International Law Outline
Fall 2009 – Atik
INTRODUCTION: INTL LAW AND INTL LAWMAKING
I.
II.
III.
There are law like attributes to IL, but there are important contrasts
a. Absence of any kind of state analog that causes laws to be enforced
i. No localization/legitimatization of enforcement or legislation
ii. BUT: This doesn’t mean there are any consequences to IL breaches – Just different than
what we’re used to
Metropolitan Law = U.S. law, Law of Japan, Law of France, etc.
a. May be conflict between ML and IL, leading to two different answers to same legal question based
on perspective used
b. IL may have a diminished role for some states
RAINBOW WARRIOR AFFAIR – UN (1987) (pg. 18)
a. Facts: Greenpeace at the time was engaged in activism against French nuclear testing in S. Pacific;
Intimated they would put vessel in zone of proposed test to keep French from pushing the button;
The ship was docked in New Zealand, and French agents (not rogue secret agents) bombed the
Greenpeace, killing one crewmember
i. Characterized as criminal prosecution, not act of war
1. Hypo: US could not have prosecuted Japanese pilot during Pearl Harbor
a. Distinction between ordinary times and times of war = “COMBATANT
IMMUNITY”
ii. NZ wanted to prosecute but France said didn’t have right since just acting as agents of state
b. HOLDING:
i. NZ judge short-circuited by compromise agreement between France and NZ (sent to island
instead)
1. Thus couldn’t determine whether French agents had some sort of immunity or not
2. Haves rules etc., but nothing seems to work out the way it’s supposed to
SOURCES OF INTL LAW
I.
Article 38 – Statute of ICJ: Sources of law for court (hierarchy from #1 – #4)
a. (a) Intl conventions (treaties)
i. May even apply if contesting states are not parties to treaty
b. (b) Intl custom (customary intl law)
i. Defined from practice of states, accepted as law
1. Not just consistent behavior  Distinguishing between customs accepted as law
and just plain custom
ii. Bedrock on which intl treaty law is built
c. (c) General principles of law
i. Estoppel, reliance
ii. Not many cases decided by this
d. (d) Judicial decisions and teachings of publicists
i. Subsidiary means – Where law isn’t firmly established by customs or treaties
ii. Inferior to those preceding it; Thus judicial decision have diminished statute in IL according
to charter
iii. Teachings of publicists = What law professors say
II.
Also, “soft law”
TREATIES
I.
II.
III.
Vienna Convention on the Law of Treaties (VCLT) (1969)
a. Information
i. Negotiated under auspice of UN, but still elective decision for country to decide to subscribe
to it (unlike Article 38 above)
ii. Gives textual expression to preexisting norms of intl law
iii. Unlike CIL, treaties are RIGID, can’t just change
iv. US did not sign, but still recognizes as authoritative source on treaty law
b. Article 2 & 3 – Scope
c. Articles 6-8 – Capacity
i. Every state has capacity to form treaties
d. Article 26 – Pacta Sunt Servanda = Treaty commitments are binding upon parties (performed in
good faith)
i. Universal interest shared by states to have these binding
e. Article 27 – Party may not invoke internal law as justification for failure to perform treaty
f. Articles 42, 45, 51, & 52 – Validity
PEREMPTORY NORMS (“Jus cogens”)
a. Norms that may NOT be displaced by treaties  Treaty will be voided if it conflicts w/ peremptory
norms
i. Norms that are binding on the entire international community
1. But still slippery, contested area
ii. Gained greater force following WWII
b. Examples = Piracy, Prohibition of genocide, Prohibition of racial discrimination, Torture
i. No authoritative guide to determine what is a peremptory norm and what isn’t
c. Universality Test to determine PN = Accepted by international community of states
d. Hierarchy: PN’s sit higher than ordinary customary international law
i. Example of just ordinary customary law: State may not exercise police powers within the
territory of another state
1. This can be overcome by waiver – US agent can function in Mexico if Mexico agrees
CYPRUS CONFLICT (pg. 37)
a. Cyprus was British colony for 30 yrs & wanted to become independent in 1960. Rival culturally
Greek & culturally Turkish populations existed. Greeks wanted unification w/ Greece & the Turkish
minority resisted b/c afraid would lose rights and status if joined Greece. Brit, Gr. & Tk met and
brokered political agreement that Cyprus would be independent nation state. Cyprus was party to
the treaty.
i. British had chosen the cohabitation alternative over the partition
1. Partition was not a pretty solution (e.g. India/Pakistan)
ii. Treaties figure prominently into history of Cyprus
1. 1960 Accords – Cyprus then became independent state…fell apart after 2 years
a. Basic Structure: Created const system
i. Rigid power-sharing arrangement: Pres = Always Greek, Vice Pres =
Always Turk, etc.
b. Treaty of Guarantee between Cyrpus, Greece, UK, and Turkey
c. Treaty of Alliance between Cyprus, Greece, and Turkey
iii. Civil disorder erupted thereafter
IV.
iv. Note: Intl law is not particularly probing into how leaders were elected under decolonization, just assume they have the authority
1. Case may be different under coup though
b. PEREMPTORY NORMS BANNING TURKEY’S INVOLVEMENT?
i. Turkey invaded Cyprus and politically justified invasion as protecting safety of the Turkish
Cypriot community, in accord with Treaty of Guarantee
ii. Given norms against use of force in the UN Charter, etc. – This may be prohibited due to
peremptory nature (perhaps)
1. Can’t go around it by treaty, as discussed above
2. Exercise of a treaty that allows for a use of force can’t be done if it conflicts with PN
iii. UN Charter
1. Article 2(4) – Refraining from threat or use of force
2. Article 64 – Emergence of new PN
a. If new PN emerges, any existing treaty in conflict with that norm becomes
void and terminates
i. Example: Slavery
c. TREATY SIGNED UNDER FORCE?
i. Is the treaty valid? Pres. Makarios said he signed the treaty out of force
1. But a lot of treaties are signed from “coercive” situations (e.g. war)
ii. Article 52 (VCLT)
1. Treaty void if threat/use of force violates intl law embodied in Charter (must be
illegal threat of force)
2. Most use of force rejected by charter, but Charter DOES allow force in some
circumstances (i.e. self-defense)
a. Thus treaty procured by use of force in self-defense is valid
Interpretation of Treaties
a. Article 31(1): “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 light of its object and purpose”
i. (1) A treaty shall be interpreted…
1. *Interpret in good faith
a. Also applies to judges, parties themselves
b. Resolution of dispute in good faith, too (in broader sense)
2. *Ordinary meaning
a. Preference for ordinary (whereas in other aspects of law, special meaning
may trump ordinary meaning)
i. Can’t normally use specialized definitions crafted specifically for
purposes of the agreement, or terms of art which depart from
ordinary meanings…UNLESS parties make clear they intended
b. Reason? Vulnerability to confusion/mistake (especially w/ translation of
many languages)
3. *Object and purpose
a. Invitation to color the text by looking beyond the text to see what parties
intended
b. Article 31(2) = Context to find meaning of treaty
i. Look to any side agreements or treaties accepted by other parties, subsequent agreements,
subsequent practice, apply relevant rules of intl law
c. Article 32 – Supplementary means of interpretation
V.
VI.
i. ONLY acceptable if insufficiency following Article 31  Can’t just go to this first
1. Can only use Article 32 if the Article 31 interpretation leaves the terms:
a. Ambiguous or obscure; OR
b. Leads to a result which is manifestly absurd or unreasonable
ii. Can supplement interpretation, including preparatory work and circumstances of its
conclusion to confirm the results from Article 31 interpretation
1. Preparatory work = Diplomatic equivalent to legislative history
2. Thus, can’t use preparatory work to contradict those things found in Article 31, since
use Article 32 only when 31 is insufficient
Termination of Treaties
a. Article 54 – Termination or Withdrawal
i. Termination or withdrawal may take place within the provisions of the treaty; OR
1. If treaty lets you out, you’re out (treaty itself can provide for termination)
ii. With consent of all parties after consultation with the other contracting States
1. Parties can consent to country unilaterally terminating treaty obligations
b. Article 60 – Termination or suspension of treaty for breach
i. Usually triggered by a material breach of another party (like K law)
1. But no clear definition for what is a material breach
Treaty Reservations
a. RESERVATION = A la carte subscription to treaty; Where some countries only agree to be bound by
only certain terms of a treaty
i. Reservations are restricted to MULTILATERAL treaties (hard to imagine for bilateral treaties)
ii. Part of a broader category called RUD’s (reservations, understandings, declarations)  All
purport to craft/customize country’s adherence to treaty
iii. Issue: Is there enough disagreement that there isn’t a treaty at all? To what extent does the
rejection of certain terms constitute a permissible reservation or a complete rejection of the
treaty?
b. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (ICJ
Advisory Opinion – prior to VCLT, not resolution of dispute)
i. Reservations for such an important concept (human rights, the prohibition of genocide)
might not be tolerated  HR too important to allow deviation
ii. Two views
1. No admitting reservations
a. Minority states might back out if just all or nothing – So smaller # of states
in the end
i. But in certain areas like HR, might want more states to participate
2. Admitting reservations
a. There seems to be a lot of tolerance for reservations
iii. HOLDING: Reservations are acceptable if they are within the object and purpose of the
treaty
1. If party objects to reservation, it can consider the reserving State NOT a party to
Convention
a. Reservation like a proposal that had be accepted by other parties
b. Reserving party still party to treaty but NOT with respect to objecting party
i. Reserving party cannot complain about anything the objecting
country does (and vice versa)
iv. As a result, treaty relations can get very complicated
c. VCLT – Article 20: When it appears that the object and purpose of the treaty is for uniformity as an
essential condition, a reservation requires acceptance by all parties
i. No reservations b/c it would be something all parties agree to
CUSTOMARY INTL LAW
I.
II.
III.
CIL = (1) Law that results from the general and consistent practice of states, which (2) follows from a
sense of legal obligation
a. Set of norms that are binding on states (not embodied in treaty form)
b. Contravention of these norms result in international obligation = Jus cogens
CIL & Treaties
a. But treaty practice CAN be a norm:
i. (1) Treaty might suggest that background norm does not exist since needed treaty to make
it law
ii. (2) But also can use treaties to show ripening process
1. Imply codification of norms
PAQUETE HABANA – USSC (1900) (pg. 81)
a. Facts: During Spanish-American War, two Spanish fishing vessels; US military captured and brought
into Key West; Declared prizes of war; Condemns and sells them
i. Procedure: In rem jdx
1. Prior owners argue that it’s CIL that fishing boats are excluded from being prizes of
war
b. HOLDING: Established rule of IL that coast fishing vessels are exempt from capture as prizes of war,
capture thus unlawful
i. RULE: INTERNATIONAL LAW (including CIL) IS PART OF THE LAW OF THE US AND IS BINDING
ON COURTS
1. How do you know something is CIL? Sufficiently definite, sufficiently observed norm
w/ some sense of obligation
a. Documented practices
b. Opinio juris – Sense of legal obligation
c. Ancient usage among civilized nations that ripened into CIL – Ripening
process
i. Note: Ripening of practice is different from the emergence of that
practice
ii. Issue: What counts as “civilized” countries?
1. England seemed like a good reference here (had larges
Navy)
2. Here, court doesn’t have direct evidence, so have to rely on documents that report
practice (historical matter)
a. English practice, French fishing truces, Dutch acceptance, US, Mexican
practice
i. Does it matter that for a while the British usage was interrupted
during the French Revolution?
1. Limited circumstance – Mutual suspicions and
recriminations during this time
2. Maybe ripening had not taken place at that point
a. Rule of courtesy/comity only, not a legal obligation
yet
“INTL LAW IS PART OF OUR LAW, and must be ascertained and administered by the courts of justice of
appropriate jdx, as often as questions of right depending upon it are duly presented for their determination.
FOR THIS PURPOSE, where there is no treaty, and no controlling executive or legislative act or judicial
decision, RESORT MUST BE HAD TO THE CUSTOMS AND USAGES OF CIVILIZED NATIONS; and, AS EVIDENCE
OF THESE, to the works of jurists and commentators, who by years of labor, research and experience, have
made themselves peculiarly well acquainted with subject of which they treat.”
c. RESULTS: **Intl law part of our law  Thus can consider customs/usages (but only when no other
controlling decision)  Use works of jurists/commentators as evidence of customs/usages**
i. (1) Norm established that you can’t seize fishing vessels
Customs as a subset
ii. (2) INTL LAW IS PART OF AMERICAN LAW
to intl law – Only
1. Instructs every judge in country to listen to intl law arguments
used when no treaty
iii. (3) THUS, CIL NOW AVAILABLE IN US COURTS
or controlling
1. *Caveat/limitation: Customs/usages ONLY used when (1) no treaty or (2) no
executive, legislative,
controlling executive or legislative act or judicial decision
or judicial decision
a. Treaties may supercede customs
b. Issue: But what is considered controlling?
2. Look to jurists/commentators to find evidence of what the law really is
a. Publicists and scholars are special status in intl law
b. For what law really is, not just what it ought to be
d. Complicated usage – IL must be considered and custom is relevant but it can be put aside
i. What is a controlling executive act? Seizure of the vessel is an executive act – seized by the
Navy, a representative of the executive branch
1. To what extent is their authority limited by IL, or does it expand to preclude
customary intl. law arguments?
IV.
CIL vs. Common law
a. Both evolutionary theories – Involve historical methodology
i. CL: Stare decisis (looking at cases)
ii. CIL: Similar, but looking at different evidence (NOT cases)
b. Both different from statutes, which is top-down  Law, so people do it
i. But both CL and CIL are more bottom-up  People do it, so it becomes law
c. Suspicion that common law judges are fundamentally illegitimate b/c lack accountability (using just
personal opinions)  May be reflected in IL too
i. There is a right way to do things (natural law) vs. Favoring norms just because that is what
people do
V.
PERSISTENT OBJECTOR
a. Persistent objector = When norm in formation and country constantly objects
b. PO cannot stop formation of CIL (single country cannot stop law from forming), norm can still exist
i. BUT, just NOT binding on objecting country
VI.
Expropriation – Norm of nationalizing property owned by aliens
a. Distinguished from the traditional CIL pre-WWII of taking property from own people (internal
matter) – Here dealing with property from aliens (so not strict takings case)
b. Decolonization  Affects expropriations
i. Notion that changes in government don’t affect title to property  But untenable theory
since most property in the colonies belonged to the colonizers, not the people on the
property
ii. New states started emerging and exercising sovereignty, but wealth still in the hands of old
colonizer
1. Thus, lead to a lot of nationalization
2. Affected natural resources greatly, e.g., oil in the new Middle Eastern countries
c. U.S. Position = HULL DOCTRINE  Asserting that this is what IL requires (practice that has ripened
into IL with legal obligation)
i. HULL DOCTRINE = WHEN STATES TAKE PROPERTY, THEY HAVE TO PAY (1) PROMPT, (2)
ADEQUATE, AND (3) EFFECTIVE COMPENSATION
1. Prompt: Pay value now (no IOU’s)
2. Adequate: Consonant in value to that which is taken (equal to amount)
3. Effective: Not subject to exchange controls, can be converted to value somewhere
else
d. SEDCO v. IRAN (Iran-US Claims Tribunal – ARBITRATION) (1986) (pg. 87)
i. Facts: Iran nationalizes its oil reserves; SEDCO is a US subsidiary and Iran nationalized its oil
reserves
1. US argues Hull award (higher amount, includes future earnings) – Fair market value
2. Iran says they should only give appropriate compensation for unjust enrichment –
Net book value adjusted for unjust enrichment
a. US’s unjust enrichment from taking oil in the first place (stealing from Iran)
 Shouldn’t have to compensate for something you stole from us
ii. HOLDING: CIL required compensation equivalent to the FULL VALUE of its expropriated
property, whether or not the expropriation was otherwise lawful
1. Tribunal must decide which is the customary law  Full value should be paid for
expropriation of discrete alien property
e. TEXACO v. LIBYA (ARBITRATION) (1978) (pg. 89)
i. Facts: Arbitration arising from Libya’s nationalization of oil rights; Classical post-colonization
set up; As part of the original K, there as an arbitration clause if a dispute arises
1. Professor Dupuy was appointed by ICJ to arbitrate dispute; Parties conceded to
arbitration’s jdx
a. L agreed to arbitration clause binding itself to process – Probably wouldn’t
have had arbitration otherwise since T couldn’t just hail to court
i. Arbitration decision (unlike court decision) is entitled to something
like full faith and credit in countries all over (have to be recognized)
2. Issue: Does L have to pay? And if so, how much?
a. L argues inalienable rights of states to permanent sovereignty over all
natural resources (G.A. Res. 3171/3281 – 1973/4)
i. Inalienable = L couldn’t give it away in the first place, thus T didn’t
have it rightfully
ii. Also, amount is to be determined by the state (not external
authority)
1. Settles compensation in accordance only with national laws
iii. Note: Since vast majority of UN is undeveloped nations, G.A.
resolutions favor developing nations (one nation, one vote)
b. T argues appropriate compensation (G.A. Res. 1803 – 1962)
i. Language limits the grounds on which a state may nationalize
(public utility, security or national interest)
ii. Calls for “appropriate” compensation in accordance with
international law and the law of the taking state
ii. HOLDING: Res. 1803 reflects state of CIL in this field – Expression of real general will
1. Res. 1803 WINS b/c more indicative of assent in voting (87:2)  Reflects INTL
CONSENSUS
a. Assented to by a great may States representing all geographical areas and
economic systems
i. Consensus by a majority of States belong to various representative
groups indicates universal recognition of the rules therein
incorporated  CIL
2. Comparing two resolutions: Comparatively 1803 looks more universally accepted,
even though it was earlier in time (more political science approach)
a. 1803 was passed 87-2 with 12 abstentions
i. Looks like consensus
1. BUT: Different countries in 1962 and 1973/4 – So how does
this reflect intl consensus?
b. 3171 was passed 108-1, with 16 abstentions
i. Passed too, but relevant preliminary language over the
nationalization principle was objected to by “the most important
western countries” and some other developing countries as well 
Enough to show lack of consensus
1. Looking at everyone who opposed, abstained (mining
business, East/West divide)
2. Thus, throws it out, all we have is noise – 1803 is last clear
signal
3. Criticism:
a. Consensus is still less/different than majority
i. Consensus only requires no one to say no, whereas unanimity
requires everyone to say yes
b. Also Res. 3171 is later in time, usually trumps prior – But not what Dupuy
finds (implied repeal)
c. PO argument here: If a norm forms over an objection, the objector might be
exempt from following the norm
4. But legal status of G.A. resolutions are not binding, and G.A. is not a legislature
a. CIL distinct from legislative process
i. But G.A. may still be possible for making CIL since made up of major
intl countries
INTL ACTORS
I.
II.
International law applies to more than just states: NGO’s, privatized groups, and even persons (human
rights) and duties on persons (international criminal responsibilities)
a. The law has evolved since even WWII when states were the sole players, but states still preeminent
Judicial/Quasi-Judicial Settlement of Disputes
a. Statute of ICJ – Article 36
i. ICJ does NOT have compulsory jdx
1. Ways to get jdx:
a. (1) Compromis – Special agreement of parties to send dispute to ICJ (like
Chad/Libya)
b. (2) Submit as party of treaty mechanism for disputes arising out of treaty
c. (3) Declarations by both parties accepting compulsory jdx of court
i. States can just say that they intend to abide by law of ICJ
ii. Condition of reciprocity: Both countries must have jdx under ICJ
1. Example: US (not under ICJ) couldn’t take Egypt (under ICJ)
to ICJ uness Egypt waives this reciprocity since US not under
compulsory jdx of ICJ
iii. Can also be opted out of at any time
STATES
I.
II.
III.
IV.
Theme: Tension between self-determination (and when that comes into play with statehood) vs.
Territorial integrity/continuity
a. General agreement that colonialism is unacceptable is the source for self-determination equating
into statehood
i. IL doesn’t scrutinize the general establishment of states emerging in the 20th century as a
result of decolonization (colonies have right to be a state, new state is possible)
ii. Different rights (usually lesser) for states created through fragmentation, rather than
decolonization
How do we know states exist? Two persecptives:
a. (1) State itself (internal)
b. (2) The rest of intl community (external)
Almost all the world’s territory pertains to a state
a. Failed states: Sudan, Afghanistan
Yugoslavia
a. Formed after WWI in the dismantling of the Austria-Hungarian and Ottoman empires – Treaty of
Versailles
i. Internal harmony was created among the different cultures through communism
ii. BUT: Complete fragmentation of country after Communism fell  Leading to ethnic
cleansing, genocide
1. Nationalism got associated with homogeneity – People who had been living
together attempting to dominate the others
2. Legal status of states formed after this dissolution?
a. Issues of self-determination and legal entitlement of statehood
b. Self-determination = Not necessarily a democratic principle, more based in
identity
iii. Nationalist leaders in Serbia sought to ensure Serb dominance of the FRY – Took up arms to
ensure that Serb-inhabited areas would remain part of the FRY
b. BADINTER OPINION 1 (European Commission) (1992) (pg. 126)  Self-determination of States
within Yugoslavia
i. Aaland island attitudes still present in this case – Reluctance to allow Bosnians and Croations
to just go their own way
1. General notion is an international law hostility toward secession (continuity of
states)
ii. Issue: Secession of smaller entities from FRY (as Serbia insisted) or complete Dissolution of
state itself (as other republics claimed)?
1. If secession, Serbia might have had higher claim
iii. CONCLUSION: FRY is in process of DISSOLUTION
1. FRY ceased to exist = Fractioning
2. No question of secession – Thus, Serbia doesn’t have higher claim to statehood than
any of the other smaller factions
iv. Legal consequences? Opportunity for legitimate finding of states; Boundary disputes;
Stability of new government ?
c. BADINTER OPINION 2 (1992) (pg. 128)  Self-determination between Bosnia and Croatia
i. Issue: Does Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent
peoples of Yugoslavia, have right to SD?
1. Does self-determination extend to changing existing borders?
ii. CONCLUSION: Serbian population entitled to all rights accorded to minorities (all HR and
fundamental freedoms)
1. Note: Acknowledges respect for minority rights and cultural identities, but NOT
meant to destabilize existing frontiers between states, regardless of whether they’re
internal; Have rights of group, but doesn’t change frontiers
a. Unlike Libya/Chad dispute, which was over international frontiers
d. BADINTER OPINION 3 (1992) (pg. 133) – Determining internal boundaries
i. Issue: Can internal boundaries between Croatia and Serbia and between BosniaHercegovina and Serbia be regarded as frontiers in terms of public intl law?
1. Which of these states are going to be recognized?
ii. CONCLUSION: Boundaries may NOT be altered EXCEPT by agreement freely aimed at
between parties
1. Former boundaries become frontiers protected by intl law
a. Applied principle of uti possidetis
iii. So what if territory wants to make new boundary? Implies that new frontiers might not be
recognized; and for states trying to change their borders, the state itself might not be
recognized
e. BADINTER OPINION 4 – (1992) (pg. 140)  Bosnia’s application for EC recognition (statehood)
i. Facts: Bosnian Serbs are contesting the separate entity of the Socialist Republic of BosniaHerzegovina (SRBH)
ii. Issue: How do we know the will of the people?
1. Plebiscites are somewhat troublesome – not necessarily a reliable measure of public
opinion
a. A plebiscite that fractures along ethnic lines doesn’t really say anything
about the will of the people, only that the people are split ethnically
iii. CONCLUSION: Will of peoples to constitute sovereign and independent State is not fully
established
1. Bosnia fractured along ethnic lines  Thus, can’t tell the will of Bosnia
2. Problem here that we don’t see in Croatia (which was approved)
a. New state of Bosnia has same territorial limits of the former Bosnia
i. Thus have Bosnian identity, but still some that have Serbian identity
and have desire to remain in solution with Serbia as part of
Yugoslavia (not Bosnia)
b. Ethnic Serbs in Bosnia still wanted to be part of FRY (and not new state)
3. Ultimately, SRBH is not allowed to split into a state unless it incorporates Serbia and
Croatia
BADINTER OPINION 6 – (1992) (pg. 142)  Macedonia’s application for EC recognition (statehood)
i. Facts: Macedonia sent application to EC despite objections by Greece to M’s name and flag
1. Problem: Greece claimed that new state would have territorial claims against region
of Northern Greece (also known as Macedonia), which is a EU member
a. Name “Macedonia” was originally region of Greece
i. Now trying to claim name “Macedonia” for former Yugoslavia
people
ii. HOLDING: Macedonia satisfies Guidelines, but must renounce all territorial claims against
neighboring states (all about Greece)
1. Little country had to make extraordinary pledge not to invade Greece
2. Also had to use cumbersome name: The Former Yugoslav Republic of Macedonia
Territorial Disputes
a. Should be respected as they were at the time independence was achieved
i. Regardless of cultural identities, geography, and other concerns
ii. New states are generally defined by their pre-independence colonial borders
b. CASE CONCERNING THE TERRITORIAL DISPUTE (LIBYA/CHAD) – ICJ (1994)(pg. 12)
i. Facts: CHAD & LIBYA were newly independent states, and their borders were determined
through treaty made by the prior colonial powers (France & Great Britain & Italy). Libya
militarily occupied the land Chad claimed was its territory. The occupation is viewed
differently depending on who really owns it. It’s either reclamation of territory or a violation
of Chadian sovereignty.
1. Historic notion that IL deals exclusively with relations b/w nation states (disregarded
now)
2. ICJ – Chad and Libya agreed to 3rd party arbitration (thus PJ not an issue since both
parties agreed)  Got technical jdx and legitimacy
f.
V.
International Court of Justice
 ICJ is principal juridical organization of UN
 It only handles disputes between nations, not between private actors and nations
 Can also issue advisory opinions (such as with the security barrier erected in Israel)
 It does not have compulsory JDX so countries must submit willingly, or in treaties countries may specify in
advance that ICJ has JDX over any dispute arising concerning the treaty
ICJ Statute  Judicial organ of UN  Established under UN Charter (binding on UN countries)  BUT does NOT
have compulsory JDX (so states must submit themselves to dispute)
ii. HOLDING: Chad wins because a) 1955 Treaty set the boundary and (b) Chad never
abandoned the land
1. Chad acted consistently in relation to the boundary
a. Fundamental principle of stability of boundaries: Boundary established by
treaty achieves permanence which the treaty itself does not enjoy
2. 1955 Treaty between France and Libya & French Colonial Map from 1899 – Dividing
territory from two European colonial powers
a. Court accepts that the contemporary boundary corresponded to the
boundary fixed in an ancient treaty between Britain and France
b. COLONIALISM: Map between 2 old colonial powers, dispute now between 2
independent, modern states
i. Successive state now bound by treaty of its predecessors
VI.
ii. Question: Can new states pick and choose what they want to keep
from the colonizers and what they don’t?
3. Estoppel/Waiver/Ratification Argument
a. How Libya acted in reference to Treaty, seemed to acknowledge it
i. But does that mean they accepted it, or were forced to?
iii. Decision Counterintuitive: Why would Libya subject itself to jdx of court that would likely
rule against it?
1. Didn’t want to be embarrassed (seen as being pushed around) – Can now defer to
ICJ’s decision as political cover
2. But if political cover, not a legitimate decision enforcing action (just a mask)
c. BURKINA FASO v. MALI (ICJ) (1986) (pg. 131)
i. Facts: Decolonization of Africa and determining boundaries – BF and M two states that,
prior to independence, were separate colonies within French West Africa; Disagreed on
location of parties of their border after independence; Agreed that it should be resolved
according to uti possidetis
ii. HOLDING: Drew border for the states; Offered dicta on UP
1. Looks at “uti-possidetis” used in decolonization of Africa
a. Uti-possidetis = Territory of new states determined by their preindependence borders (borders between imperial domains and
administrative borders within imperial domains)
b. Passing beyond just a regional norm, now principle of general scope
iii. Difference from Chad/Libya: There are internal boundaries/frontiers as opposed existing
national borders
1. UP applies even to internal boundaries (of the French internal colonial boundaries)
a. NOTE: Idea that borders are fixed is a recent idea
Secession of States
a. AALAND ISLANDS QUESTION – (League of Nations Report) (1920) (pg. 119)
i. Facts: Aaland Islands people are culturally of Swedish descent; Then it all gets taken over by
Russia; But that breaks up and the islands get attached to Finland; Aaland people would
prefer to secede and join with Sweden
1. Here, not about statehood, but being absorbed/integrated into another state
(Sweden)
a. Protection of Swedish language (keeping culture and heritage)
2. Extraordinary time: Finland ceded from Russia (thus permitted conversation that
normally would have been prohibited, respect territorial integrity)
ii. HOLDING: No need for separation
1. Doing this would destroy order and stability within states and inaugurate anarchy in
international life
a. One group could just go to another country and try to make it their own
2. Finland said that they could still have Swedish language/schools – Not going to
oppress (thus, no need to separate)
b. RE SECESSION OF QUEBEC – (Canada Advisory Opinion) (1998) (pg. 134)
i. Facts: French-speaking residents of Quebec have called for greater independence/secessioni
1. Issue: Legality of unilateral secession by Quebec from Canada
ii. HOLDING: No, Quebec cannot secede!
1. (1) Clearly not allowed under Canadian Const
VII.
2. (2) Everyone does have right to exercise statehood (internal self-determination), but
can’t just secede all the time (external self-determination)
a. There can be a point where people are so utterly denied SD that secession is
permissible as a matter of IL (last resort), but Quebec did NOT meet this
threshold here
i. NOT disadvantaged or oppressed – Thus no secession
1. Continuing failure to reach agreement on const amendment
does not = denial of SD
a. Not denied access to government
3. Conservative thinking here  Continuity of state, Existing intl relations = High value
of IL
a. What happens if they secede anyways? Most likely prohibition of any
foreign help/interference by intl community
b. But sometimes rule can be trumped by actual outcomes – So don’t question
the successful ones
i. So ultimate question is not legality but success
1. Legality is sometimes only relevant for secessions that are
frustrated
iii. James Bay Crees – Didn’t want secession
1. Natives didn’t want to be part of Quebec (culturally separate), wanted to be part of
Canada
a. So, Quebec secession could create situation where JBC could exercise their
right to SD
b. Arguing for an Aaland island situation, if Quebec is allowed to secede, they
should be able to also
Intl Law on State Recognition
a. MONTEVIDEO CONVENTION (1933)
i. Essential attributes to justify existence of statehood:
1. (1) Permanent populations
a. Becomes issue for area sparsely populated (how far north does Canada go?)
or nomadic groups
2. (2) Defined territory
a. Can’t form multiple states on a single territory
3. (3) Government (exertion of authority)
4. (4) Capacity to enter into relations with other states
a. Hardest to define; Can be circular, though?
b. Difference between recognition of state and entering into good relations
with state
i. US and Iran, Cuba, N. Korea – Recognize them, but don’t have good
diplomatic relations
ii. US doesn’t recognize Taiwan as a state (because it recognized the
PRC and non-recognition of Taiwan was a condition)
b. Legal effect of recognition
i. To what extent does a state’s recognition depend on recognition by other states?
1. If it depends on others, then more external (statehood created externally)
a. US 4th of July would mean nothing because a state’s creation/existence
would be defined by others’ viewpoints (UK doesn’t recognize 4th of July as
the date of US independence)
2. Is it independent and more internal or constituent upon other countries?
INTL ORGANIZATIONS
I.
United Nations
a. Designed to look like government
i. However, the legal status now is such that the UN can’t exercise sovereignty
ii. It does act (fight wars, etc.) but the authority is always granted through states 
Foundation is state-centered
b. UN CHARTER (1945)
i. Preamble – Focuses on PEACE & SECURITY
1. Saving succeeding generations from scrounge of war
2. Reaffirm faith in fundamental human rights
3. Justice and obligations from treaties – Respect for IL
4. Promoting social progress and better standards of life
ii. Article 1 – Purpose of UN
1. Maintaining intl PEACE & SECURITY
2. Friendly relations among nations based on human equality and self-determination
a. Economic issues are somewhat secondary
3. Fundamental freedoms w/out distinction to race, sex, language, and religion
iii. Article 2 – Governing principles
1. Cooperation norm in UN: Members shall give UN assistance in its actions
2. Nothing authorizes the UN to intervene in matters that are essentially within the
domestic jdx of any state
a. But may conflict with call to interfere with HR
iv. Article 4 – Membership
1. Membership open to all peace-loving states
a. As opposed to the WTO where there are many commitments required to
join
2. Goal is universal membership – better to have everyone in than to exclude certain
states
3. Suspending rights/privileges is different from expulsions
a. To date, there have been no expulsions
v. General Assembly
1. Each member has one vote
a. So developing nations on equal footing, but G.A. resolutions not binding
2. Article 10 – No restrictions on topics for the general assembly and power to make
resolutions
3. Can make recommendations = Resolutions
a. CANNOT MAKE BINDING DECISIONS (not a legislature by definition of
Charter)
vi. Security Council
1. Does have real power under Ch. 7 for threats to intl peace and security – But must
be under Ch. 7 to be binding
2. 15 members – 5 permanent (China, France, Russia, Britain, US), 10 remaining rotate
II.
a. Article 27 – One nation, one vote
b. EXCEPT in order to make decision on substantive (non-procedural) matter,
need SUPER MAJORITY of 9/15 members and ALL 5 permanent members
included
i. 5 permanent members alone can’t cause anything to happen, need
at least 4 more votes
ii. But real challenge is getting all 5 to agree
1. Why SC was paralyzed for 34 years
a. Note: Korean War happened because Soviet Union
on strike (exception)
2. Certainty that the UN won’t take action against the US,
China or Russia – they’re effectively untouchable
c. Permanent members = Victors from WWII
i. Should we still be bound by a power distribution relevant to the late
1940’s?
3. Article 24 – Purpose of SC: Charged by entire membership to take care of intl peace
and security
a. Peaceful settlement of disputes
b. Power to determine existence of threat of peace
c. Can order interruptions of economic relations (e.g. embargoes)
4. Article 42 – Capacity to make “war”
a. “…such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security…”
b. Can provide for standing UN army
Apartheid in South Africa
a. Language in the UN Charter which talks about equality indeterminate of race; But at time of charter,
there were a number of states practicing institutionalized racial discrimination
b. G.A. Res. 616B (1952)
i. Ensuring equality
ii. Softer criticism of S. Africa than strict categorical criticism
iii. No legal effect
c. S.C. Res. 134 (1960)
i. SC only has power under Ch. 7 when there is a threat to intl peace and security – Resolution
states that NOT at this level yet
1. At best, it’s a signal to S. Africa that its policies might lead to action
ii. Article 2(7): Can’t intervene in internal affairs
1. When does systematic HR violation move from internal to under power of Charter?
a. RULE: NEED EXTERNAL EFFECT for UN to have legal foundation for actions
i. (1) Systematic oppression causes some other external effect, and
that external effect triggers UN competency
ii. (2) Whenever international human rights are violated, you
necessarily submit to international jurisdiction
d. G.A. Res. 1761 (1962)
i. Layering of sanctions against S. Africa
ii. Not binding  But says continuing of this policy endangers intl peace and security (only SC
can make this determination, but SC mentions it)
1. GA seems to be acting beyond its true power
a. Calling for embargo, breaking diplomatic relations – Couldn’t order it, but
called for it
e. S.C. Res. 181 (1963)
i. Stronger language
ii. Seriously “disturbing” intl peace and security
1. Closer to “threatening” but still not there yet
iii. Thus, STILL NOT BINDING – have not reached Ch. 7 level yet
f. Credentials Committee Report
i. After Resolution 181 again failed to be issued under Chapter 7, members then tried to expel
South Africa from the UN
1. Charter Articles 5 and 6 provide for the possibility of suspension and expulsion
ii. But rather than expel them, just want to deny credentials (deny the representatives of their
participation in the meeting)
iii. RESULT: Decided by vote of 5-3-1 to accept credentials of all states except S. Africa
g. S.C. Res. 418 (1977)
i. Now acting under Ch. 7 – Thus BINDING on entire UN membership
1. Not just about HR violation, about EXTERNAL EFFECTS on neighbors
ii. DECISION: Arms embargo (military embargo, not total economic embargo)
iii. Adopted unanimously
h. Apartheid Treaty
i. Drafted narrowly to describe social, legal institutions in S. Africa (rather than general HR)
1. Obligations to criminalize conduct internally
a. Thus, imposition is at state level, but obligation flows from treaty
ii. S. Africa isn’t going to sign this treaty, though
iii. Interesting: Prohibiting something that its signatories weren’t doing anyway
1. But textualizing CIL and rising to level of jus cogens (possibly)
INTL LAW & DOMESTIC LAW
TREATIES & I.C.J. DECISIONS IN U.S. COURTS
I.
Vienna Convention on Consular Relations
a. Different from embassy – General representation of nations in the foreign territory in which they
visit
i. Abroad mainly to assist the other nationals living in the country
b. Article 36 – Communication/Contact with nations of sending state
i. Consular officials shall be free to communicate w/ nations of the sending state and have
access to them
ii. National has TREATY-BASED RIGHT that receiving state must notify consul of sending state
of national’s DETENTION (ordinary crimes – not war, POW’s, etc.)
1. Have right to notify consul, but not right to consul assistance (don’t have to come
rescue you)
2. Must tell detainee that they have this right
iii. Dual citizenship – As a matter of CIL, can’t invoke nationality of one country against your
own government
1. If in 3rd country, get a choice of who to notify
II.
BREARD v. GREENE – (USSC) (1998) (pg. 296)
a. Facts: Paraguayan citizen convicted of capital murder; Failed to advise Breard of his Vienna
Convention rights  Thus, did not raise VC claim at trial, on appeal, or in state habeas corpus
proceedings
i. Paraguay filed suit against US in ICJ requesting that conviction/sentence be voided; ICJ
indicated that US should take all measures to ensure that he is not executed pending the
final decision in these proceedings; Both Breard and Paraguay sought relief from USSC
1. US appropriately hailed to ICJ because signed optional protocol to Treaty that
vested compulsory jdx in ICJ
ii. Issue: Treaty obligation (Supremacy Clause) vs. Statute (AEDPA)
iii. Note: Brings up the issues, but it resolves nothing since mooted when Breard executed
1. Secretary of State sent letter, but Governor disregarded and ordered execution
2. After case, state launched nation-wide teaching of consular notification
b. HOLDING: VC does NOT trump state and federal procedural default rules – Nothing in existing case
law requires court to make decision for VA Governor on execution
i. (1) State procedural rules govern implementation of treaty in that state
1. Procedural default rule: If you don’t ask for it below, you’re not going to get it above
a. Must be raised in state court
ii. (2) LATER-IN-TIME RULE: Subsequently enacted law overrides prior treaty!
1. Congress enacted the Antiterrorism and Effective Death Penalty Act - Breard’s relief
subject to this subsequently enacted rule
a. AEDPA – Habeas petitioner needs to raise claim in state court
2. Later statute renders inconsistent Treaty null  Congress passed procedural default
rule subsequent to Senate’s ratification of treaty
3. Rules goes BOTH ways:
a. Treaty may supercede a prior act of Congress, and an act of Congress may
supercede prior treaty
4. Also, no question about effects of statute
a. Assuming it’s const, statute is the law!
i. So LIT is just dispensing any argument to the contrary (just extra
push, maybe didn’t even need LIT rule)
c. STATUS OF VC in US: Court doesn’t necessarily clarify standing of VC with regards to US law, still up
in air
i. Even if VC self-executing and gives individual rights, still fails since later in time rule
ii. Congress has the power to pass laws that are contrary to any treaty at any time (even if it
results in a breach)
iii. POLICY CONSIDERATIONS
1. Rule can lead to a breach of treaty by US – Too much power to Congress?
a. But a breach might not have significant repercussions?
i. US would have to weigh how much they want to maintain the
efficacy the treaty
2. What does this mean of ultimate efficacy of treaties if they can be invalidated just
by statute?
3. What is a treaty worth in US? Are we reliable contractors?
a. UK would probably have done the same
d. In the end, though, would consular notification have mattered to the ultimate outcome anyways?
III.
IV.
i. Case really about countries opposed to the death penalty  Treaty based argument to
death penalty
e. NOTE: CIL would not have worked here either; Only thing that could have killed case was another
subsequent treaty
LAGRAND CASE (ICJ) (2001) (pg. 298)
a. Facts: Brothers learn of consular notification from fellow prisoners
i. Interesting: LaGrand brothers went to school here, didn’t occur to them that they were
aliens
b. HOLDING: Convention creates intl rights – Binding legal obligation not to execute  But US still
executes
i. First use of “review and reconsideration” (per request of Germany)
AVENA (ICJ) (2004) (pg. 301)
a. Facts: Similar facts to previous cases  Sued on behalf of 51 Mexican nationals (couldn’t execute all
that fast, Mexico finally hoping to get decision on merits)
b. HOLDING: Breach of treaty here, thus must make proper reparations
i. Don’t have to annul convictions, but should be REVIEWED AND RECONSIDERED TO SEE IF
VIOLATION CAUSED ACTUAL PREJUDICE IN THESE CASES = AVENA REMEDY
1. Same remedy that was requested in La Grand
c. Intl law here – Different from common law where presumptive remedies would be damages
i. PREFERRED REMEDY in intl law (for breach of intl law): Restoring conditions to what they
were prior to breach
1. Very different from damages
2. MX asking that all convictions be overturned was taking this too far however
a. Political, diplomatic repercussions of letting 51 murderers go free
b. MX feelings come from their deep aversion to the death penalty
i. Intl law limits death penalty (minors, pregnant women), but doesn’t
prohibit it (US, China)
d. Comparison to Miranda rights: Failure to properly administer Miranda rights means suspect goes
free
e. Remedies in international law
i. (1) Review and reconsideration (Avena)
1. PROBLEMATIC
a. R&R of whether there was actual prejudice = Would it have made a
difference had notification been given?
i. If no, then no prejudice due to failure of consular notification
b. Here, notion that it wouldn’t have made much of a difference in these cases
(confirmatory of convictions anyways)
c. ICJ trying to come up with remedy that was more digestable – Was it really
a win or loss?
2. How does R&R work PROCEDURALLY?
a. FINALITY RULE: Final US judgments are completed legal processes that do
attach with considerable legal finality
i. Extremely difficult to reopen case – Judge bound by law and law
includes finality
ii. Question: So what do you do if you do find prejudice? Remedy is
just R&R – If you do find prejudice, might end up disturbing legal
finality
iii. Answer: Not obvious if within judge’s power/capacity to do
something about it because bound by legal finality
b. RESULT: Not clear how workable R&R solution is since it doesn’t quite fit
with how US court system/judges work
3. POINT: R&R is TOUGH remedy to give EFFECT!!
ii. (2) Saying you won’t do it again
1. US was ready to do this in Avena as well
V.
MEDILLIN v. DRETKE (USSC) (2005) (pg. 303)
a. Facts: Texas case corollary to Avena – M was one of the 51 nationals; Admitted to rape and murder;
Realized MX consul was never notified 3 years after convictions
i. Circuit courts claim procedural default rule, regardless of pending ICJ ruling (1) M then
files writ of certiorari with USSC and USSC granted it (case at hand here)
1. Executive Branch submits brief that it is for the President to decide if US should
comply with ICJ decisions (no judicially enforceable right)
a. President Bush then issued memo asking state courts to comply with ICJ
ruling and give R&R
ii. (2) Relying on Bush’s memo and Avena, M filed new state habeas petition in TX court
b. HOLDING: USSC denies review since case is still pending in Texas court
VI.
MEDILLIN v. TEXAS (USSC) (2008) (handout)  Modern reading of doctrine of self-executing theories
a. Not question of whether VC is self-executing as a matter of intl law, rather question of whether US
court must recognize judgment of ICJ
b. HOLDING: IJC decisions NOT enforceable as a matter of domestic law  Neither Avena or
President’s memo constitutes directly enforceable federal law that preempts state limitations on
filing of successful habeas petitions
i. (1) PRESIDENT HAS OVERSTEPPED HIS BOUNDARIES  DOESN’T HAVE POWER TO
UNILATERALLY MAKE NON SELF-EXECUTING TREATY INTO A SELF-EXECUTING TREATY 
NEED CONGRESSIONAL LEGISLATION FOR STATE JUDGES TO COMPLY
1. Majority has shifted to presumption that all treaties are non self-executing
2. Self-executing treaties is a US concept
3. Doctrine of NON-SE treaties just says that treaty itself is NOT SE, but Congress can
make it executing
a. Congress has these powers under MO v. Holland (necessary and proper
power)
4. Executive/President does NOT have unilateral power either to make treaty SE
(memo at lowest ebb of Youngstown power - Acting against Congress)
ii. (2) STATE COURT/JUDGE NOT REQUIRED TO FOLLOW ICJ DECISION (& NON-SE VC TREATY)
1. Interpreting Optional Protocol of VC and to Article 94(2) of UN Charter
a. OP: Submitting to jdx of ICJ in event of dispute under VC as here  But all
this does is submit to jdx, not to actually following the judgment
i. OP alone is not enough according to USSC
b. UN Charter says that countries will “undertake to comply” with ICJ decision
and allows for enforcement by Security Council
i. USSC says this doesn’t constitute a requirement to give domestic
Textual Interpretation:
legal effect to ICJ decision
Always prefer specific to
ii. Also if ICJ decisions binding, there would be not need to appeal to
ambiguous in looking at
Security Council – Implies non-binding character of “undertaking to
treaty in different
comply”
languages
1. Remedy for non-compliance signals acceptability of noncompliance (US can refuse to comply, just have to bear
remedy)
a. BUT: US on Security Council and can veto (so MX
wouldn’t go to Security Council) – So query whether
US ever intended to really submit itself
2. USSC concedes that VC is intl obligation (thus binding on intl level), but state judge
does NOT have to give it effect domestically
c. DISSENT: Self-executing language is usually NOT in treaties – Not valid argument
i. Undertake to comply = Compremente a cumplir  Creating more of a legal obligation
ii. Foster case: Doctrine of non-SE treaty survived, even though case was reversed – Didn’t give
due regard to Spanish language text
d. CONCLUSION – Status of Treaties and ICJ judgments in US
i. Incoherency – YES TO INTL OBLIGATION, BUT NO TO SIMULTANEOUS DOMESTIC
OBLIGATION
ii. US withdrew from OP of VC after case, so no future cases on this issue
1. R&R only applied to prior/present cases
VII.
UNITED STATES v. PLO (SDNY) (1988) (pg. 307)
a. Facts
i. (Treaty) Headquarters Agreement: US signed agreement saying it wouldn’t impede on
transit of any persons invited on official UN business to headquarters in NY
1. PLO participated as official observer in UN
i. (Statute) Congress later enacted Anti-Terrorism Act (ATA) that conflicted with HA –
Outlawed all PLO related activity in US
1. General Assembly then passed resolution saying US was in violation of HA
2. US files suit for injunctive relief and to close PLO Mission
b. HOLDING: Even though later-in-time rule would say that ATA trumps, ATA (STATUTE) DOES NOT
SUPERCEDE HA (TREATY) HERE  Thus, US must refrain from impairing function of PLO mission)
i. ATA is INAPPLICABLE to PLO mission (thus, no conflict here to warrant later-in-time rule) 
When possible, courts avoid finding conflicts
1. ATA doesn’t mention HA; Doesn’t include transit  No intent to supercede treaty,
Later-in-time rule
according to judge’s interpretation of language  No express abrogation (Atik
only used in
thinks this is wrong)
resolving time
2. Long-standing practice under HA
CONFLICTS
3. Parties’ interpretation of HA
4. No congressional intent to supercede HA
ii. Congress can go back and add language now making it conflicting with HA, but vote would
have political implications and Congress may not be able to get it passed via vote
c. Two inconsistent norms = (1) TREATY and (2) STATUTE
i. Could have just limited HA treaty and said limited to “transit,” but instead judge limits
statute
d. NOTE: If it would have been two conflicting laws from Congress here, more SPECIFIC would trump
more GENERAL (when there is actually a conflict)
VIII.
Charming Betsy Doctrine
a. When in doubt, statute should be construed as CONSISTENT with US intl obligations  But only
when there is an AMBIGUITY
IX.
X.
i. So judges generally interpret text in ways consistent with intl obligations  But if Congress
clear, judges have to follow Congress
b. In PLO, judge said no conflict when Congress doesn’t expressly say there is
Anti-Balistic Missle Treaty
a. Conflict between Senate and Executive re: meaning of treaty language
i. Issue: Whether Executive has authority to change its interpretation of treaty to permit
development/deployment of technology
1. Reagan administration giving new and contrasting interpretation than before 
Treaty ban only applied to technologies that existed at time of ratification in 1972 –
Thus future technologies were NOT so limited by treaty
a. Query: Difference in changing treaty obligation vs. changing treaty
interpretation of treaty obligation
2. Senate claiming that President’s interpretation unconst
ii. Multiplicity of treaty interpretation – Treaty interpretation not static
1. Potential inconsistencies depending on CONTEXT
2. May be text, but USSC may interpret differently at domestic level
3. One president’s interpretation may not bind another – can interpret own way
iii. But no law governing this issue – Courts would not resolve either since political question
b. BIDEN PROPOSAL: Since there needs to be consent by Senate for treaty ratification, dominating
interpretation is the common one shared by President and Congress
i. Thus President cannot unilaterally change without giving Congress a chance to renew
consent
Two tracks for treaties
a. (1) Article 2: President established and Senate approved (advise and consent – 2/3 of present
Senate)
b. (2) Executive Agreements: Only President with no Senate (Youngstown)
i. Example: Memorandums of understanding where troops sent abroad accompanied with
some kind of treaty with host country
INTL CUSTOM IN U.S. COURTS
I.
GARCIA-MIR v. MEESE (11th Cir) (1986) (pg. 311)
a. Facts: Cuban citizens detained from boatlift operation
i. Court had to look CIL to determine whether AG can unilaterally detain aliens indefinitely (no
controlling statute here)
1. Dealing with “executive” act of AG
ii. ISSUE: May President violate int law?
b. HOLDING: Intl law does NOT control here – Executive acts thus valid here
i. President has power and can delegate to departments
1. Not 100% const bound to follow CIL, so executive order can control above intl law
ii. RULE: Public intl law ONLY controlling where NO TREATY and NO CONTROLLING
EXECUTIVE, LEGISLATIVE, JUDICIAL decision (from Paquete Habana)
1. No statute at issue here, but controlling executive act (AG)
a. President has const power to delegate to authorities (AG here) – But how
far down do you go? Question left open
i. Not controlling: Admirals arresting fishing smack (Paquete Habana)
ii. Don’t know: CIA agent?
iii. Controlling: AG, President
II.
b. President can decide to abrogate treaty and direct US officers to act
inconsistently with intl law
2. NOTE: Seizure of fishing boats in Paquete Habana were not based on executive acts
since admiral acted outside his authority – Thus doesn’t say that cabinet officers
cannot constitute controlling executive acts
iii. Result: Detainees can remain in custody
Note: Intl law’s role in Const interpretation
a. Lawrence v. Texas – Changes in legal treatment of homosexuality  Human rights law persuasive as
how EPC should be interpreted (but some justices totally against this)
b. But pervasive view is that US judges should NOT look to foreign law to interpret Const
A.T.S. LITIGATION
I.
§1350: Alien Tort Statute
a. District courts shall have ORIGINAL JDX of any civil action by an ALIEN for a TORT only committed
in (1) VIOLATION OF LAWS OF NATIONS or (2) TREATY of US
i. Vests JDX on its own
ii. Why do we need ATS if intl law is part of federal law under Paquete Habana (for fed Q JDX)?
1. Looking at it from tort’s perspective, rather than as violation of intl law
II.
FILARTIGA v. PENA-IRALA (2nd Cir) (1980) (pg. 328)
a. Facts: Normal civil litigation between two aliens – Son of political dissident kidnapped and tortured
to death because of political views; D living in US and served in NY (PJ)
i. But do they have SMJ? No diversity JDX – Can’t be between both two aliens  Thus need
ATS for JDX in fed courts
1. Remember: This issue is different from Fed Q JDX
ii. DC: Dismissed complaint – When state tortures own national, does NOT violate “law of
nations”  Thus ATS terms are not met, so case dismissed on JDX grounds
1. Conventional understanding of intl law re: torture until WWII (Holocaust)
b. HOLDING: Torture = Violation of law of nations (CIL) (almost makes categorical rule)  Thus can
raise ATS claim b/c falls under ATS and courts have JDX
i. Aggrieved party here can be national of acting state
1. Reasons:
a. Post-WWII understanding that freedoms of UN Charter also applies to those
Issue: SMJ
within your own state
b. HR includes prohibition on torture
c. Universal renunciation of torture – Nobody standing up to torture as matter
of CIL
i. But J. Coffman does understand that complete eradication of
torture is impossible, but should still be on books
ii. Pena loses + huge judgment, but just left US and never paid penny
c. POINT: Cases between two aliens ARE our business
III.
TEL-OREN v. LIBYAN ARAB REPUBLIC (DC Cir) (1984) (pg. 330)
a. Facts: Father of deceased suing Libya and PLO after attack in Israel
i. DC: Dismissed for lack of JDX
b. HOLDING: Affirms dismissal but focuses more on c/a  ATS is SINGLE PURPOSE: JDX only (need
separate STATUTE for c/a)
i. (1) Separation of Powers re: Congress  But J. Bork’s argument here not widely accepted
however
Issue: C/A
(statute)
1. Plaintiffs need separate c/a  Just because violation of intl law doesn’t necessarily
mean you can sue in US court
2. Don’t want courts making up c/a’s
ii. (2) ATS is for TORTS ONLY + Tort must be VIOLATION of law of nations
1. So ordinary battery would not satisfy statute (Filartiga dealt with torture, not just
battery)
iii. (3) If ATS was read as dual purpose (c/a + JDX), that would mean any tortuous violation of
intl law could be brought in US court  Not good policy
Sosa resolves DUAL
1. What was Congress’s intent? Text alone doesn’t give answer – Cleary grants JDX but
PURPOSE question in
what about c/a?
Tel-Oren
a. After case, Congress passed TVPA that created c/a for torture victims – Now
any torture victim can sue in US courts
IV.
SOSA v. ALVAREZ-MACHAIN (USSC) (2004) (pg. 333) – First time in SC
a. Facts: US officials abducted doctor to US to be tried for murder of DEA agent
b. HOLDIN G:
i. (1) ATS is ONLY grant of JDX (single purpose), still need to look elsewhere for c/a
1. Resolves split between 9th and DC Circuit
a. Sosa (9th Cir) = Dual purpose
b. Tel-Oren (DC Cir) = Single purpose only (need statute for c/a)
c. Sosa (USSC) = ATS is merely JDX only
ii. (2) Upholds Tel-Oren (Bork) – But more liberal view  Other sources of c/a instead of just
Congress/statute like Bork says
1. Even after Erie, federal common law still exists in intl law
a. Historically, three things qualified for c/a: Offenses against ambassadors,
prize captures and piracy, violations of safe conduct
2. Thus: C/A COULD NOW COME FROM STATUTE OR FEDERAL COMMON LAW
iii. (3) RULE: Intl norm must be (1) sufficiently specific and (2) generally accepted to be
enforced (like 3 historic norms existing at statute enactment)
1. Not all CIL is going to be actionable
a. Doctor’s claim here was not enough to satisfy this requirement – Thus
violated no norm of CIL so well-defined to create federal remedy
2. Filartiga (torture/killing) would have probably passed this test
c. Can US hear claim based on Paraguay tort law? YES
i. Fact that tort was in Paraguay and governing law is Paraguay law is NOT impediment (like CA
can apply IL law)
INTL LAW OF JURISDICTION
I.
II.
Introduction
a. JDX deals with legal appropriateness, not necessarily effectiveness
b. Remember: States do enjoy JDX within their own territories
i. And can exercise JDX over nations even if they leave territory (e.g. have to pay US taxes
wherever you go)
Types of JDX
a. (1) Prescriptive: Ability to prescribe rules; Regulate; Make laws (pg. 377)
i. (a) Territoriality: JDX if act occurs within state
ii. (b Effects: Form of territorial JDX b/c looking at effects in territory
iii. (c) Nationality: JDX over national anywhere
iv. (d) Protective Principle: Where foreigner commits act outside of state that threatens
security of state
1. Examples: 9/11 terrorists plotting outside US, drugs, money counterfeits
v. (e) Passive Personality: Bootstrapping nationality of victim to assert JDX
1. Not frequent, more controversial, usually criminal
vi. (f) Universal: JDX over heinous, widely condemned acts where no other JDX available
1. Major category – Grown since HR revolution
a. Example: Piracy, war crimes, genocide, slavery, torture
b. (2) Adjudicative: Exercising its judicial functions
i. How far, to what acts, to what person, may a state claim it’s JDX (similar to Civ Pro)
c. (3) Enforcement: Undertaking to enforce its laws
i. How far state can reach out to enforce and give effect to its judgments
PRESCRIPTIVE: EFFECTS
SUMMARY
1. LOTUS: Broadest  Just need effects
2. ALCOA: Narrows Lotus  Need intent + effect to exercise JDX
3. TIMBERLANE: Narrows Alcoa’s reach of JDX  Potentially need more than just intent + effect
 Thus, area of permissible JDX POTENTIALLY smaller – Even if you have intent + effect, there MIGHT
be other factors telling you to decline JDX
4. HARTFORD: Broadens Timberlane’s reach of JDX  Area of permissible JDX is POTENTIALLY larger
 Only decline JDX if there is a “true conflict”
 All this is suggested only! Court doesn’t ultimately address since no conflict and thus allowed to
exercise JDX
 Use more as arguing point, since no ultimate conclusion
NOTE: If there is conflict, could still use Timberlane and consider it as one of the factors leaning towards declining JDX
I.
FRANCE v. TURKEY (LOTUS) (PCIJ) (1927) (pg. 356)
a. Facts: French boat (Lotus) collided with Turkish ship from gross negligence of French Captain
Demons; D was arrested in Turkish territory; Turkey asserted JDX over French national found in
Turkey ; Thus arrest/detention valid since was within Turkey’s territorial JDX
i. Issue: Prescriptive JDX – Can Turkey criminalize something done by alien outside of Turkey?
1. Turkey would have had JDX if D was Turkish, even if acts outside Turkey
b. HOLDING: Turkey has CONCURRENT JDX here  Turkey’s prescriptive JDX is NOT limited to its
territory
i. Presumption of JDX – Exercise of JDX admissible unless there is an intl norm prohibiting it
(intl law already regulating)
c. Two ways to decide where accident occurred:
i. (1) High seas: No territory; Commons; Intl waters
1. Less problematic for Turkey – Territorial notions of JDX don’t attach
ii. (2) Maritime fiction – Ship amalgamated to territory whose flag it flies
1. Leads to CONCURRENT JDX  Both France and Turkey could have tried D; Fact that
France has JDX doesn’t exclude possibility that Turkey could also have exercised JDX
a. France could prosecute D since he was on French ship/territory when
EFFECTS TEST for JDX:
accident occurred (where negligence originated)
Where effects felt
b. Turkey could also prosecute him since victims were on Turkish ship/territory
when results felt (effects of negligence)
i. EFFECTS TEST: Effects of law happened in Turkey = Victims were in
Turkey (via maritime fiction)
d. TODAY: Modern Treaty of High Seas states that persons ONLY liable to flagship vessel (i.e. D would
only have been liable to France)
i. Thus, case still stands for proposition that concurrent JDX is allowed (unless waived via
treaty)
II.
AMERICAN BANANA (USSC) (1909) (pg. 363)
a. Facts: Anti-trust law – Section 1 of Sherman Act
i. Congress includes “every” K, combination, or conspiracy to restrict trade with foreign
nations
1. Did Congress mean “every” in US, or “every” made anywhere by anyone?
b. HOLDING: What D did in Panama or Costa Rica NOT within scope of statute (happened outside
territory)
i. RULE: Determined wholly by law of country where act is committed (thus, different from
Lotus)
1. Exclusive rule: Absolute territorial JDX
a. Acts took place in Panama, thus not US’s business
ii. Statutory interpretation: Congress didn’t mean to criminalize K that was consummated in
Panama (not intended to reach outside territory)
III.
US v. ALUMINUM CO (ALCOA) (2nd Cir) (1945) (pg. 364)
a. Facts: Again, matter of statutory interpretation here since USSC could not get quorum (members
recused because had shares in Alcoa)  Thus making USSC level precedent
i. Here 2nd circuit acting as USSC
b. HOLDING: Permits reach statute’s reach OUTSIDE of US (more aware of intl law)
i. CONCURRENT JDX ALLOWED HERE:  Only applies to Anti-Trust/Sherman Act
1. Limitations:
ALCOA TEST for JDX:
a. (1) Intended to affect US commerce (exports/impots)
Intent + Effects
b. (2) Actual effects on US commerce
ii. Invention of court, not statute  Tighter restraints than pure EFFECTS TEST from Lotus
(more conservative – need intent too)
c. Remember: Congress always has last say and can correct court if it wants regarding legislation
IV.
TIMBERLANE LUMBER CO. v. B of A (9th Cir) (1976) (pg. 366)
a. Facts: T accuses B of conspiring to put T out of business since B finances much of lumber industry in
Honduras and wanted monopoly
i. Fed Anti-Trust claim = Fed Q claim, not diversity
b. HOLDING: Dismissal not proper on JDX since no conflict of laws
i. (1) Effects test alone not sufficient here – SHOULD TAKE OTHER THINGS INTO
CONSIDERATION (pg. 367 factors)
1. T asserted Alcoa Test: Intent + Actual effects  Court says NOT ENOUGH since JDX
question more complex
V.
a. Extent of Alcoa is too broad in some circumstances – Need to consider more
factors
i. There might be a point where concurrent JDX is n longer
appropriate
ii. Area in which extraterritorial JDX is valid is actually smaller than
Alcoa assumes
2. RULE: Need MORE than just intent + effect on US – Court may still have to decline
JDX even if these things are present
ii. (2) Jurisdictional Comity Test (later ridiculed by others like Hartford)
1. Need to take into account what other countries feel is appropriate JDX
HARTFORD FIRE INS. CO. v. CA (USSC) (1993) (pg. 368)
a. Facts: London insurers force conditions on US companies – Won’t reinsure if US companies don’t
comply; Has practical effect of changing primary US policies since not making changes would mean
US insurers’ risks would not be covered
i. Under Alcoa: Brits liable
ii. Under Timberlane: Not as clear – More nuanced approach based on intl comity
b. HOLDING: JDX VALID HERE – Sufficient that JDX does not conflict with British law
i. (1) Accepts Alcoa effects test and also cuts back Timberlane’s intl comity test to only “true
conflicts”
1. No apparent Congressional intent for additional tests suggested in Timberlane – But
doesn’t ultimately decide if Timberlane valid or not
2. Case easy decision given Alcoa and no true conflict in laws
ii. (2) True conflict
1. Narrow definition of CONFLICT = Only when one law demands what the other law
prohibits
a. Not the case here – Not sanctioning acts required by British law
2. Doesn’t ultimately decide question since no conflict here – But alludes that area in
which court can’t exercise JDX is smaller than what Timberlane suggests
a. If no conflict, can still exercise JDX
c. DISSENT: Kind of applies Timberlane (can use to argue other side)
i. Cites Restatement 4 – Seems to be agreeing with 9th Circuit
PRESCRIPTIVE: UNIVERSAL
I.
ATTORNEY-GENERAL v. EICHMANN (ILR) (1962) (pg. 380)
a. Facts: Israel wanted to put E on trial for war crimes in WWII, but Israel didn’t exist until 1948
b. HOLDING: Israel can try and has UNIVERSAL JDX here  Acting as guardian of intl law/agent for
enforcement
i. Intl character of “crimes against humanity”
1. Here, interest similar to piracy (traditional example) in asserting JDX
a. But how many countries were really concerned about piracy? Perhaps
overstating case for piracy
b. Also, issue of mobility – HR violators may not be able to move about as
pirates do
c. THREE SCHOOLS OF THOUGHT re: UNIVERSAL JDX: (pg. 381)
i. (1) Narrow: Only applies to piracy
ii. (2) In-between: Auxiliary means when no territorial or nationality principles can apply 
Specific species of concurrent JDX
1. State must first offer extradition to territory where offenses committed, then can
prosecute
a. Respects primacy of territoriality
2. Germany doesn’t need resort universal JDX  Territorial JDX
a. But here, Germany didn’t want him, witnesses no longer in Germany (forum
non conveniens), and trial may have been biased for national sympathy
i. Many political reasons to let Israel try him
3. Resort to universal JDX only when one with superior JDX doesn’t want to
a. Here, legitimate argument to refuse territorial JDX due to bias and injustice
iii. (3) Broad: Applies to all such criminal acts
PRESCRIPTIVE: STATES
I.
Helms-Burton Act: US v. CUBA
a. After Castro’s revolution, he confiscated property from rich Cuban nationals, whose heirs were now
currently US citizens (but not back then); US feared Cuba would start selling land expropriated from
Americans to cure financial criss
i. US passes act to create c/a for US nationals to sue foreign companies transacting business in
Cuba involving their expropriated assets
1. Allowed Americans to sue those who “traffic” in property confiscated by Cuban govt
after 1/1/59
ii. Property under HB Act was from Cuban nationals – Just have to be citizen today
1. Act might have been stronger if dealing with property of own nationals, rather than
Cuban nationals
2. Could argue Effects Doctrine for JDX – Cubans came to US and are now unhappy
about it (effects thus in US), but have to make leap from Cuban grandparent to US
national grandchild
iii. Most of the upset defendants were Canadian and European corporations since trafficking
included commercial activity
b. OPINION of INTER-AM. JURIDICAL COMMITTEE (1996) (pg. 391)
i. HOLDING: Legislation does NOT conform to intl law – No JDX here
ADJUDICATIVE/ENFORCEMENT
I.
ATTORNEY GENERAL OF ISRAEL V. EICHMANN II (ILR) (1961) (pg. 400)
a. Facts: Israel agents kidnapped E in Argentina
i. Security Council Resolution: Requested that Israel make appropriate reparations to
Argentina
1. The two countries thus reached agreement after kidnapping from Argentina
ii. Court didn’t contest that kidnapping violates intl law – Illegal since against Argentina’s police
powers
b. HOLDING: NO consequence of that illegality that deprives Israeli court of JDX  Doesn’t divest
court of JDX here
i. Offense against Argentina, not Eichmann = Violation of sovereignty of Argentina, not
personal right of Eichmann
1. RULE: ONLY THE STATE CAN RAISE SUCH A CLAIM
a. Here, Argentina waived claim by resolution between I & A following SC
resolution
2. Debate is at intl level – Between concerned countries alone
II.
III.
ii. Cites to American precedent with long history of NOT asking how you got custody (e.g.
bounty hunters)
UNITED STATES V. ALVAREZ-MACHAIN (USSC) (1992) (pg. 404)
a. Facts: US officials abducted doctor to US to be tried for murder of DEA agent; A claimed US had no
JDX because extradition treaty; Abducted in Mexico and brought to trial in Texas; A argued that
presence of extradition treaty changes legal landscape and that kidnapping in Mexico was treaty
violation
i. Ker Doctrine: Doesn’t matter how you were brought to country to be tried
ii. Rauscher Doctrine: But you get here under particular portion of extradition treaty, you can
get returned if that portion is violated (doctrine of specialty)
1. Doctrine of specialty: Crime you specify in extradition request has to CORRESPOND
to crimes actually charged
a. Not really part of CIL, usually arises in treaties
b. Reasons: Death Penalty – Many countries will not render to US unless
charged crime is (1) not amenable to death penalty or (2) prosecution
undertakes to not do death penalty
b. HOLDING: Treaty doesn’t prohibit abduction  Thus Ker rule applies  Forcible abduction does
NOT prohibit US trial
i. Rehnquist found nothing in treaty saying forcible abductions were prohibited
1. Admits it violates CIL, but doesn’t violate treaty, so no remedy (just claim for
Mexico, not A)
a. So even if treaty was violated, it’s Mexico’s prerogative to complain
b. Not saying that you can kidnap, just saying that doesn’t mean you let them
go
2. JDX was a separate issue than diplomacy – Matter between US and Mexico
c. DISSENT: Majority fails to differentiate between conduct of private citizens and conduct authorized
by Executive branch
i. Treaty intended as comprehensive and exclusive rules re: extradition
1. But Atik thinks extradition treaty not quite the exclusive way of rendition as dissent
states  States can and do render outside of extradition treaties
PROSECUTOR V. NIKOLIC (ICTY) (2003) (pg. 413)
a. Facts: N prosecuted for crimes in former Yugoslavia
b. HOLDING: Kidnapping of accused did NOT divest JDX from court  For universally condemned
offenses, JDX should not be set aside because state sovereignty was violated (especially if that state
has not complained)
i. One strand: Not about how he got to Israel, but about Israel’s power to criminalize
(universal JDX)
ii. Second strand: Doesn’t matter how you get a hold of somebody
1. Less insistent on JDX niceties when basis for prescriptive JDX is universal
*BASIS FOR PRESCRIPTIVE JDX & COMPLIANCE WITH CIL IN OBTAINING JDX*
STRICT COMPLIANCE – Extradition or
voluntary rendition
UNIVERSAL CRIMES – Offending
everyone (crimes against
humanity/war crimes)
Non-controversial
(following rules)
ORDINARY CRIMES – Offending only
certain states
Non-controversial
(following rules)
NON-STRICT COMPLIANCE –
Kidnapping, etc. (irregular, violation
of CIL)
EICHMANN: Kidnapping by single
state
NIKOLIC: Kidnapping to send to an
international tribunal
ALVAREZ-MACHAIN
c. Case states that we worry less about cases of universal crimes than ordinary crimes (offends
universally)
i. More willing to indulge irregularity with universal crimes
1. Danger of not apprehending > Injury to state
ii. Exam Question: Follow Nikolic, could ICTY kidnap someone?
1. Fact that it’s the court itself doing the kidnapping, is that going too far? Is that nonstrict, irregular?
2. Before, it was federal agents bringing them to court, but can courts do it
themselves?
d. Two principles from state practice:
i. (1) Universally condemned offenses – Supports not setting aside JDX
ii. (2) Absence of complaint – Makes it easier for court to assert JDX
FOREIGN SOVEREIGN IMMUNITY
I.
Doctrine of FSI
a. FSI ≠ SI
i. SI: Can’t sue king in King’s Court (intrinsic sovereignty)
1. Can’t sue state unless it waives, consents (or legislature relaxes SI with statutes)
ii. FSI: Equal dignity of the states – No king shall bow before another
b. Would otherwise create inter-branch conflict political branch and judiciary
i. If no FSI, courts would routinely ask political branches (State Dept.) for advice instead, but
this would put them in difficult position between citizens and diplomatic relations – States
want out of this
1. Tate Letter (1952) (pg. 419): Letter from State Dept. not wanting to make
discretionary decisions anymore
a. Declared that State Dept. will adopt “restrictive theory of SI”  FSI only
when foreign sovereign is acting like a sovereign
i. “Public” acts (FSI attaches) versus “private/commercial” acts (no
FSI)
1. Example: Warship vs. merchant ship
2. Example: Can sue Air France flying to LAX – Running
commercial airline is NOT a sovereign act
b. Dividing the acts: When state acts as sovereign, don’t ask State Dept. for
advice, just use FSI
II.
III.
IV.
i. Judge thus has to figure out if public or private instead of asking
State Dept.
ii. If this factor was controlling, more difficult to assert FSI as being universal
1. Some states don’t have internal structure like US – In UK, Parliament is everything
THE SCHOONER EXCHANGE (USSC) (1812) (pg. 417)  No longer used, just historical (see FSIA below)
a. Facts: US citizens owned ship captured by French Navy and converted to warship; In rem action
after French had to dock ship in Philadelphia due to inclement whether
i. Rule of Safe Harbor: CIL right to seek safe harbor during inclement weather
b. HOLDING: National warships are EXEMPT from JDX of foreign country –SOVEREIGN IMMUNITY FOR
WARSHIPS
i. Established FSI doctrine in the US!  Now implied in intl law
1. Availability of doctrine used to depend on Executive branch – Case here changes this
2. Restricted to fed courts though – Although more countries adopted case
a. No intl law rule that compels FSI – Still states that have not adopted this
doctrine (but safe habor still allowed)
3. Looks like federal common law here that would survive Erie too
FSIA – 28 USC §1602-1605 (1976) (pg. 421)
a. Replaces/terminates federal judge made common law (displaces Schooner above)  All statutory
now
b. Both prohibits and provides JDX
i. Generally prohibits against foreign sovereigns
ii. But if it fall within exceptions, statute acts as JDX basis
c. RULE: No JDX against foreign sovereigns unless found in the FSIA  Sole basis for JDX now
i. Thus do NOT use Schooner except as historical footnote
d. §1605(a) – EXCEPTIONS (pg. 422)
i. (1) State waived immunity explicitly or by implication*
1. Explicitly: Bank loans to country and loan agreement has waiver
2. Implicitly: Paying settlements?
ii. (2) Commercial activity*
1. (a) Action based on commercial activity in US by foreign state; or
2. (b) Act in US connected with foreign state’s commercial activity elsewhere; or
3. (c) Act outside US connected with foreign state’s commercial activity elsewhere that
causes a direct effect in US
iii. (3) Property taken as violation of intl law and property in US in connection with commercial
activity
iv. (4) Property in US in issue
v. (5) Personal injury, death or damage, loss to property
e. §1605(a)(7) – Eliminates FSI for terrorism or sponsor of terrorism, but only subject to countries
listed on the State Dept.’s sponsor list
f. §1609 – Separate immunity for attachment
i. Can’t attach foreign state’s property in US unless you get an exception – So judgment can
thus be unenforceable
REPUBLIC OF ARGENTINA v. WELTOVER (USSC) (1992) (pg. 424)
a. Facts: Argentina, lacking dollar reserves, issued “bonods” that still couldn’t be repaid when matured
i. Holders of bonods suing Argentina in US district court and Argentina claims FSI
b. HOLDING: When foreign govt acts, NOT as regulator of market, but as a PRIVATE PLAYER within it =
Actions fall within “commercial activity” exception of FSIA
V.
VI.
i. Private player by issuing bonds, thus vulnerable to JDX via FSIA exception
1. Dealing with third prong – Direct effect in US (not others since activity not in US)
a. Rule of thumb: Can’t just find an effect merely by nationality of plaintiff
i. Here, sufficient direct effect outside just mere nationality
ii. Statute itself tells how to determine if “commercial activity” (without explicit definition)
1. Reference to NATURE rather than purpose of conduct
c. Hypo: State buys boots for army. What result?
i. YES commercial activity under Weltover – Anybody can buy boots, even though army is for
public act
ii. Thus, result of statute here seems crazy
1. Atik thinks SC got it wrong here  Market itself treats govt bonds different than
corporate bonds (Wall Street even says the two are different)
SAUDI ARABIA v. NELSON (USSC) (1993) (pg. 427)
a. Facts: US citizen recruited to work in hospitals in S; Gave numerous notice of hospital defects; Later
kidnapped and tortured
i. Third prong of commercial activity exception at issue here too
1. Is running hospital commercial or govt?
b. HOLDING (Souter): NO JDX here due to sovereign immunity
i. Powers allegedly abused = Police and penal officers = Sovereign
1. Views action as arising out of wrongful arrest and torture by cops (doesn’t look past
badge and concludes it was police action)
2. Isolating action upon which is based  It’s cops (even if misbehaving), so it’s
sovereign  Sovereign immunity
c. CONCURRENCE (White/Blackmun): More totalized view of transaction
i. But still concludes that NOT a commercial activity in US  Mere nationality not enough to
satisfy 3rd prong of statute
ANTARES AIRCRAFT v. NIGERIA (2nd Cir) (1993) (pg. 430)
a. Facts: Antares sued NAA and FRN to recover damages from failed negotiations in trying to get back
aircraft that it leased to defaulting airline
i. Again looking at 3rd prong of §1605(a)(2)
b. HOLDING: NO direct effect here: (1) All act occurred in Nigeria (NY bank not legally significant) and
(2) Financial loss of American firm alone not enough for FSIA exception
i. Running airport NOT a commercial activity and detention of aircraft was NOT sufficient to
have direct effect in US
c. Difference between Antares and Weltover
i. Weltover: Bonods themselves calling for payment, providing extra “effect” to allow suit/jdx
(something else beyond mere occurrence that plaintiffs were American) – Thus could sue
there and not here
ii. Antares: Here, plaintiffs were just American – Not legally significant enough
1. Funds here originated in US but destination was foreign – Money could have came
from anywhere without affecting the transaction
HUMAN RIGHTS
I.
Introduction
a. Different from civil and const rights (peculiarly American)
i. Rather, intl law being a source of rights that everyone has with respect to their states
II.
III.
IV.
V.
VI.
VII.
VIII.
1. Distinguishing between human rights violations and states just exercising police
powers
b. There may be things illegal in US that still do not amount to HR violations (like with torture)
c. HR may require the transformation of certain countries, especially those very traditional
ECHR: Provides remedies and compulsory JDX
a. Separate from the EU
i. Parties to ECHR ≠ EU (although all EU members are members to ECHR)
1. Some parties to ECHR are not part of EU
REPUBLIC of IRELAND v. UK (ECHR) (1978) (pg. 457)
a. Facts: I claims that detention and anti-terrorism techniques (sleep deprivation, food/drink
deprivation, black bags over head, stress positions, continuous loud noise) used by UK violate Article
3 of ECHR
i. Article 3: Torture AND other degrading treatment/punishment
b. HOLDING: No suffering here of the particular intensity/cruelty implied by “torture”
i. RULE: Ill-treatment must attain a minimum level or severity to fall with scope of Article 3
ii. Yes, there is a claim and violation, but torture line is MORE than this
1. 5 techniques in combo amounted to inhuman and degrading treatment, but were
not “torture”
PUBLIC COMMITTEE AGAINST TORTURE v. ISRAEL (ILM) (1999) (pg. 458)
a. Facts: NGO sues Israel over interrogation procedures of suspected Palestinian terrorists
b. HOLDING: Actions go beyond what is permitted as a matter of law – Need statute if you want it to
be allowed
i. Finding unlawfulness of torture
ii. Necessity defense NOT justified here – Can’t justify use of defense based on broad policy of
the “ticking timebomb”
Universal Declaration of Human Rights (GA Res) (1948) (pg. 448)
a. GA Resolution so not binding – Thus only have obligations to the extent they correspond to CIL
i. Just aspiration declaration
International Covenant on Civil and Political Rights (UN) (1976) (pg. 449)
a. Article 7: Prohibition on torture (and cruel, inhuman, degrading treatment)
UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1984) (pg. 450)
a. Finally have a large text regarding torture, instead of just a few sentences in other docs
b. Defines torture and supplemental requirements
i. Must criminalize torture in jurisdiction
c. Article 2: No exceptional circumstance may be invoked as justification
i. Thus, ticking time bomb theory probably wouldn’t work here
d. Article 20: Committee investigation to which states can submit themselves
e. Article 7: Treaty obligation to extradite (either try or extradite)
i. Treaty convention serves as “special” extradition vehicle/mechanism
f. Article 3: Refusing extradition
i. This might lead to conflict with existing extradition treaties
CEDAW (UN) (1979) (pg. 505)
a. CEDAW more intrusive in other countries than in US
b. Feminist argument: These things don’t apply to male lawmakers
i. No convention against domestic violence, even though this is much more common than
torture
IX.
ii. Less of a universal understanding of problems associated with gender discrimination than
for torture (b/c torture applies to men too)
iii. Implicates problems/differences between public and private sphere
c. Article 5: Modifying social and cultural patterns to achieve elimination of prejudices
i. But hard to find, until recently, who were not ruled by gender-specific norms
d. Article 16: Right to enter into marriage
i. (e) – reproductive freedom
Female Genital Mutilation
a. Challenge: There are societies where it is elicited and practiced and actually endorsed by women
themselves who have undergone practice
i. Hard for the West to understand
ii. Cultural relativist debate
b. Cultural practices of women in other societies – Do we ignore positions of these women as adoption
of their disjointed view of world based on where they live? Or do we accept it as their personal
choice?
c. IN RE FAUZIYA KASINGA (INS) (1996) (pg. 511)
i. Facts: Asylum applicant wanted protection from having to undergo FGM
ii. HOLDING: FGM can be “persecution” without passing the INS’s proposed “shocks the
conscience” test
1. Persecution on account of her statute as a member of defined social group
2. No right to migrate (every country as sovereign discretion ) – But there is an
obligation to grant asylum to those facing persecution
a. But this is construed narrowly
INTL HUMANITARIAN LAW
I.
II.
Introduction
a. Also known as “Geneva law” since principles treaties are Geneva conventions
b. Branch of law of war, but does not address lawfulness of war per se (e.g. self-defense, acts of
aggression, etc.)
i. Rather, limits the means in which war is conducted
c. “Armed conflict” can have expansive definition – Law of occupation falls under IHL even though no
guns being fired and not at “war”
d. *Different from intl HR law, which can be suspended in times of emergency
i. HR is like a straight line (with some exceptions in emergencies, etc.)
ii. IHL is intermittent and only comes up in times of war (hard to find outside context of armed
conflict)
e. Enforcement usually has been placed on warring parties themselves
NUCLEAR WEAPONS CASE (ICJ) (1996) (pg. 540)
a. Facts: Legality of the use of nuclear weapons
i. ICJ giving advisory opinion responding to requests by GA
1. But like political question doctrine, tension between ICJ statute allowing them to
give opinions and legal limitations of such opinions
a. If ICJ impinges on peace and security matters, they are intruding on SC
territory (US has argued this before)
b. HOLDING:
i. LEGAL ARGUMENTS:
1. (1) Prohibitions on genocide
a. Nuclear weapons don’t violate genocide on its face – Have to look on caseby-case basis
i. Inferred from indiscriminate nature of nukes
b. Nukes likely to kill large amounts of people but genocide requires MORE
than this  Need specific intent
i. Example: Hiroshima probably not considered act of genocide b/c of
absence of specific intent
c. This not to say that nukes can be used for genocide (as-applied)
2. (2) Lack of authorization doesn’t necessarily mean prohibition
a. Similar to Lotus – France has to point to something that limits Turkey’s
exercise
3. (3) Treaties that have outlawed use of poisoned weapons in warfare
a. Hard law prohibition here if can characterize nukes as poisoned weapons 
But court says not poisoned weapons ≠ nukes
i. PW target body/nervous system, but nukes just cause you to
evaporate
ii. Radiation is an after-thought, not viewed as radiation bomb, which
would have had more correlation to PW
4. (4) Increase in nuke negotiations
a. Lot of law/treaties about nukes, not just CIL (inspection regimes,
disarmament obligations, non-proliferation treaties, limits to quantity)
b. But these are just foreshadowing on prohibitions, not actual prohibition
c. And these negotiations evidence legality of nukes, just putting limits on
them
d. Two problems with progressive elimination theory here:
i. (1) Elimination in the future is NOT elimination today – not at that
point yet
1. Can be long process over period of time (like slavery)
ii. (2) Affirms possibility of elimination in the future implicitly affirms
its possibility of permissibility in the present  Concession of
current permissibility
5. (5) Non-utilization of nukes
a. Idea that CIL grows out of state practice –Non-use by those possessing it is a
norm against actual use
b. But this is problematic when asserting the non-use of something
c. Court states that there hasn’t been a comparable situation to show non-use
of nukes as norm  Refusing to say that non-utilization implies prohibitions
6. (6) General principle of IHL and armed conflict
a. Idea of prevention of unnecessary suffering – Can’t target civilians
b. But court states that this doesn’t mean civilians cannot be killed (“collateral
damage”)  Can’t target them, but can kill them if targeting something else
i. Thus, probably can’t do another Hiroshima, Nagasaki again
c. Okay as long as can show not indiscriminate killing
ii. Considerations above show that there is no real prohibition
c.
d.
e.
f.
g.
1. But what did court fail to do? CUMMULATE THE ARGUMENTS
a. Arguments may not be persuasive independently, but can’t they be
persuasive cumulatively?
b. Not saying that it would have made a difference, but should the court have
at least addressed this?
PARAGRAPHS 96 & 97 – Most damaging part of opinion
i. Paragraph 96: State’s fundamental right to survival, self-defense
1. Court seems to be making up a right to “survival”
a. Right to self-defense: States have this under Charter
i. But still limited under IHL
b. Right to survival: Seems to go way beyond what doctrine of self-defense
suggest (there are states that have ceased to exist and have been
dismembered)
i. Suggests that states are allowed to use nukes when backs are
against the wall
2. Doesn’t this suggest that IHL ceases to exist when state’s survival threatened?
a. Can then use poisons, nukes, etc. – Anything goes when survival at stake?
3. Court presents argument as if it normal common understanding, when in fact it is
novel
4. Seems to be giving another basis for using nukes
ii. Paragraph 97: Cannot reach definitive conclusion as to the legality or illegality of nuclear
weapons use by state in extreme circumstances of self-defense
1. Doesn’t decide one way or another  But political decision, if not legal decision
2. But court does still encourage disarmament and non-proliferation
Decision is 7-7: President cast double vote
i. Non-liquet plurality – Since conclusion was no definite answers, there were dissents on both
sides (in favor and against legality of nukes)
DISSENT (Schwebel): Not per se unlawful – More willing to entertain its possibility
i. Desert Strom: Threat of nuclear retaliation stopped use of biological attack  Thus there
could be use which would not be illegal
1. Distinction between threat and bluff: Was there really a story of threat of use or was
Colin Powell just bluffing?
DISSENT (Higgins): Scolds the court – Not legitimate response, should have said yes or no
i. Role of the judge to resolve
RESULT: Case probably didn’t advance cause for elimination nukes one bit (should have waited until
they knew they could win like Thurgood Marshall did in Brown)
INTL CRIMINAL RESPONSIBILITY
I.
II.
Novel area of law
a. Definition: Imposition of PERSONAL CRIMINAL RESPONSIBILITY for violations of intl law (NOT
national law)
i. Violations of intl that triggers personal responsibility
b. Before WWII: Intl legal norms had to be transposed into national law (penal code) and tried in
national tribunal (though not necessarily the nation of the crime or defendant)
c. ICL really arises with Nuremburg Trials (below)
Intl Military Tribunal – For Nuremburg Trials for Nazis (pg. 611)
a. CHARTER for IMT established special tribunal for rendering legal judgment on Nazi senior
commanders
i. Not a tribunal of general JDX – Only persons brought before it were those acting in interest
of Axis countries (thus couldn’t reach Allied personnel)  Thus, got taint as “victors’ justice”
ii. Articulation of crimes – Appears to be stating a penal code
1. But ex post facto law issues
2. Limits on court’s JDX, not actual charges
b. THREE TYPES OF CRIMES coming within JDX of tribunal re: individual responsibility
i. (1) Crimes against peace: Planning, prep, initiation of war of aggression (new category of
war)
1. Novel because this was typically state action, not individual responsibility
2. Establishing responsibility for launch of war, rather than conduct of war
3. Using pre-WWII ideas (Treaty of Versaiilles)
4. First thing Nazis charged with
ii. (2) War crimes
1. Nothing novel here
iii. (3) Crimes against Humanity
1. New notion: Conveys same sense as universal JDX  Not merely offenses to
discrete victims, but legally treated as affronts to ethnicity of species
a. Regardless of whether violation of domestic law of country where
perpetuated
2. Impunity under national law has no effect on intl crimes
c. Article 7: Official position shall not free from responsibility – Can’t shield individual criminal
responsibility or mitigating punishment
d. Article 8: Superior order is NOT a defense, just a mitigating factor for punishment
e. Outcome of Nuremburg to kill Nazi criminals was never in doubt – But important for FDR to have
trials first
i. PURPOSE: Beyond just legitimizing executions  Trials meant to lay foundation for
identifying acts that trigger personal responsibility in a way that didn’t’ exist before
f. Intl tribunal here, different legal character from courts set up in German occupied zones
g. Substantive: Changes doctrine of command responsibility
i. No longer valid defense that superior ordered you to do atrocity
1. Vertical diffusion of responsibility = Superiors responsible for subordinates and
subordinates can’t blame everything on superiors
h. UNITED STATES v. ALSTOETTER (IMT) (1948) (pg. 612)
i. Facts: Trying Nazi judges and prosecutors for abusing judicial system in ICC
1. Defense that can’t be culpable since laws weren’t published prior to supposed
commission of crimes
a. Nullum crimen sine lege = No crime without law (statute)
ii. HOLDING: Principles of nullum crimen sine lege constitutes NO legal/moral barrier to
prosecution here  NO defense if act was known to be crime under domestic law
1. Intl criminal liability attaches to individual too (not just govt or military)
2. Arguments:
a. (1) Judge doesn’t reject NCSL argument, just says it works differently at INTL
LEVEL given nature of intl law
i. Domestic level: Understand that you can’t be prosecuted for
something not in penal code
III.
ii. International level: Don’t have intl criminal code – Product of
treaties, judicial decisions, and customs
1. When articulating intl crimes: Giving JDX to try crime and
giving constructive notice of what actions engender criminal
responsibility
2. Here, intl prescriptions clear enough notwithstanding the
fact it wasn’t in some penal code
a. Different if at domestic level
b. (2) Crimes against humanity – Relying on actor’s constructive sense of
wrongness to satisfy NCSL requirement
i. Different natural law argument = Own sense of wrongness
International Criminal Court
a. Article 7: Articulation of crimes against humanity (pg. 622)
i. Acts “committed as part of widespread/systematic attack directed against any civilian
population, with knowledge of attack”
1. Example: Murder not alone an intl crime, need it to be part of systematic attack
ii. Some correspondence with domestic law – But specific intent requirement makes intl act
different than ordinary crimes
b. What about CIL?
i. Distinction between violation of intl law and ones that actually attach criminal responsibility
ii. But what is source that makes act criminal in first place?
1. Common reason? Natural law?
c. Difference between ad hoc tribunals and ICC
i. AD HOC TRIBUNALS: Established by intl body
1. Nuremburg: One-shot court; Nothing like it again until ICTY, which was enacted by
SC
a. Questions whether SC had power to establish a court (SC can only make
binding decisions regarding intl peace and security)
b. Might have had more power if established by treaty rather than intl body
i. Have more legitimacy, rather than ad hoc non-permanent tribunals
2. Some have been given multiple JDX over parties, but still limited by CONTEXT
(territorially and chronologically)
ii. ICC: Established by treaty
1. Wanted to make sure it was done right by treaty, signed by states
2. Complementary to national criminal JDX (who to try, double jeopardy, included
offenses)
d. Jurisdiction (pg. 659)
i. Article 5: Crimes within jurisdiction = Genocide, crimes against humanity, war crimes, crime
of aggression
1. In theory, not making acts criminal, just saying that because they’re criminal, the
court has JDX to over it
2. Common bases for criminality of these acts is CIL
ii. Article 11: Can’t go back in time to try crimes committed before state signed treaty
iii. Article 12
1. State that becomes party accepts JDX of court
a. Two independent grounds for JDX:
i. (1) JDX over territory of party state – More problematic
IV.
V.
1. If act committed in territory of signatory/party, national of
non-signatory can be subject to JDX
ii. (2) Nationals of the party state
1. National of signatory subject to JDX wherever he goes
a. American objection: Lots of Americans all over the
place, more troops in more places
2. Covers nations of non-party if state accepts exercise of JDX
iv. Article 17: Issues of admissibility
1. Primary JDX still lies in the nation – Becomes relevant when judicial institution is not
functioning
a. Thus ICC only going to happen in weird places where local institutions are
dysfunctional and thus warrants ICC prosecution
b. So even if permanent court, may seem ad hoc like
2. Presumption of good faith state in finding unwilling or unable to carry out
prosecution – “Genuinely to carry out prosecution”
v. Article 16: Deferral of investigation/prosecution
1. Halt on prosecution done by SC
REPORT RE CHANFEAU ORAYCE Y OTROS (OAS) (1998) (pg. 670)
a. Facts: In exchange for democratic elections, Pinochet makes himself permanent senator rather than
President, but gives amnesty to himself and others for crimes
i. Chile argues that couldn’t punish Pinochet since part of senate so couldn’t repeal Amnesty
Decree
ii. Truth and Reconciliation Act: Designed to be alternative dispute resolution (alternative to
criminal responsibility)
1. Lacks rigidity, formalism, legal consequences while still affording some benefits of
criminal trial (fact-finding, etc.)
b. HOLDING: Amnesty Decree was conflicted with duties American Convention on HR and
recommended that Chile amend legislation and provide damages
i. (1) Amnesty Decree was established during time of illegitimate govt – so illegitimate itself
1. Couldn’t do anything domestically
ii. (2) Investigation carried out by Natural Truth and Reconciliation Commission provided NO
legal recourse or compensation
1. Idea that prosecution is mandatory, but should criminal trials be the only permitted
response?
iii. (3) Chile had signed American Convention on HR
1. Had state obligation to prevent, investigate, and punish – T & R Committee not
enough
2. Right to truth, to know truth – Victims had right to know who committed crimes
a. Violation of HR not to receive recount, especially if one available
b. Impunity problematic because creates sense of persisting violation
c. Created legal crutch for current Chilean govt to take back Amnesty (blaming it on report rather than
as independent action)
REGINA v. BOW (House of Lords) (2000) (pg. 683)
a. Facts: Pinochet travels to London for surgery and is served with arrest warrant
i. UK had not ratified Torture Convention until 1988
1. But this just means prescriptive JDX was always there, just not exercised
ii. Immunity ratione materiae – Pinochet was former head of state
VI.
1. Generally, heads of state enjoy immunity for any state action (notions of comity,
sovereignty)
iii. Two types of immunity:
1. (1) Immunity ratione materiae
a. Immunity to someone acting as head of state (e.g. crime committed during
office)
i. Limited to official acts
ii. Time-sensitive (temporally bound) to attach: Acts that occur during
service in office
1. But immunity itself continues in time after office if act done
during office
2. (2) Personal immunity
a. Attaches to acts whenever they occur as long as person is head of state (e.g.
Clinton and AK event that occurred before office – untouchable while still
President)
i. Not for official acts, but for personal crimes
ii. Can’t sue while head of state, but can sue afterwards – Immunity
stops when leave office
b. FINAL DECISION: Permitted extradition to proceed
i. LORD BROWNE-WILKINSON: Continued immunity inconsistent with Torture Convention
1. Torture = Crime against humanity, so universal JDX justified
ii. LORD GOFF: Does have immunity here (dissenting vote in 6-1 decision)
1. Immunity doesn’t attach if you waived immunity (must be express, not implied) or
act not an official act for purposes of immunity  Not satisfied here, so immunity
a. (1) No express waiver here
b. (2) Torture is an official act
i. Like Saudi Arabia, even if illegal, can still be official
ii. Fact that head performs an act that is criminal does not deprive it of
its govt character
iii. Principle of immunity CANNOT BE CIRCUMVENTED by saying torture
does not form part of official functions
iii. LORD HOPE: Obligations of CIL strong by date, thus immunity lost when Chile ratified
Convention and came into force in UK
1. State’s obligation to Convention so strong that it overrides immunity
CONGO v. BELGIUM (ICJ) (2002) (pg. 689)
a. Facts: C sued B in ICJ after B had issued arrest warrant for C’s acting Minister of Foreign Affairs
(Yerodia)
i. B had applied its universal JDX statute for war crimes and crimes against humanity in
connection with his activities with President during C’s civil war
1. Issue: Whether acts qualify as official acts to enjoy immunity
ii. C said arrest order violated sovereign equality of states and also diplomatic immunity of
Yerodia
1. Immunity ratione materiae here (Y no longer minister)
b. HOLDING: Warrant constituted VIOLATION of B’s obligations to C – Yerodia DOES have immunity
i. (1) Exceptions to immunity don’t apply here
1. IMMUNITY ≠ IMPUNITY
a. Just because he’s immune from prosecution in Belgium does NOT mean that
he can’t be punished
b. REASONS WHY THERE CAN STILL BE IMPUNITY:
i. Congo can still try him
ii. Congo can waive immunity
iii. When ceasing to be foreign minister, no longer enjoys all immunity
accorded by intl law
iv. Incumbent/former minister may still be subject to criminal
proceedings before certain intl criminal courts that do have JDX
c. Validity of rationale
i. ICC doesn’t have police, troops – So someone else has to render him
to court to prosecute him
ii. Atik unconvinced by this argument that immunity ≠ impunity
1. States don’t want to try own ministers (e.g. if Israel didn’t
take Eichmann, no one else would have)
ii. (2) Right to immunity and right to complain belongs to Congo (like in Eichmann)
1. Right of immunity enjoyed by individual, but belongs to the state
iii. (3) Although taking retrograde stance that immunity is absolute, can do with because intl
criminal law has moved in different direction  There is ICC now (¶ 61)
1. Were there no ICC, there would have been a greater chance of impunity – Thus,
universal JDX over these crimes would trump immunity in that case
2. However, because there is the ICC, universal JDX does not trump immunity (and
punishment still possible)
3. *Maybe now, if ICC matures, universal JDX might become obsolete
4. NOTE: ICC Article 27: Irrelevance of official capacity  Head of state immunity is
NOT a bar to criminal prosecution
a. Here, ICJ seems to have minimizing view of the ICC by going against this
provision
c. ¶ 60: Political paragraph making sure news doesn’t say ICJ lets war criminal go free
d. Reconciling with Regina?
i. Pinchoet no longer head of state, while Yerodia still incumbent
ii. Immunity in Congo does not mean impunity
iii. Also Congo does NOT show willingness to examine innovations in law like Regina
1. Early British opinion that was willing to weigh policy of immunity with policy of
punishment for crimes