International Law Outline INTRO - international law = law of nations - Sources of international law (ICJ Art.

38) o Treaties, Charters, Conventions, Statutes, etc. Technically binding only upon the parties to such agreements and their nationals UN Charter, e.g. o Customary international law Unlike international agreements, it is universally obligatory Can emerge from agreements, practices and understandings Extraordinarily strong customary law: peremptory norms or jus cogens (commanding law) Apply to States even if they havent signed on Include prohibitions on aggressions, crimes against humanity, slavery, extrajudicial murder, prolonged arbitrary detention, torture, and racial discrimination. o (Supp) General principles of law recognized by civilized nations E.g. estoppelsome sort of estoppel is recognized by virtually all countries o (Supp) Municipal judicial decisions and teachings of the most highly qualified publicists Municipal judicial decisions domestic decision as opposed to international Highly qualified publicists prominent scholars, law profs, etc. International law is to a great extent based on reciprocity and enlightened self interest o We dont want to torture enemy soldiers in the hopes that they dont mistreat our soldiers ICJ: The judicial branch of the UN located in The Hague, Netherlands. o Jurisdiction is both advisory and contentious o ICJ only gets jurisdiction by consent (can be express agreement in a treaty, can be through the general agreement to jurisdiction, or it can be on a case-by-case basis) o Exercises consensual jurisdiction, because countries must agree to participate in cases before it. Can happen through: Ad hoc agreement between the parties A general declaration of acceptance o Can proceed even if one of the parties refuses to participate A treaty that states that disputes will be handled by the ICJ o Can proceed even if one of the parties refuses to participate o Optional Protocol (to the Vienna Convention) Art 1: Disputes arising under the Vienna Convention shall be settled in the ICJ o UN Charter Art 94: Each member of the UN undertakes to comply with the decisions of the ICJ in any case to which it is a party Applicability of International law to individuals o In the late 19th Century, there was a general rule that international law was only between States, and not between individuals. SS. Lotus (France v. Turkey) Ct. says the nature of international law is to govern relations between States, but suggests that individuals are not subject to international law. Tel-Oren v. Libyan Arab Republic Edwards said law of nations doesnt place same liability on non-state actors (which is important now, because terrorists are non-state actors) o Article 7 Crimes against humanity Doesnt mention State Special language was added so that it would reach terrorist organizations

Most would say this is a customary norm now, even though not all have signed on to the Rome Statute/ICC o Bradford case Bradford said we can indict Americans for acts abroad and hold them criminally and civilly liable under the Alien Tort Act. From this we can conclude that individuals are subject to international law and the court system can actually help ensure good foreign relations with the US. o Restatement Foreign Relations Law 101: International law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons. Judges put more weight on this Restatement because they dont know as much about international lawits only persuasive, not binding, but its used a lot o Alien Tort Statute, 28 U.S.C. 1350: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. o Kadic v. Karadzic s alleging war crimes, claiming hes not a state actor Court said individuals may be held responsible for violations of international law, such as piracy and genocide. Both State and non-State actors can be prosecuted for genocide War Crimes Common Article 3 (Article 3 is in all 4 Geneva Conventions) o Issue: Difference between international armed conflict and internal/civil armed conflict parties to the conflict may not be States if it is internal/civil conflict o Geneva Convention is universally accepted by the UNall 192 are signed onvery rare. One could argue norms within it are customary CUSTOMARY INTERNATIONAL LAW - Customary intl law is evidenced by a general practice accepted as law. Elements of custom (ICJ Art 38): o General patterns of State practice or behavior Doesnt have to be every country in the world Has to be specially effected states State practice is an evolving state custom if its paired with opinio juris (2nd element) o General acceptance as law = opinio juris expectations generally shared that something is legally relevant or appropriate what the people think - The Scotia o US vessel collided with a British vessel on the high seas and the British owners () claimed the US vessel didnt show colored lights as required by both countries laws. o Ct finds that this is binding customary international law. International law governs the high seas. o What if Bolivia (a land-locked nation) didnt agree with this custom? Custom usually applies to affected states - The Paquete Habana (The most important US case on custom) o US captured 2 Spanish fishing vessels from Cuba during the Spanish American war and sold them as war prizes. o Rule: Where there is no treaty, and no controlling executive or legislative act or judicial decision then customary law can be used. Must first look for these things before customary law can be used. Here, Court found that customary international law forbids fishing ships to be captured. - Rodriguez Fernandez v. Wilkinson o Cubans were sent to US, many of which had violent pasts and mental health issues, and were mixed in with others (Castro basically emptied his jails). Then Castro refused to take them back. The US kept them in prison indefinitely.

o The right to be free of arbitrary detention has crystallized into international customary law, which
is a part of US law (even if it is not in a treaty weve signed or a US statute). Garcia-Mir v. Meere o Dealt with two different classes of Cubans: One group with criminal records, the other without, but all had their paroles revoked and all were indefinitely incarcerated. o Rule: Public international law is only controlling when there is no treaty, no controlling executive order, legislative act or judicial decision. o Note: This court interprets The Paquette Habana to hold: Executive-created law that is inconsistent w/ international law is a controlling executive act. Executive order can supercede international law, not looking at whether the executive order violates international law. This is an incorrect interpretation! CUSTOM AND SOFT LAW: UN GA and SC Resolutions and the Alien Tort Claims Act - How do UN Resolutions affect the formation of custom? o Security Council makes binding decisions and initiates sanctions. o 2 types of SC Resolutions Chapter 7: binding Chapter 6: recommendations Articles 25 and 26 of the UN Charter: Only when a resolution is issued under Chapter 7 is it binding o GA Resolutions General Assembly initiates studies and makes recommendations, no power to legislate. Nicaragua case: GA Resolutions may be evidence of the second element of customary law (opinio juris) The fact that one voted for a Resolution may be evidence of state practice as well as opinio juris. But it isnt necessarily a reflection of what the state is doing on the ground, so opinio juris may be better category. - Nicaragua v. US o Reagan administration was upset with the Nicaraguan admin, who was communist. The US armed, paid and trained the Contras resistance and Nicaragua objected that this was a violation of the Charter. Nicaragua was also helping the resistance in El Salvador. o Ct held US committed a violation of the principle of non-use of armed force (see below). Ct looked to UN Charter and GA Resolution (on Aggression) as opinio juristerms of both had ripened into customary intl law. US didnt consent to ICJ jurisdiction under multilateral treaties, (in this case the Charter), ct said US wasnt subject to the treaty, but was subject to customary law. Adoption of principles in the UN Charter by the member states indicates their opinio juris as customary IL. - Filartiga v. Pena-Irala o Individual in Paraguay was tortured by a police officer who eventually travelled to Brooklyn and was arrested there. Lower court does not recognize torture as an international law crime. o There is no dissent from the view that the guarantees in the Charter include at least the right to be free from torture. This has become customary international law as evinced by the UDHR and other GA Resolutions. UN declarations are significant because they specify the obligations of member nations under the Charter and members cant claim they dont know what human rights they promised to promote. - US v. Steinberg o UN Charter is a treaty ratified by the US and part of the supreme law of the land. The US must observe all of its undertakings under this treaty, including the support of resolutions of the SC. The terms of the treaty, though, cannot run counter to the provisions of the Constitution of the US. - Sosa v. Alvarez-Machain o A DEA agent was in Mexico on assignment, was captured and tortured and murdered. Alvarez was present as a physician to prolong the agents life in order to extend the torture/interrogation. DEA asked Mexico to extradite Alvarez, but got no response. So they hired Mexicans to abduct Alvarez and bring him to the US, where he was arrested. -

o Alien Tort Claims Act: DC shall have original jurisdiction of any civil action by an alien for tort
only, in violation of treaties or law of nations. Ct said Extradition Treaty between US and MX didnt apply, so they had to look to customary law. There is no cause of action under ATS. Single illegal detention, of less than one day violated no norm of customary international law. When deciding whether a norm of intl law is sufficiently definite that violation of it will support cause of action, in absence of any treaty, or of any controlling executive or legislative act or judicial decision, must resort to customary intl law. CUSTOM AND TREATIES - Vienna Convention on the Law of Treaties o Art 2: Treaty means an international agreement concluded between states in written form and governed by international law o Art 18: State is obligated to refrain from acts that would defeat the purpose of a treaty when it has signed the treaty. o Art. 26 (Pacta Sunt Servanda): Every treaty is binding and must be performed in good faith o Art. 27: Party may not invoke internal law as justification for its failure to perform a treaty o Art. 31: General Rule of Interpretation: Treaty shall be interpreted in good faith according to the ordinary meaning of the terms and should take into account subsequent practices and agreements o Art. 32: Supplementary Means of Interpretation if after Art 31 it is ambiguous or absurd o Not ratified by US but is cited by US courts and the Executive view is that its part of international customary law - Restatement of the Foreign Relations Law of the US 301(1): Definition of international agreement - Types of treaties o Multilateral treaties o Bilateral treaties Ex: extradition treaties o Contracts A lot of contract law principles also apply to treatiesthough there are differences too - Blaine Sloan treaty interpretation o 3 types of treaty interpretation: Textual Approach Plain meaning rulewhat do the rules actually mean? More objective; Often resorts to dictionaries Vienna Convention Art 31.1 emphasizes textual approach/plain meaning Subjective Approach Looks to intention of the parties Drafting history of the Convention or treaty o travaux preparatoires Teleological Approach evolving standards of maturing society o E.g. Idea in US that Constitution is a living document and has to evolve with the times - Sale v. Haitian Centers Council, Inc., Et Al. o President directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the US and to return them without determining whether they could qualify as refugees. o Rule: Court looks at Negotiating History. Neither 243 of Immigration and Nationality Act nor Article 33 of the United Nations Protocol Relating to the Status of Refugees applies to action taken by the Coast Guard on the high seas, outside US territory/statute only applies to refugees that were actually in US territory. Looks at the travaux. - Reservations to treaties o Vienna Article 2, 19, 20 o a statement made by a state when signing or ratifying a treaty whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that stateother states must accept itcannot conflict with purpose of the treaty (look to travaux for purpose).

Hierarchy of International Law o UN Charter Art. 103: In a conflict between Charter and other international treaty, Charter prevails. Charter is like the world Constitution Art. 25 of the Charter: Members agree to carry out decisions and orders of the SC o Jus cogens: peremptory normscould possibly trump Art. 25 (e.g. if SC ordered Members to carry out a genocide. There is an argument that they wouldnt be obligated to do so despite Art. 25 because it would violate peremptory norms. Vienna Article 53 a treaty can not conflict with a preemptory norm Article 64 if a new preemptory norm comes in any treaty that conflicts is void o Customary Laws and Treaties (customs are usually above treaties since they are always changing) - Restatement of foreign relations law 404: There is universal jurisdiction over customary law. There is universal jurisdiction for crimes such as piracy, slave trade, law of the sea, terrorism. - JUS COGENS o Non-derogable obligations: Even in times of emergency, you cannot do something o Obligatio Erga Omnes: Each state has certain obligations to all other states: Outlawing acts of aggression, genocide, etc. o Vienna Article 53: A treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of general international law. A peremptory norm is a norm accepted and recognized by the intl community of states as whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having that same character. o Vienna Article 64: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates o Restatement 702: Jus cogens violationsconsidered human rights section of the Restatement Genocide, slavery, murdering or disappearing individuals, torture or other inhumane treatment, prolonged arbitrary detention, systematic racial discrimination - Crimes against humanity and war crimes o Rome Statute Art. 7 (Crimes against humanity) and Rome Statute Art. 8 (War Crimes) o Difference between them: If one civilian is killed its a war crime, whereas it requires widespread and systematic civilian killing to be a crime against humanity. o Gaps filled by Rome Statute: You dont have to be a state agent (can be an organization); Dont have to act during a time of war - The Prosecutor v. Dusko Tadic (ICTY) o is convicted of crimes against humanity in Yugoslavia, he appeals claiming that the court does not have jurisdiction. argues that Art 2 of Geneva Conventions and Art 3 of ICTY Statute (referring to customs of war) applied only to intl armed conflict and this was internal. o Ct rejects this interpretation as being unnecessarily narrow. SC intended to punish perpetrators whether it was international or internal conflict. Looking to subsequent state practice, ct says it has become custom for intl law to cover internal conflicts b/c its brutal, frequent, and interdependent with other states. Because these are crimes of universal jurisdiction, they can be heard anywhere. Crimes against humanity are subject to international law. o Does the SC have the power to establish a criminal tribunal?: Art. 41 and 42 of UN Charter. Though the ability to create a criminal tribunal isnt expressly given in these Articles, Article 41 authorizes the SC to take measures short of use of armed force to give effect to its decisions. - Persistent Objector rule o Restatement says that a principle of customary law isnt binding on a State that declares its dissent from the principle during the norms development o A state that persistently objects while the law/treaty is still in development is not bound by the law. A state that enters the international system after a practice has ripened into a rule of international law is bound by that rule. INTERNATIONAL LAW AS APPLIED IN DOMESTIC (MUNICIPAL) COURTS DOCTRINE OF NON-SELF-EXECUTNG TREATIES - US Constitution

o Article 3 2: Courts shall uses treaties in decisions o Article 6 2: Treaties shall be supreme law of the land How can you enforce a treaty? o legislature can act o executive can advise the judiciary (amicus brief) o the courts can directly enforce a treaty A treaty must be executed in order to be used in court Separation of Powers: o UsurpationExecutive and Senate has power to make treaties o By enforcing a treaty Cts might encroach on executive prerogative in conducting foreign policy and maintaining national security Cts might encroach on the Congressional power (e.g. if it requires war without Congressional approval) Treaties can be the law of the land in the US and used as the rule of decision, but they cant be directly used unless they are considered self-executing. o Restatement: all treaties are self-executing unless language specifically says execution is needed. o Self Executing Treaties does not apply to customary law most countries have self executing treaties mandatory, definite language, negative treaty obligations all treaties are presumptively self-executing o Starting point: Vienna Convention on the Law of Treaties Pacta Sunt Servanda: Every treaty is binding and must be performed in good faith On the intl level we dont care how a state carries out its obligations, as long as it does. Whether its the exec or the judiciary who enforces it, we dont care. o Whether a treaty is self-executing or non-self-executing is a domestic law issue. o How to tell if a treaty is non-self-executing: Contractual kinds of bases for non-self executing treaties or treaty terms. strongly implies that subsequent legislation is required (Implementation Clause) If a treaty says it is non-self executing then it is! Treaty says it can not be invoked in court Separation of Powers bases for non-self executing treaties Political questions would it embarrass a coordinate branch of gov? Invade another branchs delegated authority? Treaty terms If a treaty is definite (not vague), then it is more likely to be self-executing, while indefinite language is more likely to be non-self-executing. Mandatory (more definite) v. hortatory (less definite) language o If its not self-executing, it cant be the rule of decision in the case, though it can be influential. 1849 Foster case o Treaty between US that said land grants shall be ratified and confirmed o Court presumed the meaning was will be ratified and confirmed (in the future) and since it was in the future, it was non-self-executing (overturned itself with Spanish translation, though) o This was the case that est. the concept of a non-self-executing treaty Last in time rule: If possible construe the conflicting statute and treaty together. If you can not reconcile them, then apply the later in time. People of Saipan v. U.S. Dept of Interior (Classic Self-Executing Case) o Continental wanted to build a hotel on public land in Saipan, basically a US Trust Territory at the time, and the lease was approved despite widespread objection by the people and locally elected

officials. The chief Exec of Saipan was appointed by US President. Saipan argued Trusteeship Agreement gave them enforceable rights. o Court in this case ultimately decides that this was a self-executing treaty and that the people had rights. Court says the Trusteeship Agreement is essentially Saipans constitution. In Constitutions, terms dont have to be definite to be enforced. - Sei Fujii v. State (Classic Non Self Executing) o challenged a racist CA Alien Property Initiative Act of 1920 that denied aliens ineligible for US citizenship the right to own land. o A treaty does not supercede a law which is inconsistent with it unless the treaty is self executing. These articles of the UN Charter are non-self-executing. Ct says language isnt definite and if the drafters had intended to make it definite, they would have. Ct. looks to the intent of the parties as manifested by the language (McD thinks this is a misstatement, though. Whether something is self-executing depends on dom. law). - Ware v. Hylton (1st treaty case that SCOTUS ever decided (1796)) o Treaty here protected the rights of British creditors against debtors within the US. VA had passed legislation hindering the legal effect of debts owed to British creditors. o Rule: The treaty prevails over contrary state law. A treaty is the supreme law of the land Article VI Constitution. Presumption that treaty is self-executing. - Asakura v. City of Seattle o Japanese owned a pawnshop. Seattle passed an ordinance that required pawnbrokers to have a license, and required a person to be a U.S. citizen to get a license. Treaty said citizens of each country shall have liberty to carry on trade in each country and to own shops, etc. o Treaty language is definite and mandatory, it is self-executing. Since the statute and treaty are in conflict, the treaty prevails. Treaties should be interpreted liberally, esp. when dealing with the rights of people - Medellin v. Texas What is the actual main point?? o Mexican was convicted of rape and murder and sentenced to death, but was never told of his rights under the Vienna Convention on Consular Relations to notify the Mexican consulate and get representation from them. Issue wasnt raised at trial, so appellate found he defaulted on this claim. ICJ said no, s were entitled to review, and Pres. Bush issued a memo supporting ICJ. o Vienna Convention is non-self-executing, as is Article 94 of the Charter, by looking at the language. ICJ judgments werent meant to be enforceable in domestic courts. Because of the Executives role in negotiating the treaty and helping enforce it, the courts often defer to the Executive (but not always). Whether it should defer to the Executive on whether a treaty is selfexecuting or not though is a different question. - Owings v. Norwoods Lessee (II) o Purpose of Art. III 2 Cl. 1 in the Constitution was that all persons who have claims under a treaty should be heard in national courts. - Baker v. City of Portland o The state cannot legislate to interfere with the treaty or deny the rights granted by it - Oyama v. Cali o CA statute forbids aliens who were not eligible for US citizenship the right to own land. The court struck down the statute holding that the US could not be faithful to the UN Charter if it allowed such discriminatory laws. TREATIES CONFLICTING WITH STATUTES - Conflicts with Federal Statutes: o When there is an unavoidable clash between an international treaty and the U.S. Const., U.S. cts apply the Const., domestically even though such action places the U.S. in violation of international law at the international level. Although supportive dictum appears in merely one case, the same pertains with respect to customary international law. o If there is a conflict between a treaty and the constitution, attempt to follow both. - Charming Betsy rule: An Act of Congress shouldnt be construed to violate the law of nations if another construction is possible.

o Its not a bright line test, its a fine line test o If a court follows Charming Betsy, then the international rule is the rule of decision in a US court - American Insurance Assoc. v. Garamendi o CA created a Holocaust Victim Insurance Relief Act (HVIRA) compelling insurers to disclose info about any policies sold in Europe from1920-1945 and providing a cause of action for Holocaust survivors. American Insurance says that goes against the Executive agreements with the European countries concerning this issue. Executive agreement is like a treaty but without submission to the Senatethe President makes the agreement (or Department of State) o Executive Agreements are treaties for supremacy or preemption purposes as long as it is a valid Executive Agreement within the Presidents typical foreign affairs powers (e.g. not something purely commercial, and therefore more something dealt with by Congress). President has foreign policy powers that allow him to make Agreements that preempt state or local legislation. - Tayyari v. New Mexico State University: o Ct ruled that action by the University to deny admission to anyone whose home government holds US citizens hostage during the Iranian Hostage Crisis wasnt allowed by federal preemption because of its potential effect on the nations management of immigration and foreign affairs. - Cook v. U.S. o US Coast Guard seized a British ship outside the territorial sea, fining them for having liquor, illegal in the US. A treaty between the US and Britain, though, said that when British ships are seized, it must be within an hours distance from the shore based on the speed of the boat. o Generally, if there is a conflict between a treaty and a law, then the one that was enacted later prevails. Act was reenacted after the treaty, but Ct said the treaty still prevails because Congress didnt make it clear that they would want the Act to prevail over the treaty. Congress can abrogate a treaty if they clearly do so with a statute and make it clear that is their purpose. - South African Airways v. Dole o In protest of apartheid, US revoked South African Airways permit to fly between US and SA. An agreement between the two countries granted the SA gov to provide air service between the countries, with one years notice revocation. Only one months notice was given, though. o Ct applies the latest in time rule, rather than Charming Betsy rule. If a federal statute and a treaty are construed consistently and this frustrates their purposes, they can not be construed together. - U.S. v. PLO o PLO had an office in NYC for its observer mission to the UN. Atty Gen tried to kick them out under the ATA (Act): It shall be unlawful to further the interests of thee PLO to establish or maintain an office or other facility in the U.S. The Headquarters Agreement between the UN and the US, though, agreed that the US couldnt impede any invited parties to the UN from attending meetings at Headquarters. o Ct held that the Act didnt require the permanent mission to close, but it also didnt say that the statute was unconstitutionalit just didnt apply to the mission because it didnt clearly state that it was to prevail over the HQ Agreement. Both can stand. Just because a statute is made later, does not mean it supercedes the UN Treaty, there must be intent! SELF-DEFENSE AND HUMANITARIAN LAW - UN Charter o Article 2(3): All members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered o Article 2(4): All members shall refrain from the threat or use of force. o Article 51: Talks about inherent right to self-defense customary international law o Action with Respect to Threats to the Peace. Breaches of Peace or Acts of Aggression: Article 39: The SC shall determine the existence of any threat to the peace or act of aggression and make recommendations to decide what measures should be taken in accordance with Articles 41 and 42 to maintain or restore intl peace and security. General Assembly Resolution on the Definition of Aggression

o Article 2: The first use of armed force by a state in contravention of the Charter shall constitute
prima facie evidence of an act of aggression

o Article 3: these are acts of aggression: a) an invasion or attack by another state, b) bombardment
by the armed forces of a state against the territory of another state, c) blockade of ports, d) an attack on the air or sea fleets o Art. 3(g): Any of the following acts shall qualify as an act of aggression: the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Nicaragua v. U.S. (again) o (see facts as above) Nicaragua is alleging that the US is essentially the alter ego of the contras and in essence is committing aggression through their support of the contras, which gives rise to the right of self-defense of the victim state. o Used Caroline rule of self-defense: Exception of self-defense should be confined to cases in which necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment for deliberation. It has to be imminent threat and there is no other choice but to use force. o Ct est. effective control test Only if the US had effective control could the acts of the contras be directly imputed to the US for the purposes of having the right to use force under Art. 51. The US did not have effective control. o Cited Art. 3(g) of UN GA Resolution on Aggression (see above) GA Resolution is just a recommendation, yet the court characterizes this Resolution as having ripened into customary international law. o Court still found that the US acted in breach of international law nonetheless because it intervened in the affairs of another State. US acted against the right of non-intervention. 2 exceptions to the use of force restriction: o Self defense (Art 51) o UN SC approves under Chapter VII

Charter Art 42: SC may take forceful action as it may deem necessary to restore international peace and security - Using Force in Self Defense (Art 51) o In cases of an armed attack o Anticipatory Self-Defense: When can you use force without force being used against you? There is an argument that this does violate the Charter There is also an argument that anticipatory self-defense is a recognized right at customary international law and is within the right to self-defense in Art. 51 Requirements: imminence of attack necessity exhaustion of peaceful measures proportionality o It doesnt say anything about proportionality in the Charter itself, but it is presumed in customary law Caroline case- only case on record about anticipatory self defense Sometimes we can relax the imminence requirement if the threat is nuclear HUMANITARIAN INTERVENTION - Some argue use of force should also be allowed for humanitarian intervention (Cassese) o However, humanitarian intervention is illegal under the UN Charter; it has to be authorized by SC o Problem with the SC: P5 countries (US, Russia, China, UK, and France) have veto power. o From a moral perspective, if a SC P5 member is preventing action, Cassese argues that a group of countries should be able to act anywaythis may be a shift in customary international law. There are conditions that have to be met:

Have to be massive human rights violations There is a P5 problem and SC cant/wont act All other peaceful methods have been exhausted A group of states tries to halt the atrocities with support or non-opposition of majority of UN Members (to encourage democratic process and limit superpower abuse) Purpose has to be to stop the humanitarian catastropheno ulterior motive Armed force is limited Action must yield to collection force of UN Problems: Violates the sovereign equality of states o Really only applies to weaker states because the stronger states are too powerful to act against without causing WWIII Its susceptible to abuseused as faux rationale for intervention - Case Study On Kosovo: NATO used military force with out Security Council approval, claiming humanitarian intervention HUMANITARIAN LAW GOVERNING WAR - Jus ad Bellum: Q of whether a state has a right to use force - Jus in Bello: Assuming states are at war, what states can do in conducting armed conflict o What cant a state do in war? can not target the civilian population Principle of discrimination must discriminate between civilian and military targets. A military target includes factories or places that support the military proportionality rule o Protocol against use of chemical weapons o 1977 Additional Protocol I to the Geneva Conventions Article 35: State cant use methods of warfare which cause widespread, long-term and severe damage to natural environment. Article 48basic rule to distinguish between civilian and military objects 1907 Hague Convention: Article 25: You cant attack towns, villages, dwellings or buildings which are undefined or prohibited The Geneva Conventions did not deal with this question in 1949everyone did it. That is probably why it wasnt included. Article 51-- Protection of civilian population Prohibited and defined indiscriminate attacks 4(d): Proportionality Rule: Indiscriminate attack is (in addition to a-c) one which may be expected to cause incidental loss of civilian life which would be excessive to concrete military advantage anticipated. Article 52Protection of Civilian Objects Attacks should be limited to military, rather than civilian, objects. o Rome Statute of ICC Article 8: War Crimes 2(b)(i): Its a war crime to intentionally direct attacks against the civilian population or against individual civilians not taking direct part in hostilities 2(b)(ii): Covers attacks against civilian objects 2(b)(iv): The modern view states that civilian and military targets must be distinguished. Civilian targets can not be targeted. o Intentional o Knowledge that the attack will cause incidental loss of life or injury (recklessness and negligence are not criminal under the ICC) o Only environmental protection in ICC

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Another proportionality rule: Damage has to be clearly excessive Provides criminal responsibility (unlike Protocol which is just a treaty violationthey may have to pay reparations) o Military concerns clearly predominated over environmental concerns Art. 30: Recklessness, even wantonness, isnt enough. Need intent, knowledge or both. INTERNATIONAL CRIMINAL COURT (ICC) - ICTY and ICTR in the 1990s; then ICC in 1998, ratified (came into force) in 2002 - Currently 110 State Parties, and another 29 have signed but not ratified - Covers war crimes, crimes against humanity, and genocide o Doesnt cover a crime against aggression because there of disagreement about its definition o Genocide essentially tracks the Genocide Convention, and War Crimes essentially tracks the Geneva Conventions and the additional Protocols - Jurisdiction: o Art 12(1): When a State becomes a party, they accept jurisdiction o Art 12(2): ICC has jurisdiction: (a) if the State in which the conduct occurred is a Party or if it was committed on a vessel or aircraft registered to a State Party, (b) State of which the person accused of a crime is a national (nationality jurisdiction) US especially didnt like (a)responded with Article 98 Agreementsif the country wants any $ aid, they have to sign Art 98 Agreement and agree not to extradite an American in their territory to the ICC o 2 tracks: SC can refer an issue to ICC and its binding on all states, or Prosecutor can investigate crimes and states on his own (see articles below) - Prosecutor o Article 15 o Concern about the Prosecutor: Overzealous prosecutor; that he is not accountable to anybody and that he could abuse his role. He can investigate on his own motion; might have anti-US position o Counterargument: He needs approval from the judges to investigate. Pre-Trial Chamber has to approve indictment. There is an appellate chamber where this can be appealed. These are checks that dont even exist in our system. - Art 16: Security Council can defer investigation or prosecutionmust renew every year o Art 1 of UN Charter makes Charter supreme over all other treaties, so SC can trump the ICC by granting amnesty if they want - Issue of admissibility o Art 17(1)(a): Part of Complementarity doctrine If a State is investigating or prosecuting itself, the case is inadmissible to the ICC unless the State is unwilling or unable genuinely to carry out the investigation or prosecution o Art 17(2): How court determines unwillingness If you set up Complementarity system, youd need this provisionbut do you trust the tribunal not to abuse its power? o Art 17(3): How court determines inability o Art 21: Applicable law in the court - Some countries use amnesty to solve the political problems and work towards a new Gov. The ICC takes that out of their hands essentially, and could be problematic. - Arguments in favor of ICC: o Complementarity; SC Res can exempt US from ICC; Ad hoc tribunals are expensive and inefficient; Prosecutor cant indict without permission from 3 judge panel; deterrence from international crimes; SC is sometimes inadequate and cannot/will not always provide tribunals; 3 part appeals process; US can put judges on; May avoid deploying troops - Arguments against ICC: o Unfair and politically motivated Prosecutions; US exceptionalism; Rogue overzealous Prosecutor; In conflict with SC, puts itself above SC; Vagueness in Statute; Powerless and ineffectual; Justice is not always best outcome in every case; Violates Art 35 of Vienna Convention THE GENEVA CONVENTIONS, MILITARY COMMISSIONS, and INDEFINITE DETENTION - Afghanistan issue o o

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o o

o ICCPR

Though the Taliban controlled 95% of the country, they were not recognized by most countries as the controlling authority. Neither Al Qaeda nor the Taliban were wearing uniforms. Are captured Taliban and Al Qaeda POWs? Geneva Convention Article 4: POWs o 4(1): Members of the armed forces of a Party to the conflict o 4(2): Members of other militias and volunteer corps if they meet 4 requirements: (a): being commanded by a person responsible for his subordinates (b): Having fixed distinctive sign recognizable at a distance (aka uniforms) (c): carries arms openly (d): Conducts their operations in accordance to the laws and customs of war ICRC commentary on the Geneva Conventions is given a lot of weight because there arent many court decisions, but they are not decisive Article 5: Says that if there is doubt as to whether someone is a POW, they are given Geneva Convention protection until a tribunal can determine otherwise. Bush said none of the people there who were captured were POWs

o Article 4(1): In time of public emergency which threatens the life of the nation and the existence
which is officially proclaimed the parties of this may take measures derogating from their obligations under the ICCPR to the extent strictly required by the existence of the exigencies of the circumstances provided that such measures are not inconsistent with other obligations under intl law and are not discriminatory. o Article 14: (1): All persons shall be equal before courts and tribunals and be entitled to competent, fair and public hearings by an independent, competent and impartial tribunal est by law (3): Those charged criminally shall be entitled to the following minimum guarantees (a) informed of crime, (b) counsel, (c) tried without undue delay, (d) defend himself, (e) witness, (f) interpreter, (g) no self incrimination Hamdi v. Rumsfeld o had lived in Middle East since childhood and was seized in Afghanistan and given to US military who interrogated him then sent him to Guantanamo. When they found out he was American, they sent him to US prisons. Government contends is an enemy combatant and that this status justifies holding him indefinitely without formal charges or proceedings. o Authorization for Use of Military Force (AUMF): President can use all necessary force against those involved in 9/11 attacks or who harbored those involved so he can be detained. o Can they detain him indefinitely, though? In the Geneva Convention, they are allowed to detain him until cessation of hostilities. Problem is, this war could go a long time, and the War on Terror could be indefinite. Due process demands that a citizen held in the US as an enemy combatant have a meaningful opportunity to contest his status. Detainee must receive notice of the factual basis for his classification and an opportunity to rebut it before a neutral decision-maker. War Crimes Act of 1996 o (a): offense- whoever inside or outside the US commits a grave breach of the Geneva Convention in any of the circumstances in (b) shall by fined under this title or imprisoned for life or any term of years or both and if death results, to the victim shall also be subject to the penalty of death o (b): circumstance a member of the armed forces of the US or a US national o (c): Grave breach of the Geneva Convention means the conduct defined as in any intl convention relating to the laws of or any protocol to any such convention to which the US is a party. Ex Parte Quirin

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German military came over in subs and changed into civilian clothes once on shore (essentially spies). One was technically an American citizen. FBI caught them. o Since they changed out of their uniforms, they are not POWsspies arent entitled to status. o The president has the authority as Commander in Chief to create a military commission (rather than Art 3 trial). Military commissions are limited to law of war aka humanitarian law. - Rasul v. Bush o 2 Australian citizens and 12 Kuwaiti citizens captured during hostilities between US and Taliban were being held in Guantanamo and trying to petition for habeas. o Court holds that because the US has jurisdiction over Guantanamo, there is a writ of habeas for those held in Guantanamo. Its de facto US controlled territory even though it is still the sovereign territory of Cuba. Dont want to create legal black hole un-American. - Military court-martials v. military commissions o Military court-martial: Can be in peacetime or wartime. It could be any crime committed by a soldier. o Military commission: Part of war powers - Hamdan v. Rumsfeld o , a Yemeni, was captured during hostilities between the US and the Taliban and turned over to the US military. He has been held in Guantanamo. A year later, the President deemed him eligible for trial by military commission and another year later he was charged with conspiracy. o Procedures of the Commission set up by President violated the laws of nations, particularly the Geneva Conventions and Art 75 of Additional Protocol I, which is the barest of trial protections. To depart from the procedures of courts-martial, there must be exigency. Here there is no exigency they had been held for a long time. o Assuming this is not an international armed conflict because Al Qaeda is not Afghanistan, the Ct says that Art 3 applies to everyone even if they are not a party to the Geneva Convention. - Boumediene v. Bush o s are all foreign but none is a citizen of a nation at war with the US. They each were separately determined to be enemy combatants and held at Guantanamo. They each have sought a writ of habeas corpus in the DC of D.C. After the past cases, Congress authorized Presidents military commission program and passed the DTA (stripped habeas from Guantanamo detainees) and MCA (stripped jurisdiction of the courts for habeas for both pending and future cases). o Court held that Court of Appeals should have jurisdiction to review the procedures and that the MCA unconstitutionally restricts the writ of habeas corpus, which is only meant to be suspended by Suspension Clause in special circumstances. o Scalia dissent: Threat against the nation is a special circumstance and the Exec and Legislative branches would have better knowledge of such threat than the courts. EXTRADITION - Asylum/Requested State: The state that has the fugitive - Requesting State: State asking for the fugitive - Intl perspective: No legal obligation to extradite absent a treaty of expedition - If there IS an extradition treaty, State A may have an obligation to give up the fugitive to State B o May be exceptions: As a matter of state sovereignty, a state maintains the right not to hand over the individual (customary law) Expanding movement though that the state does have to hand him over if there is a treaty - US extradition o Extradition treaties are generally considered self-executing o Basic requirement is there be probable cause to believe the individual has committed the extraditable offense Can be est by hearsay evidenceequivalent to arraignment in US courts o Individual must have been tried only on the extradited offense unless the Requesting State gains consent from the asylum state to charge for extra offenses - What crimes can be the basis of extradition request? o Generally, misdemeanors punishable under a year are excluded o

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o Double criminality requirement: offense must be punishable in both the asylum and requesting
o states Limits: Doctrine of specialty: The individual can be extradited only for the offenses set forth in the extradition warrant, which are in the extradition treaty. Modern treaties use the rule of double criminality as the basis If a person is extradited for one offense, but then charged in State B with additional offenses, that is impermissibleindividual can only be charged with the offenses for which he was extradited. Derivative right individuals right is derived from the states treaty rights and the state can waive them. Political Offense Exception o Rationale: right to resort to change of gov and make sure rebels dont receive unfair/excessive punishment o Pure political exception v. relative political exception Pure political exception Offenses against the governmentessentially not violent (treason, espionage, and sedition) They are not per se extraditable Relative political exceptions (more controversial) common crimes committed in connection with a political act, politically motivated or in a political context. More often (but not always) violent crimes, but they are saying it is part of an attack against the state Should we refuse to extradite individuals who committed a violent offense in the name of this exception? o People who have committed crimes against humanity or war crimes cannot benefit from the political offense exception The exception does not apply to terrorism and piracy o Political offense exception has been recognized in very few cases Quinn v. Robinson o UK seeks for murder of a police officer and conspiring to blow up a building in London. District court held that could not be extradited because of political offense exception. o Political offenses are exempt, but in this case the exception can not be given since the acts were committed in England and the uprising was in Northern Ireland. The Political offense exception applies only to people rising up in their own land against the govt of that land. o US and British Test: Incident to Uprising test: There has to be an uprising, and the actual offense has to be incident to the uprising (and from this case we add that it has to be within the border of the country you want to overthrow). Disguised Extradition is often done and it is a problemit happens when State B finds the nonextraditable, but deports them instead and State A arrests them upon arriving in State A. Doctrine of Non-Inquiry o Ct in requested state doesnt inquire as to the legitimacy of the judicial process of the requesting state; there is a rebuttable presumption that the other courts system is fair and competent. o Potential separation of powers issue here Domestic court passing judgment on another states judicial system and interfering in their sovereign affairs. Could encroach on Executive. Exception o Should the Ct examine the HR record of a country to determine whether we should extradite someone to that country? o Ahmad v. Wigen

attacked a civilian bus with automatic weapons. It could be analyzed as a crime against humanity so he is not entitled to political offense exception. However, he claims if he is returned to Israel he will not be treated fairly.

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If the person can show he would be subject to cruel treatment or would not receive a fair trial, we should not extradite him The test for refusing to extradite is a very high standard, it must shock the conscience. General unfairness is not enough. In a later case, 2nd Cir. criticized this judge for conducting the hearing in the first place issue was: Is the DC encroaching on the foreign policy power of the Executive by conducting such an inquiry? Counterargument: Sec of State wants to achieve US interests, whereas courts would be more focused on the interests of the individual. EXTRATERRITORIAL JURISDICTION - 5 Bases of Jurisdiction over extraterritorial crimes under International Law (U.S. v. Yunis) o Territorial jurisdiction is based on the place where the offense is committed. o National jurisdiction is based on the nationality of the offender o Protective jurisdiction is based on whether the national interest is injured national security. o Universal jurisdiction is conferred in any forum that obtains physical custody of the perpetrator of certain offenses considered particularly heinous and harmful to humanity. Like pirates, crimes against human rights. o Passive personal jurisdiction based on the nationality of the victim (this is the weakest basis) - Commodity Futures Trading Commission v. Nahas o The Commission served Nahas, a resident of Brazil, with a subpoena which required him to appear and produce documents in DC. Nahas didnt comply, and so the DC held him in contempt and froze his assets in the US. Nahas claimed this was against Brazilian and international law. o Federal statutes are to be construed as having no extraterritorial effect unless Congress expressly authorizes it. Ct also cited Charming Betsy rule. - U.S. v. Toscanino (sort of dead letternot really enforced) o Italian appeals from a narcotics conviction claiming US officials kidnapped him in Uruguay and tortured him in Brazil before bringing him to the U.S. for prosecution. o Due Process requires the court to decline jurisdiction over a whose presence has been secured by force or fraud. There is also a treaty basis (Charter of OAS and UN Charter) - U.S. v. Alavarez-Machain o Mexican was indicted for kidnapping and helping murder a DEA agent was a Dr. and it is believed he helped keep the agent alive so they could continue torturing him. was kidnapped from Mexico and flown to the US where he was arrested. o Ct said the extradition treaty only prohibits gaining presence by means other than what is set forth in the treaty. Since the treaty here didnt say you couldnt kidnap, its OK. o argued this frustrates the option in the extradition treaties for the state to use their discretion in whether to extradite someone or notit takes the choice away. Many treaties also prohibit kidnapping, so it would also violate customary international law. - Mala Captus Bene Detentus once the court has possession over the accused, there is jurisdiction over the person (even if he was brought in illegally). - State sponsored kidnappings violate the UN Charter and International Law - Countermeasures/Reprisals o Acts of self help by the injured state in retaliation for acts contrary to international law on the part of the offending state, which have remained unaddressed after a demand for amends. o Only legitimate if they have been preceded by an unsuccessful demand for redress. o Limited by humanitarian concerns and good faith o Must be proportionate DEATH PENALTY AND INTERNATIONAL LAW - The death penalty is not generally illegal under international law, but most states are anti-death penalty. o Could eventually impact customary law o Has an effect in extraditionan anti-death penalty state (A) may request assurance from a death penalty state (B), that (B) will not seek the death penalty in order for (A) to extradite the to (B). - Soering Case (Eur. Ct of HR)

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o German killed his g/fs parents in the US, then fled to the UK. US seeks extradition. The UK
wanted assurance according to the extradition treaty that the death penalty wouldnt be used, or that the US recommend to the Ct that it not be. Prosecutor said he would seek death penalty and would only tell the judge that the UK is against it. o Ct didnt say the death penalty itself is per se a violation, but said the death row phenomenon and conditions he would face violates Art 3 of CAT and the blood would be on UKs hands if they extradited him. - Breard v. Greene o Paraguay sued VA, alleging their rights under the Vienna Convention had been violated by VAs failure to inform the Paraguayan consulate of Breards arrest, conviction and sentence. o failed to raise his Vienna Convention claim at the trial, so he defaulted. Also, under the last in time rule, because Congress enacted AEDPA after the Vienna Convention, AEDPA prevails. - Roper v. Simmons o was sentenced to death when he was 18 for murder a woman when he was 17. o Ct referred to intl law in deciding that juvenile death penalty violates the 8th Amendment. The Convention on the Rights of the Child (every country but Somalia and US has ratified) prohibits it, ICCPR does (though US attached a reservation concerning this), and its banned in the EU. o Scalia dissent: We are interpreting US law and intl law has no place or authority in that. FOREIGN SOVEREIGN IMMUNITY - Most litigated intl law issue in the US - Shields foreign sovereigns from the jurisdictional reach of municipal courts. - Purposes of doctrine: o Sovereign equality of states: All states are equal and no state can exercise jurisdiction over any other state o Doctrine of comity and reciprocity: Each state protects the immunity concept so that its own headof-state will be protected when he is abroad. Comity doesnt equal law or legal obligation. Something granted as a matter of comity is granted basically as a matter of grace or discretion. o Effective performance of duties: Heads of state need to travel freely to do their job without worrying about arrests - Vienna Convention of Diplomatic Relations o Art 31virtually complete criminal immunity o Art 32Immunity can be waived, but must be waived expressly The fact that the government can waive the immunity right illustrates that is not a personal right, but a right of the state. - Current head of state o Receive sovereign immunity Bases: Sovereign equality of state, comity, and reciprocity o Lafontant v. Aristide is suing , former President of Haiti, for ordering the killing of her husband. There was a coup in Haiti and was exiled to the U.S. The US Pres refused to recognize the new government and still considered head of state even though he had no de facto control. A recognized head of state is absolutely immune from personal jurisdiction in US courts unless that immunity has been waived by statute or that govt. Torture Victim Protection Act not intended to override state immunity. Former Head of State o They are presumably immune for official acts, but they can be held responsible for private actions o Pinochet case

Extradition former head of Chile for crimes committed in Chile while he was head of state. Many people were tortured and killed, and many fled to Europe. There is immunity if the acts were committed within the former head of states official duties (ratione materiae). Former head of state isnt given immunity for acts of tortureif its a jus cogens offense, then it cant be an official act.

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Ratione personae is absolute that attaches to the head of state as a person. Ratione materiae is immunity given to the acts of the head of state while in office. o DRC v. Belgium Belgium issued an arrest warrant against the Minister of Foreign Affairs of the DRC for war crimes and crimes against humanity after he made various speeches inciting racial hatred. Crimes werent connected with Belgium but were filed under the theory of universal jurisdiction. DRC claimed the warrant violated its sovereignty and the Minister had diplomatic immunity. Ct rules for DRC saying for the Foreign Minister to be able to do his jobs, he has to move around the world with immunity. Immunity is different from impunity, though, and immunity isnt a bar to crim prosecution if: (1) they have no crim immunity in their own state, (2) their State waives their immunity, (3) after he is no longer in office and acts were committed before or after his period in office, or were private acts committed while in office, (4) intl crim courts have jurisdiction. Immunity of Intl Organizations/Consular Immunity o Diplomats and consuls enjoy sovereign immunity. Diplomats cant be subject to criminal, civil, or administrative processes in the receiving state unless the immunity is waived or if they commit international crimes. See US Restatement of the Foreign Relations Law 464 o US v. Iran (Iran hostage crisis) Militants stormed US Embassy in Iran and held them captive for over a year. Though the militants werent initially state agents, the government gave approval during crisis. Iran violated Art 22 of the Vienna Convention which requires Iran to protect the premises of the mission. States can ratify the acts of private actors and the State then becomes directly responsible. Foreign Sovereign Immunities Act (FSIA) o Subject to existing international agreements, a foreign state shall be immune from the jurisdiction of the courts of the US and the states except as provided in the Act o A foreign state an agency or instrumentality of a foreign state o Purpose to transfer the determination of sovereign immunity from the Executive to the Judicial branch. There will be undue pressure placed on the Executive by foreign countriesit needs to go to the Judicial branch instead. o Foundational case: The Schooner Exchange v. McFaddon and Others Vessel used to be owned by Americans, but it was taken from them by the French and turned into warship. When the ship came back into an American port, the citizens tried to take the ship back by filing a libel Ct holds they didnt have jurisdiction b/c France now owned the ship as a ship of war, which gave it immunity. Because they were in peace, the ct couldnt assert jurisdiction. 3 points: warships are immune; some private actions by a sovereign may not be immune; the Executive may play a role in determining whether sovereign immunity should or should not be granted (for foreign relations purposes). Argentine Republic v. Amerada Hess Shipping Corp o Two Liberian corps sued Argentina in the US. One corp. chartered an oil tanker from the other, with a K executed in NYC. The ship transported oil from AK to the US Virgin Islands. On the return voyage, while in international waters, the ship radioed Argentina informing them of their location and neutrality, but were bombed three times by Argentine military. o FSIA trumps the ATS and prohibits suing a foreign nation, so Ct has no jurisdiction. FSIA exceptions: o When the action is based upon a commercial activity carried on in the US by the foreign state (commercial activities and non-official acts are not immune); or an act performed in the US in connection with a commercial activity of the foreign state elsewhere; or an act outside the territory of the US in connection with a commercial activity of the foreign state elsewhere and that act

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causes a direct effect in the US; or personal injury or death or damage to or loss of property occurring in the US and caused by the tortuous act or omission of the foreign state FSIA uses the nature of the activity and not the purpose of the activity in determining what is commercial and what is not. If State A manufactures boots for its troops, is that commercial or a public act under this rationale? The nature of the activity is commercial since a private company could do it just as easily as a public company. for breach of K in NY, relying on FSIA.

Republic of Argentina v. Weltover

o Argentina defaulted on bonds issued to stabilize its currency. 3 foreign corps (non-American) sued o For jurisdiction, ct claimed there was a direct effect on the US because bonds were payable in NY.

Ct said an effect is direct if it follows as an immediate consequence of the s activity, it does not have to be substantial or foreseeable. Ct said private companies could also engage in this behavior, so the State was acting as a private actor and therefore had no immunity. - Saudi Arabia v. Nelson o Nelson was hired in the US to work at a hospital in Saudi Arabia. As part of his job, he reported unsafe conditions, and they arrested and tortured him before a Senator got him released. He returned to the US and sued in FL for various torts. o Majority says it is not based on a commercial activity because the abuse took place at the hands of police, which are part of the sovereign. Respondent's action sounded in tort as opposed to breach of K so it was not the commercial activities that formed the basis of his suit. Commercial activity requires substantial contact with the US. So there is no relief for Nelson. - Alejandre v. Cuba o 2 Cessna planes with humanitarian workers looking for rafters were shot down by Cuban military jets over intl waters. 3 of 4 of those killed were American citizens. o Unless there is an imminent threat of force, a State cant shoot down a civilian aircraft. There was no imminent threat here from the two Cessna planes. Falls under FSIA 1605(a)(7)(A) because Cuba is a foreign state. Punitive damages were appropriate for deterrence and punishment since extrajudicial killings are a jus cogens violation. ACT OF STATE DOCTRINE - Precludes the courts of the US from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory. - Principle of comity, used by national cts to withhold judgment on legality of public acts undertaken by a foreign govt w/in its own territory - A municipal court will decline to exercise jurisdiction over a foreign state when that state: 1) Performed an act that was an expression of its sovereign powers; and 2) Carried out that act within in its own territory - Similar to sovereign immunity (close cousin) and the political question doctrine. - The court applies the law that will not frustrate the conduct of foreign affairs (Separation of Powers issue) - Banco Nacional de Cuba v. Sabbatino o Congress created a sugar quota with Cuba. American investors were going to get the sugar, but Cuba took it. Should Cuban or international law be applied? Court applies Cuban law. o In the absence of a treaty or other controlling law, the court will not examine the taking of property within its own territory by a foreign sovereign government, even if the taking violates customary international law. The Cuban Gov committed a taking in its own territory. o Bernstein Exception (see below): Ct wont inquire into what the foreign state did (ASD) unless the Executive says it is OK to do so. - Comparing ASD and FSIA o Both close the courthouse doors when necessary use diplomatic means or go to ct of other state o Unlike cts in FSIA cases, cts in Act of State cases want to hear from the Executive

Bernstein Exception (for ASD): Bring Exec back in In Bernstein, suit was brought to recover from an assignee property allegedly taken by Nazi govt b/c was Jewish.

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FSIA doesnt preclude the Exec/State Dept from filing with the ct to suggest granting sovereign immunity, though.

LAW OF THE SEA - International law essentially governs the oceans (doesnt mean domestic law plays no role, though). - 1982 UN Convention on the Law of the Sea (UNCLOS) o Maritime Zones: Territorial sea: 12 nautical miles from coast Contiguous Zone (CZ) is 12 miles past territorial sea: Art 33 Really technically part of EEZ, but state gets a little more power over it Exclusive Economic Zone (EEZ) extends 200 nautical miles from coast Gives jurisdiction over living and non-living resourcesfor other states to fish in our EEZ, they have to get permission Beyond 200 miles is generally considered the high seas Continental shelf can extend out to 350 nautical miles in some cases, but not if it gets too deep. Typically it ends at 200 miles. o Transit passage (straits) Intl right to transit passage was granted, above or below the water, and over flight Technically there is no right to over flight in the territorial sea, except through straits. There is a right to over flight in EEZs. o Dispute Resolution scheme 4 ways to settle disputes: Intl tribunal for law of sea (ITLOS) ICJ Two arbitral tribunals Enforcement mechanism: Unfortunately, its a lot like the ICJ. There isnt really any enforcement. - The M/V Saiga Case (Saint Vincent and the Grenadines v. Guinea) o Oil tanker registered to St. Vincent and Grenadines that supplies oil to tankers off the coast was taken by Guinea south of their EEZ for fraudulently importing oil into their territory without claiming the oil or paying taxes on it. o The purpose in UNCLOS for requiring a genuine link btwn a ship and its flag State is to ensure the flag state carries out its duties, not to establish criteria for the validity of the registration of ships in a flag State to be challenged. Ct also gives reparations. o Under Art 33, Guinea could go into the CZ to enforce regulations in the territorial sea, but the ship was in the EEZ and before that only in the CZ. - UNCLOS o Art 33: Rights in the CZ o Art 56: Rights and Duties of the coastal state in the EEZ o Art 58: Rights and Duties of other states in the EEZ Freedoms that should be recognized in the EEZ: navigation, over flight, laying of submarine cables (not fishing, though). o Article 76: Continental Shelf o Artcile 87: Rights in the High Seas o Article 91 Nationality of Ships o Article 110: Right to Visit 5 situations in which authorities can board a ship on the high seas o Article 92 Status of Ships o Art 301: Peaceful uses of the Sea (sounds like UN Charter Art 2(4)) o Art 293(1): Applicable lawCourts with jurisdiction under this arent limited to this Convention; they can use other international law not incompatible with the Convention (means everything else comes in, including Charter of UN) - Internal waters v. territorial sea

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Internal waters: Inland waters (like the Hudson River); in inland water, a state has the right to exclude vessels in internal waters even if engaged in innocent passage o Territorial sea: Starts at the coast; there is a right of innocent passage through the territorial sea (Art 19: Innocent Passagewhat is and what is NOT innocent passage) o Warships have the same right of innocent passage as regular ships. Polymetallic Nodules o The dispute over these resources is based on a disagreement regarding whether the concept of the freedom of the seas, which protects navigational freedoms and fishing activities on the high seas, also includes the ability to harvest mineral resources. B/c the nodules are on the floor of the abyssal plains in the deep sea, they have never been exploited historically, and the question was not addressed in earlier agreements. Those arguing that seabed mining is a high-seas freedom have relied upon Art. 2 of the 1958 Convention on the High Seas. o Anti Seabed mining arguments everyone should get their share, equality richest countries should not be able to get everything once the technology is advanced there will be nothing left o Pro Seabed mining arguments why should the US have to transfer technology to poorer countries finders keepers. We get there first, doesnt belong to anyone we are taking the risks and the money to do this, why should we give this away. Similar to fishing, but it is a limited resource Maritime Delimitation o ICJ has quite a bit of jurisprudence in this area o There are large maritime zones extending 200 miles from the coast, but what if there are two coastal states and their maritime boundaries are less than 200 miles apart? o Equidistance line The midpoint between the states Just a starting point o The coastline is growing to be the most important factorthe land rules the sea Courts are looking at the length of a coastline of one state vis a vis the length of the coastline of the other state and are constructing a ratio Less concern about historical factors and usage. o Case concerning Maritime Boundary of Gulf of Maine (Canada v. US)s o The court ignores all the arguments with regard to history or dependence upon the banks, etc. The only criterion the Court applied other than the equidistance line was the length of the coastline. US had about a 5th larger coast than Canada, and was therefore entitled to a greater portion than Canada was. Intl Law requires that the law of equity be followed. o Other equitable principles might apply (such as history of usage, population, etc.) but equidistance line and length of coastlines are the most used. For the most part, non-geographical considerations are becoming less of a factor. o Preventing encroachment has become more of a factor An island off the coast of a large state should have at least a narrow line of EEZ so they arent totally encroached by just a small territorial sea surrounded by the EEZ and territorial sea of the bigger state. Fishing Disputes o UK v. Norway Norway is very rocky on its coastlineQ here was where does Norways coast begin for purposes of delimitation? Court decides it doesnt start at the true coast, but at the rocky ramparts. You can follow unique geographical features rather than contours of the coast rule with regard to strait baselines. It also emphasizes the importance of customary international law and looks back in history to how states have treated the issue in the past.

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 Art 5 of UNCLOS basically codified this decision Fish cross the maritime boundaries. The boat may be fishing right outside of the EEZ on the high seas and getting a lot of the fish that just cross the boundarieshow could a state control that? UNCLOS tries to set out provisions in Articles 62 and 63 for some issues: States have to go to an international organization Not resolved, though, because some states set up their own intl org to say something else o Spain v. Canada Canada was trying to preserve its fisheries but right outside the boundary, Spain was fishing and didnt participate in Canadas conservation efforts. Canada impounded one fishing vessel and in another case one of Canadas gunships cut the nets of another. Ct ruled that it didnt have jurisdiction because it fell within Canadas conservation measures. Canada made a unilateral action even if it was aligned with NAFOs regulationsthey were regulating fishing in the high seas, where they dont have jurisdiction to do so. - Environmental Protections o The London Dumping Convention prohibits dumping of wastes; certain wastes can be dumped with a permit. The convention takes the precautionary approach, preventative measures are taken when there is reason to believe that wastes or other matter introduced into marine life are likely to cause harm even though there is no conclusive evidence. o Art 210 of UNCLOS: Pollution by dumping The applicable Articles in UNCLOS generally says that the coastal state has the authority to stop pollution with regard to the territorial sea and the EEZ. There may be a conflict though between the right of navigation and the right of states to stop pollution in their EEZs (e.g. restricting transport of hazardous materials in EEZs). Right of navigation says we dont have to give advanced notice. But there are arguments that there should be in the case of hazardous material because it can help the coastal state prepare for any emergencies and they can give the shipping state advice on best routes to take for safety. Counterargument: You dont want terrorists to find out that radioactive materials will be going by certain states at certain times. Growing number of states are taking a stance against radioactive and hazardous materials from shipping through its EEZs Custom developing? WTO AND GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT) - Comparative Advantage: one country may be better @ producing a product than another and therefore should export that product and import others - Most Favored Nation Treatment Clause (MFN Clause) o All nations should have the same advantages. You cant give better prices to one country over another. Anti-discrimination notion o There are always small exceptions. o Conditional focuses on exporting countries o Unconditional GATT - National Treatment Clause o focus on exporting countries and domestic producers o
When one country gives an advantage to its own products by not taxing them or taxing them less than foreign products (beyond the tariff). Free Trade Theory o Prob: Even though a country is competitive with a product, there are other countries competing with them (who would lower prices to compete, potentially through immoral labor standards). GATT initially came into force in 1947 o GATT generally refers to products o GATT has no enforcement mechanism o WTO formed in 1994 Came up with enforcement measures o

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Has mandatory dispute resolution panel Includes the GATT treaty, basically without changing it o GAS (General Agreement on Services) o TRIPPS: Intellectual property guarantee Environmental Regulation o GATT Article XXcan trump the other provisions Subject to the requirement that such measures are not applied discriminatorily between countries where the same conditions prevail, or disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: B) necessary to protect human, animal or plant life or health G) relating to the conservation of exhaustible natural resources of such measures are made effective in conjunction with restrictions on domestic production or consumption o U.S. v. Mexico (yellow fin tuna case) US banned import of yellowfin tuna from certain areas for the purpose to save dolphins. Mexico said US was acting unilaterally and they couldnt pass legislation that would affect their jurisdiction. Panel holds US could act within its own state, but not outside. Youre imposing your standards on other countries that dont necessarily have the resources to adapt to those standards, and youre encroaching on sovereignty. This is a Non-Tariff Barrier (NTB)such barriers are disfavored. CITES Convention. WTO is last in time, so if incompatible, follow WTO. Also, a treaty that is more specific will supercede a more broad and general treaty.

WTO dispute resolution mechanism is more stringent than UNCLOS, so US should join UNCLOS to use in place of WTO (according to article): Issue Disputes covered Negotiation Adjudicative bodies UNCLOS Wide range, covers most ocean disputes Parties shall proceed expeditiously to an exchange of view - international law of the sea tribunal - icj - general arbitral panel - specific arbitral panel Very flexible Broad & comprehensive Not specific, inferred WTO/GATT limited coverage of trade issues specifically covered by wto/gatt agreements Parties must enter into negotiations Formal dispute settlement if the parties voluntarily agree to binding resolutions Limited flexibility Very narrow Explicitly provided up to the member against whom the complaint has been brought against to rebut the charge Losing party can appeal Final decisions must be adopted by all members of wto/gatt Specifically defined

Tribunal make up Applicable law Burden of proof

Appellate review Adoption of the decisions Compliance and enforcement

None Automatically binding Vaguely defined

TO KNOW: * UN Charter: Art 7, 51, 39, 42, 103, 2(4) * Art 53 of the Vienna Convention on the Law of Treaties (A treaty cant conflict with a peremptory norm)

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