2; can 4eep confidential;can -(CD law to apply'

3. isadvantages3if procedure unclear can go on too long; no Hrdparty discovery; epensive bBcentire cost of litigation; many countries oppose arbitration'

4. Arbitration blurs the line between private and public int>l law'A. *amples3USB(ran claims tribunal set up by treaty between gov>ts for the purpose of

adjudicating private disputes'B. U) 1public2 has promulgated Arbitral rules used by private parties dealing wB one

another'II. 9i=lo5ati" =rote"tion: K Ar!itration

1. e'inition o' i=lo5ati" Prote"tion #the power of a state to espouse the claim of its ownnational injured by the action of another nation 1power to elevate dispute to the level of stateFtoFstate negotiations2

2. *ample: AlvarezF"achain3"eico adopted claim in act of diplomatic protection'III. e'en)e) a4ain)t i=lo5ati" Prote"tion in Ar!itration

1. E6hau)tion o' Lo"al Re5e8ie)

A. US will not adopt a claim while going through foreign courts' %etter of Senator Mun4erB. US 1nor will 0rench or UD3int>l law principle2 will not interfere where alien is a party

U)%*SS case was ta4en to the last resort3must ehaust all means of legal redress

offered by the tribunals of the country where injured'C. %ocal remedies must be ehausted before int>l action can be brought which includes the

*)(#* system of legal protection must be put to test' Ambatielos Claim, Commissionof Arbitration 156923+ree4 ship owner wanted to buy ships from UD gov>t' +ree4owner brought claim to high court3forgot to call important witness 1strategic failure2 =failed to appeal' )!& wants to use int>l arbitration'

I. "ust try everything;II. MU not to absurdity3don>t have to use every procedure even on not important

to defense of action' 1or for eample if no jurisdiction in state or corruption2III. MU where did not call D*$ witness3own fault for nonFehaustion and

nation>s claim MA##*;IV. A) claim barred by res judicata'

D. Sent claim bac4 to local court to ehaust remedy 1to domestic system2 where domesticclaim still pending' (nterhandel Case 1(C/2'E. +eneral #ule3claimant made reasonable efforts to obtain satisfaction wBin the domestic

legal system 1reuires appeal2'F. *haustion )! reuired where so corrupt, unfair, underdeveloped, delayed3but

#A#*'(. States may waive ehaustion by agreement3for eample for a large V of claims'

2. Wai$er

A. &here individual citizen waives, the gov>t also waives' attler Arbitration 1US v' +reatMritain23Canada too4 ship from US private citizen who was fishing in Canada>s territoryEstill UDG for violation of fishing treaty' Captain paid fine under protest and signedwaiver'

I. &aiver binding bBc even if protested over fine waiver &AS )! protested and

since US standing is in the private party>s shoes there is not claim for US eitherEalso waivedG'

B. MU waiver after espousal would )! bar claim3once gov>t ta4es it over the individualcan not longer waive'

C. Cal$o Clau)e Pro!le53some %atin American States reuire &A(?*# to becomecontractor or investor 1anticipatory waiver of claims2

I. US rejects notion that international cause of action of US could be compromiseby agreement between foreign state and US citizen 1rejects before and after2;

II. majority of arbitral bodies find Calvo Clauses aFo4ay where reasonable andcircumspect interpretation

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1. only covers economic and technical aspects of D or investment 1notgeneral rights of aliens2;

2. does not mean that private party must abstain from pursuing int>l legalremedies for denial of procedural justice or outrageous conduct by hoststate;

3. state>s rights under int>l law cannot be ta4en away by D to which not aparty;

4. waiver of ehaustion between two parties to the agreement to arbitrate!*S not cover nonFehaustion in Calvo Clause cases1

III. may be evidence of notice or willingness to espouse or degree of diplomaticprotection will receive

D. *amples of waiver after espousal 1airline crashes2'E. ("()+ matters

I. As waiver comes %A*# and %A*#, effectiveness of waiver goes down'1"ore li4ely US will defend claim2'

II. &aiver V53most effective waiver;III. &aiver V73less effective waiver;IV. &aiver VH3least effective waiver'

Cal$o

Clau)e)

1wai$er - 1wai$er 2Tattler 1wai$er 3

()/U#$ *S-!USA%

3. In)u''i"ient Nationalit

A. Cross reference to )ottebohm Case for individual nationality'B. Uses real and effective lin4 test to determine nationality of corporation3reuires

nationality A) control' Marcelona raction Case 156@2 1(C/23Melgium wanted toclaim against Spain for defrauded shareholder nationals; Marcelona raction in Canada;Melgium claimed Spain had fraudulently reduced value of company, then seized'

I. id Melgium have enough of a connection wB the company to have standing forthe claim 1where only line I shareholders2O

II. )!3applies real and effective lin4 test to determine when a state has standingfor corporation which reuiresIII. id not use control test3used to find enemy property in war time'IV. id not use nationality of corp' and just as4 where incorporated bBc where

incorporated li4e Kflags of convenience'LC. Pro!le5ati" re)ultno state may have a claim for the corporation'

IV. 9Pu!li": Ar!itration1. Canada is responsible in int>l law for air pollution created by Canadian company where pollution

landed in &ashington State A) reuired to refrain from causing damage by fumes A) regimeof control applied to rail Smelter' rail Smelter 1US v' Canada2 1568623US wanted to sue fordamages and refraining Canada from polluting from zinc and lead ore'

A. A==li"a!le law # US law an8 int/l law1probably Canada agreed bBc favorable to their

position3standard of proof high; magnitude of harm high2;B. Sour"e)

I. Uses US Supreme Court and principles of US dealing wB state disagreements tosettle arbitration;

II. -ublicistsBZ#SC. %el8* No )tate ha) the ri4ht to u)e or =er5it u)e o' territor in )u"h a 5anner a) to

"au)e in?ur ! 'u5e) in or to the territor o' another or to the =ro=ertie) or

=er)on) therein* when the "a)e i) o' )eriou) "on)euen"e the in?ur i) e)ta!li)he8 !

"lear an8 "on$in"in4 e$i8en"e

I. Qfundamental legal principle, sic utere3cannot use property to damage another>sproperty3some argue mass refuges violates sic utere but on fringeN

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D. (mportance I int>l tribunal referring to local cases A) publicists andE. Creates int>l law bBc

I. 52 Canada can invo4e duty on US later 1SUMSA)C*2;II. 72 creates a standard 1and Canada paid2 1-#!C*U#*2'

2. Mreached bBc no good faith effort MU remedy I damages )! return of prisoners to the island'#ainbow &arrior 1)ew êaland v' 0rance2 1566230rench agents destroy +reen -eace ship wBmine' Agreement wB )ew êaland = 0rance mediated by U) SecretaryF+eneral agreed thatofficers responsible would serve H years in -acific (sland' M!. were removed before H yearsup'

A. Ho$ernin4 law a4ree8 u=on # "u)to5ar int/l law K a4ree5entI. to leave island reuiredN

1. eceptional circumstances etreme medical emergency or otherconsiderations clearly demonstrated;

2. reestablishment on island when emergency over;3. good faith effort to obtain )ew êaland>s consent';

B. NO 'or"e 5a?eure3reuires absolute and material impossibility 1not just more difficultor burden some to fulfill2'

C. "ajor "afart 1left bBc medical grounds2I. did not breach in removing him bBc medical emergency, not time to have )^

eamine him;II. BUT 8i8 !rea"h ! 'ailin4 to or8er hi5 to return

D. Captain -reiurI. 8i8 !rea"h ! re5o$in4 !t functions and represent entity in int>l relationsA. MU some int>l law is normative

I. U) SC claimed KlegitimateL gov>t of Duwait 1if no normative judgments then(ra would have been state bBc in control2;

II. +enerally, more difficult to undue statehood than create it'4. Ca=a"it to Enter into Relation) w< Other State)3"US have competence wBin own system,

to conduct int>l relations wB other states' oes not cease to be a state bBc turns over state control

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of foreign relations 1as in protectorates of colonialism2 or bBc have delegated authority to a supraFnational entity'

A. generally a colony is not a state;B. federations states but individual entities not 1states are not States2'

II. 7onte$i8eo Con$ention o' -333state KshouldL posses all of the above' 1weird2; state functions Kas aperson of int>l lawL

III. Who 8e"i8e) what a State i) 1re"o4nition

1. RS,20- Co55ent h3determined by other states by treatment of the state' Usually a new stateis formally recognized by other states'

A. "ost believe )! U$ to recognize another entity as a state'B. MU must treat entity as state (0 it meets the Z75 standards U)%*SS has attained

statehood as a result of threat or use of armed force in violations of U) charter'2. In US* -resident recognizes statehood'3. Con)tituti$e theor o' re"o4nition #an entity is not a state in int>l law unless recognized by

other states 1!%2;4. e"larator theor o' re"o4nition #recognition confirms that entity satisfies statehood criteria

A) that the recognizing state intends to treat the entity as a state 1)*&2'5. +enerally states A?!( recognition 1as a diplomatic matter2 bBc so loaded'. oday, as4 not whether recognize state MU whether want to have diplomatic relations wB state'

IV. What i) the E''e"t o' Bein4 a State

1. RS ,20 Ca=a"itie)* Ri4ht) an8 utie) o' State)

A. sovereignty over own territory and general authority over its nationals;B. status as a legal person, capacity to own, acuire and transfer property, to ma4e Ds and

enter into int>l agreements, to become a member of int>l orgs and pursue and be subject tolegal remedies;

C. capacity to join other states to ma4e int>l law as custom or by agreement'V. Who Ho$ern) the State 1who to 8eal wts don>t matter regardless of how came about

still recognized'B. embraces unfettered national sovereignty'3. To!ar3only recognizes constitutional, democratically elected gov>ts'

VI. What i) the Si4ni'i"an"e o' Re"o4nitionO1. RS ,20J3Under US law

A. 1-an entity )! recognized as a state 1or regime not recognize2 is denied access to UScourts;

B. 12a regime not recognized as the gov>t of a state is )! entitled to property belongingto that state located in the US;

I. can channel P B assets in US to recognized regime'C. 13courts in US give effect to acts of a regime representing an entity )! recognized as

a state 1or regime not recognized2 (0 those acts apply to territory under control thatregime and relate to domestic matters !)%$'

2. S=e"ial Statu) o' Taiwan3by recognizing China, recognition of aiwan over; made specialeception for aiwan from aiwan #elations Act for treaties and such to treat aiwan same aswhen was recognized as state'

VII. Ho$ern5ent Chan4e)What then

1. +enerally, peaceful changes in gov>t or internal policy of a state do not affect its position in int>llaw' 1for eample, J in -resident or -rime "inister2;

2. .arder Cases Estate successionGA. )ew States or )ew governmentsOB. ecolonization 1)ambia2OC. 0racturing 1$ugoslavia2 O

D. #evolution 1#ussia2O

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3. Tra8itional Rule 1ol8new state steps into the shoes of the old state 1especially colonial statesthat became independent2;

A. #S Z76 and #S Z753state property passes from predecessor to successor state A)int>l agreements pass from predecessor to successor state U)%*SS Knew stateL'

4. Nere or 9"lean )late: 8o"trine1emerging, prevailing approach23)! automatic succession onindependence Estate can pic4 what to 4eep and what to throw awayGfishl

A. Art 59 ?ienna Convention3a newly independent state adopts a clean slate;B. State has a reasonable amount of time to refute old obligations MU if don>t refute in

reasonable time assumed adopted'

C. Pra"ti"all "ontinuit i) 5aintaine8 !t; inoco recognized by sufficient V of govts;3. US court less li4ely to give effect to unrecognized gov>t than arbitration;4. holy relic vs' cash3difference of the things considered 1obligations2; plus treaties regarding

priceless artifacts eist MU int>l law protects rights of aliens from arbitrary ta4ings regardless ofmedium'

5. inoco3innocent bystandersO 1recognize South African marriages2; +oldberg3not bBc went toairport wB suitcase full of cash to buy national artifacts

C. %OWSTATEPREREUISITES7ORP%

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I. Nationalit w< re4ar8 to 8i=lo5ati" =rote"tion i) an int/l )tan8ar8 8eter5ine8 ! the real an8

e''e"ti$e nationalit te)t1?*#$ fact specific2' )ottebohm Case 1%iechtenstein v' +uatemala2 15623%iechtenstein to sue +uatemala for acting contrary to int>l law to one of %>s citizens'

1. Fa"t). )ottebohm born +erman; naturalized in %iechtenstein after &&(( started; went to+uatemala where lived and made .R for business; raised family; went to +ermany for businessand holidays; visited brother in %; met %>s naturalization re>ds 1special eception, paid P2; too4oath for %'

2. I))ue. oes %iechtenstein have standing to sue +uatemala3is %>s conference of citizenship byown laws sufficient to confer citizenship for purposes of int>l lawO )! 1no nationality wB regard

to +uatemala23. e"i)ion

A. for % to determine for self rules of nationality;B. MU wB regard to diplomatic protection3int>l law governs nationality'C. 1Fa"t S=e"i'i" Nationalit Te)tReal K E''e"ti$e Nationalit

I. loo4s to factual ties 1factors2 1reuires ()?*S(+A(!) = A?!CAC$21. habitual residence;2. centre of interests;3. family ties;4. participation in public life;5. attachment for country shown by 4ids;. etc'

II. nationalit #legal bond having as basis a social fact of attachment, a genuine

connection of eistence, interests and sentiments, together wB the eistence ofreciprocal rights and duties'

D. Sour"e)

I. arbitration panels from dual citizenship;II. publicists;

III. state practice of not recognizing diplomatic protection where this test is not met;E. %el8* Huate5ala i) un8er no o!li4ation to re"o4nie a nationalit 4rante8 in )u"h

"ir"u5)tan"e)not entitle8 to L/) =rote"tion

II. Notte!oh5 I))ue)

1. urin4 WWIIdidn>t want to be +erman citizen bBc would be enemy national in +uatemala;2. Rationale 'or Relati$et want diplomatic protection manipulated so easilyBcourt didn>t want jurisdiction

manipulated so easily;B. A) didn>t want to render )ottebohm stateless either'3. Ren8er) Notte!oh5 Statele))

A. still has % as state but it cannot sue on his behalf Eat %*AS not +uatemala where he hadsuch intense connectionsG;

B. )ottebohm is % national *C*- for diplomatic protection'C. Relati$e theor o' nationalit

4. Critiue

A. too little weight to % to determine own nationality;B. too much weight on nationality in order to adjudicate basic human rights;C. too relative notion of nationality'

D. ALLOCATIONOFAUT%ORIT&A7ONHSTATES

I. International (uri)8i"tion I))ue) 1to =re)"ri!e1. Congo v' Melgium3Melgium judge says Melgium has power to issue warrant = trial in Melgium

for Congolese crimes by Congolese nationals in the Congo by acting Congolese foreign minister'A. Congo claims

I. 52 no jurisdiction3violates principle of sovereign euality of the U) andsovereignty over own territory;

II. 72 immunity3minister of foreign affairsB. &!) on immunity MU lost on jurisdiction'

2. +eneral -inochet3Chilean dictator, went to UD for meds; Spain re>d etradition on diplomaticpassport; UD arrested and ruled subject to etradition for torture; returned to Chile on medicalgrounds

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A. Can state impose int>l law in !&) court for violations in another countryO EprescribeGB. &hen can a country arrest foreign national for violation of its lawsO EenforceGC. .ow far does diplomatic immunity goO EbothG

II. (uri)8i"tion to Pre)"ri!e # authorit o' the )tate to 5a;e it) law) a==li"a!le to =er)on) or =ro=ert

or e$ent) in other "ountrie) Qe6traterritorial a==li"ation o' law)

1. Ba)i")

A. A state can have jurisdiction to proscribe 1legislate2 wBout necessarily having jurisdictionto enforce that law'

I. *ample, Sheinbein case3jurisdiction to proscribe bBc crime here but could not

enforce bBc went to (srael'2. Hroun8) 'or (uri)8i"tion to Pro)"ri!e

A. territor1including conduct having effects in territory2I. ,03 1-1! tra8itional 8e'inition3over persons, acts, events wBin territory

including flag ships, territorial sea and ports3Kthe general and almost universalrule is that the character of an act as lawful or unlawful must be determinedwholly by the law of the country where the act is doneL 1American Manana v'United 0ruit, US 5662;

II. ,03 1-1a)u!?e"ti$e territorial =rin"i=lecan proscribe crimes commencedwBin their territory 1for conduct committed in territory2 but completedsomewhere else 1eample, conspiracies no matter where the final act too4 place2'

III. ,031-1" o!?e"ti$e territorial =rin"i=le3can proscribe crimes which haveeffects wBin a state>s territory or completed in territory' 1%otus Case2: wo

-rong *S:1. reuires that actor intended effects in state Q;nowle84e3reasonably for

foreseeableG;2. A) )u!)tantialand a"tual e''e"t)in state'

B. nationalit3a state may generally apply 1but not enforce2 its laws in to its own nationalswherever in the world they go;

I. ,0312 a"ti$e nationalit =rin"i=le3jurisdiction assumed by state of whichperson is national;

II. =a))i$e Q=er)onalit or or nationalit =rin"i=le3jurisdiction is assumed bythe state of which the person suffering injury or civil damage is a national'!)%$ subject to certain ualifications 1depends if other state recognizes it2'

C. ,0313 =rote"ti$e3may proscribe crimes against its security and integrity of the state

or against a limited class of other state interests'I. "US be reasonable 1,031-1. gravity of conseuences and concern to state directed;2. necessity3unless eercised many offences would escape punishment or

etradition would be refusedII. practice suggests applies to counterfeiting, passport fraud, attac4s on diplomats,

espionage, A%% targeting some essential gov>t function;III. Closer cases3drug traffic4ing 1Congress made illegal on high seas and US

courts o4ay wB it2'IV. MU must be careful about the &hac4 -aranoid State'

D. =a))i$e =er)onalit 1nationalit o' $i"ti5M

I. %i)tori"all re?e"te8 ! US3but recently modified position specifically forterrorist acts on a state>s nationals by reason of their nationality Enot basis for tort

or 4, only terrorist actG'II. *amples, -inochet 1bBc Spanish victims2, defamation, child support to nonF

custodial parent living abroad'III. Pro!le5 o' NOTICEbBc deal wB lots of nations'

E. uni$er)alevery state has right to etend jurisdiction to certain

international law - steinhart - fall 2003

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