International Law Outline
Knox – Fall 2019
Class Structure:
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Part I: Fundamental International Law Concepts
o Sources – customs and treaties
o Subjects – states (primary subjects), international organizations,
governments, corporations, etc.
o Compliance
o Dispute Resolution – International Court of Justice (ICJ)
Part II: Various subsets of International law:
o Injury to aliens
o Human rights
o Law of the Sea
o International environmental law
Part III: International law in the United States
Outline:
Part 1: Fundamental International Law Concepts
A. Sources of International Law:
a. Article 38 of the ICJ statute lays out what law the ICJ can apply.
i. The Court shall apply: international conventions (treaties) establishing
rules expressly recognized by the contesting states; international
custom as evidence of a general practice accepted by law; general
principles of law recognized by civilized nations; judicial decisions and
teachings of highly qualified scholars as subsidiary means for the
determination of rules of law
b. Customary International Law (CIL)
i. Two requirements to establish CIL:
1. Has to be a general practice of states
2. Opinio Juris: The acceptance by states that such practice is
legally required. (Legal obligation)
ii. CIL examples and Non-CIL examples
1. Diplomatic immunity is an example of CIL – Based on the
idea of reciprocity: U.S. wants diplomats safe in other
countries and other countries want the same for their
diplomats.
2. Shape of state flags are not CIL – Most are rectangular, which
satisfies the first requirement, but there is no opinio juris.
iii. Issues with CIL:
1. How much time for something to become general practice?
2. Which states matter?
3. What about newly emerging states?
iv. How do you change a CIL norm?
1. Norms can change, but at first the changed behavior will be a
violation of the rule. What happens next depends on the
response of other states.
2. Persistent Objector Doctrine: A state is not bound by rule if
persistently objected to it from early on
a. Must loudly and clearly object
b. Another way that CIL favors bigger and older states.
v. The Paquete Habana:
1. Facts: During Spanish-American war two vessels were
captured as prizes of war.
2. Issue: Whether, under international law, fishing vessels are
exempt from capture as a prize of war
3. Holding: It is an established rule of international law that
coast fishing vessels are exempt from capture as a prize of
war – wealth of information written on the subject by
scholars.
4. “Where there is no treaty, resort must be had to the
customs and usages of civilized nations and to the works
of jurists and commentators who have made themselves
well-acquainted with the subjects of which they treat.”
5. No inconsistent laws in this case, so go with CIL
vi. S.S. Lotus (France v. Turkey)
1. Facts: French vessel collided with Turkish ship; French
officer on ship is arrested. France claims that Turkey has no
jurisdiction because each vessel was flagged to a certain state
and is subject to the laws of that state.
2. Issue: Does CIL prohibit Turkey from exercising jurisdiction
over a foreign national for alleged conduct on a foreign vessel
relating to a high seas collision?
3. Holding: States are free to exercise jurisdiction unless
explicitly prohibited. So Turkey could exercise jurisdiction
over the French official.
c. Law of Treaties – Conclusion and Entry Into Force
i. What are treaties?
1. Overarching principle of treaty law:
a. Pacta sunt servanda – treaties are binding and to
be performed in good faith.
2. Major source – Vienna Convention on the Law of Treaties
(VCLT)
a. Limited to treaties between states, excludes treaties
between states and IOs and between IOs themselves
b. Considered to reflect CIL, but does not, in and of
itself, create CIL
i. However, can eventually create CIL. See the
relationship between treaties and customary
law.
c. Binding because it reflects existing norms
i. Fair to say that the VCLT binds every country
in the world, even those not party to it.
3. Article 2 (VCLT): “Treaty” means an international agreement
concluded between states in written form and governed by
international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular
designation.
4. Article 24: [Entry Into Force].
a. Bilateral: Once both deposited, the treaty is ratified
b. Multilateral: Only enter force if a minimum number
of parties ratify it.
i. This is typically a provision in the treaty. For
example, the UNCLOS states that the treaty
will enter into force one year after the deposit
of the 16th ratification.
ii. Who is/is not bound by treaties?
1. Article 26: [Who is bound]. Every treaty in force is binding
upon the parties to it and must be performed by them in good
faith
a. Pacta Sunt Servanda
2. Article 27: Internal law cannot be raised as a justification for
the failure to keep a treaty
3. Article 34: [Who is NOT bound]. A treaty does not create
either obligations or rights for a third State without its
consent.
iii. How do states enter into treaties?
1. Article 7: [Full Powers]. A person is considered as
representing a state for the purpose of adopting or
authenticating the text of a treaty of for the purpose of
expressing the consent of the State to be bound by a treaty if he
produced appropriate full powers OR
a. It appears from the practice of the states that their
intention was to consider that person as representing
the State for such purposes
2. If no full powers, those who hold a certain position may have
the authority:
a. Heads of states, heads of government, Minister for
Foreign Affairs
b. Heads of diplomatic missions
c. Representatives accredited by states to an
international conference or organization
iv. Steps for conclusion of multilateral treaties:
1. Negotiation
2. Adoption
3. Translate
4. Signature*
a. Ratification does not occur immediately after signing
because states will want to take the treaty back for
domestic approval
b. Signature makes intention to ratify clear, at this point
states should not undermine treaty (show good faith)
c. Signature could also be a binding requirement in
treaty itself that also has to be met before ratification.
5. Domestic internal approval
6. Ratification
a. Once the President has ratified a treaty under US law,
the ratification will be sent to a depository.
b. If the treaty has entered into force for treaty parties,
then the US will be bound internationally to comply
with the provisions.
v. Qatar v. Bahrain
1. Facts: Countries were trying to resolve a dispute over
boundaries and countries have to agree that ICJ has
jurisdiction to resolve dispute. However, countries could not
agree on whether the treaty agreed to ICJ jurisdiction. There
are signed minutes – Qatar said Bahrain’s signing of minutes
equated to accepting jurisdiction; Bahrain said minutes were
just notes from a meeting and not intended to bind.
2. Holding: Constituted binding agreement because stated
rights and obligations and went through the process of
signing and ratifying
3. Reasoning: Clear intent for notes to be binding because of the
signature.
vi. Rationale behind going to ICJ:
1. Countries are more willing to accept ICJ decisions
2. Potentially because ICJ rarely rules in complete favor of just
one country – states may get more than they would through
their own negotiations
d. Law of Treaties – Reservations, Understanding, and Declaration
i. States ratifying treaty can respond in three ways:
1. Reservations: “We exclude or modify this provision”
a. Article 2: “Reservation” means a unilateral statement,
however phrased or named, made by a state, when
signing, ratifying, accepting, approving or acceding to
a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in
their application to that State.
b. Not something you see in the context of bilateral
treaties – if one party does not agree to a provision,
then there is no agreement on that provision and
therefore no binding obligation.
c. Reservations to the Convention on Genocide
i. Main issue with this treaty was the dispute
resolution clause – some states did not want
to be taken to ICJ.
ii. The original rule was that if one state
objected to the reservation, then the state
that made the reservation would not be part
of treaty.
1. This doesn’t work because we want as
many countries to join as possible,
which would not occur if reservations
were not allowed.
iii. The new rule: You can have reservations, but
not reservations that go against the object
and purpose of the treaty.
1. Reservation is incompatible if it
effects an essential element to the
treaty
d. Article 19: [Formulation of reservations]. A state
may, when signing, ratifying, approving, or acceding to
a treaty, formulate a reservation unless:
i. The reservation is prohibited by the treaty
ii. The treaty provides that only specified
reservations, which do not include the
reservation in question, may be made; or
iii. The reservation is incompatible with the object
and purpose of the treaty.
e. Reservations to human rights treaties
i. Which reservations are incompatible with
object and purpose?
1. Customary International Law
ii. Who decides incompatibility?
1. The committee
iii. Effects of incompatibility:
1. Reserving party may not be a party
2. Party to treaty except to the provision
in which the reservation relates
3. Party without the reservation
a. This is the most preferred
method, but highly unpopular
because states don’t want to
be bound to something they
said they would not be bound
to.
2. Understanding: “This is how we think this provision should
be interpreted and we will be bound in this way.”
a. Not meant to alter the agreement
3. Declaration: Statement by state that is relevant to treaty in
some way.
a. State might want to “declare” that they accept the
court’s jurisdiction or how they are going to
implement something.
e. The Relationship of Treaties to Customary International law
i. How treaties can influence or relate to CIL
1. Treaty declaratory of pre-existing custom
2. Treaty helps crystallize customary law in the process of
formation
a. Hard to know whether there are customary rules or
not. The custom is gradually forming into a binding
norm and a treaty can help with this process. Give
states the opportunity to say whether they agree with
this or not.
f.
3. Treaty rule influences state practice subsequent to the
treaty’s adoption as to lead to formation of new customary
law
a. Custom hasn’t formed at all yet. Treaty shapes the
norm that later becomes customary international
law.
ii. Why not just rely on treaties?
1. States can withdraw from treaties, but not from customs
iii. North Sea Continental Shelf Cases
1. Facts: Denmark and Netherlands arguing that Germany
should be bound by CIL. Treaty provides evidence of CIL.
However, Germany has signed but not ratified the treaty.
a. This means that Germany should not do anything
that is in opposition of the object and purpose of the
treaty, but Germany is not fully bound. Do not act in a
way that makes it harder for yourself or others to
comply with the treaty.
b. Norm: Boundaries should be reached by agreement.
If not possible, boundary should be determined by
application of the principle of equidistance
2. Holding: Courts disagreed with Denmark and Netherlands –
states don’t follow the norm because it is compelled by law,
just doing it because it is the easiest way to go.
a. This goes back to opinio juris – have to have evidence
that states adopted this rule because they thought it
was legally required.
iv. Case Concerning Military and Paramilitary Activities In and
Against Nicaragua
1. Facts: US arguing that there is no jurisdiction because they
had a reservation that jurisdiction would only occur if all
parties were parties to the case before the court. Only
Nicaragua and the US were parties.
2. Issue: Real question is whether US had broken CIL when it
aided the Contras in their rebellion against the Nicaraguan
government.
3. Holding: This was a principle of CIL because US and
Nicaragua had already both agreed to the rules. Nation
cannot intervene in other states affairs unless the other
states has been a victim of an armed attack.
v. Lex specialis:
1. “Law governing a specific subject matter”
a. Law governing a specific subject matter overrides a
law that only governs general matters.
2. Generally arises with regard to the construction of earlier
enacted specific legislation when more general legislation is
passed after such enactment.
Jus Cogens
i. Latin for compelling law – idea is that some norms are peremptory
norms that take precedent.
1. Fundamental principle of international law that is
accepted by the international community of states as a
norm from which no derogation is permitted. (Vienna
Convention on the Law of Treaties, Article 53)
ii. Overrides inconsistent provisions in treaty or custom
iii. Very controversial because we have in modern times moved to a
voluntarism/positivist society
1. Moved away from a natural law sense in international law.
iv. Possible jus cogens norms include:
1. Prohibition on aggressive use of force
2. Right to self-defense
3. Genocide, torture, crimes against humanity
4. Prohibition of slavery and racial discrimination and
apartheid.
v. What would have if, for example, states changed rules about privacy?
Who would tell them they couldn’t do it?
1. *Knox: Whole thing seems artificial. Many arguments using
jus cogens tend not to be successful.
vi. Belgium v. Senegal:
1. Facts: Crimes against humanity and torture allegations
against former president of Chad. Belgium wanted Senegal to
prosecute Habre or extradite him to Belgium. Belgium based
the application on the UN Convention against Torture and
CIL.
2. Issue: Is the prohibition of torture jus cogens?
3. Holding: Senegal does not have an obligation to prosecute for
violations that occurred prior to them becoming a party to
the treaty. Even if we assume jus cogens, there is no conflict
here. Prohibition of torture is a peremptory norm/jus cogens
(grounded in widespread practice) – But obligation to
prosecute alleged perpetrators of torture applies to facts
having occurred after its entry into force.
4. As long as jus cogens gets defined in narrow ways such as
this, they are essentially going to fail unless there is an
absolute conflict.
g. International Organizations
i. International organizations can be seen as quasi-legislatures
ii. Nature of the Organizations: UN Charter aims at universal
membership (193 members to date). Main components:
1. Security council: 15 members, 5 permanent members (U.S.,
U.K., France, China, and Russia)
2. General Assembly: All states are represented
3. ICJ: 15 Judges
4. UN Economic and Social Council
5. UN Trusteeship Council: Suspended in 1994 because
goal/purpose of this council was met
6. Secretariat
iii. Reparation for Injuries Suffered in the Service of the UN (ICJ,
1949)
1. Issues:
a. When an agent of the UN suffers injury through
performance of duties regarding an individual state,
can the UN bring an international claim against the
State for damages caused to either the UN or to the
victim?
b. If yes, if the UN and an individual state have an
interest in the same claim, does the UN’s interest
outweigh the state’s interest?
2. Holding: Yes, because international organizations, though not
the same as states, possess an international legal personality.
The UN’s charter gives it the ability to require member states
to recognize certain rights and obligations. Plus, the UN is
tasked with a political purpose – to maintain international
peace and security. In order to execute these functions, the
UN must be endowed with an international personality that
grants it certain rights relating to its member states –
including the capacity of the UN to bring an international
claim if a state has caused injury to the UN or someone acting
on the UN’s behalf.
3. Why not leave this to states?
a. States may not pursue it. Plus, person injured is
acting on behalf of the UN.
4. If giving an organization explicit powers, must also give
implicit powers
a. UN has to be able to protect their people.
h. International Organizations as Sources of Soft Law
i. Soft law: Used to denote agreements, principles, and declarations
that are not legally binding. May have some normative value/legal
effect. (Ex: UN General Assembly resolutions)
1. Can have some interpretation of binding treaties
2. Maybe resolutions can effect understanding of customary
legal obligations
3. Soft law could also refer to vague, weak or hortatory terms of
a legally-binding international instrument
a. Example: Paris Agreement – some provisions say
states shall take certain actions and some provisions
say states should take certain actions.
ii. UN Charter has many provisions in human rights that are
vague/general. Maybe international organizations can specify these
and give them weight.
iii. Legality of the Threat or Use of Nuclear Weapons
1. Advisory opinion issued by the ICJ – divided court (7-7)
2. No opinio juris because many negative votes and abstentions
from the states hat have nuclear weapons.
iv. Security Council (SC) can make binding rules/decisions
1. UN Charter 2(4): All members shall refrain in their
international relations from the threat or use of force against
the territorial integrity or political independence of any state,
or in any other manner inconsistent with the purposes of the
United Nations.
i.
2. Article 39: The Security Council shall determine the existence
of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42,
to maintain or restore international peace and security
3. Article 40: In order to prevent an aggravation of the
situation, the Security Council may, before making the
recommendations, call upon the parties concerned to comply
with such provisional measures, as it deems necessary.
4. Article 41: Security Council can decide what measures not
involving the use of armed force are to be employed to give
effect to its decision.
a. Can include complete or partial interruption of
economic relations and severance of diplomatic
relations.
i. See UNSC Resolution 660: The SC
determined that there was a breach of
international peace and security as regards
the Iraqi invasion of Kuwait. Acting under
Articles 39 and 40, the SC condemned the
invasion, demanded Iraq’s immediate
withdrawal, calls for immediately intensive
negotiations, and decides to meet again as
necessary.
ii. See UNSC Resolution 661: SC decides that all
states shall prevent import of commodities to
Iraq.
5. Article 42: Should the Security Council consider the measures
in Article 41 to be inadequate, it may take such action by air,
sea, or land forces as may be necessary to maintain or restore
international peace.
a. Can include demonstrations, blockade, and other
operations.
i. See UNSC Resolution 668: SC authorizes
member states to use all necessary means to
restore international peace and security.
v. UNSC Resolution 688:
1. Came about as a result of repression of Iraqi people,
especially in Iraqi Kurdistan.
2. Why doesn’t this mention Chapter 7?
a. States recognize that invasion is a threat. How states
treat their own is different, don’t want the UN looking
over their shoulders.
vi. UNSC Resolution 1373:
1. After 9/11 attacks.
2. Looks like a treaty, but it’s not – it is a SC resolution.
International Organizations as Sources of Hard Law
i. Regulations and directives are sources of hard law
ii. Prosecutor v. Tadic:
j.
1. Facts: Tadic was the first individual to be tried by the
International Criminal Tribunal for the Former Yugoslavia
(ICTY). He was tried for war crimes. Tadic argued that the
ICTY was not established by law.
2. Holding: ICTY has proper jurisdiction over Tadic’s case
because Article 41 of the UN Charter grants the SC broad
authority to determine what measures to take in order to
maintain international peace, which includes the power to
establish an international tribunal.
iii. Five regions of the UN (Gives UN way to divide up seats and
bodies):
1. African group
2. Caribbean AND Latin American groups (GRULAC)
3. Western Europe and other groups (WEOG)
4. Asia-Pacific group
5. Eastern European Group
General Principles of Law, Judicial Decisions, “Publicists”
i. Article 38 of the ICJ Statute: The court shall apply...general
principles of la recognized by civilized nations.
ii. Five categories of general principles:
1. The principles of municipal law “recognized by civilized
nations”
2. General principles of law “derived from the specific nature of
the international community”
3. Principles “intrinsic to the idea of law and basic to all legal
systems”
4. Principles “valid through all kinds of societies in
relationships of hierarchy and co-ordination”
5. Principles of justice founded on “the very nature of man as a
rational and social being.”
a. The further down the list you go, the more it starts
looking like natural law.
iii. Example: The principle that no one should be a judge in his own
cause or that a victim of a legal wrong is entitled to reparation are
considered part of most, if not all, systems of municipal law and as
intrinsic to the basic idea of law.
iv. Don’t necessarily have to do with interactions between states at all.
There doesn’t have to be a level of opinion juris. This can be purely
domestic. Here, it has to be fundamental to the nature of law. You
would not expect these to change over time.
v. Generally used as gap fillers after you have gone through treaties
and international customs.
vi. Prosecutor v. Erdemović
1. Facts: Erdemović took part in the execution of 1,200
unarmed civilian Muslim men and claimed that he did so
under duress. Court looks at civil and common law
jurisdictions.
2. Holding: Duress is not a complete defense to the killing of
unarmed civilians/innocent persons
3. Reasoning: Court does not take positivist approach – it looks
at other countries. When a statute does not speak to
something you cannot assume that it intended to have these
gaps. Look at general principles derived from existing legal
systems
a. General principle: Doesn’t require a comprehensive
survey of all legal systems; not practical, not practice
of ICJ.
4. No way to make an opinio juris argument here – no one can
argue that the duress exception is included in the France
code because they believe there is a legal obligation to
include this principle.
vii. A principle of law is a general one if it is being applied by the most
representative systems of municipal law.
B. Subjects of International Law
a. States
i. Historically, more than today, states have been the main subjects of
international law.
ii. What do states get?
1. Status as a legal person – can make international law
2. Have sovereignty over their people
3. Only entities that can appear before international tribunals
4. Only states can join the UN
iii. Montevideo Convention on the Rights and Duties of States, 1933
1. Article 1: The state as a person of international law should
possess the following qualifications:
a. A permanent population
i. No minimum number
ii. Example: Antarctica not a state because there
is no permanent population – no one that
really lives there year round.
iii. Example: Nauru, for as small as it is (around
13,000 people), is still considered to have a
permanent population.
b. A defined territory
i. No minimum size requirement
c. Government; and
i. Need stable political organization and public
authorities need to be strong enough to assert
themselves without assistance of foreign
troops.
d. Capacity to enter into relations with the other states
i. In recent decades many newly independent
states have been admitted despite heavy
dependence in actuality on other powers for
security and economic viability.
2. Article 2: The federal states shall constitute a sole person in
the eyes of international law.
3. Article 3: The political existence of the state is independent of
recognition by the other states. Even before recognition, the
state has the right to defend its integrity and independence, to
provide for its conservation and prosperity, and consequently
to organize itself as it sees fit, to legislate upon the interests,
administer its services, and to define the jurisdiction and
competence of its courts.
iv. Two opposing theories for determining whether an entity is a state
and should be so treated:
1. Declaratory approach: The existence of a state depends on
the facts and on whether those facts meet the criteria of
statehood laid out in international law.
a. State can exist without being recognized by other
states. Such recognition is merely declaratory of an
already existing statehood.
b. Privileges international law. Legalist approach.
2. Constitutive approach: The opposing position is that the act
of recognition by other states itself confers international
personality on an entity purporting to be a state.
a. Other states constitute the new state by recognizing
it.
v. When a state has to force the issue of becoming a state:
1. When that state wants to join an international organization
a. Have to have the P5 and a majority of states approval.
vi. You can recognize a state as a state and still not have diplomatic
relations with them.
1. Example: The US said they recognized the remaining six
former soviet republics, but would not establish diplomatic
relations with them until the US was satisfied that they have
made commitments to responsible security policies and
democratic principles.
b. Peoples and “Entities with Special Status”
i. A fundamental principle in international law that people have right
to self-determination
c. Peoples:
i. Who counts as “people”
1. People used as singular noun here. People as an identifiable
group that has certain rights.
2. Peoples don’t tend to overlap with one another.
3. For the idea of a people to make sense, it has to be locatable
on a map – generally live and are associated with a certain
territory.
ii. Scope of the right to self-determination
1. Two aspects:
a. Internal self-determination: A people’s pursuit of
its political, economic, social, and cultural
development within the framework of an existing
state.
i. Get semi-autonomy (this control is only
internal). Own schools, religion, culture.
b. External self-determination: entails the possibility
of choosing or restoring independence and has only
been bestowed upon two classes of people – those
under colonial rule or foreign occupation.
iii. What does the right to self-determination get you?
1. Historically, the right of self-determination cited in context of
decolonization though this has kind of run its course.
a. Example: East Timor – originally a non-selfgoverning territory of Portugal that had not achieved
self-determination. Portugal withdrew from the
territory and then Indonesia invaded and occupied it.
East Timor wanted independence, which they
eventually received after SC intervention and formal
recognition of Timorese desire to be independent by
Indonesia.
2. Reference Re Secession of Quebec:
a. Facts: Quebec wanted to secede from Canada.
b. Holding: Quebec could not do this.
c. Reasoning: The right of self-determination for
peoples is normally fulfilled through internal selfdetermination – people are generally permitted to
pursue their political, economic, social, and cultural
development within their own state. However, when
this is not the case, peoples may be entitled to pursue
their right to self-determination in external ways.
Examples of when the right to self determination is
jeopardized internally:
i. Colonization
ii. Foreign occupation – people oppressed in
some manner
iii. Definable group is denied meaningful access
to government to pursue development.
d. No such circumstances exist in this case.
d. Entities with Special Status
i. Vatican City and Holy See
ii. Palestine
iii. Taiwan
e. Governments
i. When does the issue arise where you have to decide who the proper
government is?
1. Some government won last election, but is now in exile and
there is another insurgent group that has more control.
a. Circumstances often result in two competing
factions:
i. A de facto government that is in fact
controlling all or most of the country
ii. A de jure government that has a legitimate
claim to governance but is either in exile or
detention or controls only a portion of the
country.
ii. Approaches to deciding whether a government is a legitimate
government:
f.
1. Legitimacy: Refuse to deal with a government that lacks
democratic validation
2. Effective control*: Deal with whatever government wields
effective power (without necessarily making a formal act of
recognition when power holders change)
a. International law tends to lean toward this approach
iii. Capacity of Unrecognized Governments to Bind the State
1. Tinoco Claims Arbitration
a. Facts: Tinoco regime came to power by a coup and
entered into several contracts. When the regime fell,
the restored government nullified all the contracts.
b. Holding: A de facto government may enter into
legally binding obligations on behalf of a state that
must be borne by the legitimate government.
c. Reasoning: A de facto government exists where one
political group has usurped all powers and aspects of
state sovereignty from another group. The Tinoco
regime met all the requirements for a de facto
government under international standards and, as
such, the regime had the power to perform
governmental actions such as entering into contracts.
iv. States can refuse to have diplomatic relations with recognized
governments
1. Example: US an North Korea lack diplomatic relations
Individuals
i. Are individuals subjects or objects of international law?
1. Traditionally, individuals were treated as objects of
international law. States controlled so much of international
law that the rights of individuals were so limited. (This is
changing)
ii. States can choose to give individuals rights, but can also take them
away.
iii. Power in hands of state – states decide what cases they want to take
iv. LaGrand Case (Germany v. United States)
1. Facts: Brothers committed bank robbery and murdered bank
officer in the process. Discovered they were also German
nationals. Germany made argument that US violated the
Vienna Convention on Consular relations
a. Article 36(1)(b): Authorities have duty to inform the
person that they have the right to contact the
consular offices of the country in which they are
nationals.
2. Holding: United States violated the individual rights of the
brothers by not informing them of their right to contact the
German consulate after their arrest.
v. Human Rights:
1. Challenge to the idea that individuals have rights only insofar
as states say they have rights.
2. Universal Declaration of Human Rights, 1948
a. Article 2: Everyone is entitled to all the rights and
freedoms set forth in this Declaration, without
distinction of any kind. Furthermore, no distinction
shall be made on the basis of the political,
jurisdictional, or international status of the country or
territory to which a person belongs.
b. Article 3: Everyone has the right to life, liberty, and
security of person
c. Article 4: No one shall be held in slavery or servitude;
slavery and the slave trade shall be prohibited in all
their forms.
d. Article 15:
i. Everyone has the right to a nationality
ii. No one shall be arbitrarily deprived of his
nationality nor denied the right to change his
nationality.
3. American Convention on Human Rights, 1969
a. Article 20: Second provision says that every person
has the right to the nationality of the state in whose
territory he was born if he does not have the right to
any other nationality
4. Citizenship
a. Jus Sanguinis: national of the state that your parents
were nationals of
b. Jus Soli: Where you were actually born
c. Naturalization: Each state sets there own guidelines
to how someone can be naturalized.
vi. Nottebohm Case
1. Facts: United States put a lot of pressure on countries to
intern German nationals. Nottebohn was released after the
war ended, but his property was not returned to him.
Guatemala took steps to confiscate his property in
Liechtenstein.
2. Issue: Can Liechtenstein actually serve his interest?
3. Holding: No. There has to be a genuine connection between
the individual and the state. Nottebohm was only in
Liechtenstein to secure his naturalization while his primary
residence was in Guatemala
vii. Issues that can arise with respect to dual nationals
1. At some point you need to decide which country you want to
be a national of.
2. Standard: Dominate and effective nationality
a. Habitual residence
b. Center of interest
c. Family ties
d. Participation in public life
e. Other evidence of attachment.
g. Corporations
i. Generally states do not have to espouse shareholder claims
1. Barcelona Traction case
a. Facts: Company incorporated in Canada. Some of the
shareholders were Belgian and Belgium claimed that
Spain should be held accountable for injury to the
corporation.
b. Holding: Court said no, not going to let country of the
shareholders espouse these claims
c. Reasoning: A lot of companies have a lot of
shareholders and this could get very messy
ii. Bilateral Investment Treaties (BITs): Treaties between two countries
that provide for certain rights between investors of two countries
1. Treaties written to be reciprocal, but in practice are not.
(Usually between capital exporting countries and developing
countries, so complaints come from the rich country saying
the poor country did something they did not like. This makes
it easier for big corporations to push around small
countries.)
2. Seeing an increase in BITs – gives corporations direct rights
against states
C. Compliance and State Responsibility
a. Compliance with International Law
i. Compliance is so fundamental to whether international law can even
be thought of as law
ii. Effectiveness is different than compliance
1. Compliance is whether particular conduct is in accord
with a legal norm
2. Effectiveness asks to what degree is the norm in question
actually changing behavior in the direction that the goal is to
change the behavior?
3. Can have compliance without having effectiveness
a. Norm itself can be inadequate
b. Compliance with norm that has perverse effects
c. Can have state actors in compliance, but state’s
actions might not be the problem at all.
iii. Four main possible reasons for compliance with international law:
1. Coordination problems: In the mutual self-interest of all
parties to comply with whatever the international legal norm
is.
a. Domestic law example: Once you decide what side of
the road to drive on, it is in your own interest to
comply with that norm
b. International law example: Telecommunication and
aviation agreements.
2. Reciprocity:
a. Game with cards shows that you can enter into
agreement but states might still have
reason/incentive to defect.
b. If the game is going to be repeated, someone would
have decided to play the red card if other players play
the red card. Over time, build trust or distrust in one
another. Once you have established it is in everyone’s
collective interest to comply, some states will change
behavior based on what other states are doing.
Transparency is required for this to happen.
c. If other parties are not doing what this treaty said
they would do, then we will stop doing this as well
3. Sanction: Coercion or efforts to coerce that don’t involve
prosecutors and courts. States want to get whatever benefits
states might offer them for complying. Poorer countries are
often paid by richer countries to comply.
4. Right thing to do: We are all social animals. We live in a
society where humans have evolved to take into account
other people’s interest and to abide by certain norms as long
as they meet certain requirements.
a. Example: Most don’t commit serious crimes even if
we think we can get away with it. Though some argue
that this logic is not the same when applied to
international law.
b. This most matters with respect to human rights
norms – cannot reply on reciprocity here.
c. Does this category ever work? Much debate,
important in the human rights context.
b. State Responsibility: Attribution and Breach
i. State Responsibility is governed by CIL, not set out in a treaty
1. General rules on page 479
ii. What are we talking about?
1. Not talking about all the rules that states might violate
a. These are primary norms.
2. We are talking about secondary norms of state
responsibility
a. Once established that there has been, or might be, a
violation under these primary norms, what happens
next? Look at secondary norms. What are the states
obligations in terms of reparations? Rule of
attributions?
b. Example of distinction:
i. Primary: United states and Canada enter into
environmental treaty, Canada might have
violated provisions of the treaty.
ii. Secondary: What are the rights of the US?
What are the rights of Canada in preventing
US from going too far?
iii. ILC – Appointed by GA to codify and progressively develop
international norms. Draft treaties and sometime provide
clarification
1. Drafted articles regarding state responsibility
a. ICJ began to cite these articles even before adoption.
iv. Specific issues that arise in the context of state responsibility
1. Attribution:
a. Ex: Knox assaults a diplomat – can conduct be
attributed to the state?
2. Bosnia v. Serbia: Serbians massacring thousands of Bosnian
men and children – could this act be attributed to Serbia?
a. Several questions to ask (only need one of three):
i. Was the conduct in question by an organ of
the state? (Can be de jure or de facto)
ii. Was the conduct taken under the direction or
control of the state?
iii. Did the state acknowledge the conduct as it’s
own?
b. Bosnia assertion: Those involved were having their
salaries paid for by Serbia
i. ILC on State Responsibility, Article 4: The
conduct of any state organ shall be considered
an act of that state under international law,
whether the organ exercises legislative,
executive, judicial, or any other functions,
whatever position it holds in the organization
of the State, and whatever its character as an
organ of the central Government or of a
territorial unit of the state.
ii. An organ includes any person or entity that has
that status in accordance with the internal law
of the state.
iii. Was this enough to be considered conduct by
a de jure organ? As long as Serbia does not
regard army as part of its forces by way of
internal law, then it is not an organ of Serbia.
1. This is a very high threshold.
iv. Army has to be completely dependent on
state for it to be a de facto state organ. Still
another high threshold.
1. Can provide financial support and still
not have control over the entity
c. What about the overall control standard (ICTY
Standard)?
i. Was the government of Serbia in overall
control of the army?
1. Yes, it was (under ICTY), but the ICJ
disagrees and has a tougher standard.
d. Alternative:
i. ILC on State Responsibility, Article 8: The
conduct of a person or group of persons shall
be considered an act of a state under
international law if the person or group of
persons is in fact acting on the instructions of,
or under the direction or control of, tat state in
carrying out the conduct.
1. How is this standard different?
a. The distinction is that here we
are talking about the conduct,
not the entity as a whole.
Under article 4, you are
talking about the organ as a
whole. Here, just talking about
whether conduct in question
is under the effective control
of the state.
ii. Did the Bosnian Serb leadership act under the
direction of the government members of
Serbia?
1. ICJ still says no – no facts to prove this
to the ICJ’s satisfaction.
e. ICJ said alleged genocide could not be attributed to
Serbia
3. Fault
a. Does it matter whether state has been at fault in
some sense?
i. Short answer: no
ii. No general norm of fault that applies to
international law violations across the board,
have to look at specific treaties or customary
law.
1. Obligations of conduct: states take or
refrain from certain actions. (Relates
to primary)
2. Obligations of result: State is liable if
result is not met. (Relates to primary)
4. Tangible injury
a. Does the injured state have to suffer tangible injury?
i. No. Whether or not you have violated a norm
does not depend on whether state has
suffered an injury.
5. Obligations to all parties
a. Barcelona traction case: Belgium trying to argue that
shareholders injured by Spain’s appropriation of
Canadian company. ICJ said Belgium could not bring
this claim
i. Dicta: Different if obligations were to every
other state.
1. What kinds of obligations could be
owed to every other state?
a. Jus cogens norm – so
fundamental cannot be
violated by anyone under any
circumstances.
b. ILC on state responsibility, Article 48: Any state
other than an injured state is entitled to invoke the
responsibility of another state in accordance with
paragraph 2 if: the obligation breached is owed to a
group of states including that state, and is established
for the protection of a collective interest of the group;
OR the obligation breached is owed to the
international community as a whole.
i. Examples: Genocide, protection from slavery,
discrimination, etc.
c. How could this work in the Barcelona/Corporate
context?
i. What if there were facts that Spain
expropriated because the majority of
shareholders were Jewish, black, etc?
1. Can imagine facts on exam that would
let you explore whether obligations to
all parties would be triggered.
d. The whole idea of this is that it allows states to bring
the claims even if they cannot show that they were
individually affected because simply all states in the
collective would have the standing to bring the claim
i. Why don’t states bring these more?
1. Reciprocity works in more than one
way – states might be concerned that
if they start opening up these claims,
they will open themselves up to these
claims in the future.
c. Circumstances Precluding Wrongfulness; Reparation;
Countermeasures
i. Reparations:
1. ILC Articles on Reparation, Article 34: [Forms of
reparation]. Full reparation for the injury caused by the
internationally wrongful act shall take the form of restitution,
compensation and satisfaction, either singly or in combination,
in accordance with the provision of this chapter.
2. ILC Articles on Reparation, Article 35: [Restitution]. A
state responsible for an internationally wrongful act is under
an obligation to make restitution, that is, to re-establish the
situation which existed before the wrongful act was
committed, provided and to the extent that restitution: is not
materially impossible; does not involve a burden out of all
proportion to the benefit deriving from restitution instead of
compensation.
3. Responsible state is under obligation to make full reparation
for the injury caused by the violation. This is a secondary
norm – does not matter if treaty specifically says you are
under this obligation, just there under CIL
4. Reparation = Putting you back in same position you would
have been in absent the breach
a. Sometimes states want money, sometimes want
specific action, but often impossible to put states
back in same position it would have been in absent
the injury
b. Third category: satisfaction (Article 37) –
acknowledgement of breach, an expression of regret,
and a formal apology.
ii. Circumstances precluding wrongfulness
1. Defenses include:
a. Consent – who gave consent?
b. Force Majeure
i. ILC Article on Force Majeure, Article 23:
The wrongfulness of an act of a state not in
conformity with an international obligation of
that state is precluded if the act is due to force
majeure, that is the occurrence of an
irresistible force or of an unforeseen event,
beyond the control of the State, making it
materially impossible in the circumstances to
perform the obligation.
c. Distress
i. ILC Article on Force Majeure, Article 24:
The wrongfulness of an act of a state not in
conformity with an international obligation of
that state is precluded if the author of the act
in question has no other reasonable way, in a
situation of distress, of saving the author’s life
or lives of other persons entrusted to the
author’s care.
d. Necessity
i. ILC Article on Necessity, Article 25:
1. There has to be an essential interest
2. That interest has to be subjected to
grave and imminent peril
3. The act not in conformity with the law
has to be the only way for the state to
safeguard this essential interest; AND
4. The act cannot seriously impair an
essential interest of the state toward
which the obligation exists.
e. Countermeasures requirements on 516/517
i. Has to be taken in response to previous
wrongful conduct and be directed toward the
state
ii. Injured state must have called upon the state
to discontinue its wrongful act or make
reparations for it (bring itself into
compliance)
iii. Effects must be commensurate with the
injury suffered.
1. Even if you have been harmed, this
does not give you the right to violate
any international law you can think of
to get back at them.
2. Think of these as affirmative defenses – to get to the point
where you need to talk about this, there needs to be a
violation to begin with.
3. Force Majeure & Distress
a. Rainbow Warrior (NZ v. France):
i. Facts: France carried out more than 100
nuclear tests in French Polynesia. NZ
sailed two ships to sites of testing in
protest and in response, France said no
more surface testing, but will continue
underground testing. Rainbow Warrior
(green peace ship) was going to travel to
protest testing. While Rainbow Warrior
was in harbor in New Zealand, the ship
sank from bombs, killing a photographer.
France denied involvement, but turns out
bombs were set by French agents to sink
ship. NZ caught two of the agents and
convicted them of manslaughter. France
admitted wrongdoing, but threatened to
block NZ exports to European community
if they did not release the agents.
ii. Holding during arbitration: France required
to pay monetary reparations and to stop
interfering with NZ’s economic trade. Also,
France has to abide by the transfer of agents
to a French military base. Idea was that the
agents be transferred and held there for three
years. Not going back to France, but not being
held in NZ.
b. France took the agents back to France, violating this
part of the arbitration decision. France justifies this
by:
i. Agent Mafart – took him back to France
because of an undiagnosed medical condition.
Argued force majeure, but distress would
have been a better argument (No reasonable
way to save his life on island because no
hospital, etc.). Kept him in France even after
examination.
ii. Agent Dominique – She becomes pregnant
and her father is very ill and dying
4. Necessity:
a. Hungary v. Slovakia:
i. Facts: Involved dam project agreement
between Nagymaros and Gabcikovo. Hungary
changed its mind and decided to not comply
with the agreement. Was this lawful? Is what
Slovakia did in response to this lawful?
ii. Issue #1: Was Hungary’s decision lawful?
1. This has to do with necessity.
Necessity is problematic because it
can be much broader and has
potential to undermine international
law. As such, necessity is interpreted
strictly.
iii. Hungary reasons for not complying:
Environmental interest in not building the
dam, but gets tripped up on the second
element (harm would put the environment in
grave and imminent peril)
iv. Holding: Hungary’s reason fails because could
not meet all the requirements for necessity.
Hungary was in violation, which raises the
next question about countermeasures.
5. Countermeasures:
a. Hungary v. Slovakia:
i. Issue #2: Was Slovakia’s response lawful?
ii. Facts: Slovakia decided to build dam and
cause river to bypass all of its natural banks
and would go through Slovakia.
iii. No longer an affirmative defense – this is
saying when a state takes action in response
to violations, what constraints are there on its
ability to respond?
iv. Holding: ICJ says Slovakia’s response was not
commensurate – diverting this huge river is
beyond what Hungary did.
b. Probably limits beyond commensurate requirements:
i. Example: If one state kidnaps another state’s
citizens and holds them hostage, the state
harmed could not kidnap citizens from the
other state and also hold them hostage.
c. Self-contained regimes:
i. Many areas of international law that spell out
what states can do in response to violations.
This would likely take precedent over
anything else.
ii. Limits potential responses.
D. Dispute Settlement
a. Peaceful Settlement of Disputes; ICJ
i. Obligations to settle international disputes:
1. UN Charter, 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.
2. UN Charter, Article 33(8): The parties to any dispute, the
continuance of which is likely to endanger the maintenance of
international peace and security shall, first of all, seek a
solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
3. UN Charter, Article 36: The Security Council may, at any
stage, recommend appropriate procedures or methods of
adjustment
a. These recommendations are not binding.
ii. What is meant by the term “dispute”:
1. There has to be an area of IL that they disagree on
2. Parties in oppositional disagreement
3. Disagreement on law or fact
4. Dispute has to arise when the parties bring the case, cannot
be preemptive.
iii. Methods of resolving disputes
1. Negotiation – only parties are involved
2. Mediation – Mediator helps parties find agreement
3. Conciliation – more formal, but still non-binding
4. Arbitration – binding outcome; parties control process
a. General approach is to have an odd number of
arbitrators. Each party picks one and then the two
arbitrators will select the third.
b. Can often enforce arbitration decisions in District
Court.
c. UN Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, Article
3: Each contracting state shall recognize arbitral
awards as binding and enforce them in accordance
with the rules of procedure of the territory where the
award is relied upon. There shall not be imposed
substantially more onerous condition or higher fees or
charges on the recognition or enforcement of arbitral
awards to which this convention applies than are
imposed on the recognition or enforcement of domestic
arbitral awards.
d. UN Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, Article 5
i. Section 1: Covers list of possible reasons why
arbitral award is not valid
1. Not on merits, only if procedures not
followed in some way.
ii. Section 2: Gives more general set of grounds
for not enforcing
1. Subject matter not capable of
settlement by arbitration in this
country
2. Recognition or enforcement of the
award would be contrary to the public
policy of that country.
5. Adjudication – dispute taken to standing court
a. Main international courts: ICJ, WTO Appellate Body,
International Tribunal for the Law of the Sea, ICC,
Regional Courts of Human Rights: African, European,
Inter-American.
b. *If you are a member of the UN, ICJ statute applies*
b. ICJ: Compulsory Jurisdiction; Admissibility
i. ICJ Statute, Article 36:
1. 1. The jurisdiction of the Court comprises all cases that the
parties refer to it and all matters specially provided for in the
Charter of the UN or in treaties and conventions in force.
a. Two options here: Parties decide to refer dispute to
ICJ or treaty provides that disputes can be taken to
ICJ.
2. 2. [Compulsory Jurisdiction]. The states parties to the
present statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation the
jurisdiction of the court in all legal disputes concerning:
a. The interpretation of a treaty;
b. Any question of IL
c. The existence of any fact that would constitute a
breach of an international obligation
d. The nature or extent of the reparation to be made for
the breach of an international obligation.
3. Article 36 provides for three ways to get a case to the ICJ
a. However, of the three, compulsory jurisdiction has
not been accepted without reservations by a majority
of states. UK reservation says you have to join the
land of CJ; you cannot just visit to sue us and then
jump out again. (Very justifiable)
ii. Armed Activities on the Territory of the Congo
1. Rwanda accused of violating various human rights
2. No compulsory jurisdiction, no special agreement.
a. This leaves treaties.
3. Case discusses various treaties
a. Torture convention:
i. Rwanda never a party to the torture
convention
b. Convention against genocide
i. Rwanda is a party to this
ii. However, there were many reservations to
this and these reservations did not conflict
with object and purpose, so not suspect.
Therefore, Rwanda not bound.
iii. There is evidence that Rwanda withdrew
reservation, but this was never told to the
depositary, so the procedure was not
followed and the reservation was still valid
c. CEDAW
i. Again, requirements not met.
ii. Need to take other steps before taking claim
to the ICJ.
iii. Nicaragua v. United States
1. Compulsory jurisdiction
a. Nicaragua declaration was ineffective, but the
majority of the court still held that there was
jurisdiction.
b. US: If you accept the declaration as valid, then the US
is allowed to use that declaration as well, which had
no restrictions on time limit.
i. ICJ rejects this (pg. 569): Reciprocity is
concerned with scope and substance of
commitments entered into (including
restrictions)
ii. Second point: We wouldn’t let Nicaragua
withdraw immediately either. Just general
requirements of good faith
2. Admissibility:
a. Some other procedural step to be undertaken before
court agrees that complaint is admissible?
i. US argued that there were indispensible
parties that were absent
1. ICJ: No such thing as indispensible
parties requirement in ICJ.
ii. US argued: The Security Council, not the ICJ,
should hear allegations against the US
regarding use of force.
1. SC is political body; ICJ is legal body.
What is the argument to this?
i. Chapter 7 staircase
iii. Ultimately, ICJ found that the US was in violation
iv. Compulsory jurisdiction is very limited – sounds more compulsory
than it really is.
1. More open-ended than any of the other two ways of getting
contentious cases to the ICJ.
a. In cases of special agreement or treaties, there is a
clear delineation of what is allowed and what is not.
Whereas CJ has more room for argument of what did
parties agree to open up ICJ jurisdiction to include
c. ICJ: Ancillary Issues, Advisory Opinions
i. Ancillary Issues:
1. When are provisional measures available?
a. ICJ Statute, Article 41: The court shall have the power
to indicate...
b. Came up in dispute between Georgia and Russia
i. Georgia requests provisional measures. What
does this mean? Think injunctive relief, not a
final judgment, but is something that does not
have to wait for final judgment. You have to
meet several requirements to convince court
to issue provisional measures. What are these
requirements?
1. You have to have at least a plausible
claim
2. Have to have prima facie jurisdiction
– there has to be link between rights
to be protected and dispute you are
talking about. (pg. 581)
3. Must be irreparable harm
4. Urgency – has to be a reason why this
cannot wait.
ii. How do the requirements apply in this case?
1. Georgia saying convention on
elimination of racial discrimination is
being violated.
2. Court has prima facie jurisdiction
because both are parties and CERD
refers it to the ICJ. And remember
definition of dispute (pg. 580) –
parties disagree over facts and
directly covered by CERD.
3. Harm irreparable?
a. If you are killed, pretty hard to
make that up to you later.
Same with being displaced.
4. Urgent?
a. Because they are a threat now.
People at risk now, not in the
future.
iii. Court issues provisional measures.
iv. Can court issue provisional measures other
than those requested by Georgia?
1. Absolutely. Can issue provisional
measures for both parties
v. Are the measures legally binding?
1. Court thinks that it can, but not all
states agree with this. Example: US
has been ordered to not proceed with
death penalty for those who have no
been give rights to contact consulate,
but US does not recognize the ICJ’s
authority to require this.
2. Strong argument that Article 41 does
not appear to be binding.
2. What happens when one of the parties doesn’t appear?
3.
4.
5.
6.
a. ICJ Statute, Article 53: Whenever one of the parties
does not appear before the Court the other party may
call upon the Court to decide in favor of its claim. The
court must, before doing so, satisfy itself, not only that
it has jurisdiction in accordance with Articles 36 and
37, but also that the claim is well founded in fact and
law.
Can a state intervene in a dispute between two other states?
a. ICJ statute, Article 62 – permissive right
i. Parties that intervene under article 62 do not
have an automatic right to intervene. This is
permissible intervention.
ii. Parties that intervene under Article 62 are
not bound by decision.
iii. Unusual to intervene in a bilateral dispute
iv. Parties might think that a decision will have
an implication on them.
b. ICJ Statute, Article 63 – absolute right
i. If there is an absolute right to intervene
under Article 63, then the third party is
bound by the judgment as well.
Can a defendant raise counterclaims?
a. Not mentioned in ICJ statute. ICJ Rules of Court, Rule
80 allows counterclaims
b. Counterclaim has to meet jurisdiction requirements
and has to be directly connected with whatever the
original claim is.
Finality of judgments
a. Temple of Preah Vihear (Cambodia v. Thailand)
i. Temple on border that was the subject of a
previous argument between the two states.
ICJ in original case did not say who owned the
promontory where the temple was located.
ii. Going back to the initial decision, what did
the court say? Need clarification on the scope
of the court’s decision.
iii. Court found that the 1962 decision awarded
the entire area to Cambodia.
b. ICJ Statute, Article 60: The judgment is final and
without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall
construe it upon the request of any party.
i. Not an open-ended ability for parties to come
back and argue that the decision was wrong.
Just allows for clarification – has to be over an
operative clause of the original decision. (This
is what we are deciding. Exactly what did the
court decide?)
How are judgments enforced?
a. These are legally binding, but what if state does not
comply?
b. Can go to Security Council
c. Articles 59 and 60
i. Can go back to ICJ if you have a question, but
other than that, you are done.
d. Article 59: The decision of the Court has no binding
force except between the parties and in respect of that
particular case.
i. ICJ decisions are not binding to states not
party to the decision, even if interpreting
treaty.
e. Boundary disputes have a relatively high rate of
compliance. More often than not, states comply with
decisions.
ii. Advisory Opinions
1. UN Charter, Article 96: The GA or the SC may request the ICJ
to give an advisory opinion on any legal question. Other organs
of the UN and specialized agencies, which may at any time be
so authorized by the GA, may also request advisory opinions of
the Court on legal questions arising within the scope of their
activities.
a. Example: WHO went to ICJ to ask for an advisory
opinion on the use of nuclear weapons. ICJ said no
because not in the scope of the WHO, so the GA went
to ICJ and asked them to issue AO on use of nuclear
weapons (ICJ did).
2. AOs cannot be vetoed by the permanent five, can go straight
from GA to ICJ.
3. Declaration of Independence – Kosovo case
a. Kosovo declares independence, but many states do
not recognize it.
b. ICJ said whether or not to issue AO is up to discretion
of the ICJ. However, it said only compelling reasons
should lead it to refuse.
c. ICJ went ahead and answers the question, but the AO
was pretty disappointing.
i. Looking for whether it was legal for Kosovo
to become independent, but this is not what
the court answers.
4. Dispute between UN worker with diplomatic immunity and
the US. How to resolve this?
a. UN is not party to ICJ statute, can resolve dispute by
an AO where parties agree beforehand that the AO
would be binding.
5. Can imagine AO that is considered authoritative on CIL and
then is considered binding on all states.
a. Would be indirectly binding, but would not be
binding in itself. Clarifying what CIL norm is.
6. Can imagine AOs that are not widely accepted
a. Nuclear Weapons AO is example of this.
Part Two: Substantive Areas of International law
A. Injury to Aliens and Investors
a. Introduction
i. Protection of aliens:
1. Aliens: Non-nationals of whatever state they happen to be in.
2. Generally subject to the laws of the state that they are in.
3. States can restrict duration of stay of aliens. Aliens don’t
generally have rights of participation or decision-making
4. Certain protections for aliens granted by international law
a. CIL norms
b. Human rights treaties
c. Friendship, commerce, and navigation treaties
i. US entered into dozens of these and then just
stopped. US now enters into BITs more often,
which also offer protections to aliens.
5. Longstanding area of international law
a. Underlying customary norm that states can protect
their own nationals from mistreatment by other
states is longstanding
i. If Italian government mistreats US citizen, US
can come in and espouse the citizen’s claim
ii. Requirements for espousal include:
1. Have to be a national of whatever
country you want to espouse the
claim.
2. Have exhausted the remedies in
courts of whatever state you are in or
must show that those remedies would
have been futile.
ii. Protections for foreign nationals
1. National treatment
a. Cannot be treated worse as a foreign national than
the respective country treats their own nationals.
2. Most-favored-nation standard
a. All nationals of all countries should be treated the
same as the most well treated country.
i. Example: Italy treats Germans especially well.
3. Minimum standard of treatment
a. Denial of procedural justice
i. More than just the fact that some right a
person is owed is denied. Has to shock the
conscious.
b. Failure to protect
i. Obligation of state to provide reasonable
measures of protection. Not a defense to say
you wouldn’t protect anyone
c. Fair and equitable treatment
i. Something that is so obviously outrageous
that it is more than anything you would
expect to happen.
iii. Ahmadou Sadio Diallo (Guinea v. DRC)
1. Unlawful imprisonment, business expropriated, and expelled
from DRC.
2. Requirements
a. Exhaust local remedies or convince court that
exhausting all remedies would be futile.
3. Vindicated rights v. asking a favor
a. Vindicating a right = implies that there is a right
available
b. Asking a favor = no recognition that there is a right
you’re entitled to.
b. Expropriation
i. Restatement § 712: A state is responsible under IL for injury
resulting from a taking by the state of the property of a national of
another state that:
1. Is not for a public purpose, or
2. Is discriminatory, or
3. Is not accompanied by provision for just compensation
ii. Direct expropriation – government comes and takes physical
possession of your property; they take title.
iii. Indirect expropriation – you still have title in the property, but
passing a law that has affect of reducing the value of your property.
iv. Tecmed v. Mexico:
1. Mexico indirectly expropriated Tecmed’s property. A
regulation may constitute an expropriation if the effect of the
regulation or measure is to violate the state’s duty to accord
fair and equitable treatment to investors.
2. Standard: To be permissible and not expropriatory, a
regulation must not only further a legitimate aim in the public
interest, but there must also be a reasonable relationship of
proportionality between the means employed and the aim
sought to be realized.
B. Human Rights
a. The International Bill of Rights
i. The four freedoms
1. Freedom of worship
2. Freedom from want
a. Translates into rights such as SS, adequate standard
of living, etc.
3. Freedom from fear
4. Freedom of speech
ii. International Bill of Rights
1. Shouldn’t just be left to states, should be at a higher level.
iii. UN General Assembly
1. UN Human Rights Commission – drafted the universal
Declaration of Human Rights
a. Declaration incudes:
i. Life, liberty, security of person, freedom of
expression, etc.
ii. SS, equal pay for equal work, etc.
2. Obligations relating to human rights:
a. Government should not interfere with an individual’s
right to attain these rights on his or her own.
b. Balancing Interests
i. Human rights – the obligations set out are only on states
1. Obligations:
a. Respect: States should refrain from committing
violations themselves
b. Protect: State have obligation to protect against
violations by non-state actors.
c. Fulfill: This encompasses the idea that states should
work toward situation in which everyone in the
country has adequate water, food, etc.
2. These obligations can get much more specific – i.e. the
human rights of women.
ii. Human Rights of women
1. CEDAW: Not only must states refrain from engaging in any
act or practice of discrimination against women (obligation
to respect), also must take all appropriate measures to
eliminate discrimination against women by any person,
organization, or enterprise.
2. Violence against women:
a. Brought into scope of CEDAW by defining it in a way
that made clear that as long as it fit in this definition,
violence against women would be treated as a form
of discrimination against women.
iii. Dakir v. Belgium case:
1. Facts: Belgium Burqa ban
2. Article 9 of the European Convention of human rights at
issue.
3. Even if there seems to be a violation, government may be
able to justify a restriction on the right
a. Paragraph 2 of Article 9 has three elements:
i. Be prescribed by law – written down
ii. For one of the listed purposes
1. Interest of public safety, protection of
rights and freedoms of others,
protection of public order, health or
morals
iii. Necessary in a democratic society
1. Is this directly related to goal and is it
proportional to whatever your
legitimate purpose is
a. Court emphasizes discretion it
gives to states ability to decide
for themselves how they want
to balance right of individuals
and furtherance of society.
C. Law of the Sea
a. Baselines, Territorial Sea, Innocent Passage
i. LOS convention is so widely adopted that it represents CIL. Although
not a party to the convention, US considers itself bound by the
provisions.
ii. LOS represents a balance of interest between claiming resources
close to coast and allowance of free passage.
iii. How divided up?
1. Closest to land is territorial sea – territory out to 12 nautical
miles from the land.
a. To measure, have to have agreement on where the
starting point is. (Issues can arise with bays, jagged
edges, and islands). Normal Baseline handles
everything else
b. UNCLOS, Article 5: [Normal baseline]. Except where
otherwise provided in this convention, the normal
baseline for measuring the breadth of the territorial
sea is the low water line along the coast as marked on
large-scale charts officially recognized by the coast
states
c. Baseline governs internal waters (territorial sea) of a
state and other states cannot pass this point without
permission from the state.
i. Exception: Innocent passage –
1. Has to be passage: includes traversing
sea without entering internal waters
or a call at a port authority
2. Has to be innocent – no threat or use
of force, no act of pollution, no fishing
activities without permission.
b. Continental Shelf, Exclusive Economic Zone, High Seas
i. Exclusive Economic Zone – 200 miles out from the land
1. UNCLOS, Article 56 – governs rights, jurisdiction, and duties
of the coastal state in the EEZ.
2. UNCLOS, Article 61 – governs conservation of the living
resources in the EEZ.
3. Control over resources within the EEZ
4. EEZ is not a right of innocent passage. Other states can park
their ships in the EEZ without issue, but cannot take
resources without permission
5. Equidistance rule is typically used to determine EEZs unless
countries agree on another method.
ii. High Seas – beyond exclusive economic zone
1. Open to all ships
2. Generally, states cannot stop other states’ ships on the high
seas
a. Narrow exceptions:
i. If not flying any ship’s flag. This is a violation
of IL and you can be stopped on the high seas
for this
ii. UNCLOS, Article 110 – governs
circumstances in which one state can board
the ship of another state on the high seas.
1. Ship that is or is suspected to be
engaged in slave trade, engaged in
piracy, ship is without nationality, etc.
D. International Environmental Law
a. Sustainable Development and Transboundary Harm
i. At international level, the focus is on Transboundary harm
1. Do what you want domestically, but respect the rights of
your neighbors.
ii. 1990s is when the idea of sustainable development came into being
1. People more concerned about effects on people in other
countries
2. Concern about climate change, loss of biodiversity, etc.
3. Sustainable development:
a. Continue to develop, but do it in a way that does not
make it more difficult for future generations to also
be able to develop
iii. Now, however, human rights are being violated by environmental
harms.
b. Climate Change
i. UN Framework Convention on climate change
1. Article 4(1): Obligations on all parties
2. Article 4(2): Obligations on Annex 1 parties
a. Western Europe, Russia
3. Article 4(3): Obligations on Annex 2 parties
a. Western parties
ii. Kyoto protocol:
1. Not effective – US and China did not agree to the KP
2. This all changed with the Paris Agreement
a. You agree to do whatever you commit to do
b. No one-size fits all kind of commitments to reduce
c. Human Rights and the Environment
i. Two approaches to environmental human rights
1. Adopt a new independent right: e.g., “Everyone shall have the
right to live in a healthy environment.”
2. Green existing human rights – that is, apply existing rights to
environmental problems and derive obligations on States.
ii. European Convention, Article 8: (1) Everyone has the right to
respect for his private and family life, his home and his
correspondence. (2) There shall be no interference by a public
authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of
others.
iii. Lopez Ostra v. Spain
1. First environmental human rights case under article 8.
2. Severe environmental pollution may affect individuals well
being and prevent them from enjoying their homes
a. This is not the end of the analysis – then have to ask if
it matters whether the pollution from a state facility
i. Does not matter, state has duty to take
reasonable and appropriate measures to
secure the applicant’s rights under paragraph
1 or interference by a public authority has to
be justified in accordance with paragraph 2.
Part Three: International Law in the United States
A. Overview
a. Customary International Law
i. Two approaches to applying IL in the states:
1. Monism: Incorporate IL automatically into state’s legal
system
2. Dualism: Independent from country’s law; to transform IL
into domestic law something has to happen within the
country
a. E.g. – Self-executing v. non-self-executing
b. Article 27 [Internal law and observance of
treaties]: A party may not invoke the provision of its
internal law as justification for its failure to perform a
treaty. This rule is without prejudice to article 46.
i. Article 46: A state may not invoke the fact
that its consent to be bound by a treaty has
been expressed in violation of a provision of its
internal law regarding competence to conclude
treaties as invalidating its consent UNLESS
that violation was manifest and concerned a
rule of its internal law of fundamental
importance.
1. Basically saying look, if obvious that
person does not have authority to
enter into legal obligation, then the
state will not be bound by it.
ii. Article 46: (2) A violation is manifest if it
would be objectively evident to any state
conducting itself in the matter in accordance
with normal practice and in good faith.
ii. When states make a treaty they don’t consider whether another
state is monist or dualist; the countries sign and it’s up to each one to
take the steps necessary within their country to comply.
iii. Law of nations:
1. Trial of Gideon Henfield
a. Facts: Gideon seized a French ship in violation of
Washington’s proclamation of neutrality.
b. Distinguishing between treaties and law of nations
i. Treaty: Supreme law of the land; obligations
cannot be modified without consent of a
foreign national over which the US has no
control
ii. Law of nations: made up off customary rules
and obligations regulating conduct between
nations.
2. Ware v. Hylton
a. When the US declared their independence they were
bound to receive the law of nations in its modern
state of purity and refinement
i. In state’s interest to be bound by
international law.
ii. In practice, new states accept and are
expected to accept the whole body of IL as it
exists before them.
3. Sosa v. Machain
a. Law of nations comprised of two principles:
i. General norms governing the behavior of
national states with each other
ii. Body of judge-made law regulating the
conduct of individuals situated outside
domestic boundaries and consequently
carrying an international savor.
iv. How the US complies:
1. Though neither the state nor federal constitutions, nor
federal or state legislation have expressly incorporated
international law, courts have treated international law as
incorporated and applied it as domestic law.
a. i.e. – The Paquete Habana
i. Rule of this case was CIL – no seizing fishing
vessels.
ii. As long as this is the rule, US cannot change
the rule, but they can decide to violate it.
2. US courts take the monist approach; if it is IL, we have to
apply it.
a. CIL is applied as federal common law.
3. Charming Betsy Canon (second way that IL can influence
state laws):
a. Courts, when applying ambiguous statutes, should try
to interpret them in a way that does not put the US in
violation of international law.
i. “An act of congress ought never to be
construed to violate the law of nationals, if
any other possible construction remains.”
ii. If a statute is ambiguous and susceptible to
multiple interpretations, courts should not
choose an interpretation that would place the
US in violation of the law of nations.
b. Treaties
i. US Constitution: Article II, Section 2:
1. “The president shall have power, by and with the advice and
consent of the Senate, to make treaties, provided two thirds of
the Senators present concur.”
ii. US Constitution: Article VI:
1. The supremacy clause:
2. “This constitution and the laws of the US which shall be made
in pursuance thereof; and all treaties made, or which shall be
made, under the authority of the US, shall be the supreme law
of the land; and the judges in every state shall be bound
thereby, any thing in the Constitution or laws of any state...”
iii. If there is an inconsistent treaty and federal statute, the later in time
will prevail as long as the treaty is self-executing
1. Self-executing: Without any further legislative involvement,
can be directly enforced and implemented by the courts.
a. Language: The more it looks like a statute, the more
likely it is that courts will find a treaty to be selfexecuting.
2. Non-self-executing: Requires further legislative action in
order for courts to be able to implement them.
a. Language: “Each party agrees to take the necessary
steps to protect birds to ensure sufficient supply of
these birds for future generations.”
3. Consider any agreement provision by provision when
determining if it is self-executing or not. The agreement as a
whole does not need to be one or the other.
iv. Self-executing v. non-self-executing complicates the idea of monism.
1. If treaty is non-self-executing, we treat the US like a dualist
system.
2. If treaty is self-executing, treat the US as monist.
c. Other Types of Agreements; Indirect Influence of International Law
i. Congressional executive agreement: approved by both house with
majority vote. Not provided for in the Constitution.
ii. Sole executive agreement: No congressional approval required.
d. Important to remember that president cannot order state courts to comply
with an ICJ judgment, so the only remedy is for congress to enact law or for
states to comply of their own volition.
i. President cannot execute a non-self-executing treaty.
e. United States v. Belmont:
i. Facts: Because of expropriation, there were many claims against the
SU. Basically an example of espousal. US trying to act on behalf of
nationals by presenting claims.
ii. Issue: Matter of US law, whether US agreement with SU was binding
on state courts
1. Yes, president can settle claims and once the president has
done this, it is a matter of federal law, which means state law
has to give way.
a. Therefore, Belmont could not follow state law.
B. Jurisdiction
a. The Presumption against Extraterritoriality
i. Three categories of Jurisdiction
1. Legislative  jurisdiction to prescribe
2. Judicial  Jurisdiction to Adjudicate
3. Executive  Jurisdiction to Enforce
ii. Prescribe: Ability to regulate people everywhere in the world/set
rules that people have to follow
1. States have rules governing how far they can reach –
depends on statute.
2. Territory: Jurisdiction over anything that happens in own
territory
a. Example: Knox commits crime in Canada, Canada has
jurisdiction to prosecute him, even though he is a US
national
3. E.g. Anti-drone law
a. If Canada had a law against drones, but US also had a
law requiring US nationals to fly drones on
Independence Day, does it apply extra-territorially
when a US national is living in Canada?
b. Canada has ability to enforce, but US does not have
ability to go to Canada to get you if you don’t comply.
So you should comply with Canada’s rule probably
when there is a conflict.
c. Exception for jurisdiction to enforce: when other
country gives you permission – “extradition” [see
below].
4. Nationality: Jurisdiction over nationals, no matter where
they are in the world. Wherever national is, country has
authority under IL to regulate them
a. Example: draft and tax laws are general enforced
extraterritorially.
iii. Presumption against extraterritoriality: Unless a statute states
that it is supposed to apply outside the US, courts will assume it is
supposed to only apply in US territory.
1. Supreme Courts reads these kinds of general language
statutes as having an implicitly territorial limitation. Only
apply to US unless there is a strong reason to believe
otherwise.
2. Kiobel v. Royal Dutch:
a. Facts: US representing Angola people. Residents of
Angola protesting environmental effects of
corporations’ practice. Nigerian military attacking
residents; corporations allegedly violating law of
nations by aiding and abetting the Nigerian
government.
b. Holding: No clear indication of extraterritoriality, it
would reach too far to say that more corporate
presence sufficed to displace the presumption against
extraterritorial application.
i. Shut down jurisdiction for torts committed
outside the US territory.
iv. Difference between jurisdiction to prescribe and enforce rules:
1. Example – Draft:
a. If person wants to avoid the draft, they could move to
Canada, but US still has authority to draft. It just
cannot send someone to Canada in order to enforce.
2. Lotus:
a. Basic rule is that countries can extend their laws as
far as they want in the absence of any specialized
rule.
v. Extradition:
1. US can send formal request to country for extradition
a. Only possible if countries have an extradition treaty
b. Many countries only allow extradition if the fleeing
non-national has committed an act or crime that
would also be illegal in their country.
b. The Territorial Basis for Jurisdiction & Other Bases
i. Five bases for Jurisdiction:
1. Territory
a. May or may not include effects test
i. Effects test: As long as the effects are
substantial and a direct connection, the
general view is that the effects test can be an
acceptable basis for jurisdiction
2. Nationality
a. If as an American, you decide to go live in France, you
do not exempt yourself from US law.
b. Traditional rule: state has jurisdiction over legal
persons organized under its laws
i. Many states also assert jurisdiction over legal
persons whose principal place of business is
located in their territories.
ii. States also seek to regulate activities by legal
persons organized or having their principal
place of business abroad when these persons
are owned or controlled by nationals.
3. Passive Personality Principle
a. Under certain circumstances, the US can extend its
jurisdiction against foreign countries
i. Need: Foreigner outside US territory to do
something to a US national – only use if there
is no better claim
ii. Passive person: victim
b. Idea is that whereas nationality is jurisdiction over
the actor that commits the act, passive personality is
jurisdiction because the nationality of the victim is
the nationality of the regulating body.
c. Used very narrowly – particularly for terrorism
d. United States v. Neil:
i. Facts: Non-US citizen molested a 12-year-old
US citizen on a cruise ship that left and came
in to a US port.
1. Said there was jurisdiction over US
ships.
ii. Holding: US properly exercised jurisdiction;
statute expressly applied extraterritorially.
iii. Reasoning: Had to look at whether this was
permitted by IL.
1. PPP relies on effects
2. Do not want to give extensive
jurisdiction, so effects are used when
the facts are very clear.
4. Protective Principle
a. Jurisdiction is asserted over foreigners for an act
committed outside the US that may impinge on the
territorial integrity, security, or political
independence of the US.
b. United States v. Vasquez-Valasco
i. Facts: Author killed in Mexico – one member
of group was charged. People who killed
author thought he was a DEA agent.
ii. Holding: Murder had equally direct and
adverse impact on nation’s security interest
in combatting the importation and trafficking
of illegal narcotics.
iii. Reasoning: Even though he wasn’t a DEA
agent, the effort to kill him because he was
was there. This could deter actual DEA agents
from doing their job.
5. Universal Jurisdiction
a. For certain crimes, they are so bad/uniquely
international that whichever country catches them
we extend jurisdiction to try them there.
i. Examples:
1. Piracy
2. Torture
3. War crimes
4. Terrorism
b. Prosecutor extradite treaties: If you have someone
in your jurisdiction that is accused of committing
crimes within the scope of the treaty, you are under
the obligation to prosecute them or extradite them to
jurisdiction
i. Even if signed but not ratified, there would
still be no obligation.
1. If actively trying to undermine the
treaty by helping people escape, then
that will be a showing of bad faith, but
simply not complying with the treaty
between the time of signature and
ratifying is not a show of bad faith
otherwise signing and ratifying would
be the same thing.
C. Immunities
a. US Foreign Sovereign Immunities Act
i. Focus on the foreign sovereign immunities act (FSIA) of the US
1. Pre-history: The Schooner Exchange v. McFaddon
a. There is an assumption that when you bring your war
ship into a friendly port, your ship won’t be seized.
b. Matter of reciprocity: If US wants to exercise these
rights, have to recognize that they must allow France
to exercise these rights if they expect the same in
return.
ii. Restrictive theory of immunity
1. When government still acting as a sovereign, immunity
remains intact.
a. After the Tate letter, US followed idea of restrictive
theory of sovereign immunity
2. Basically, if acting in governmental capacity, cannot be sued.
But if competing in commerce, it is not fair to give immunity
for things like contract violations/competition.
b. Foreign Sovereign Immunity Act (FSIA)
i. Standards set out so courts can apply them directly. Takes pressure
off the state department.
ii. Basic outline of the FSIA sets up a general immunity for all foreign
states and says a state is immune except as provided in 1605
through 1607.
1. Does case fall within an exception?
a. If not, then cannot be brought against the sovereign.
iii. Argentine Republic v. Amerada Hess Shipping Corp:
1. Facts: Ship attacked during time of war between Britain and
Argentina. Argentina bombed the Hercules.
2. Issue: Can the ATS be applied? If not, no remedy because
there is no case here under FSIA.
3. Holding: No, ATS cannot be applied and therefore no remedy
because Congress intended that any issue of this nature, after
the enactment of FSIA, has to go through the FSIA to sue a
state.
4. Rule: FSIA is the ONLY way that you can sue foreign
sovereigns.
c. Exceptions to Immunity
i. § 1604: Definition of absolute
ii. § 1605 – 1607: Exceptions
1. Waiver:
a. Can waive explicitly or implicitly
i. Once you’ve waived, you’ve waived.
b. Siderman:
i. Facts: Wealthy property owner in Argentina
was arrested and tortured, then left and tried
to get his assets back. Argentina government
just kept chasing him and then ask California
courts for help in serving him. Siderman also
brought suit against Argentina. Argentina
claimed sovereign immunity
ii. Holding: Waived their immunity implicitly
iii. Reasoning: If you are going to use the US, he
can use the US too.
2. Commercial activities
a. Three ways to have commercial activity:
i. The action is based upon a commercial
activity carried on in the US by the foreign
states[Carried on in US]; or
ii. If the act performed in the US connected to
commercial activity of the foreign states
elsewhere [Act in connection with activity
elsewhere]; or
iii. Upon an act outside the territory of the US in
connection with a commercial activity of the
foreign state elsewhere and that act causes a
direct effect in the US [Direct effects on US].
b. When a foreign government acts not as a regulator of
a market, but in the manner of private player within
it, the foreign sovereign’s actions are commercial
within the meaning of the FSIA.
c. Argentina v. Weltover
i. Facts: Economic problems in Argentina.
Country offered to pay in dollars for debts,
but then they ran out of money so they
extended time for payments.
1. Does this fit within the exception?
ii. Holding: This has a direct effect on US
because the money was supposed to go to
bank accounts in NY.
iii. Reasoning: Corporations can issue bonds too,
so Argentina was acting like a corporation.
iv. Standard: Is this the kind of thing that only
a sovereign can do or is it the type of thing
other people can do as well?
3. Expropriation of property in violation of international
law
a. Austria v. Altman:
i. Facts: Altman was niece of owner of several
paintings. Nazis seized paintings. Altman sued
in US and Austria claims immunity. Question
about whether FSIA was retroactive.
ii. Holding: Yes, FSIA is retroactive. Austria was
not immune.
4. Noncommercial torts
a. Paradigmatic example: If ambassador runs over you
in his limo.
b. Must occur in US territory.
c. Seeking money damages against a foreign state for
personal injury or death, or damage/loss of property,
but the exception only works if tort occurs in the
United States and caused by the tortious act or
omission of that foreign state
i. Discretionary exception to this exception:
Shall not apply to any claim based upon the
exercise or performance or the failure to
exercise or perform a discretionary function
regardless of whether the discretion be
abused.
1. When this applies: Where there is a
governmental policy and that decision
results in harm.