International Law
Outline
Elements of Legal System
- Philosophical underpinnings:
o Power based
o Positivism/Rules based
Statement of rules
IL Sources:
- Consensual; positivist
o Treaties
- Non-consensual
o Custom
o General principles
o Natural Law & Jus Cogens
o Equity
- Art. 38(1) ICJ statute: types of IL sources & order in which they should be used
o Treaties
o CIL
o general principles
o Judicial decisions & scholarly writings
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Institutions to interpret, enforce the sources
o Courts
o Tribunals
o IOs
Treaties
- Definition: “an international agreement concluded b/w States in written form and
governed by IL, whether embodied in a single instrument or in 2 or more related
instruments and whatever its particular designation.”
o Source: Vienna Convention on the Law of Treaties – 1969
- Provide clarity – McCann
- Often adhered to - McCann
- Vienna Conv. On the Law of Treaties
o Primarily CIL
o So, a state is not a member  the convention will still apply
o Source: Concerning the Gabcikovo-Nagymaros Project, where the Vienna
Convention was not directly applicable; both states ratified after the agreement
b/w the states
- The Vienna Conv. Definition only applies between states in written treaties
o Exception: Oral statements may have legal consequences:
o Legal Status of Eastern Greenland (1933) PCIJ
 Facts: Norwegian Govt had, through an oral statement of the Norwegian
Minister of Foreign Affairs (Mr. Ihlen), stated Norway would not make
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any difficulties in the settlement of the question of the extension of Danish
sovereignty over Greenland.
 Issue: whether Mr. Ihlen’s declaration, if not constituting a definitive
recognition of Danish sovereignty, constituted an obligation on Norway to
refrain from occupying any part of Greenland
 PCIJ held: Ihlen Declaration put it beyond all dispute that by the
undertaking: “Norway is under an obligation to refrain from contesting
sovereignty over Greenland as a whole, and a fortiori to refrain from
occupying a part of Greenland.”
o Nuclear Test Case (pre-Rainbow Warrior) (1974) ICJ
 Facts: NZ (and Australia) had requested a declaration from the Ct to the
effect the carrying out of nuclear tests in the South Pacific, by France, was
contrary to IL. The cases were withdrawn from the Ct’s list when France
declared that no further tests would be carried out after 1974.
 The ICJ declared the French pronouncement was binding
 France subsequently withdrew its acceptance of the compulsory
jurisdiction of the ICJ & resumed nuclear testing underground. Eventually
leading to the Rainbow Warrior Case
Treaties must be filed with UN Secretariat
o UN Charter – Art. 102
o Vienna Convention 1969 on the Law of Treaties Art. 80
Types of Treaties:
o Contractual
 Treaties with the highest rate of compliance:
 Bilateral, Specific, Defensive alliance, Particular time period
 Treaties with more disputes
 Ongoing, Contingent performances
o Statutory
 Establishes series of regulations, obligations
 Multilateral  conflict of interests
 Example:
 ICCPR
o Constitutional
 Creates institution and allocates power among branches
 Examples:
 UN Charter
 ICJ statute
o Aspirational
 Signals depth of commitment to principle
 Example:
 Genocide Convention
Soft Law
o Statement of principle
o Not designed to be binding
o Example:
o [UDHR ?]
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Reservations – undermine uniformity of performance
- Reservation defined:
o “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.”
o Source: Vienna Conv. Art. 2(1)(d)
- Formulation of Reservations: Reservations only applicable in multi-party treaties & may
be applied with some limitations: prohibited by the treaty; treaty provides for only
specified reservations; or it is against the O&P of the treaty
o Source: Vienna Conv. Art. 19
- Acceptance of and Objection to Reservations:
o Source: Vienna Conv. Art. 20
- Legal Effects of Reservations & of Objections to reservations
o Source: Vienna Conv. Art. 21
- Withdrawal of Reservations
o Source: Vienna Conv. Art. 22
- Procedure Regarding Reservations: Reservations and acceptances/objections must be in
writing
o Source: Vienna Conv. Art. 23(4)
- Effects of a Reservation:
o Traditionally: no reservation valid unless accepted by all parties (K)
- ICJ: reservation is ok as long as it’s compatible with O&P of Convention
o A, B, C  no reservations; D  reservation; No ICJ jurisdiction
o A doesn’t respond
 Silence = acceptance (ICJ, Vienna Convention)
 A&D both parties subject to reservation
 A&D do not have to submit to jurisdiction
o B objects
 Since reservation is not expressly said to be contrary, it falls out
 B&D both parties but reservation does not apply between them
 ICJ provision falls out of agreement
o C Objects as contrary to O&P
 C&D are not parties as recognized between themselves
- Source: Reservations to the Convention on Genocide case (1951) ICJ AO  later
reflected in Vienna Conv. Art. 19
o More flexible approach
o Emphasis on the O&P of the treaty
Observance & application of treaties
- Pacta sunt Servanda:
o “Every treaty in force is binding upon the parties to it and must be performed in
good faith.”
 Source: Vienna Conv. Art. 26
- Treaty Interpretation
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o Art. 31-33 of 1969 Vienna Conv.
General Rules of Interpretation – “A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its O&P”
o Source: Vienna Conv. Art. 31
o Creates tension between:
o Ordinary meaning
 AND
o Teleological approach – meant to only assist in interpretation
Accounting for Context – including preamble & annexes
o “The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble & annexes:
o (a) any agreement relating to the treaty which was made b/w all the parties in
connexion with the conclusion of the treaty
o (b) any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related
to the treaty.”
 Source: Vienna Conv. Art. 31(2)(a) & (b)
Accounting for Subsequent events & external considerations:
o Subsequent agreements b/w the parties; subsequent practices; relevant IL
applicable b/w the parties
o Source Art. 31(3)
Defining terms within the treaty
o Source: Vienna Art. 31(4)
Supplementary means of Interpretation
o “Recourse may be had to supplementary means of interpretation, including the
prep work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of Art. 31, or to determine the
meaning when the interpretation according to Art. 31 (1) leaves ambiguity; or (2)
leads to absurd results
o Source: Vienna Conv. Art. 32
Interpretation of treaties authenticated in two or more languages
o Source: Vienna Conv. Art. 33
Interpretation – class
- Burden of proof  bearer more likely to lose
o Traditionally: claimant; states afforded leeway in matters of life & death
o Modern: government; protect individuals (Majority in McCann)
- Steps of interpretation
o Text: 4 Corners doctrine
o Context: Legislative History, Intent
- Schools
o Textualist: K Appraoch
o Intentionalist: Subjective intent of drafter
o Teleological: objective purpose of document
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o Art. 1 Vienna Conv.: good faith; ordinary meaning (textualism); in light of O/P of
document (telelological as safeguard)
Amending Treaties
- Vienna Conv. Art. 39-41
Validity of Treaties – revoking
- 5 grounds (exhaustive list) may be invoked to invalidate a treaty
o Non-compliance with municipal law requirements, Art. 46 &47
o Error, Art. 48
o Fraud & Corruption, Art. 49 & 50
o Coercion, Art. 51 & 52
o Jus Cogens, Art. 53
Termination; Suspension; Withdrawal from Treaties
- A treaty may be terminated or withdrawal of a party may take place if done in accordance
with:
o Treaty terms
 Or
o By consent
o Source: Art. 54-59 Vienna Conv.
- Material Breach Defined:
o (a) a repudiation of the treaty not sanctioned by the present Convention; OR
o (b) the violation of a provision essential to the accomplishment of the O/P of the
treaty
o Source: Vienna Conv. Art. 60
- Bi-lateral treaties & suspension after material breach:
o Non-guilty party may terminate the treaty or may suspend its operation in whole
or in part
o Source: Vienna Conv. Art. 60(1)
- Multi-Lateral treaties & suspension after material breach:
o Non-guilty parties may, by unanimous agreement suspend the operation of the
treaty in whole or in part, or to terminate it either:
 (i) in the relations b/w themselves & defaulting state
 OR
 (ii) as b/w all parties
o Source: Vienna Conv. Art. 60(2)(b) &(c)
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Ways per Vienna Convention
o Impossibility of Performance – Art. 61
 Object indispensable for performance no longer available
 Not by breaching party’s fault
o Change of Circumstance – Art. 62
 Change in essential basis of consent
 Unforeseen
 Results in radical transformation of obligations
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Not by breaching party’s fault
Not political condition
Source: Concerning the Gabcikovo-Nagymaros Project
(Hungary/Slovakia) ICJ (1977)
o Material Breach by other Side
 Exception: humanitarian treaty
Temporary Exoneration from Performance [Source?]
o State of necessity
Void treaties have no Legal Force
o Art. 69
Custom
- Definition: CIL is conduct or behavior, which is engaged in because those doing so feel
legally obliged to behave in such a way
o Consistent and generalized state practice + opinio juris (performed out of a sense
of legal obliegation)
- BOP – state seeking to rely on custom
- 3 approaches to custom – varies by the judge/jurisdiction
o Filartiga (2nd Cir. 1980) – focus on what states say the state practice is
o Paquette Habanba (SCt 1900) – focus on reality of state practice
o Asylum Case (ICJ 1950) – State practice & opinio juris
Consistent, long-term practice
- Over time repetition can transform moral undertaking into legal obligation – Paquette
Habana
- For viable, tangible reasons
- Regional Custom – greater level of uniformity
o Asylum Case (Colombia & Peru) – ICJ
o Facts: Peruvian national was granted asylum by Colombia in its Embassy in
Lima, Peru. The individual was wanted in Peru following an unsuccessful
rebellion in Peru. Colombia’s request for his safe conduct out of Peru was
refused. Colombia brought the case to ICJ on whether unilateral granting of
asylum was custom – particularly regional custom
o Regional custom requires greater uniformity
o Identity of states particularly relevant
- Imposition of CIL on unwilling state – opinio juris can be demonstrated via GA Res.
o Concerning Military & Paramilitary Activities in and Against Nicaragua –
ICJ(1986)
o ICJ relied exclusively on GA Resolutions to demonstrate opinio juris existed in
respect of the prohibition on the use of force
o Noted: statements of high ranking official political figures could be particularly
probative – treat with caution
Evidence:
- Most important evidence:
o Actual state practice – always you to win at any level/jurisdiction
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State says there state practice is: Commitments made by states – Filartiga
o Examples:
 ICCPR
 ECHR
 UDHR
 Scholarship
 Statements
CIL may be proven via:
o Treaties
o Diplomatic correspondence
o Opinions of national/legal advisers
o States practice within IOs
o Comments by governments on ILC drafts
o GA Resolutions – Nicaragua (used when attempting to demonstrate a universal
CIL to impose on state)
Relation to Domestic Law
- Immediately incorporated, but domestic law may supersede
- Alien Tort Statute:
o Tort committed by alien in violation of the law of nations gives US court’s
jurisdiction
o Law of the Nations = unwritten customary laws of civilized nations
Relation to Jurisdiction
- States are Independent
o Restrictions upon states may not be presumed unless placed by IL
- Jurisdiction is Territorial
o Cannot be exercised by state outside its territory unless there is a permissive rule
to do so that derives from convention or custom
o If offense happens in another state but has effects in home state, then home state
has jurisdiction
 Extends to effects on home state’s ship in Intl/foreign waters – Lotus
Difficulty proving Opinio Juris
- Lotus (France v. Turkey) 1927 (PCIJ)
- France failed to demonstrate that non-prosecution by the victim’s flag state was done b/c
of a legal obligation to do so. This followed a collision on the high seas between a French
vessel, the Lotus, and a Turkish vessel. Constantinople the French officer on watch on the
Lotus was arrested and charged with involuntary manslaughter
- Issue: Whether Turkey ex exercising jurisdiction over the French officer was acting
contrary to IL & Art. 15 of the Convention of Lasanne
- PCIJ – no rule – would have to rely on CIL which established the exclusive jurisdiction
of the state whose flag was flown – not conclusively proven
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May be invoked by:
o Individuals in a domestic forum
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o By state in an international forum
Not being bound by Custom
- A state can only avoid being bound by CIL if it has expressed dissent from the outset of
formulation
- New states recognized after CIL is established are bound
- Altering/Amending Custom:
o Demands inconsistent conduct from the established customary rule
o Whether the change is accepted depends on how the change is received by other
states
General Principles
- State practice within domestic sphere (dealing with individuals) that is widely practiced
in international sphere [is this right? Or is about the states domestic practice towards
individuals]
- “Actual Rules of IL which are so broad a description that it is not improper to call them
principles, and maxims…of universal application in domestic law, which obviously ought
to or must apply in the intl sphere also
Judicial Decisions and Scholarship
- Subsidiary
- Not law
Other Binding Undertakings
- Statement given by state official on behalf of his government – Eastern Greenland
Natural Law & Jus Cogens  the opposite of Positivism
- NL: Exists independently of humans and is unchangeable
o Ex: HR law
o Can set minimum standards and fill in gaps of other IL sources
o Can define terms and determine legal obligations
 Act of piracy as defined by law of nations – US v. Smith
- JC: Compelling, moral norms
o Preemptive law developed under influence of NL concepts
o Stands above all other sources of IL
o Proof: Wide-held adoption, strongly held view  sufficiently indelible nature to
constitute norm – Michael Domingues
- Equity – Cayuga
o Incorporates uncodified extra-legal notions of fairness and justice into legal
decision making through:
o Equity within the law
 Apply law to advance equity
o Equity contrary to law
 Discard law/clear legal outcome & decide on basis of equity
o Equity adjunct to the law
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Expand/Modify Law
Objects of IL
- 3 objects of IL
o States
o IOs
o Individuals
States
- Sovereignty
o Limits: Obligations of states
 NL – Vattel
o Rights of states
 Define its integrity & defend itself
 Independent of recognition
 Limit: infringement upon rights of other states  NL
 Equality regardless of strength:
 Juridical approach  shift from power based to rule based system
o Non intervention
 Right to be left alone in own territory and in own external affairs –
Westphalian
 Limits created by interdependence --> NL
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Proof of Statehood: 2 competing tests
o Requirements – Montevideo Convention
 Permanent Population
 Defined territory
 Independent government
 Capacity to enter into relations with other states
 Perhaps recognition [?]
o Recognition
 Not required from all states
o Change in governments
 De facto government
 Effective control of territory and performance of state obligations –
Tinoco
 Continuity of States General Principle
 Changes of government do not affect state’s legal position in
international community
 Subsequent governments are bound by acts of predecessors
International Organizations
- Created by Treaty
- Structure
o Broad Assembly
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 Mandate: broad policy issues
 Participation: all members
 Authority: soft law
o Executive
 Mandate: narrow scope of issues
 Participation: limited to fewer members
 Authority: binding statements or recommendations
o Secretariat:
 Mandate: implementation of programs; defense of interests
 Participation: civil servants
 Authority: initiative (proposals)
Rights – Reparation Case
o Express
 Written in charter
o Implied
 Do anything necessary to achieve purposes
 UN: Represent interest of International Community
o Inherent
 Do not depend on consent
 i.e. bring claim against non-member state in capacity as IO
o Rights acquired through practice
Individuals
- Traditional Approach: Diplomatic Protection
o No substantive or procedural rights  relief on state of nationality for protection
 Only state may bring claim to ICJ
o Individuals
 Principle of effective nationality
 National must prove a meaningful connection to state in question
in order to bring case – Nottebohm
 Exception to the sovereign right of all states to determine its own
citizens
 Problems:
 State may not act on claimant’s behalf
 State is asserting its own right so is entitled to reparation
 Claimant may not bring claim against state of nationality – the
most likely culprit
o Corporations – Barcelona Traction (compare with GATT standing to see the
changes)
 Only the state of corporation’s nationality may sue on behalf of injured
individuals regardless of individual’s nationality
 Canadian company with Belgium shareholders and activities
performed in Spain. Spain unlawfully bankrupts company. On
behalf of its citizens, can Belgium bring claim against Spain?
 No. Only Canada may pursue claim against Spain.
o Corp. have too many ties to apply Nottebohm test
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o Applying alternative rule provides economic stability,
predictability for corporations
 When corps. Are involved, diplomatic protection becomes even
more difficult for individuals
Human Rights Law transforming individuals legal personality
o UN Charter:
 Foundational Treaty of UN  created institution to enforce HR law,
began HR movement
 HR is undefined, language is aspirational, but Charter creates necessary
institution
o UDHR – 1948
 Not a treaty
 Creates aspirational principles disembodied from institution because not a
rule based system
 Prohibits torture or cruel, inhuman and degrading treatment & punishment
 3 Baskets of Rights:
 Bodily integrity
 Procedural safeguards
 Political & religious freedoms
 Derogation
 Rights are subject to limitations as imposed by law for the purpose
of securing public order and the general welfare
 Subjective necessity  positivist approach  no inherent limits as
to what states can do
 Wide scope to balance rights of individuals against rights of
community
 Creates no enforceable rights
o ICCPR – Treaty Ratified 1967
 1976 treaty protecting negative rights
 Transforms sets of rights from moral principles into legal rights
 Textual change: specificity
 Derogation: a hierarchy of rights
 Bodily integrity
o Non-delegable: torture or cruel, inhuman and degrading
treatment or punishment
o NL approach
 Procedural Safeguards
o Derogable if public emergency that threatens life of nation
 strictly construed
 Political & Religious Freedoms
o Subject only to such limitations as necessary to protect
public safety, morality, rights of others
o ICECR – Treaty Ratified 1967
 Protects positive rights; aims for measure of equality
 Problems: Limited protection
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State obligations: Asks states to merely recognize rights, take steps
toward achievement
Cost is high, conditional on resource
Language/Rights NOT specific
However, institutions enable rights to become more clear over time
Right come into force gradually, as states take steps at
achievement by maximum resource
Derogation: Limits imposed by law for purpose of promoting
general welfare
Self Determination
o Original Context – Westpahlian System
 Goal is cohesion and state integrity – used by weaker states against
stronger sates in international community
 Legal right of states
 Legal right means only available to intended beneficiaries
 Available to all states at all times
o WWI – Woodrow Wilson
 Principle of separation available to national groups in order to achieve
stability
 Political principle intended to benefit nations of people
 Political means a matter of discretion and selective beneficiaries
o No right to assert SD entitlement
 May be a matter of political expediency that comes about during
time of crisis – Aaland Islands
o Is an exception where usual Westphalian rules do not come
into play in adjusting political relations
o Post WWII
 Principle of Separation
 Legal right of colonized people to break away from colonial power
o 1990s
 Goal is to protect territorial integrity
 Legal right to all to meaningfully participate in parent state autonomously
– internal HR
 SD mirrors HR when practiced internally, but SD is general
principle – not limited to signatories
 Who is entitled, when, why? – Quebec [Don’t think we covered?]
 SD is a general principle
o Both a political principle and a legal right that is
established by custom
 Who’s entitled:
o Colonized people
o People subject to belligerent foreign occupation
o People excluded from political process in own territory
 What is the right
o To protect oneself – a remedy for HR violations
 Limits
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o Harmonization with the rights of states
o Can’t be used to threaten territorial integrity of parent state
– only rights within territory
o Internal SD
Conflict of Laws
Principles of Jurisdiction
- The Territorial Principle
o General Rule: Act is deemed either lawful or unlawful by the law of the country
where it is done – American Banana
o Ct reluctant to extend jurisdiction over acts committed outside of national
territory
- The Nationality Principle
o Based on nationality, states may regulate actions of citizens outside national
territory – Blackmer
o US laws apply to citizens outside of US territory  US may punish citizens
outside US territory for breaking US laws
o Not IL question – but one of municipal law
 No effect on foreign state
- The Effects Principle
o State may impose liabilities on citizens of foreign states for conduct outside
state’s borders if conduct intents to affect & does affect state – Alum. Co.
o Effects test may be extended to encompass actions beyond territory that have
abstract economic consequences – Lotus
Resolving Conflicts of Jurisdiction
Comity
- Practice among states involving mutual recognition of laws; allowing FS’s laws to apply
in home state (absent true conflict)
o Supporting/deferring to another state’s interest when doing so won’t harm
national interests
- Comity protecting state relations through court – Timberlane
o Effects Test: To extend jurisdiction, need:
 Actual or intended effect on state before court has SMJ
 Effect is large enough to present a cognizable injury to the π
 Balancing test based on comity: Interests of state are strong enough vis-àvis other states to justify assertion of extraterritorial authority
 Problems of Ct endeavoring to protect state relations through
comity:
o Ct made this test up & it’s the 9th cir.
o Court ill-suited to make political decisions – reasons for
judicial deference
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o Will produce unpredictable outcomes
o High error cost
Comity protecting individual through court – Hartford Fire
o Restricted judicial practice: comity will only be applied when there is a true
conflict of law between US & foreign state
 True Conflict = FS absolutely requires what US absolutely prohibits
 When an individual needs to be protected – Court’s forte
Foreign Sovereign Immunity
- Immunity from jurisdiction
o Implied license in which state will suspect exercise of its jurisdiction in its own
territory over an allied nation’s property – Schooner Ex.
o Ways to bridge tensions between states and reconcile completion between:
 Sovereignty: equality and independence
 Need to interact with minimal conflict
- Modern trend: Restrictive Theory of Immunity 1952
o Immunity for state’s public or sovereign acts (includes nationalization)
o No immunity for state’s private or commercial acts
o Purpose:
 Protect individuals doing business with FS – legal rights are determined
by court
 Respect acts of FS governments without subjecting them to the
embarrassment of explaining their actions before a foreign court
- Foreign Sovereign Immunities Act 1976
o Whether FS may be sued in US Courts – Jurisdictional statute granting SMJ
o If ∆ is FS then it is immune, unless there is a statutory exception
 Foreign state includes (∆’s BOP)
 FS
 Political subdivision of FS
o Regional government
 Agency/instrumentality of FS
o Separate legal ID AND is:
 Organ of FS
 OR
 Majority of its shares owned by FS
 Exceptions:
 Commercial Activity
o Claim based on CA carried on in US by FS
o Claim based on act by FS performed in US & in connection
with CA outside US
o Claim based on act by FS performed outside US and in
connection with CA outside the US and causes direct effect
in US
o Defined in terms of nature of activity, not purpose – TX
Trading
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Tort Committed in US
Allows for money damages for property loss caused by foreign
official
Torture, extrajudicial killings, hostage-taking, et. al.
Alien Tort Act – Filartiga, Argentine Rep.
- Grants jurisdiction over claim by alien for tort committed in violation of laws of nations
OR US treaty
- Allows ct to ehar HR cases brought by aliens for acts committed outside US territory Filartiga
Act of State Doctrine
- Instructs court to apply FS’s law respecting act made by the FS in FS’s own territory
- Power based approach: court gives deference to political branch: ASK broad scope
o Court will not sit in judgment on the acts of FS’s government – Underhill
 Court is bound to respect FS’s independence
 Not merely comity – custom
 Π’s remedy is through executive branches who can pursue claim if
see fit
o Court should automatically apply as federal CL – Sabbatino
 Absent stringently clear indication FS’s action violated IL
 Ct playing it safe to avoid throwing wrench in executive’s IR with FS
 Can be used offensively by state
 FS π argued nationalization was act of state that US should honor
o Applies when court must inquire into motivation of FS’s act – Trial Ct, Kikpatrick
 Potential embarrassment to FS or US, interference with IR
 Respect S/P
- Rule based approach: expansion of court’s role: ASD Narrow Scope
o Deciding whether or not ASD applies is a question for the courts – Scalia,
Kirkpatrick
 If the validity of a FS’s act is at issue  ASD applies  court defers to
FS
 Actions of FS are presumed to be valid – not for the court to
challenge
 If the motive of the state is at issue  then ASD does not apply  Ct will
examine FS
 Validity of act ≠ motive of act which is all ASD requires
Means of Conflict Settlement
Arbitration
- Ad hoc tribunal created explicitly to resolve particular dispute
o Flexibility, confidentiality, suitability to issue
o Can be tailored to dispute or to particular interest of state
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o Goal is to resolve dispute – not develop body of jurisprudence
 No conflict of interest b/w arbitrators and states
Can resolve disputes between:
o States
o State v. individual
o Private parties
Convention on the Tribunal for Pacific Settlement: settle conflict on the basis of respect
for law
o Greater latitude for considering non-legal basis
o i.e. – equity – Cayuga Indians
Arbitration best suited for:
o Compromise between parties rather than clear winner and loser
o Claims about damages – Alabama Arbitration
o Strong political dimensions, public outrage – Dogger Bank, Rainbow Warrior
 National Honor
 Loser: saving face – no public admittance of liability; pay fine just
to be a good sport
 Winner: Still appears to public as though making guilty state pay
without resort to greater conflict
o Factual disputes – tailor tribunal to contain experts needed regarding issue [case
b/w USSR & sinking of boat; admiral experts]
Judicial Settlement
- Permanent institution with interest in developing body of jurisprudence that can be
applied to all states
o Potential conflict between state and court interests
o Many full-time judges  not tailored to particular need/issue
- Public proceeding, rigid procedural process, mostly interstate disputes
- ICJ Art. 36: any question of International Law
o Court pressured to apply IL objectively – overlook extra-legal bases and unique
position of parties
- ICJ has limited jurisdiction: can’t hear claim unless claimant establishes it has
jurisdiction. 2 available ways:
o Art. 36, para. 1 [double check]
 Parties submit by special agreement of specific disputes after dispute
exists
 More effective results than submission prior to dispute; can be tailored to
limited bench
o Submit by agreement of categories of disputes prior to conflict
 Treaty grants SMJ
 Unforeseen consequences may cause state to revoke submission
 Court’s ruling less effective
 Can still choose arbitration after dispute – Iran [double check – I
thought something else]
o Compulsory Jurisdiction – declared by states
 Limits:
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 Only 1/3 states submitted, so ICJ has CJ only over 1/3 of states
 Subject to parties’ reservations in their declarations
Benefits of Judicial Settlement
o Technical suit between friendly states – Miniquiers [not sure we studied]
o Matter of National Honor
 Putting on a show for the public despite clear legal outcome or
pointlessness of court’s judgment
 People know & respect UN and its decisions
 Condemn state in front of international community while making
self look good – Iran & Nicaragua
 Justify use of force as last resort after non-compliance – Iraq
o Want clear winner & clear loser
o Consular & Diplomatic issues involving people protected and conventions based
on IL – Iran
 Political disputes always carry legal disputes; political nature of dispute is
not a bar to court’s jurisdiction, else court be rendered pointless
 Bringing claim under a treaty  submitted to jurisdiction in advance of
disputes
Drawbacks of JS
o Judges can be more/less diligent AND/OR more/less biased
o But, possible to submit to 5 judges rather than entire bench
 Special agreement SJM: can tailor legal question to outcome desire
because parties define nature of dispute and submit to ICJ the legal
question they want answered
International Economic Law
GATT
- Legal regime that liberalizes trade of goods (tangible, movable objects), and later services
(GATS)
o Not free trade – allows restriction in form of (reasonable) tariffs
- Established WTO – an IO
o Umbrella for all covered agreements (IP, investments, et al)
o Forum for dispute settlement (DSU)
 Necessary for widely multilateral regime
- Rules
o Tariffication: only restriction to trade can be tariffs
 Art. 2: Adopted by states though bindings [?] (negotiated limits)
 Art. 11: No non-tariff barriers allowed
 Purpose:
 Transparency in restrictions and to public
 Allows for government accountability
 Higher price imposed by tariff not as destructive to market
principles as quotas b/c consumer will pay more for good product
or manufacturer can produce more efficiently to lower price
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o Non-Discrimination
 Art. 1 – MFN: Same treatment to other states in like product
 National treatment: treat FS goods like domestic goods once they are
inside the national border
Exception to Rules
o Mechanism for reconciling trends in international sphere – i.e. environmental
movement
 Originally, GATT isolated and did not encompass broader IL trends. Had
power to transform international and domestic legal regimes it come into
contact with
o Art. 20: Allows states to adopt measures necessary to protect animals, exhaustible
natural resources
 Treaty interpretation: Vienna Convention: ordinary meaning in light of
context
 Cannot construe broadly to enable environmental regulation
 Historical: Narrow interpretation to limit trade restrictions
 Concern states will use as veil over unlawful actions
 Modern: consider broader trend of environmental concerns to inform trade
obligations
 Look to: WTO agreement, UN Conventions, multilateral treaties,
et. al. [CIL?]
 Test: Means/End: reasonably related to protection
 Broad interpretation enables Baptist and bootlegger coalitions
o Art. 20 Chapeau: Limits on exception
 Limited derogation  Discrimination must be rationally related to
protection
 Discrimination – treating differently situated states the same [?]
 i.e. Treating foreign shrimper with less resources like domestic
shrimpers – Shrimp case
 Cannot be unjustifiable discrimination or disguised trade restriction
 Inflexibility; No attempts at negotiation before unilateral
imposition of restriction
o Environmental issues best dealt with under international
consensus
 Inequality – Negotiating with western but not eastern states on
same topic
 Also uncalibrated, uncooperative
 Room for discrimination under chapeau
 If culmination of all the factors makes discrimination unjustifiable
 a lot of room
 If 1 factor makes discrimination unjustifiable  little room
 Appellate body: Do not need absence of all elements to be
justifiable
o GATT subordinated trade obligation to environmental
concerns for 1st time
Settlement – Banana war
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o 1947: submission of disputes to representatives of disputing states
 Power based approach- most powerful state wins
 Biased decision makes
 DP means that no one can be the judge of their own cause
 Like mediation: 3rd party facilitates conversation
o 1955: Panel of neutral experts hear dispute then issue report and send to all
contracting parties
 Decision on recommendation made on consensus of parties
 Consensus means the losing party can object by veto of recommendation
 DP concern, though narrowed
 Move toward rule-based system
 Like conciliation: 3rd party has more active role than facilitator. Submit
evidence of law, etc. in report that is non-binding recommendation
 Puts more pressure on loser to change position
 Incentive to close the gap of disputing parties through negotiation:
private b/w the 2 states
 Effective without being binding on 80% of cases
 Other 20%: disputes between powerful states can’t be resolved
against their will
o DSU: Submit dispute to panel that issues report which can be appealed to
appellate body who then issues report to WTO members for adoption
 More juridical procedure
 Adopted by inverted consensus: only rejected if rejected by consensus
(means winner rejects)
 Basically legally binding: violator has obligation to perform or
consequences
 If violator comes into compliance within reasonable time, then no
damages
 If not, 2 states will negotiate a level of compensation to winner
o Compensation unlikely to be negotiable if violator does not
comply
 Winner’s last resort if no relief is self-help
o Entitled to retaliate by imposing trade restriction of
violator: economic reprisal
Protection of Foreign Investments and State Responsibility for Injury to Aliens
Under Custom
- History:
o Decolonization: custom of protection necessary tool absent law of the colonial
empire that protected investments abroad
o WWI: overwhelming international support for minimum standards of treatment
for foreign investors
o WWII: minimum standards adamantly rejected (by developing states)
- Inconsistent practice of protection = no required compensation for takings – Sabbatino
o Since FS action, Act of State Doctrine trumps corporation’s interests
 Absent clear indication of CIL, court reluctant to make political decision
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 S/P = inappropriate for ct to make decision on uncodified law
o If Custom doesn’t establish minimum standards for protection, then IL doesn’t
require minimum standards of treatment
o Ct decision: BOP on π to establish custom exists
o View of developing states: Foreign Investments not entitled to international
standards of minimum treatment
In absence of new rule regarding compensation, extend the old rule of minimum
standards – TOPCO
o Developing state argues may nationalize company as sovereign act and (should)
pay compensation according to domestic standards
 Essentially argues no international minimum standard
o Tribunal holds CIL still requires compensation
 Customs are durable – once they exist they are hard to eclipse even if only
dwindling support
o Tribunal decision
 Sensitivity to business needs
 BOP on ∆ to justify actions
Tenuous Position of Foreign Investors
o Procedural Issues:
 Can bring claim in host state, but face potential bias:
 State did the harm
 Judges of developing states have questionable experience in
commercial litigation
 US Ct: May decline jurisdiction, reluctant to address politically tainted
issues
 Doctrine of sovereign immunity, Act of State, Comity
 ICJ:
 Diplomatic protection: would have to persuade US claim important
enough
o If US does pursue claim, does not have to share reparations
 Often requires exhausting remedies in host state
 May only exercise jurisdiction on basis of consent
o Host states may not consent/appear in proceedings
Under Investment Treaties
- Clarity, uniformity, robust standards of protections for FIs
o Establishment of substantive state obligations in writings
o Create process for which FI can submit claim to tribunal as matter of right
 Sovereign immunity and the like disappear
- NAFTA
o Section A
 Relative standards of treatment
 National Treatment (Art. 1102) – treats FIs no less favorably than
own investors in like circumstances
 Most-Favored Nation Treatment (Art. 1103) equality in treatment
between states
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Problem: What if host state treats no one well? Solution: absolute
standards [similar to HR where they are only securing bottom tier
baseline]
 Absolute Standards
 Designated to fill gaps, increase protection: Minimum Standard of
Treatment(Art. 1105) – based on long-standing principles of CIL
 For specific, discrete things, Ex: Expropriation (Art. 1110) –
cannot directly/indirectly nationalize/expropriate an investment of
another state except:
o (i) for a public purpose;
o (ii) on a non-discriminatory basis;
o (iii) in accordance with DP of law; and
o (iv) on payment of compensation equivalent to fair market
value
 Compensation is mandated
o Section B: Detailed procedures for dispute settlements by ad hoc tribunal
 Allows for broad protection for FI – Metaclad
 Fair & equitable treatment is not defined by tribunal, but judged on
TOC
 Fairy & equitable treatment includes transparency  all relevant
legal requirements are capable of being readily known [K
interpretation]
o Host state has obligation not to steal from, lie to, or confuse
FI
 Consequence: liability
 Shifts risk of investment from FI to host
 Maze of procedural requirements can destroy a viable claim – Loewen
 Host state treatment may be unfair, but requirements may obligate
FI to exhaust procedural remedies before bringing claim to tribunal
when FI is ∆
o Which may result in bankruptcy before opportunity to
submit claim arises
o Risk was on FI subject to developed host state’s bias
Relation to protection of individuals under HR treaties
o Absolute standards mirror negative rights & relative standards mirror positive
rights
o HR are multilateral; IT are bilateral between developed & developing states
 Developing state wants low level of protection (autonomy) and developed
wants high level (has most to lose)
 Too difficult to achieve both states’ objectives in multilateral
forum
 Change in negotiating environment  power oriented system
between 2 states
 Money flow from developed FI to developing host  obligations
to protect investment flow from developing host to developed FI –
Metaclad
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o Why would developing host agree knowing it will be the ∆
in a claim? Desperate to do business
o Remedies
 HR weak protection for individuals
 ICCPR establishes HR committee which issues non-binding
decisions arising from optional complaints process (mirrors old
GATT system of conciliation)
 ECHR establishes regional court which issues decisions only
binding within that region
 IT strong protection for investor:
 Ad hoc tribunal decision sought as matter of right; issues decision
that is binding world-wide
 Why?
 HR: Claims brought against state
o Why US doesn’t want binding adjudication of HR claims
 IT: government not directly involved in dispute
o Benefits FIs without threatening host state’s sovereignty
Use of Force
Jus in Bello: Laws of War: Balance humanity with military necessity
- Governed by treaties that specify civilian protection and prohibit conduct that would
cause unnecessary suffering to civilians & combatants
o Hague Peace Conference, 1899, 1907
 1st body of law addressing conduct of hostilities between opposing forces
 Left out protection of victims not engaged in hostilities
o 4 Geneva Conventions of 1949
 Response to atrocities of WWII
 Gave detailed protection to:
 Wounded and sick armed forces on field
 Wounded, sick members of armed forces at sea
 POWs
 Civilians in times of war
o 2 1977 protocols to Geneva Conventions
 Specify and update International humanitarian law (IHL)
 Apply to international armed conflict & internal armed conflict
o Statute of ICC & other Regional Tribunals also specify content of Geneva
Conventions
- Categories of Persons
o Civilians
 Does not participate directly in hostilities
 Ex: Hillary Clinton, driver of military official
 If in doubt of statue  don’t shoot
o Enemy Combatant
 Armed forces, direct participation in hostilities
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Subject to being shot on sight
Lawful Combatant
 Participates in hostilities without punishment and gets released
when peace
o POWs are held not as punishment, but to keep from joining
fight
 Must be:
o Subject to responsible command who bears responsibility
for actions of subordinates
o Wear fixed distinctive sign distinguishable from distance
o Carry arms openly
o Conduct operations in accordance with law of armed
conflict
 Failure to comply with requirements  lose privilege of
belligerence  unlawful combatant
 If doubt  POW status until tribunal determines status
 Unlawful Combatant
 No such rights
 Actions are criminal; subject to criminal procedures
 Per William Haines: any member, agent, associate of Taliban or
Al-Qaeda
o Enormously and ridiculously broad definition
o Taliban = government, armed group, political movement in
Afghanistan
 Obama: narrowed definition to those who provide material aide to
Taliban
Cardinal Principles: first protect civilians, then enemy combatants
o Direct attacks – never on civilians
o Indiscriminate attacks – don’t use weapons that cannot differentiate between
civilians and military targets [land mines, cluster bombs]
o Proportionality: May attack military target with knowledge of unavoidable
civilian casualties if such casualties are not directly and concretely related to
military advantage
o Combatants: do not cause unnecessary suffering [dum-dum bullets]
Relation to HR – Meron [don’t think we studied]
o War allows suffering as long as rules are observed objectively; HR always
protects physical integrity and dignity
o Humanizing war would require ending war
As it applies to domestic courts – Hamdi v. Rumsfeld
o US Govt: per Authorization for the Use of Military Force, has right during
wartime to declare those who fight against US – enemy combatants and restrict
their access to court system
 Argues AUMF satisfies 18 USC § 4001(a): no citizen shall be
imprisoned/detained by US except pursuant to an act of Congress
o Plurality: 5th Amend. DP Cl. gives US citizens held in US as enemy combatant
the right to contest detention before neutral decision maker
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The right to challenge enemy combatant status in court
 Suggests military tribunal would suffice
 Not a neutral decision-maker
 Is not a court opinion on what rights an enemy combatant actually has 
copout
 Court reluctant to challenge executive’s decision-making,
determination of Hamdi’s status
 Hamdi cannot be held indefinitely but only as long as US engaged in
armed conflict with Taliban
 Only slightly less open ended
o Scalia Dissent:
 Government can only detain citizens 2 ways
 Congress suspends right to habeas corpus (limited power in times
of invasion or rebellion); Hasn’t happened, but if it did, the issue
would be nonjusticiable
o OR
 ∆ must be tried under criminal law for treason
 Court’s job is to declare detention unconstitutional and order either his
release or proper arrest
 Plurality’s invention of acceptable process to challenge Hamdi’s
detention was improper
 Scalia limited his opinion to US citizens
 Protection for foreign enemy combatants?
Defining Armed Conflict under Intl Humanitarian Law, per International Criminal
Tribunal – Prosecutor v. Tadic
o Geneva Convention: broad, loose language. Only nexus required is conflict &
deprivation of liberty
 Extends in temporal/geographic scope beyond exact time/place of
hostilities
o International AC: resort to armed forces between states
o Interstate or involving non-state actor AC: protected armed violence between
government and organized armed group within state
 Higher level of violence
 Not general lawlessness or lone actor
 Government reluctance to recognize terrorists or admit to civil war
o IHL scope of both international/interstate AC
 Attaches when conflict initiated
 Extends beyond cessation of hostilities until peace (international) or
settlement (interstate)
 Applies in entire territory of state(s) involved
o Legal response to International and Interstate AC per Jus in Bello
 Traditionally dependent on type of AC
 International: many rules
 Interstate: few rules, national criminal law
 Why:
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o Sovereignty oriented: exclude intrusion; states look after
own interest not that of community; less recognition of IHL
Modern: Closes gap between types of AC
 Civil wars more frequent – International community can’t turn a
blind eye
 Civil wars are longer, more cruel, more people – magnitudes b/w
international and internal similar
 Interdependence – difficult for states to stay aloof to economic,
politicial, ideological interests that have effects at home
o IL must take greater account of legal regime to prevent
adverse spill-over effects
 Rise of HR law changed international community – human being
oriented approach has replaced state sovereignty
 Self-determination
o Far as human beings are concerned, no point to distinguish
b/w international and internal AC
Jus ad Bellum: Right to Wage War
- Pre-UN Charter
o War ≠ hostilities. War required declaration
o Brightline makes it easy to define rights, duties, control.
o But disfavors public interest by ignoring facts of situation
- Circumstances that justify declaration
o Just War Doctrine
 Based on NL that transforms violence from sin to glory and binds all
states
 Seeks new justifications for using force – expands use of force
 St. Augustine create Just War Doctrine
 Christians could wage war to avenge wrongs if cause was just
 St. Thomas Aquinas: Codified Just War – Requires:
 Declaration by person in authority
o Notice prevents sneak attacks
 Just cause
o Justification compatible with Christianity
 One comes to hostilities with right intent
o If fighting for just cause, must cease when cause is
vindicated – limit force
 Problems:
 Ideas of justice are not uniform – need for institution to objectively
apply rules
 Today: SC
 Then: Pope, HRE – collapse signals erosion of Just War
- Positivism & Sovereign Equality
o Equality: All States are self-judging
o Positivism: all law is created through exercise of sovereignty
 NL is no longer constraint upon state actions
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o Vattel: As absolutely independent sovereigns, states may claim right to declare
war for any or no reason in pursuit of national interest
 Leads to unrestricted warfare in 19th and 20th cent. =- complete
disappearance of jus ad bellum
Rules governing hostilities in absence of war – limit force
o Reprisal – Punishment – Naulihaa
 Refers to acts that would be illegal if taken alone, but become legal when
adopted for retaliation purposes after another state’s illegal act
 Conditions for legality
 Previous act by another state that violates IL (just cause)
 Unsatisfied demand for reparation or request for compliance with
violated IL (declaration)
 Proportionality between offense & reprisal (right intent)
 After 1945, Art. 2(4) UN Charter bans use of force  armed reprisals
during peace are illegal
 May take economic reprisals (DSU)
o Self defense – to stop attack – Caroline
 Requires clear & absolute necessity – not preemptive self defense
 Webster: necessity is instant, overwhelming, leaves no choice of means,
no moment for deliberation
Post UN Charter(after industrial revolution makes war too easy)
- Attempts to put Vattel’s genie back in the bottle
o Hague Conference
 Gave states opportunity to arbitrate if preferred over war
 Germany is greatest threat to jus ad bellum
 Unprecedented level of destruction until defeat reinforces desire
for peace
o League of Nations
 Only regulates war in the formal sense – obligates members to submit
diputes to - arbitration
 Attempt to regulate recourse to war rather than prohibit. Why?
 Jus ad bellum before UN:
o Legally unrestricted warfare but restrictions on hostilities
o Hostilities regulated enough already [?]
o Kellog-Briand Pact
 Denounces recourse to war in the formal sense – basically repeats
League’s Principles
o UN Charter:
 Universal regime adopted by states  institution to enforce jus ad bellum
- Art. 2(4) Members shall refrain in their IRs from threat or use of force against territorial
integrity or political independence of any states
o Exceptions
 Art. 39: SC has authority to authorize use of force
 Trigger: threat to peace – early state
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Limits: a decision regarding measures necessary to
maintain/restore P&S
 Scope: Broad concept
 Art. 51: right of MS to unilaterally use force in self-defense
 Trigger: after armed attack – late stage
 Limits: proportionality, necessity, defensive purpose [Caroline
Language]
 Scope: very narrow right in exceptional circumstances –
Nicaragua
o Armed attacks that justify self-defense
 Certain amount of gravity some activities due to
scale & effects
 Not frontier incident, mistake – requires planning
 Can this be taken as a St. Augustinian Concept?
o Bush Admin: Sometimes force is necessary to pursue
political destiny – good people can use force for good
reasons
Applying exceptions to non-state actors – War on Terror
o When US knows there will be an attack but doesn’t know when,, by whom or
terrorists location
 Can this legitimize preemptive action?
 US is usurping SC’s Art. 39 authority to authorize use of force in response
to threats
 Problems:
 Mirrors Vattel – power based system
 US is most often regarded as the threat
 UN is a rule based system that protects weaker states
o Can only engage in Art. 59 self-defense against responsible party, at crucial
moment, proportionality
 Requires clear and convincing evidence of who did it
 Terrorists do not claim responsibility
 Time necessary to figure out responsible
 Need justification for using force against state that harbors terrorists – Al
Qaeda
 Afghanistan: govt responsible for actions
 Pakistan: govt gave consent
 What if govt forbids US to take action and govt is not responsible for
terrorists?
 Becomes anticipatory self-defense – Caroline
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