INTERNATIONAL LAW OUTLINE

I. THE NATURE OF INTERNATIONAL LAW A. Subjects of International Law:

1. Traditionally, SOVEREIGN Nation-states. 2. More recently:

a. Personsb. International Governenal Organizationsc. International non-governmental organizationsd. Business Entities

B. Public International Law

II. European Convention on Human Rights: a. McCann v. United Kingdom (pg. 3)e

i. Facts : 3 known Irish terrorists were in Spain. UK authorities were alerted to their presence, and they were killed during a confrontation. The estates of the deceased brought an inquest against soldiers and govt, believing it was a wrongful killing, to the ECHR.

ii. Analysis : UK Court only requires a killing to be justified, but Court looks at Article 2 para. 2 of the European Human Rights Convention (treaty), which requires that deadly force be asmbsolutely necessary for it to be lawful. Although the soldiers were justified, the court must use the int’l law, and says the killing was not absolutely necessary (there was negligence and incompetence in the operation).

iii. Damages : Although UK very powerful, they still had to pay the terrorists’ families compensation, - they still have to abide by the int’l tribunal.

iv. Notes: European Convention of Human Rights – product of post-WWII politics, in wake of Nazi atrocities. Countries get together to enforce human rights. This is a court of last resort, meaning you must exhaust domestic remedies first before coming here.

McCann and Others v. The UK (1995)

Facts:This case brought before the European Court of Human Rights, originated in an application against the UK with the European Commission of Human Rights by the representatives of the estates of McCann, Farrell and Savage. The 3 deceased were known IRA terrorists, suspected of carrying out a terrorist act in Gibraltar. The UK authorities became aware of a possible attack, and with the aid of the Gibraltar police, planned an operation to deal with the possible threat.

The intelligence information revealed that the suspects may plant a car bomb at the changing of the guard’s ceremony outside Ince’s Hall on the morning of 8 March 1988, using a push-button device (used in other IRA operatives). It was believed that the car with the bomb in it would be brought across the Spanish border and that it would remain hidden inside the vehicle.

Surveillance was set up at the Spanish border. Savage was spotted driving a car across on 6 March. He drove into Gibraltar and parked in front of Ince’s Hall where he was seen fiddling with something between the seats before he exited the car. Later that day, Farrell and McCann were spotted walking across the border. They met with Savage across the street from the car and according to witnesses spent time staring across at the car. Suspects then moved away from the car, McCann and Farrell going in one direction, Savage in the other. Shortly after a British soldier later examined the outside of the car, and concluded that there was a “suspected car bomb”. After confirmation of the suspects and that the car likely contained a bomb, authorization was given to arrest the 3 on

suspicion of conspiracy to murder. Two plain clothed officers followed McCann and Farrell, and two others followed Savage. When the soldiers approached McCann and Savage, McCann turned around and according to the soldier had a look of recognition on his face, and then seemed to be reaching for something (which the soldier thought was the detonator). Soldiers opened fired, Farrell then seemed to be reaching for something in her purse, and again fearing that it was the detonator, shots were fired at Farrell. Both pronounced dead. Before the shots were fired, the Gibraltar police put on their sirens to pass a car. Savage who was also being followed, likely heard them, became suspicious of the two men following him, and when he made a motion which the soldiers thought was reaching for a detonator, he was also killed.

Upon searching the bodies, no detonator was found, nor was there a bomb planted in the car.. However, a bomb was found in a car in Spain which was registered under the name on a passport carried by Farrell. The device to be used would have been a timer, rather than a push-button detonator.

Following the killings, an inquest was made in Gibraltar with the conclusion that the killings were lawful according to Article 2 of the Gibraltar Constitution. An application was made to the High Court of Justice in Northern Ireland against the Ministry of Defence for the loss and damage suffered by the estate of each deceased as a result of their death, but was struck down on a procedural issue before the merits were considered. The applicants then made a claim to the Commission, arguing that the killings of the 3 constituted a violation of Article 2 of the ECHR (“the right to life”). The Government of the UK countered that the acts were justified under Article 2, para. 2(a) as resulting from the use of force which was no more than absolutely necessary in defence of the people of Gibraltar from unlawful violence.

Issues:The applicant’s argued a breach of Article 2 of the Convention on four grounds: (Treaty has a very high standardon the use of force.

1. That the difference in that standard of justification for the use of force resulting in the deprivation of life, between the Gibraltar Constitution and the Convention, constituted a violation in itself (“reasonably justified” vs. “absolutely necessary”). No.

a. You only use what you need to use. 2. That the killings were premeditated and thus constituted a violation. No.3. That the actions of the four soldiers who killed the 3 were negligent and a

violation on the basis that there was no reasonable belief of absolute necessity to use lethal force. No.

4. That the operation was not carried out in a way that would minimize, to the greatest extent possible, the recourse to lethal force. Yes.

Reasoning:Before considering these issues, the Court made some preliminary points:

- Given the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.

- The Convention’s provisions must be strictly construed.

Issue #1- The Convention does not oblige Contracting Parties to incorporate its provisions into

national law. Further, not the role of the Court to examine in abstract the compatibility of national legislative or constitutional provisions with the requirements of the Convention. The difference between the two standards is not sufficiently great to constitution a violation of Article 2 para. 1.

- Also considered the sub-issue of the adequacy of the inquest proceedings as an investigative mechanism. The Court finds that it is unnecessary to decide on this issue in the present case since it should be brought up under Articles 6 or 13 of the Convention, which the applicants have not invoked.

Issue #2- The evidence used to support this argument was circumstantial, and the Court found

that it was not established that there was an execution plot at the highest level of command in the Ministry of Defence or in the Government, or that the soldiers were encouraged by their superiors to carry out an execution.

Issues #3 and #4- The information received by the authorities presented a dilemma: on the one hand they

had a duty to protect the lives of the people of Gibraltar including their own military personnel, and on the other, to have minimum resort to the use of lethal force against those suspected of posing this threat.

- Other factors to be taken into consideration:o The authorities were confronted by an active service unit of the IRA

composed of persons who had been convicted of bombing offences and a known explosives expert. Judged by its actions in the past, the IRA had demonstrated a disregard for human life, including that of its own members.

o The authorities had prior warning and thus ample opportunity to plan their reaction. Inevitably, however, they could not have been in possession of the full facts and were obliged to formulate plans based on incomplete hypotheses.

- In light of these circumstances, in determining whether the force was compatible with Article 2, the Court must decide whether the force used by the solders was proportionate to the aim of protecting persons against unlawful violence, and whether the operation was planned and controlled by the authorities so as to minimize, to the greatest extent possible, the recourse to lethal force.

- Regarding the soldiers, Court accepted that the soldiers honestly believed in light of the information they had been given, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb causing serious loss of life. The actions they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives.

- Regarding the operation:“In sum, having regard to the decision not to prevent the suspects from traveling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2…” (para. 213)- Given the facts of the case, the majority of the Court found that not enough was done

to minimize, to the greatest extent possible, the recourse to the use of lethal force.

Damages:- Applicants made an application for damages and costs under Article 50 of the

Convention. Given that the deceased were planning on carrying out a terrorist attack, no damages were given. Only the costs from the case brought to the Commission were awarded, since the lawyers acted free of charge in the Gibraltar Inquiry.

Dissent:

- Dissenting judges agreed with the majority on the first three issues, but not on the fourth.

- Underlined three general points:o That the Court should resist the temptations of the benefit of hindsight.o That the need for the authorities to act within the restraints of the law,

while the suspects were operation in a state of mind in which members of the security forces were regarded as legitimate targets and incidental death or injury to civilians as of little consequence, would inevitably give the suspects a tactical advantage that should not be allowed to prevail.

o That full account should be taken of the fact that it was discovered that the IRA was planning on carrying out a major terrorist attack by three individuals, and that a discovery had been made previously in Brussels of a car containing a large amount of explosives and four detonators with a radio-controlled system (push-button).

- Didn’t give as much weight to the fact that they did not apprehend the individuals as they crossed the border, because of the risk that there may have been insufficient evidence to warrant their detention and trial, and to release them would alert the IRA as to their readiness and increase the risk of another attack.

- No real difference on points of law, just a different assessment of the same facts and the balancing of the right to life of the people of Gibraltar with the right to life of the suspected terrorists.

The United Kingdom would agree to this rule because: - Politics - Pressure? - Other people will be held to the same standard - Public Relations and re: human rights, a nation wants to be on the same

page as their neighbor. “ We generally hold these values, let’s get others to hold these values to the same standard.”

II. The 1789 Alien Tort Claims Act : US enforcement of foreign violations of international lawa. Filartiga v. Pena-Irala (pg 17)

i. Facts : Filartiga’s son was tortured & killed by Pena, an official (all parties from Paraguay, and event took places in Paraguay), in retaliation for father’s political beliefs. They could get no justice in Paraguayan courts (lawyer arrested etc.). So, they sue in U.S., but they’re dismissed for lack of jurisdiction. Issue of jurisdiction of U.S. courts is on appeal.

ii. The suit is between 2 foreign nationals, so how does the U.S. have jurisdiction? 1. Under the Alien Tort Statute, U.S. has jurisdiction to hear tort claims

brought by an alien where there has been a tort “committed in violation of the law of nations or a treaty of the United States.” Torture was clearly a violation of int’l law (aka "the law of nations"), and the U.S. did have jurisdiction over the case since the claim was lodged when both parties were inside the U.S.

2. This case interpreted that the Alien Tort Statute to granted the U.S. jurisdiction to enforce human rights law domestically.

a. Very controversial. Should U.S. be a world police by trying foreign citizens in the U.S.? - Well, the idea is that if you commit such a heinous crime, then any tribunal should be able to try you b/c the whole world would agree how bad the crime is (jus cogens). U.S. court enforces int’l law, not domestic law.

iii. Now, there is a convention on torture, but there wasn’t at time of this case. How does U.S. evaluate this without a clear cut prohibition on torture? Court looks at:

1. Law professors determinations of the law (Scholarly commentary)

2. Public law3. General usage4. United nations charter5. Universal Declaration of human rights (not binding– aspirational only but

shows custom)6. Declaration on torture - not binding, but evidence of how custom would

evolve7. European convention outlaws torture8. Inter-American convention on human rights (again, custom)9. Domestic laws - many countries have banned torture (state practice)

iv. Outcome/Enforcement : U.S. courts awarded Filartiga $10mm. But problem with enforcement – Pena left U.S. This is still a problem with int’l law. U.S. won’t send troops to Paraguay to make them pay. Still a victory – legal recognition of torture being wrong (political statement).

b. Swanson Comments: i. U.S. v. Smith (Piracy case): Can be put to death for crime of piracy as defined by

the law of nations. Smith argued he didn’t know what constituted piracy. See CB 20. Court said that this was unnesssesary because the crime was “sufficiently and constitutionally defined.”

ii. International law is part of the law applied where there is no treaty or statute that gives a different result. For example: Torture.

iii. Monist Approach: International law is SUPREME. iv. DUALISM: Present in the U.S.: Two planes: domestic and interational. Our

leaders can make a choice. For example, with torture, we can do what we want, but will be held to a different standard and will have consequences at the international law.

v. Swanson: suspicion in the United States about international law. “healthy level of paranoia.” Idea that we are the shining beacon on the hill.

vi. Congress has refused to ratify the treaty.

Filártiga v. Peña-Irala

Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) was a landmark case in United States and international law. It set the precedent forUnited States federal courts to punish non-American citizens for tortious acts committed outside the United States that were in violation ofpublic international law (the law of nations) or any treaties to which the United States is a party. It thus extends the jurisdiction of United States courts to tortious acts committed around the world. The case was decided by a panel of judges from the United States Court of Appeals for the Second Circuit consisting of Judges Feinberg, Kaufman and Kearse.

The Filártiga family contended that on 29 March 1976, their seventeen-year-old son Joelito Filártiga was kidnapped and tortured to death by Américo Norberto Peña Irala. All parties were living in Paraguay at the time, and Peña was the Inspector General of Police in Asunción. Later that same day, police brought Dolly Filártiga (Joelito's sister) to see the body, which evidenced marks of severe torture. The Filártigas claimed that Joelito was tortured in retaliation for the political activities and beliefs of his father, Dr. Joel Filártiga.Dr. Filártiga brought murder charges against Peña and the police in Paraguay, but the case went nowhere. Subsequently, the Filártigas' attorney was arrested, imprisoned, and threatened with death. He was later allegedly disbarred without just cause.

In 1978, Dolly Filártiga and (separately) Américo Peña came to the United States. Dolly applied for political asylum, while Peña stayed under a visitor's visa. Dolly learned of

Peña's presence and reported it to the Immigration and Naturalization Service, who arrested anddeported Peña for staying well past the expiration of his visa.

When Peña was taken to the Brooklyn Navy Yard pending deportation, Dolly lodged a civil complaint in U.S. courts, brought forth by theCenter for Constitutional Rights, for Joelito's wrongful death by torture, asking for damages in the amount of USD 10 million. After an initial district court dismissal citing precedents that limited the function of international law to relations between states, on appeal, the circuit ruled that freedom from torture was guaranteed under customary international law. The appellants argued that Peña's actions had violated wrongful death statutes, the United Nations Charter, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, and other customary international law. Petitioner claimed the U.S. courts had jurisdiction to hear the case under the Alien Tort Statute, which grants district courts original jurisdiction to hear tort claims brought by an alien that have been "committed in violation of the law of nations or a treaty of the United States." This case interpreted that statute to grant jurisdiction over claims for torts committed both within the United States and abroad.

JudgmentThe U.S. courts eventually ruled in favor of the Filártigas, awarding them roughly $10.4 million. Torture was clearly a violation of the law of nations, and the U.S. did have jurisdiction over the case since the claim was lodged when both parties were inside the United States. Additionally, Peña had sought to dismiss the case based on forum non conveniens (saying that Paraguay was a more convenient location for the trial), but did not succeed.

A. McCann illustrates an international legal rule made by a treaty, adjudicated by international court & enforced by a regional international legal system

1. International law when appropriate can override national authority 2. Issues of choice of law and whose law applies

B. Filartiga illustrates a customary or fundamental international legal norm adjudicated by a municipal ie domestic court & enforced by the ordinary mechanism of the domestic legal system\

1. First Congress established original district court jurisdiction over all causes of action where an alien sues for a tort only committed in violation of the law of nations

a. If person is tortured w/I our borders federal jurisdiction is provided by this rule

2. Elements: a. alien b. for a tortc. in violation of international law d. normally would involve someone with color of authority b/c in int’l law ,

law applies to some official 3. After the action was brought

a. Fed crt of appeals 2nd circuit i. There was SMJ ii. Court decided there was cause of action that torture was violation

of international law – what sources did they go to look for this – the court looked at UN charter

b. where there is no treaty, & no controlling executive act or legislative at then must resort to international law

c. as source of Int law will look to customs and usage but strongest sources is what the state department says the rule is

d. No torture its jus cogens but its so important that it’s preemptory norm e. Int’l law incorporates national law – if all states do it then it becomes jus

cogens so can’t violate it since it’s a rule everyone recognizes C. Article 38, ICJ Statute

1. Judicial arm of the United Nations, Hague, World Courta. Decide in accordance to:

i. International conventions establishing rules expressly recognized by the contesting states.

ii. International custom, as evidenceof a general practice facecpted as law

iii. The general principles of law recognized by civilized nationsiv. Subjet to the provisions of Article 59, judicial decision and the

teachings of most highly qualifed publicists of various needs, as subsidiary means for the determination of rule sof law. (Hierarchy of norms. Treateis first, custom second, third: stare decisis: but courts are not HELD to this like in the U.S. persuasive at best.

v. Shall not prejudice the pwer of the court to decide a case ex aequo et bono if the parties agree: What is equal and good is not the same as equity.

III. TREATIES A. Sources of International Law

1. International law is composed of various types of law such as Environmental law, Law of the Sea, Law of Common spaces

2. International law lacks an effective judiciary so states need to consent to the states for the judicidary to follow

3. there is no effective executive force to force the losing side to comply with International obligations

B. Treaty Sampler 1. Treaties – are international agreements, K’s between 2 or more countries. They

can be executive agreements or treaties , Treaties try to change the sovereignty of nations by limiting or decreasing their sovereign rights

2. The Peace of Westphalia a. Created the notion of Territorial Sovereignty – that other states should not

interferes with sovereign activity 3. Treaty of Paris

a. Recognition by UK of the US as an independent sovereign nation 4. Cession of Alaska

a. US bought Alaska from Russia b. Difference between executive agreemtns & treaties

i. Executive agreement – non congressional approval ii. Treaty- Congress 2/3rds need to vote to have pass

5. Kellogg-Briand Pact a. Renunciation of war as means of settling disputes after WWI b. Not customary international law

i. Only applied to countries who were signatories ie Uk, US, France ii. Article 1iii. Article 2

6. Vienna Convention a. A state may when signing, ratifying a treaty, to make certain reservations

unless those reservations are prohibited by the treaty or is incompatible with the purpose of the treaty

C. The Law of Treaties 1. Treaties play the same role as K’s play in municipal law

a. If govnt changes in one state, its treaties are still binding b. A state can’t use internal law as a defense for not following treaty

obligations , not unless its obvious to the other party c. A later treaty trumps older treaty d. Treaty is invalid if

i. Fraud, illegality coercion or unconscionability involvedii. Can terminate if there is material breach

2. How to interpret a Treaty – Eastern Airlines a. Sup court determined that you would look to the purpose & og intent of

the treaty and they way it had been interpreted in practice not the literal translation

1. So perfect translation may not be consistent with the above

3. Binding States Greenland

a. State was bound by the statements of its diplomats b. Press officer may not bind you where are diplomat may

THE LAW OF TREATIES

I. Treaties, Generally : International agreements are governed by the Vienna Convention on Treaty Law.  Under it, states can do anything they want to agree to, unless it violates a peremptory norm.

a. Many countries don’t have governments that work.  But, presuming there is a government that works, one country can make an agreement with another government.

b. Treaties and contracts are analogous (but not perfectly so)i. A K can have 2 provisions that say different things

ii. So, a treaty can too (ex. Part I is self-executing, while Part II not)II. Vienna Convention on the Law of treaties (1980)

a. Addresses international problem on how to deal with treaties. A treaty on treaties.b. It codified the pre-existing customary int’l law on treaties, with some necessary gap-filling

and clarifications.i. Before this, int’l customary law was used. Now a more precise roadmap to guide

jurisdictions on how to write and apply treaties.c. Applies only to treaties between states (doesn’t include international organizations)d. US has signed it, but not ratified it. But since it is customary international law, US can be

bound based on that. This is highly persuasive in US, and around the world.III. What is a treaty according to the Vienna Convention (Art II)

a. Art 2 (a) "treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

b. Art 2 (b) "ratification," "acceptance," "approval," and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by the treaty;

IV. When is a treaty binding? a. There is a gap of when its signed, and when it comes into force (when it’s ratified)

i. The process for ratification can be in the treaty itself, or the usual process is that it's signed by certain parties, like in U.S., sent to Congress to ratify.

ii. Art 18 - once a treaty is signed, only obligation you have it to not defeat the purpose of the treaty, but there is no affirmative duty until it's ratified.

b. No world legislature, so states only bound to treaties which we agree to be bound to

c. Some international agreements not binding because they lack consent; based on consent to be bound

d. Intent to be bound – not aspirationali. Sometimes writings not treaties because they are aspirational writings, which the

parties did not intend to be bound to. But like a plan for what they want to do in the future, intentions, without specific obligations. So a treaty not only has to be a written document, but the parties must have intended to be bound, and not only setting down some aspirational goals.

ii. A treaty that says “the parties agree to …” is binding.  A treaty that says “the parties intend to …” is not binding.

V. Multilateral and Bilateral Treaties a. A multilateral treaty has several parties, and establishes rights and obligations between

each party and every other party.b. Bilateral treaties by contrast are negotiated between a limited number of states, most

commonly only two, establishing legal rights and obligations between those two states only. It is possible however for a bilateral treaty to have more than two parties.

VI. What are treaty reservations a. The Reservations to the Genocide Convention Case (pg 61) – UN general assembly

adopted this resolution in regards to disputes of the reservations to the Genocide Convention

b. International Court of Justice can issue an advisory opinion by assembly passing a resolution.

i. Basic principles of treaties:1. A state cannot be bound to a treaty without its consent.2. Once agreement is made, the parties to it cannot change it, or make other

agreements that go against it. 3. A reservation is a modification of terms the participating state has

included with their acceptance of a treaty.ii. Whether or not to allow reservations?

1. Reservations can't contravene the general purpose of the treaty, especially in regards to human rights treaties

2. We want as many states as possible to sign on, and if there were no reservations allowed, a lot of states wouldn’t sign on. And on the other side, we don’t want to sacrifice important aspects b/c we want more states to join. To prevent genocide on an international scale: the more countries sign on, the more persuasive value the treaty has. Because treaties are of highest value when enforcing international law, we want as many countries to sign on to Genocide treaty.

1. So if minor issues (like jurisdiction) then allow reservation to get more states.

1. Standard: Object and Purpose Who decides? Other signatory nation-states. No uniform way of making the object & purpose decision. So, two nations of 178 signed on to treaty could determine that one nation is not party of treaty because of their reservation, and the other 178 will consider them included. OR can just “object to reservation.”

2. But if too many minor reservations, it can change the purpose of the treaty

3. Dissent: No flexibility. "It would be better to lose a state which insists in face of objections on a modification of the terms of the Convention, then to permit it to become a party against the wish of a state(s) which have irrevocably and unconditionally accepted all the obligations of the Convention."

c. While some treaties still expressly forbid any reservations (Ex: The Law of the Sea Convention), they are now generally permitted to the extent that they are not inconsistent

with the goals and purposes of the treaty. Some reservations are permissible, but would be objectionable to the other signatory states.

d. They are only binding on the other parties if the other parties accept the reservation. i. Common practice is that you have to object to the reservation, otherwise you

accept1. Often, the practice of objections, etc., are stipulated in the treaty (the

procedural mechanisms)e. Reservations have the effect of turning one agreement into many different agreements,

i. Suppose there is a treaty signed by countries A, B, C, and D.  A makes a reservation on one part of it, say Article III.

1. B is okay with it.  Fine, there is a treaty between A & B, including the reservation

2. C opposes the reservation.  There is no agreement between A & C as to Article III.  There’s only a partial agreement.

3. D says the reservation is intolerable, and that A is not a party as far as D is concerned.  There is no agreement at all between A & D.

4. Between B, C, and D, there is an agreement.ii. B/c of the mess this creates, the trend has been to forbid reservations in

multilateral agreements (like for torture or genocide).iii. IF one country reserves, the other party does nto have to live up to that obligation

either. f. Vienna Convention on reservations - Section 2: Reservations - Art 19-21

VII. How can we interpret treaties? a. Warsaw Convention prevents recovery of lost plane tickets, etc. Uniform liability

rules. b. Eastern Airlines, Inc. v. Floyd (pg 64)

i. Facts : Airline flight thought they would crash, told passengers this. They were able to restart engine and landed safely. Passengers sued for mental distress. Court looks at Article 17 of the Warsaw Convention to determine whether mental distress alone was compensable. This was written in French, and court has to decide what was meant by the term "lesion corporelle."

1. Compare with the approach of the Vienna Convention: 1. Object & Purpose 2. Looks at negotiating history of the convention - Not w Vienna

unless there is ambiguity. 3. Post-treaty conduct -

ii. Because of the ambiguity of the term “lesion corporelle,” court turns to different sources:

1. Dictionary – to assess the plain text2. French definitions and interpretations in French law courts3. How other courts interpreted the text – only one other court interpreted it

to include mental distress alone4. Historical context – Intent of the drafters and negotiating history of

Warsaw convention1. Purpose behind drafting – what were they seeking to do?

1. They would want airlines to prosper, so to expand the scope of liability would not be in their intentions.

2. Also, the fact that a remedy for emotional injury alone was unknown in many jurisdictions at the time of the Warsaw convention.

5. Treaties & scholarly writings

8/21/11Last class: Application of international law in McCann. Court’s analysis looked similart o that a constitutional court discussing limitations on government.

Filartiga introduced the application of international law in a domestic court and the sources of international law.

c. Vienna Convention – Art 31: General Rules of Interpretation i. In addition to the text, look at any other agreements relating to the treaty

ii. Take account of (in addition to the context):1. any subsequent agreement between the parties regarding the interpretation

of the treaty or the application of its provisions;2. any subsequent practice in the application of the treaty which establishes

the agreement of the parties regarding its interpretation; 3. any relevant rules of international law applicable in the relations between

the parties.d. Vienna Convention – Art 32: Supplementary means of Interpretation

i. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

1. leaves the meaning ambiguous or obscure; or 2. leads to a result which is manifestly absurd or unreasonable.

VIII. How do we assess whether or not a treaty is valid a. Case Concerning the Gabcikovo-Nagymaros Project (pg 80)

i. Regarding a treaty entered into by Hungary and Czechoslovakia in 1977. The Court stated that both sides breached their obligation and that the 1977 Budapest Treaty is still valid.

ii. ICJ - Is the treaty still valid? 1. Doctrine of necessity for grounds for breaching the treaty – because there

were ecological concerns – Grave and imminent peril 1. Court says ecological concerns didn’t arise to an imminent peril,

so the breach was not warranted. There were other possibilities in addressing this concern rather than breach.

2. Impossibility 1. the object of the treaty changed; the opportunity disappeared. The

joint nature ceased to exist. But, court doesn’t accept this3. Fundamental change of circumstances:

1. Political change - Czech split up into 2 countries, affects the feasibility of the project

2. Court says no - the changes have to affect the core of the project. The changes presented did not change Hungary's ability to construct the dam

4. Czech breached; which may be a reason to terminate a treaty, but Hungary denounced the treaty before Czech breached

5. International Environmental Law – Peremptory norms: rules from which no derogation is allowed.

6. Repudiation:1. Pacta Sunt Servanda2. Court tells them to negotiate

iii. Court says these are not broad loopholes to count yourself out of the treaty. The defenses are very narrow. You can’t just opt out of a treaty, the treaty has provisions on dealing with these types of issues that may obstruct the carrying out of duties under the treaty.

IX. Unwritten Treaties – General Principles of International Law

a. Vienna Convention says treaties must be in writing. But what about oral treaties made before 1980?

b. The Eastern Greenland Case (pg 89)i. Facts : Dispute about who has possession of lands in Greenland btwn Norway &

Denmark. Norwegian Minister orally said that Norway wouldn’t make any difficulties in the settlement of this question, when Denmark asked if they would object to Denmark extending their interests to Greenland.

ii. Vienna Convention asks treaty to be in writing, but this is before that. This is an oral agreement.

iii. Court says statement meant that Norway would refrain from contesting Danish sovereignty over Greenland, so therefore, this meant they would restrain from occupying it (although this doesn’t mean that Norway recognized Danish Sovereignty).

iv. Court looked at surrounding circumstances to determine the intent (the attitude of the parties in the exchange) – shows intent to be bound – this is the nature of the consent.

v. General Principles – Can’t say that oral agreements can’t be enforced, but from evidentiary perspective may be hard. Even if not enforceable treaty, can use estoppel here (good faith).

vi. Norway says Minister not allowed to bind the country – int’l law says internal laws don’t matter.

X. How do treaties relate general principles of law? a. Treaty provisions need to be interpreted and, if treaty interpretations are not to be pure

discretion, some guidance from other forms of law is called for.b. Treaties never bind all states, and there need to be some rules of more general application.

CUSTOMARY INTERNATIONAL LAWI. Customary international law (CIL) is something done as a general practice — not because it

is expedient or convenient, but because it is considered law, out of a sense of legal obligation.a. Persistent objection

i. In international customary law, if you are a persistent objector, not bound to that customary law

ii. Natural law rights (super norms - like for human rights, genocide)1. Even if you are a persistent objector, you are still bound

II. The Paquete Habana (pg 97)a. Facts : Cuban fishing vessels captured by US navy & claimed as prizes of war. Nothing

that showed they had anything to do with war. International custom/tradition that exempted fishing vessels from being captured as prizes of war, dating back to Henry VI.

i. A violation of international law b. First question: Whether or not there is CIL? When does custom ripen to law?

i. Two factors to ascertain a particular practice has ripened into CIL1. The objective requirement - Practice of states

a. States must be acting a certain way to be custom2. The subjective requirement - opinion juris (reason/psychology)

a. States are acting a particular way because they feel compelled by law

Evidence to find the The European Union called upon China (non-signatory) to provide naps for its workers. China replied that no such international obligation existed.

c. se factors i. Objectively

1. Scholarship

2. Treaties of other nations (bilateral treaties)3. Court also noted the lack of competing principles4. Proclamations - the members of the country are proclaiming the

practiceii. Subjectively

1. by acting in a certain way (abiding by treaty), they are acting this way because they are compelled by law

d. Court said that int’l law is part of our law, and when there is no treaty or other governing force, we must look at the customs and usages of civilized nations. Court also noted that it was the "general policy of the govt to conduct the war in accordance with the principles of int’l law." By looking at the sources of the evidence, court finds sufficient to enforce the custom

III. The Asylum Case (pg 108)a. Facts : Failed military rebellion leader in Peru sought political asylum in Columbia,

but Peru refused to allow him to leave. Dispute goes to ICJ, and since there’s no treaty concerning this, ICJ looks at CIL.

b. Not enough evidence to establish CILi. One of the treaties raised, Peru didn’t sign onto

ii. Another signed on to by a limited number of statesiii. Peru has not acted in a way that showed they practiced this custom iv. No evidence of consent to the custom

1. The persistent objector - If Peru objects persistently, even if custom is very common, they still wouldn’t be bound (unless it was a natural right)

2. You have to be a vocal objector; silence = consent; consent is implied unless you object

c. To invoke CIL, you have to prove it has been used fairly often, and adopted by many states. Also, you cannot bind a state to a treaty to which it did not ratify (consent to). 

IV. The Lotus Case (pg 111)a. Facts : Collision btwn French (Lotus) & Turkish vessels, and some Turkish nationals

die. 2 French nationals arrested by Turkish police for criminal prosecution of manslaughter, w/o notifying French consul, then sentenced & imprisoned. French govt protested, saying Turkey had no jurisdiction, and goes to ICJ (b/c parties agreed to go - consent).

b. Only obligation Turkey has is to not overstep the limits if int’l law. France has burden to prove there’s CIL rule against Turkey’s jurisdiction.

c. France has 3 arguments:i. A state can’t exercise jurisdiction just b/c victim is a national of that state

(passive personality – some states recognize it as basis for jurisdiction while others don’t)

1. ICJ says doesn’t apply here b/c incident took place on Turkish vessel, so there is a territoriality claim.

ii. Since the collision occurred on the high seas, France claimed that only the state whose flag the vessel flew had exclusive jurisdiction over the matter.

1. Offense took place on Turkish vessel flying Turkish flag.iii. A state can’t extend jurisdiction beyond its borders.

1. French did it all the time & had always done so.d. France failed to establish a violation of CIL. Turkey did not overstep limits of int’l law

& has jurisdiction.e. Legal positivism – int’l laws come from states’ consent. Contrast with natural law

theories, where even though law isn't written down explicitly, they should still be followed.

i. States can create laws through actions or customs, but still made through actions. Doesn’t just arise from purely moral reasons like natural law.

ii. International law is made up of laws agreed to by the states. Positivist based on the will of the states.

iii. V. Public Int’l Law vs. Private Int’l Law

a. The Texaco/Libya Arbitration (pg 117)i. Facts : 2 oil companies (corporations) doing business in Libya. K btwn corps and

Libya. Libyan govt then passes a Nationalization Law, where taking all private companies and makes them Libyan governed (under state law). The rights under the K (deeds) being breached – Libyan has taken away these rights. Arbitration clause.

ii. Libya says there’s new int’l law that justifies their actions – UN General Assembly resolutions.

1. UN GA resolutions are not binding law, but can be expressive of existing & emerging custom. Not a court, doesn’t resolve disputes. More like a legislature – provide guidelines on where UN wants to go – aspirational.

iii. 2nd & 3rd resolutions – nationalization governed by domestic law1. These give Libya exclusive rights – this is what Libya using as justification2. Arbitrator doesn’t find that 2nd & 3rd resolutions are binding CIL

a. Not all countries signed on. All developed countries didn’t sign on, very opposed. No consensus to find CIL.

iv. 1st resolution – explicitly mentions that nationalization is governed by CIL1. Enough consensus that arbitrator will use this, but it will be in opposition

to Libya's case. 2. So deeds (K) then are binding.

b. Policy Issues i. Should we give GA resolutions weight when they are not meant to be

binding?1. Soft-law: non-binding law - If we have a lot of soft-law, it might ripen to

hard lawii. What if there was consensus for 2nd and 3rd resolution? Would that be enough

evidence of CIL?1. Maybe if US was persistent objector, can’t use it as CIL2. Look at state practice - the resolutions are aspirational, but maybe hasn’t

manifested in practice yet. So, if not yet practicing yet, then there are no grounds to establish CIL (the objective requirement where a custom becomes CIL)

iii. There may be a provision in the K to accommodate for a new int'l law, so we would look there first, if any exists

iv. General Assembly resolutions are not law, more like Restatements of the law. v. Vote counting is important.

GENERAL PRINCIPLES OF INTERNATIONAL LAWI. General principles - Broad concepts that can be applied (like estoppel, good faith in

negotiations, etc.)a. Principles that reoccur anywhere in the world, and is accepted by any jurisdiction

that care about the principles of international law.II. The AM & S Case (pg 128)

a. Facts : This case was dealing with an antitrust offense. Applicant asked to produce docs, and some were not, on the basis that they are entitled to legal confidentiality, where these rights are protected by an attorney-client privilege. (European Court of Justice – Supreme Court of EU)

b. No treaty provision on this subject, so court looks at general principles of int’l law. c. Look at other countries: how do they handle this?

i. There is a preponderance of countries using the confidentiality privilege1. At the very least, we must recognize this principle among the EU

states, to extend this privilege to non-in-house counsel representing defense cases.

d. To be able to come up with a general principle of law, they looked at how member countries (ECJ – EU) dealt with this, and agreed that there was an attorney-client privilege. However, they did not extend this to nations not member of the European community (now EU).

III. Distinction Between CIL and General Principles a. The 2 principles overlap, we're looking or patterns in both

i. General principles - principles of legal reasoning that cut across many legal topics1. Estoppel2. Equity3. Good faith4. Procedural rules like privileges in the discovery process

ii. Customary Int’l Law1. We have the subjective view (psychological - opinion juris), which doesn’t

exist in determining general principles2. CIL is more specific (narrower in scope), while general principles are

more broad, and discuss legal issuesb. Why recognize general principles of international law?

i. Int'l law is still developing, so we need the gap fillersii. There is implied consent - b/c they are so widespread, so they should be

implicitly regarded as the background conditions of a treatyc. Difference in Evidence for each:

i. CIL - looks to assembly resolutions, and agreements, treaties, proclamationsii. General Principles look at patterns in the individual municipal systems

1. Not disputed as much as CIL

JUS COGENS – PEREMPTORY NORMI. Jus Cogens and peremptory norms - Where does this fit into CIL?

a. Super-customs - so universally accepted. You cannot justify certain things.b. When there's an odd country violating it, there's no objection defensec. There is no clear agreement regarding precisely which norms are jus cogens, but it is

generally accepted that jus cogens includes the prohibition of genocide, piracy, torture, and crimes against humanity.

d. Unlike CIL, which requires consent & can be altered by agreement, peremptory norms are always binding even w/o consent, and cannot be conflicted with. The Vienna Convention of the Law of Treaties says if it does, treaty is void.

II. United States v. Smith (pg 138)

a. Facts : Smith & others aboard a vessel, mutinied, confined their officer, left the vessel, and then seized another vessel. Then they plundered and robbed a Spanish vessel.

b. Piracy is jus cogens, cut court needs to find out if actions were piracy. To define piracy, court looks at if the crime of piracy is defined by the law of nations to a reasonable certainty.

i. Look at works of juristsii. general usage and practice of nations

iii. Judicial decisions recognizing and enforcing that lawc. All define piracy as a robbery upon the sea. Therefore, it is defined by the law of

nations as such.III. Forbidden Treaties in International Law (Alfred Von Verdross, 1937) (pg 142)

a. States, in general, are free to conclude treaties on any subject. However, there are exceptions - these are jus cogens.

i. Treaty binding a state to reduce its police or its organization of courtsii. Treaty binding a state to reduce its army in such a way to render it

defenseless against external attackiii. Binding a state to close its hospitals or schools…or in other ways to expose its

population to distress.

IV. CUSTOMS & THE NON-CONSENSUAL SOURCES OF INTERNATIONAL LAW A. Customary International Law

1. Paquete Habanaa. The manner of determining rules of customary international law

i. Based on evidence of jurists & commentators having researched subjects

b. The way in which customary international law is incorporated into municipal law of the US

i. International law is part of US law c. The proper relationship between the US courts and the executive branch

in legal matters of international relations i. Where there is no treaty & no controlling executive or legislative

act or judicial decision, courts must resort to customs & usage of civilized nations

d. Holding i. Court ruled that, under the law of nations, in each case the capture

was unlawful and without probable cause. It was a rule of international law that coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, were exempt, with their cargoes and crews, from capture as prize of war. Although not reduced to treaty or statutory law, courts were obligated to take notice of and give effect to that rule

ii. So International law can override state law

2. The Asylum Case a. Regional international law is not customary law , the burden of proof is on

the country asserting international principals. Must site to some treaty sources

3. The Lotus Case a. Party seeking to show conflict/ violation of international law has the

burden of proof i. Must prove there is a rule of customary law restricting the other

states indepdencnce ii. Can’t exercise jurisdiction if it interferes w/ another states

international rights iii.

4. Texaco Mixed international arbitration – in determining customary international law

a. What tribunal handled this case – arbitrator b. What is the issue in this case- whether libya could take the property of

Texaco w/o any compensation c. Whether you owe compensation and how do you measure it

d. What did the arbitrator decide – they could legally nationalize as long as it was appropriate

i. B/c of sovereignty they would be able to do this ii. They can do so but thye have to pay soeme tupe of compensation

e. Remedy in this case- i. Forced some type of comp

f. Why did Libya agree to do this i. b/c they were trying to better their commercial relationship with

the rest of Europe g. Article 2 provided:

i. Every state has & shall exercise … sovereignty ii. Each state has right to nationalize … transfer ownership of

foreign property iii. any conflict should be determined according to domestic law of

the nationalizing stateB. General Principles of Law

1. General Principal a. When treaties or customs don’t provide a definite rule involving

international law, the judge or trier of fact may look to non consensual sources

2. The Am & S Case a. This involves attorney client privilege b. What was the issue:

i. To determine the common law b/c there was no rule on this , they looked to al the involved countries laws to determine what the lowest common denominator was

c. The decision: what the min that all the states agree on, the did this b/c i. They didn’t look to the treaty so we would have to assume that all

the countries assume that they would all agree to some form of privilege b/c they all have these rules

d. Which documents are privileged and which ones aren’t: i. In house counsel treated as low level employees ii. Outside counsel has the privilege

C. Natural Law & Jus Cogens 1. US v. Smith 2. Prosecutor v. Furundzija 3. The Michael Dominguez Case

D. Equity 1. Where sources of International law come from 2. Cayuga

a. What is the issue- does the treaty apply to Canadian Indians since they don’t reside in NY

i. Court applies principles of fairness and equity b. Where do they get this principle of equity from – according to general and

universally recognized principles and interest of justice c. What did the treaty say?

i. it will be construed with the general principles of law 3. Meuse case

a. What happened? Netherlands govnt has asked court to determine that filling canal with water if violation of treaty, the Belgian govnt has asked thecourt to say no its not in violation b/c the canal is treated same as another one

b. What is the issue: one who cheats can’t complain about another who does the same – the legal principle of equity is what this is based on

c. Equity will always be a general principle that will apply

4. The North Sea Continental Shelf Case a. The issue – asking court what principles to apply to division of the land b. Asking court to apply the Geneva convention law of the sea – which

provides for c. The court decided that the parties must agree in terms of equity ho to

divide – they must do it in an equitable manner

A. Chex case a. International law is different than national law, many concepts are from civil law b. Once two states enter into agreement to solve a problem they are married so they must not

act unilaterally anymore i. Even though the other was breaching the second side could not act unilaterally

US v. Iran    325Construction of a Wall Case  345South Bluefin Tuna Case  364Nottebohm Case   374Barcelona Traction   387

V. INTERNATIONAL & MUNICIPAL LAW A. Dualism & Monism

1. Dualist – relationship between international law & municipal law a. view that any national or international legal system is separate and secrete

entity, have power to determine the effect of any outside law b. Municipal law can’t impose itself on the international legal system

i. A state can’t rely on its own domestic law in order to repudiate an international legal obligation

2. Monist - relationship between international & national law a. view is that international legal order & all national legal orders are part of

a single universal legal order in which international law has a certain supremacy

B. Treatise & the Constitution 1. Treatise in US Law

a. Art II (2): the President of the US is granted the i. Power, by & with the Advice and consent of the Senate to make

Treaties as long as 2/3’s of the Senators present concur b. Art III (2): Judicial power of the US is extended to:

i. All cases in law & equity arising under the Constitution, the law of the Us and Treaties made or which shall be made under their authority

c. Art IV (2): Constitution & the laws of the US which must be made … and all treatise made or which shall be made, under the authority of the US – must be the supreme law of the land

i. Judges in every state shall be bound by them … d. Art I (10): No State shall enter into any Treaty, Alliance or Confederation

2. Foster& Elam

a. P claims a piece of land was granted to them in 1804 by the Spanish governor, D claims that that land had been seceded to France before the grant, so grant is void

b. In 1819 the Spanish-American amity Treaty was signed where Spain ceded to the US sovereignty over West FL & any grants made by the Spanish govnt before 1818 should be ratified & confirmed to the persons who are in possession of it now

c. the court held that the language doesn’t say that all grants of land before that day should be valid, so this language of ratification & confirmation which are promised m/b passed by legislature first

d. Crt held that this treaty was not self executing i. A treaty in the US is considered to be the law of the land and

should be regarded same as an act by legislature when ever its self executing, but when it provides parties to act then the legislature must act before it becomes a rule for the court to follow

C. Self Executing treaty provisions are binding on the States1. Whether a part of a treaty is self-executing & invalidates state law- must be

determined on case-by-case basis a. Self-executing treaties b/c of the Supremacy clause of Art 6 are binding

on the states of the US 2. Asakura v. City of Seattle

a. City ordinance prohibited issuing of pawn license to aliens. P claimed it violated 1911 Treaty between Japan & the US which allowed Jap citizens to “carry on a trade & reside in the US.”

b. Held that the treaty was self executing w/o any help from legislature, state or national that it will be applied & given effect by the courts

i. Crt held pawnbroker was a trade w/I definition of the treaty so city ordinance violated the treaty

3. Sei Fujii v. CAa. P claimed UN Charter invalidated a state law which barred aliens from

owning land. b. State Crt held that the preamble & article of the charter weren’t self

executing because they just stated general purpose & didn’t impose legal obligations to the individual member nations nor created rights in private persons

c. The Charter was not meant be a rule of law. Even though member nations were obligated to promote respect & human rights, that future legislative action would be necessary to accomplish the declared objectives

4. Missouri v. Holland a. Crt hinted that it might be Constitutionally possible for Congress to enact

laws pursuant to international agreements which would otherwise infringe on sovereign power of States.

b. US Fed migratory bird statues were struck down b/c they would impinge on the States 10th Amendment rights & thus unconstitutional. Later US negotiated treaty with Canada for similar regulation which Congress approved & President ratified. On appeal court upheld the constitutionality of the fed statue.

c. Crt held that the treaty implementing legislation had to do with national interest which could be protected only by national action in conjunction with another power

i. However the court stated that no treaty provision would be allied by the US courts if there were in violation of the US Constitution

5. Crosby v. National Foreign Trade Council

a. Issue: whether MA restricting authority of agencies from purchasing goods & serv’s from companies doing business in Burma is invalid under the Supremacy Clause of the US? Yes, it is invalid

i. This was done after the US had placed sanctions on Burma b. Held: Court held that congress had clearly intended for the act to provide

the President w/ flexible & effective authority over economic situations in Burma ie to limit economic pressure to a specific range not cut it off all together which is what the State is doing & thus in conflict.

i. Fundamental principle of Constitution is that Congress has the power to preempt state law

ii. Even w/o an express provision for preemption there are 2 situations where state law must yield to congressional Act

1. When Congress intends federal law to “occupy the field”, then state law is preempted

2. Even if Congress has not occupied the field, state law is preempted to the extent that it conflicts with a federal statute

D. Conflict between Treaties & Statues 1. By the Constitution a treaty is placed on the same footing & made of like

obligation, with an act of legislation”a. Both are supreme law of the land

2. When the two relate to the same object the courts will try and reconcile the provisions

a. if not possible, then the one that came later in time controls either the Statute or Treaty

i. “by the Constitution a treaty is placed on the same footing & b. Even though a treaty provision might no longer have force in the US

courts, it may still be legally binding in the international legal system 3. Legislative silence is not enough to abrogate a treaty.

a. Also where both Congress & the President agree that a treaty is still in force the courts won’t challenge the treaty’s validity or enforceability b/c they owe great deference to those political branches

4. Treaty given 2 meanings a. First “Treaty” in Art II(2) that requires the advice & consent of the Senate

AND b. Second there is a “treaty” in Art VI(2) , that along with the Constitution &

US law is given supremacy 5. Whitney v. Robertson

a. A Treaty between the US & Hawaii stated that various articles would be imported to the US from Hawaii duty free. The plaintiffs tried to use this treaty to argue that sugars impoted from San Domingo s/also be duty free even though not included in the treaty. However P’s relied on a an earlier dated treaty between US & Dominican Republic which stated that imports from their country s/n charged more than that of other countries. The court held that b/c the Hawaiian treaty was passed after the Dominican one & there was a conflict between the two the later one must control ie Hawaii, so P’s lost

6. US v. Belmont a. The US sought to recover funds deposited with Belmonts bank (NY)by

private Russian company later nationalized by the Soviet Union. These funds were included in amounts assigned by Soviet govnt to the US in an executive agreement to help satisfy outstanding claims of private Americans against the Soviet Union.

i. Since the executive agreement hadn’t been approved by the Senate there were objections.

b. Court held that an International compact isn’t always a treaty which requires the participation of the Senate. However though it wasn’t a treaty requiring ratification by the Senate it was a compact negotiated proclaimed under the authority of the President & as such was a treaty w/I the meaning of the ACT. The external powers of the US are to be exercised w/o regard to state law or policies b/c the complete power over international affaris is in the national govnt & can’t be subject to interference on the part of the states.

7. US v. Curtis- Wright a. A joint resolution of Congress authorized the President to declare the sale

of arms to certain countries illegal. i. Though the President initially issued a proclamation that declared

that sales to Bolivia were unlawful, the President later revoked his proclamation.

ii. D’s sold arms to Bolivia before the revocation of the proclamation, and demurred to the charges against them on the ground that the revocation of the proclamation precluded their prosecution.

iii. Held revocation only stopped the jnt resolution from being enforced against sales to Bolivia in the future.

b. The President had broad discretion to determine the benefit of enforcing a joint resolution on international relations. The power to make decisions regarding international affairs was vested in the President, especially in areas that could lead to embarrassment of or security issues for the nation.

c. Court held that the power of the President or Congress to make international agreements outside of the boundaries of Art II is not unconstitutional. Court found the grant of powers not in the Constitution but in the law of nations

8. Dames & Moore v. Regana. Dames & Moore filed an action against the Government of Iran and

Iranian banks, seeking money owed for services performed. SJ granted but President Regan signed an executive agreement w/ Iran to release American hostages in exchange for forgiveness of Iranian debts & terminate litigation.

b. Court upheld the Presidential action to suspend Iranian claims & to transfer the assets

i. As to the assets the court found the Presidends power from Congressional authorization granted in the Trade with Enemy Act

ii. As to the suspending the claims though these had nothing to do with the assets being held the court held that Congress implicitly consented to that practice by creating procedure to implement future settlement agreements thorough the Settlement of Claims Act.

c. However even w/o Congressional consent the President does have some power to enter into executive agreements w/o obtaining advice & consent of the Senate b/c the Presidential power extends to settlements of mutual claims btw foreign nations and the US, especially when its necessary for continued amity btw those countries

E. The law of Nations in American Law 1. Law of Nations

a. In common law countries like the US, international law that originates from sources other than treaties is considered a special type of common law such as customary international law, general principles of law & jus cogens

i. In the US the Law of Nations predated the Constitution & the Supremacy Clause

b. A criminal statute may define a crime by explicitly incorporating the law of nations

c. The Sup Ct has held that Congress intended the 1789 Alien Tort Statute to provide another avenue, w/o Congressional act, of redress for international violations committed by individuals

d. US courts don’t usually treat customary international law , general principles of law, judicial decision & opinions as sources of international law as would the international court;

i. however the courts collect evidence from all these sources & establish some rule of international common law

e. Also US courts are more likely to apply international law to disputes of vertical relations –those between individuals & states, than those involving horizontal relations- those between States

f. Jurisdiction in US courts based on the Foreign Sovereign Immunities Act i. Foreign Sovereign Immunities Act does not provides the sole

basis for suing foreign govnts ii. The Alien Tort statute could also be used

2. Charming Betsy a. American law includes international law – however this isn’t a rule that

must follow i. Thus an act of congress should never be construed to violate the

law of nations b. If congress manifests intention that it doesn’t want to follow international

law then Courts must accordingly rule

3. Respublica v. Longchamps a. Chief Justice of Pennsylvania held that an assault on the French consul

general in Phili was “an infraction of the law of Nations. This law in its full extent is a part of the law of this State & is to be collected from the practice of different Nations”. Thus based on this LongChamps was subjected to a fine & imprisonment

4. Amerada Hess v. Argentine Republic – relationship btw the law of nations & minicpal law

a. An oil tank belonging Hess was bombed by, the Argentine Republic while delivering goods.

b. Held that Argentina was signatory to various agreements from Law of Sea Convention to the Geneva Conventions of the High Seas as to treatment of neutral ships during war time. Thus Argentina had violated international law by attacking a neutral ship in international waters w/o proper cause or suspicion or investigation.

5. PLO case a. Was terrorist org and required closing of all offices in the US b. Court held that the office of UN in NY didn’t have to be closed

i. There was insufficient proof that congress didn’t want that to be an exception

6. Political Question note 5 a. court won’t rule because the question is politically charged where it might

be an infringement on one of the other branches of govnt b. second reasons is because there are no judicial standards for determining

the right policies or the question c. third reason- should only have one foreign policy question or should have

only one position d. cant have different policies of ex what is the real Russian govnt

7. US Alvarez-Machain a. Mexican citizen was indicted for murdering DEA agent abroad & was

kidnapped & flown to the US. He argues to dismiss indictment b/c he was abducted in violation of the extradition treaty btw US & Mexico.

b. Issue 1: Whether it was in violation of the US Mexico treaty to forcibly abduct Mexican citizen?

i. The court construed the treaty and concluded that there were no express provisions concerning obligations to refrain from forcible abductions, or the consequences under the treaty if such abduction occurred.

ii. The court concluded that the language of the treaty, in the context of its history, did not support the finding that the treaty prohibited abductions outside of its terms.

c. Issue 2: whether the Treaty s/b interpreted to include an implied term prohibiting prosecutions by means other than those provided in the Treaty

i. D argued abductions are prohibited by “customary international law”

ii. Nor did the court find that the treaty should be interpreted so as to include an implied term prohibiting prosecution, where a defendant's presence was obtained by means other than those established by the treaty

d. Court responds stating that US has jurdx over D for violations of US criminal laws & abductions are legal in the US

i. Also D didn’t argue that the international laws should be applied here only that they should be used as a basis for interpreting the treaty

ii. The court noted that the violation of any principle of international law did not constitute a violation of the treaty

e. Note: This was treatching the charming Betsy Canon by interpreting a treaty to avoid conflict with a local alw

8. Saso v. Alvarez Machain a. ATS

i. The DC’s shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US.

b. FTCA i. Authorizes suit for personal injury caused by negligent or

wrongful act or omission of any employee of the Government while acting w/I the scope of his office/ employment

1. Statute makes US liable for torts c. Federal grand jury had indicted P for the torture & murder of Salazar & a

warrant was issued for his arrest. DEA hired Mexican nationals to bring Alvarez to the US

i. Once in the US he moved to dimiss the indictment because his seizure was in violation of the extradition treaty between the US & Mexico . DC granted the motion

ii. Then he sued the DEA the US & person involved in this abduction

1. He wanted damages from the US under the Federal Torts Claims Act

2. Alleging false arrest by Sosa the Mexican operative under the Alien Tort Statute for violating the law of nations

d. 9th circuit said arrests were torts in violation of international law and the DEA had no authority to arrest or detain P in mexico so the US was liable to him under CA tort law

e. Sup court reversed each of these counts i. The United States Supreme Court held, that neither the FTCA nor

the ATS provided a remedy for the alien. ii. P claimed that the government's control of the abduction in the

United States prevented application of the FTCA exception for claims arising in a foreign country,

iii. But the court held that the exception applied since the alleged harm occurred in Mexico, regardless of whether conduct in the United States was a proximate cause of the harm.

iv. Further, while the jurisdictional scope of the ATS extended to recognition of limited claims for violations of the law of nations, the alien's brief illegal detention prior to his transfer to lawful authorities did not amount to a violation of a well defined norm of customary international law

v.VI. INTERNATIONAL COURTS & TRIBUNALS

A. Public International Arbitration 1. The Alabama Arbitration

a. 5 Judge tribunal empowered by UK & US consisting of reps from Great Britain, Italy, Switzerland & Brazil to decide whether Britain had violated international law when it allowed British companies to build warships for the Confederacy during the American Civial war

b. the tribunal held that the Britian owed the US a duty to prevent private parties from supplying the southern rebels but had also failed to observe their international obligation to remain neutral

i. that they had failed their duties under a treaty between their countries

c. Note: This case stands for that fact that it was possible for powerful states to arbitrate important disputes & avoid war.

d. What incentive did UK have to arbitrate? i. They wanted to help the Confederacy because of vested interest in

cotton AND ii. To have good relations in the future

2. Permanent Court of Arbitration a. Founded by the 1899 Hague Peace Conference, the PCA was the worlds

first permanent & universal court of arbitration b. It Requires its parties to use their best efforts to insure the pacific

settlement of international differences i. States are first to rely on mediation to settle their disagreements –

informal diplomatic procedures ii. But if this is unsuccessful then Convention provided for

establishing an international commission which would look at the facts impartially & issue non binding reports

iii. The Convention established the Permanent Court of Arbitration from which states could designate specific arbitrators to sit ad hoc tribunals & hear cases submitted voluntarily by states & render legally binding awards

c. Since the establishment of the ICJ, the PCA is rarely used d. Benefits of Arbitration

i. Party’s choice of the tribunal is the most important distinction between arbitration & adjudication

ii. Arbitrators can sometimes be less bound that judges would be to apply strict ruel of law however not always the case

e. Dogger Bank Case i. A PCA commission of inquiry composed of admirals from 5

countries navies held that the Russian fleet attacking on English vessels mistaken them for Japanese torpedo boats, was not justifiable & Russia agreed to pay compensatory damages.

1. Remedy was to admit fault & pay damages ii. Note: this case was one of famous decisions from the Hague PCA

3. Types of International Arbitration a. Public International Arbitration

i. Rainbow Warrior case1. French secret service sank the Rainbow Warrior while in

a New Zealand harbor. France demanded the release of its 2 agents from jail & New Zealand wanted compensation . The asked the UN to mediate which fined F & required NZ to transfer prisoners to Hao for 3 years then to France but France violated & removed them before the end of that period. Under their og bilateral Arbitration agreement NZ invoked a clause authorizing further arbitrations arising out of the og dispute unilaterally

1. Tribunal found that France was in material breach of its obligations to NZ Captain b/c F didn’t try to obtain NZ consent in removing him for purposes of seeing his urgently dying father

2. Tribunal found that F was not in breach of obligations to NZ for removing the Captain b/c of medical condition requiring immediate removal hence unless there was an immediate & formal denial by NZ a grant w/h/b implied on the circumstances b/c unable to get verifation no one at fault

2. Issue: whether material breaches of treaty obligations has been committed

3. GR: The customary law of treaties per the Vienna Convention states that “every treaty in force is binding on the parties to it & must be performed by them in good faith

1. Exemption: Circumstances of Distress Exist a. In case of extreme urgency involving

elementary humanitarian considerations affecting the active organs of the State may exclude wrongfulness

4. State Responsibility principles also apply: any violation by a State of any obligation (whether K or tort) gives rise to State responsibility & the duty to reparation

b. Private – Commercial International arbitrationi. Those between private litigants

1. ie Scherk (Ch 12) c. Mixed International Arbitration

i. Those between a state & private litigant 1. ie Texaco/ Libya

B. The International Court OF JUSTICE 1. Contentious v Advisory Jurisdiction of the International Court

a. Statute of International Court of Justice Article 36, i. Article 36(1)

1. The court has jurisdiction over all cases which parties refer to it AND

1. this is done by special agreement called compromise between parties

2. The court has judx over matters specially provided for in the Charter of the UN or treaties & conventions in force.

1. Modern treaties contain compromissory clause providing for dispute resolution by the ICJ

ii. 36(2) Allows parties to this Statute (States) to declare that they are submitting to the Court’s compulsory jurisdiction w/o any agreement

1. ipso facto jurisdiction – declaration that you submit yourself to the jurisdiction of the court where other party has done the same for legal disputes concerning:

1. Interpretation of treaty 2. Any question of International Law 3. Existence of a fact if established would be a

breach of an international obligation or 4. Nature or extent of reparation t/b made for breach

of international obligation 2. Note: this is based on some resolution they have agreed

t/b bound by to got to court , where there is a real issue

iii. 65 Court may give advisory opinion on any legal question at the request by anybody authorized by the UN Charter to do so

1. In writing 2. Exact statement of question to be answered And 3. Include all documents likely to shed light on the question

1. Note: Advisory opinions are not binding 2. Reference – special agreement they have by

protocol

b. Charter of the UN Article 96 i. The General Assembly or Security Council may request the ICJ

to give an advisory opinon on any legal question ii. Other orgs authorized by the UN may also request ICJ for

advisory opinion on legal questions arising w/I the scope of their activities

2. Compulsory/ Ipso Facto v Reference Jurisdiction of the ICJ a. 36(2) of UN charter grant general compulsory jurisdiction to ICJ which

is limited to those disputes where both parties have accepted article 36(2) i. Note: States that have not accepted or withdrawn their acceptance

of Article 36(2) are still often parties to the international conventions vesting 36(1) compulsory jrdx to the ICJ

ii. Note: individual treaties can state the disputes w/ settled in the ICJ

b. Reference jurisdiction is where through protocol signed by two parties they agree to go to the ICJ

3. Contentious Cases at the International Court a. Minquiers & Exrehos Case

i. France and United Kingdom were trying to get hold of the Minquires islands for fishing purposes. UK got it b/c they established history of jrdx & control over the islands whereas France c/offer no such proof. Here consent was given after the dispute arose & both countries agreed to settle in court.

1. Factors court looked at to determine issue of alienation of property

1. proof of title 2. records 3. physical proof of people living there

ii. Function of the court in dispute resolution 1. Jurisdiction in this case Contentious because making

decision not just advisory is reference ( special agreement they had)

2. Compromise- agreement to submit case to somebody here it was arbitration to the ICJ

3. This is a contentious jurisdiction submission ebcasue there is actual issue at law

iii. Why did they use the court to resolve the issue?1. To avoid nationalism, avoid trade being affected & to

avoid failed diplomatic relations 2. Advantage of having to decide that someone gets it is that

there is some resolution that they can take away have the issue resolved

b. Hamdan v. Rumsfeld

c. Malawi i. Malawi govnt submitting to the jurisdiction of ICJ via ipso facto

jurisdictions agreeing to the issues listed under 36(1) to be litigated in ICJ but made reservations to certain things: matters essential to domestic judx, belligerent military occupation

Last Week: Longchamps: international law is part of the common law The Charming Betsy: US courts will interpret domestic law so as to not conflict with international law Filartigga & Tel-Oren: opposing views on the ATS Sosa: adopts filartiga (narrowly) but leaves door open Alvarez: not a violation of extradition treaty with Mexico to kidnap Mexican citizen Arbitration, Rainbiw Warrior: interesting attempt by France to avoid pacta sunta servanda rejected by arbitrator.

ICJ: how a case is broughtCompuslsory jurisdiction

CompromiseTreaty ProvisionAdvisory Opinions

4. Advisory Opinions at the International Court a. Lack of consent by one interested State may render the advisory opinion

incompatible with Courts character such as in circumstances: i. Giving a reply would have the effect of circumventing the

principal that a State is not obligated to allow disputes to be submitted to judicial settlement w/o its consent

b. Opinion won’t be incompatible where i. There is a legal controversy which didn’t arise independently in

bilateral relations 1. ie in Western Sahara the issue was brought up during

General Assembly proceedings c. Opinion may be given even where one State has not consented where the

advisory opinion will not have any affect to the rights of that State in regards to the issue.

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran)International Court of Justice 1980

Factsa. Filed in The International Court of Justice on 24 May 1980.b. On 4 November 1979, a militant group of Iranian students entered the United States

Embassy and overtook it, taking its 65 occupants hostage. 13 women and blacks were released, leaving 52 hostages. Although Iran had promised protection to the U.S. Embassy, the guards disappeared during the takeover and the government did not attempt to stop it or rescue the hostages. The U.S. arranged to meet with Iranian authorities to discuss the release of the hostages; however, Ayatollah Khomeini forbid officials to meet them. The U.S. subsequently ceased relations with Iran, stopped U.S. exports, oil imports, and Iranian assets were blocked. Although the militants were not acting on behalf of the State, neither did the State uphold their agreement to protect U.S. nationals. The militants said they would hold the hostages until the Shah, who was receiving medical treatment in the U.S., was returned to Iran.

c. The United States argued that Iran violated the Vienna Convention of 1961 which stated the Embassy would be protected, as well as the Vienna Convention of 1963 which stated the nationals would be protected while in their country. Furthermore, the 1955 Treaty was in effect, which promoted good relations between the U.S. and Iran and promised protection to its territory and nationals.

d. Iran did not argue its side, instead deciding to make no response to the Court’s notices.

Questionsa. Did Iran violate the Vienna Conventions of 1961 and 1963 as well as the 1955Treaty?b. Even though the State of Iran did not overtake the United States Embassy, does it have the responsibility of ensuring the hostages’ release?c. Should Iran be held responsible for the takeover by the militants? That is, should

Iran have to make reparation to the United States for these actions?

IV. Decisiona. The Court found that the Vienna Conventions and the Treaty were violated, as the

Government of Iran knew of the militants’ actions and made no attempt to help the United States’ hostages. Iran had stepped in on other militant attacks of embassies, but did not do so in this case. Therefore, the Court determined that the Government knowingly decided to not intervene in this case.

b. Iran, through its 1955 Treaty and the Vienna Conventions, must ensure the protection of the United States’ citizens while they are in Iran. Therefore, Iran is responsible for releasing the hostages even though they themselves did not contain them. Iran was under obligation to ensure that the people as well as the property were protected, and therefore should remedy this.

c. The Court determined that Iran was more than negligent in these circumstances. They had, on 1 March 1979, claimed to be making arrangements to prevent the United States from any takeovers or attacks. Many Iranian authorities approved of the takeover and theForeign Minister claimed that America was responsible for the incident. Iran deliberately ignored requests for the hostages to be released and should, for these reasons, be help to make reparation for the actions.

V. Principlesa. The international law elements are the power of Treaties and Vienna Conventions

and, from that, the responsibility of a State to enforce these against militant groups.b. The rules of law in this case are the Vienna Convention of 1961, the Vienna

Convention of 1963, and the 1955 Treaty.c. This case touches on the extradition rules, as it discusses bringing the militants to

the United States if Iran did not try them. It discusses the importance of Government responsibility over its unruly citizens. Furthermore, it addresses the importance of keeping to binding documents made between States.

VI. ConclusionsThis case stressed the importance of the Vienna Convention’s rules as well as Treaties. Additionally, it emphasized that a Government is responsible for what goes on within its boundaries even if the actions are not specifically Government-related. The Government should be held to the Vienna Conventions and Treaties, no matter the circumstances. Furthermore, the case heavily impacted the relations between the United States and Iran even still today as this was a pivotal moment in the relationship between the two States.

VII. BibliographyCase Concerning United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980

d. Diplomatic & Consular Staff i. US alleging Iran govnt was supporting the groups holding US

diplomats as hostages brought Iran to the ICJ based on Article 36(1) compulsory jrdx in two multi lateral agreements : the Vienna Conventions & Amity agreement between the two States & thus consent was given before the dispute arose

1. Issue: this was contentious jurisdiction and was reference because they had Treaty of Amity which provided that ICJ would take jurisdiction

ii. Since Iran had refused to appear in court the ICJ must first determine whether there is Jurisdiction based on Article 53 ie some treaty that both agreed to & thus conferring judx

1. Vienann Convention and the protocols which state that if there is a dispute the ICJ decides

1. Dispute here under the Vienna Convention – 1963 Convention which accords privileges & immunities to consular personnel of US consulates in Iran & 1961 guaranteeing the inviolability of premises of the embassies

2. Amity treaty that they are both parties to promote friendly relations by ensuring protection & security of their nationals in each other’s territory

iii. Jursidiction question 1. Court has jurisdiction over matters concerning diplomatic

& consular premises even if the dispute in front of it has other aspects apart from whats in the complaint

2. the letter by Iran is not enough in stating the points on which the court shouldn’t take jurisdiction over the case

iv. Basis of Jurisdition 1. Court has jurisdiction over the case because both Iran and

the US are parites to the Vienna convetion and Iran has not made any efforts to claim that the Vienna conventions or protocols don’t apply to the two countries

2. US also claims violation by Iran under the Treat of Amity & Economic Reltions and Consular rights of 1955 the purpose of which is to promote friendly relations between the two countries- again Iran has not made any claims that the treaty was not in force on the date of the Embasy Attacks . Its in the interest of all parties to uphold this treaty as it provides a framework for future continued relations.

v. Holding : Court concluded that the initiation of the attacks can’t be said to be started by the Iranian govnt however they can’t escape liability completely they had obligations under the Vieanna convention and other international rules to ensure the protection of the US embasy and Consulates

1. The inaction of the Iranian govnermtn consitituted clear violations of their obligations to the US under the Vienna Convention

2. They didn’t take appropriate steps to ensure the safety of US persons

3. US won the case and as a result the US later withdrew from Ipso Facto jurisdiction. Court issued provisional relief at first to release those hostages

The Diplomatic and Consular Staff Case (US v. Iran; ICJ 1980; p. 271) Iran violated intl law (treaties and customary law) b/c it wouldn’t return the

hostages from the Embassy unless the US sent the Shah back to Iran. State succession—treaty of amity entered into in 55 by the Shah. Muth: No question that Iran was bound by the treaty of amity—Khomeni is not

a “new state.” Bringing this case may not have been wise. Ct concedes that initial decision to attack was not state sanctioned (until later). Nothing really to argue—case taken to ICJ to make a political point. Ct accepts

jurisdiction even tho both the ct and the US know Iran will not appear or abide by any

decision. N. 4, p. 286: The proper role of the court—shld it turn away when it is being used? Is this a negative effect on the ICJ’s rep?

How does a ct operate effectively when state’s won’t cooperate? Ct makes note that US military incursion (helicopters sent by Carter to free

hostages) was inappropriate and undermined justice. Another possible purpose of the ICJ: develop intl law—maybe ok then.

e. Advisory Opinion of Western Saharaf. Basis for the request According to Article 65 of the Statute the court may

give advisory opinion as to any legal Question by some authorized by the UN charter

i. Ct held that the request was made according to the Art 96 of UN charter which allows the General Aseembly to ask the court for advisory opinions on legal matters

ii. Crt holds that mixed questions of law and fact are legal questions under the Art 96, Although under Art 65 the court has discretion to decline to answer

iii. Court holds that the purpose for the General assembly requesting an advisory opinion in order so that it may exercise its functions in determining the Colonization issues

iv. Facts: Request was made by General Assembly for advisory opinion to determine whether Western Sahara at the time of colonization by Spain was terra nullius. Morocco wanted to go to ICJ after General Assembly stated that Spain was not in possession of the Western Sahara for purposes of its proper function as to decolonization of territories.. Spain did not want to submit to judx.

v. 1 st Legal Question posed were to determine rights of Morocco over the land during times of colonization not today, whether it was land belonging to not one Terra nullius.

1. Legal Answer The court held that it had judx to settle the issue would not affect the rights of Spain who is the administering power but the question will help them accelerate the decolonization process of the territory

2. Determination that land is “terra nullius” at the time of colonization by Spain would be possible only if it were established that at that time the territory belonged to no-on in the sense that it was open to acquisition through the legal process of occupation

1. land was inhabited by tribes or people w/ social & political orgs thus not terra nullius

vi. 2 nd legal question if answer to 1 is no then must decide what the legal ties were between Morocco and Mauritania

1. Legal Answer At the time Of Spain’s colonization legal ties did exist between Morocco and Western Sahara but no such ties existed between Muratania and Western Sahara

2. Legal Ties- means the ties that existed between the people who actually may have been found in Western Sahara

5. Chambers at the International Court a. Statute of the International Court of Justice Article 26

i. The court may form one or more chambers composed of 3 or more judges as determined by the Court for dealing with particular category of cases dealing with cases relating to

1. labor and 2. transit & communication

b. Elsi Case i. Secretary of State of the US filed an application to the ICJ for

proceedings against Italy claiming that Italy violated international legal obligations under the FCN Treaty by taking over the ELSI plant to liquidating their assets

1. The US also requested pursuant to Article 26 of the Statute that the dispute be resolved by a Chamber of the Court Italy Agreed

ii. Did the treaty state that US or Italy wouldn’t confiscate property 1. Treaty said the two countries could run their companies in

each others state, and this implies that they couldn’t confiscate their property

iii. Court didn’t find a violation of the treaty by Italy because the facts were weak

iv. Why did the State department take still take this case 1. They wanted a shot at perhaps winning their case 2. Or it could be that they wanted to show that they were

still taking cases to the ICJ

Compulsory Jurisdiction: (Art 36(2)—p. 342 Many in the past have accepted this. US had allowed it but had excepted interpretation of treaty; after Nicaragua case, US

withdrew its compulsory jurisdiction. Problem: once you do this, you lose control over the matter.

Malawi—self judging exception to this. You have to wonder whether ct giving up an impt part of its responsibility (e.g. violations of human rights).

Article 2(7) of the UN Charter, p. 829—this only prevents the UN—not other states.

C. Advisory Opinions at the International Court Very few intl orgs ask for advisory opinions (3-4 each year)—this is b/c they don’t

want the publicity.

Western Sahara (ICJ, 1975; p. 288) It had been colonized by the Spanish for many yrs—since Papal Bull (1492). Spain

resisted adjudication. Morocco claimed the north half and Mauritania claimed the S. Half. Mauritania was

indep from Fr in the 60s, but Morocco claimed it was part of Morocco). This area had a huge deposit of phosphates. (Oil deposits)

Resolution 1514 (1960)—a normative Gen Ass resolution—Declaration on the Granting of Independence to Colonies.

Morocco eventually claimed the whole area and Spain wldn’t consent to a contentious proceeding. If this is really a contentious proceeding, can an advisory opinion work? Within the framewk, , Muth says this is ok. Ct sees its role as broader—to help the UN.

Holding 1: At the time of colonization, the land was not terra nullius. Presence of organized tribes made it not terra nullius.

Holding 2: There were some ties btwn the nomadic tribes and Morocco but not enough to say full political allegiance. (Like in E. Greenland case and Muth says ct is right). Ct says the same about the ties w/ Mauritania.

Muth: Agrees there are legal issues in this case. What shld be the role of the ct in the 21st century?

o In North Sea Case—ct was very bold in its application of the law.o In others, it has been very passive (SW Africa, Lotus)

Problem with a referendum is how do you ask the question—W. Sahara and Morocco cldn’t agree on this. So now UN won’t even push for a referendum.

Efficacy of intl court: It’s opinion in this case has been ignored for 26 yrs! Muth: Ct needs to address the issue of political questions b/c if it doesn’t, this cld

undermine the court if it is not managed well.

The Elsi Case (United States v. Italy ICJ 1989; p. 303) Italy seizes the plant (belonging to the US) claiming debts, and labor disputes.

Palermo mayor wanted to protect his citizens. US says Italy violated FCN (Friendship, Commerce, and Navigation) treaty (1948-now

called the FCEstablishment treaty) by not letting the US organize, control, manage its corporation.

Ct says no violation b/c it was really on its way to bankruptcy—hard to show appreciable damage.

This was a chamber case (see below). US and Italy wanted Western Judges that wld be more familiar w/ the issues (bankruptcy, labor, etc.)

Ct took this case even tho it really involved private parties—the countries went to ct on behalf of private parties. ( an espousal case).

N. 1, p. 312—cynical attitude: The US had just decided not to go in the Nicaragua Case and had just withdrawn compulsory jurisdiction. So why bring this case? Muth: doesn’t really know why. It is a fairly minor case not really a lot of $--US didn’t take the Amerada Hess to the ct and it was more impt!

Jurisdiction is governed by statute (must show exhaustion of local remedies and denial of justice.) (Nottebohm and Barcelona involve the same concept)

Possibly US took case to help insure better intl climate for US investments. Dissent (US judge)—very rare that a judge votes against his own country. Other venues available for Raytheon:

o Municipal courto Arbitrationo Regional Court if one exists (esp w/ quasi-public issues like AM&S)

One issue in reforming the court: Shld private parties be able to bring cases? N. 3, p. 313: Cld have a halfway system where a municipal ct refers for an advisory

opinion if it thinks it is a more intl issue. It is very expensive, tho, to litigate at the ICJ (but this type of system wks well in Europe).

N. 4, p. 313-There are many mechanism for dispute resolution (FOR MY JOURNAL ARTICLE!!)

Issue for the future: Shld there be more universal tribunals or more specialized/regional ones? Guillame article says there too many of the latter and shld unify these cts (Muth Agrees, but it wld still be difficult, he says).

Chambers at Intl Ct: Art. 26 of the ICJ Statute allows for this. Wasn’t utilized before as it is now—as cases become more complicated.

What is the advantage of doing this? The question is one of control—judges are elected to a chamber upon request by the parties. (p. 311).

W/ Chambers it is almost like arbitration b/c of the party control. Also, if a judge has certain expertise, you can choose this judge.

VII. INDIVIDUALS & INTERNATIONAL LAW A. Individuals as Objects of International Law

1. State Protection & State Responsibility a. Limitations

i. Individuals may not be protected by their national states where national links are not genuine

ii. For corporations, international law authorizes the national state [state of incorporation] of the company to make a claim not ie home of principal stockholders

iii. State protection doctrine allows a state to protect its nationals, although a state has not obligation to represent the claims of its nationals.

b. International Court insists that a private party be protected only by a state in which he has a genuine Link

i. Nottebohm : http://en.wikipedia.org/wiki/Nottebohm_(Liechtenstein_v._Guatemala)

ICJ concluded that there was an absence of any bond of attachment between Nottebohm & Liechtenstein, the protecting state, and refused to allow the state to sue on his behalf for Guatemala refusing to admit him. Ct held Gutemala was not obligated to accept his nationality

ii. He had business & permanent place of abode in Guatemala only reason was naturalized in Liechtenstein was b/c his Germany (his country) was at war, but no such ties with Liechtenstein

c. Test for nationality i. Genuiness of connections : Strong factual ties between the person

& the State 1. Habitual residence 2. Center of his interest 3. Family ties 4. Participation in public life 5. whether you’ve become wedded with its traditions,

interests , way of life or of assuming obligations other than fiscal obligations

ii. Its up to the state to determine how each person can become a national, however its international law that determines whether a State is entitled to exercise protection & to seize the court

iii. In order to be able to invoke nationality against another State, nationality must correspond with the factual situation.

Question of who is a national?The Nottebohm Case (Liechtenstein v. Guatemala; ICJ 1955; p. 315) Can Liechtenstein represent Nottebohm at the ICJ? No. Two concepts:

o State protection —state of which person is a national can protect.o State responsibility —state where alien resides (see p. 322, n. 1). This has

now expanded to include: Territorial integrity. (Rainbow Warrior Case p. 323)

Harm to Environment. Breaching Treaty Obligations. Responsible for violating rights of its own citizens. Problem: (1) What

are considered human rights? (2) How to enforce? Esp. when UN can’t intervene in domestic relations. Query: Is this really domestic?

Attribution (n. 2, 323)—who in facts binds the state? For what acts is a state responsible? What if it is the act of a state/local agency—can whole nation/state be responsible? Esp w/ (a) federal system and (b) private parties. (Intl comm. has been working on this—but very controversial)

Is Guatemala required to recognize Liechtenstein naturalization on intl level? Limitations on naturalization—can’t naturalize a member of foreign forces or someone

who enjoys diplomatic immunity. Dualism: Liechtenstein can grant naturalization, but intl law does not require

Guatemala to recognize this naturalization. Ct says that there must be a “genuine link” btwn a country and the person asking for

protection for the ct to require Guatemala to recognize. This opinion is limited today b/c naturalization has become a matter of convenience.

“Genuine Link” is dead. Ct goes into idea of when a state can bring an action—objective theory/positivist

theory (only states can). N. 1, p. 322: Mavrommatis Palestine Concessions Case (PCIJ—1924) Est the doctrine

that actions against individuals are actions against states. Denial of justice or exhaustion of remedies before it can go to the intl tribunal.

There is a gap in the system—what recourse do Nottebohm type people have? N. 3, p. 318: Ct seems to focus on this extensive link w/ Guatemala (but implication

that other states might be expected to recognize him.) Reparations: Wld they be given to Liechtenstein and Nottebohm? Stateless persons—

do they have any rights? World has over 20 million refugees. Nansen---alien travel documents issued on behalf of UN for people in trouble. These don’t require protection by issuing states.

2. Siege Social a. Barcelona Traction Case – Issue: whether Belguim had standing to

represent Barcelona Traction i. ICJ held that a company incorporated in Canada could not be

protected in a court action by Belgium, the home of its principal stockholders, because the general rule of international law authorizes the national State of the company alone to make a claim. The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain.

ii. It operated in Spain but was mostly owned by Belgiums

iii. GR: When a state admits into its territory foreign investments or foreign nationals, it is bound to extend to them the protection of the law & assume obligations concerning their treatment

iv. Genuine Connections for Corporations 1. Siege Social - where the headquarters of the company are

(though not enough)2. where activities for the assets are 3. Where its incorporated

Barcelona Traction Case (Belgium v. Spain; ICJ 1970; p. 325) Case was very traditional and pushed the law backwards! Govt of things did things to BT causing it to go bankrupt. Canada tried to get Spain to

agree and Spain refused. Canada wasn’t allowed to bring an action. Spain was being cynical knowing Belgium suit wldn’t succeed. (Some stockholders lived in Belgium).

Holding: Belgium cannot represent citizens whose shareholder rights were affected by Spain.

Ct relies on erga omnes. No genuine link btwn BT/Belgium so no standing. What about corporation as an individual? Like SW Africa Case—Canada can’t really take action unless Spain agrees to

arbitration. N. 4, p. 337—where does BT go? If there had been a bilateral treaty btwn

Belgium/Spain—it wld have had to be constructed in a way to recognize the rights of shareholders. N. 5, p. 337—“genuine link.”

Cas e C oncerning The Barcelona Traction, Light And Pow er Com pany, Lim ited

(Belgium v. Spain)

I.C.J . Reports 1964

Facts

a. The Internation al Court of Jus tice delivered judgment, by 15 votes to 1.

b. Belgium filed a clai m agains t Spain for damages agains t Belgian nationals who w ere shareholders of Traction Compan y.

c. Traction Compan y is incorporated in Canada but has man y s ubs idiaries in Spain.

d. The Spanis h s ubs idiar y, Barcelona Traction, filed for bankruptc y in which Belgium believed w as due to actions of the Spanis h State.

e. Belgium clai med that man y nationals had a very larger s take of the compan y but w as not proven b y the Spanis h Government.

f. Belgium clai ms it has the right to us e diplo mat ic protection over its shareholders .

g. Both Belgiu m and Spain are s tates .

Ques tions

a. Does s overeign immun it y and diplomatic protection extend to shareholders of that particular s tate?

b. Does Belgiu m have the right and juris diction to bring Spain to court for the actions of aCanadian compan y?

c. Do internat ional compan ies and s hareholders have legal pers onalit y?

D ecis ions

a. The court found that Belgium did not have jus s tandi, recognized rights , to exercis e diplomatic protection for its nationals that held s take in the Traction Compan y. Internationa l law s tates that the national State of the compan y can exercis e this right and s eek paymen t.No s uch law has been es tablis hed for s hareholders . If a wrong w as done to a compan y which res ulted in harming of the s hareholders , then onl y the comp an y has the authorit y to s eek compens at ion. In turn a shareholder mus t turn to the compan y in hope that it w ill s eek action w ithin the courts . O nly through a s pecial treat y or agree ment can s hareholders have thisright. N o s uch treat y exis ted.

b. The court found that Belgium did not have the right to bring Spain to court s ince Traction Compan y w as located in Canada. The court acknow ledged that the compan y w ent bankrupt in Barcelona but s tated that the corporation as a w hole s till exis ted and w as s till capable of operating. Thus , the shareholders could seek legal action but onl y through Canada agains t Spain. The Traction Compan y w as es tablis hed b y the court to have taken on the legal identit y of Canada w ho has exercis ed the right of protecting Traction Compan y, making the suit agains t Spain invalid.

c. Onl y certain organization al entities have legal pers onalit y. Compani es such as Traction mus t us e their home s tate to bring about law s uits agains t other s tates . Individuals or in this cas e s hareholders , do not have legal pers onalit y when it comes to internat ional law .

The court therefore dis miss ed the cas e on the bas is that individuals or s hareholders do not have legal pers onalit y and cannot be protected b y diplo mat ic tools w hich are res erved for s tates .

Principles

a. The internat ional law ele ments of the cas e are s overeignt y, diplomatic protection, j uris diction and legal pers onalit y.

b. The rule of law that w as us ed in this cas e w as the general rule/princip le of internat ional law .This law s ugges ts that individuals or in this cas e s hareholders do not poss es s the s ame rights as s tates and cannot be offered diplo mati c protection. Further more, Spain cannot be s ued by Belgium for its actions agains t a Canadian comp an y. O nly Canada has proper j uris diction and authorit y to sue Spain.

c. One principle of law that arous e w ithin this cas e w as that of jus s tandi or recognized right.States have recognized rights that individua ls do not have when it comes to internation al law . If a law is recognized and becomes a cus tom a mong nations then it is cons idered law in the internationa l real m.

Conclus ion

The court’s ruling of dis miss al of the cas e adequatel y demons tra tes the differences betw een s tates and individuals and who is cons idered s overeign in the internat ional realm. The court ruled in favor of Spain s ince Belgiu m had no juris diction to do so and the s hareholders s eeking compens at ion w as not given diploma tic immun it y. How ever, if the s hareholders w ere to s eek aid from Canada in w hich the compan y is headquartered and given correct identit y w ith, a law suit could occur. Thus an individual cannot bring a clai m agains t a s tate s ince it is not given that authorit y. This cas e w ill be view ed as an excellent reference for cas es dealing w ith organizations and sovereign immu nit y claims and how to correctl y deal w ith them.

Compulsory Jurisdiction: (Art 36(2)—p. 261) Many in the past have accepted this. US had allowed it but had excepted interpretation of treaty; after Nicaragua

case, US withdrew its compulsory jurisdiction. Problem: once you do this, you lose control over the matter.

Malawi—self judging exception to this. You have to wonder whether ct giving up an impt part of its responsibility (e.g. violations of human rights).

Article 2(7) of the UN Charter, p. 829—this only prevents the UN—not other states.

C. Advisory Opinions at the International Court Very few intl orgs ask for advisory opinions (3-4 each year)—this is b/c they

don’t want the publicity.

Western Sahara (ICJ, 1975; p. 288) It had been colonized by the Spanish for many yrs—since Papal Bull (1492).

Spain resisted adjudication. Morocco claimed the north half and Mauritania claimed the S. Half.

Mauritania was indep from Fr in the 60s, but Morocco claimed it was part of Morocco). This area had a huge deposit of phosphates. (Oil deposits)

Resolution 1514 (1960)—a normative Gen Ass resolution—Declaration on the Granting of Independence to Colonies.

Morocco eventually claimed the whole area and Spain wldn’t consent to a contentious proceeding. If this is really a contentious proceeding, can an advisory opinion work? Within the framewk, , Muth says this is ok. Ct sees its role as broader—to help the UN.

Holding 1: At the time of colonization, the land was not terra nullius. Presence of organized tribes made it not terra nullius. Holding 2: There were some ties btwn the nomadic tribes and Morocco but

not enough to say full political allegiance. (Like in E. Greenland case and Muth says ct is right). Ct says the same about the ties w/ Mauritania.

Muth: Agrees there are legal issues in this case. What shld be the role of the ct in the 21st century?

o In North Sea Case—ct was very bold in its application of the law.o In others, it has been very passive (SW Africa, Lotus)

Problem with a referendum is how do you ask the question—W. Sahara and Morocco cldn’t agree on this. So now UN won’t even push for a referendum.

Efficacy of intl court: It’s opinion in this case has been ignored for 26 yrs! Muth: Ct needs to address the issue of political questions b/c if it doesn’t,

this cld undermine the court if it is not managed well.

The Elsi Case (United States v. Italy ICJ 1989; p. 303) Italy seizes the plant (belonging to the US) claiming debts, and labor

disputes. Palermo mayor wanted to protect his citizens. US says Italy violated FCN (Friendship, Commerce, and Navigation) treaty

(1948-now called the FCEstablishment treaty) by not letting the US organize, control, manage its corporation.

Ct says no violation b/c it was really on its way to bankruptcy—hard to show appreciable damage.

This was a chamber case (see below). US and Italy wanted Western Judges that wld be more familiar w/ the issues (bankruptcy, labor, etc.)

Ct took this case even tho it really involved private parties—the countries went to ct on behalf of private parties. ( an espousal case).

N. 1, p. 312—cynical attitude: The US had just decided not to go in the Nicaragua Case and had just withdrawn compulsory jurisdiction. So why bring this case? Muth: doesn’t really know why. It is a fairly minor case not really a lot of $--US didn’t take the Amerada Hess to the ct and it was more impt!

Jurisdiction is governed by statute (must show exhaustion of local remedies and denial of justice.) (Nottebohm and Barcelona involve the same concept)

Possibly US took case to help insure better intl climate for US investments. Dissent (US judge)—very rare that a judge votes against his own country. Other venues available for Raytheon:

o Municipal courto Arbitrationo Regional Court if one exists (esp w/ quasi-public issues like AM&S)

One issue in reforming the court: Shld private parties be able to bring cases? N. 3, p. 313: Cld have a halfway system where a municipal ct refers for an

advisory opinion if it thinks it is a more intl issue. It is very expensive, tho, to litigate at the ICJ (but this type of system wks well in Europe).

N. 4, p. 313-There are many mechanism for dispute resolution (FOR MY JOURNAL ARTICLE!!)

Issue for the future: Shld there be more universal tribunals or more specialized/regional ones? Guillame article says there too many of the latter and shld unify these cts (Muth Agrees, but it wld still be difficult, he says).

Chambers at Intl Ct: Art. 26 of the ICJ Statute allows for this. Wasn’t utilized before as it is now—as cases become more complicated. What is the advantage of doing this? The question is one of control—judges are

elected to a chamber upon request by the parties. (p. 311). W/ Chambers it is almost like arbitration b/c of the party control. Also, if a judge has certain expertise, you can choose this judge.

http://www.juhaterho.fi/cv/otm/seminar-on-international-case-law.pdf

ICJ Advisory Opinion:  A summary  General Assembly resolution ES-10/14 of 8 December 2003 requested the International Court of Justice (ICJ) to give an Advisory Opinion on the following question: 

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”

 

The Court agreed to the request and delivered the Advisory Opinion (entitled Legal consequences of the construction of a wall in the Occupied Palestinian Territory) on 9 July 2004.  The key point of the Opinion is that the construction of the wall and its associated régime are contrary to international law. Right of self-determinationThe Court gives a variety of reasons for this conclusion, but the primary reason is that it infringes upon the right of the Palestinian people to self-determination as laid down in Article 1 to the UN Charter. In coming to that conclusion, the Court rejected Israel’s assertion that the wall is a temporary security barrier without any political significance, which can be taken down at any time as part of a political settlement.  Rather, the Court comes close to saying that the construction of the wall is a preliminary to the annexation by Israel of the so-called Closed Area lying between the Green Line and the wall: 

“The Court considers that the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.” (paragraph 121)

 That essentially political judgement about Israel’s intentions is central to the Court’s final conclusion. The Opinion notes that the route of the wall seems to have little to do with the security of Israel, but to have been chosen with one aim in mind: to include as many settlers as possible within the Closed Area:

 “The Court notes that the route of the wall as fixed by the Israeli Government includes within the ‘Closed Area’ … some 80 per cent of the settlers living in the Occupied Palestinian Territory. Moreover, it is apparent … that the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem).” (paragraph 119)

 The net result would be that: 

“… the planned route would incorporate in the area between the Green Line and the wall more than 16 per cent of the territory of the West Bank. Around 80 per cent of the settlers living in the Occupied Palestinian Territory, that is 320,000 individuals, would reside in that area, as well 237,000 Palestinians. Moreover, as a result of the construction of the wall, around 160,000 other Palestinians would reside in almost completely encircled communities.” (paragraph 122)

 The Opinion also notes that the construction of the wall has been accompanied by the creation of a new administrative régime: 

“Thus in October 2003 the Israeli Defence Forces issued Orders establishing the part of the West Bank lying between the Green Line and the wall as a “Closed Area”. Residents of this area may no longer remain in it, nor may non-residents enter it, unless holding a permit or identity card issued by the Israeli

authorities. According to the report of the Secretary-General, most residents have received permits for a limited period. Israeli citizens, Israeli permanent residents and those eligible to immigrate to Israel in accordance with the Law of Return may remain in, or move freely to, from and within the Closed Area without a permit. Access to and exit from the Closed Area can only be made through access gates, which are opened infrequently and for short periods.” (paragraph 85)

 (It appears that Jews resident in New York are allowed to move freely within the Closed Area but Arabs who have lived there all their lives have to seek a permit from the Occupying Power to do so). All this led the Court to their tentative conclusion that the wall was not a temporary security fence, as claimed by Israel, but a first step towards annexation of the Closed Area, and therefore its construction “severely impedes the exercise by the Palestinian people of its right self-determination, and is therefore a breach of Israel’s obligation to respect that right” (paragraph 122). Fourth Geneva ConventionThe Court also finds (paragraph 132) that in constructing the wall Israel has breached the Fourth Geneva Convention (on the Protection of Civilians Persons in Time of War), because the destruction or requisition of property in order to make way for the wall is contrary to Article 53 of the Convention, which says: 

“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

 Confiscating property is also contrary to the Hague Regulations of 1907, article 46 of which says that private property must be “respected” and that it cannot “be confiscated”. (Alone in the world, Israel has always insisted that the Fourth Geneva Convention doesn’t apply to the West Bank and Gaza, because, it says, these areas are not “occupied territories” within the meaning of the Convention.  Its argument, such as it is, arises from the indefinite status of the West Bank and Gaza in 1967. Article 49, paragraph 6, of the Convention says: 

“The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

 The presence of that paragraph in the Convention is the real reason why Israel cannot possibly concede that it applies to the West Bank and Gaza.  To do so, would be to concede that establishment of settlements there is contrary to the Convention. Successive Security Council resolutions, beginning with number 446 passed on 22 March 1979, have asserted that the Convention does apply and demanded that settlement activity stop, on the grounds that it is contrary to the Convention.  The

US did not disagree with that view, otherwise these resolutions would not have passed. Paragraphs 90-101 of the Advisory Opinion are devoted to arguing, and concluding, that the West Bank and Gaza are “occupied territories” within the meaning of the Convention.  And paragraph 120 concurs with the Security Council’s view that settlement activity is contrary to the Convention.) Paragraph 133 of the Opinion summarises a variety of other ways in which the lives of Palestinians have been affected adversely by the construction of the wall and the imposition of its associated régime: 

“That construction, the establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto). Such restrictions are most marked in urban areas, such as the Qalqiliya enclave or the City of Jerusalem and its suburbs. They are aggravated by the fact that the access gates are few in number in certain sectors and opening hours appear to be restricted and unpredictably applied. … “There have also been serious repercussions for agricultural production, as is attested by a number of sources. … “It has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water. … “In this respect also the construction of the wall would effectively deprive a significant number of Palestinians of the “freedom to choose [their] residence”. In addition, however, in the view of the Court, since a significant number of Palestinians have already been compelled by the construction of the wall and its associated régime to depart from certain areas, a process that will continue as more of the wall is built, that construction, coupled with the establishment of the Israeli settlements …, is tending to alter the demographic composition of the Occupied Palestinian Territory.”

 In view of that, paragraph 134 concludes that, by the imposition of this régime on Palestinians, Israel has acted contrary to various international conventions: 

“To sum up, the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. “They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child. 

“Lastly, the construction of the wall and its associated régime, by contributing to … demographic changes …, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions [446, 452 & 465].”

 Reply to General AssemblyThe Opinion ends with a formal response to the question put to the Court by the General Assembly.  It is as follows (paragraph 163): A. The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law; B. Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion; C. Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem; D. All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention; E. The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion. (The Court came to conclusions A, B, C & E by 14 votes to 1, and to D by 14 votes to 2.  An American judge, Thomas Buergenthal, dissented in each instance, saying that the Court had not taken proper account of Israel’s security needs, though he didn’t go so far as to say that the wall was justified by Israel’s security needs.  A British judge, Rosalyn Higgins, voted for all five conclusions.)

SOUTHER N B LUE FIN TUNA CA SE (AUSTR ALIA & NEW ZEALAND V JAPAN)

Cas es Nos . 3 and 4 ITLO S (1999)

Facts

a. This cas e was held at the World Bank headquarters in Was hington as an A rbitral

Tribunalb. The Southern Bluefin Tuna is a s everel y depleted species . The main areas to

engage in fis hing for SBT are Aus tralia, J apan and N ew Zealand. The three States realiz ed the dramat ic reduction of SBT and in Ma y 1993 the y s igned theConvention for the Cons ervation of Southern Bluefin Tuna. The main purpos e of the CCSBT is to decide meas ures of man agemen t for the SBT and the total allow able catch that ma y be made. There w as a total allow able catch of 11,750 tonnes . In 1998, J apan decided to s tart an Experi men tal Fis hing Program becaus e of their uncertaint y in the SBT s tock ass ess ment. N ew Zealand and A us tralia rej ected the EFP becaus e it is outs ide the framew ork of the Commiss ion. The tw o States s ubmi tted the dis pute to arbitration and filed a reques t for provis ional meas ures w ith ITLO S agains t J apan. There w as a challenge of juris diction by J apan to the ITLO S.

c. J apan claimed that even if the ITLO S clai med juris diction, provis ional me as ures w ere not w arranted. U nder the CCBST, J apan felt that their actions pres ented no ris k of irreparable inj ur y to the SBT s tock and that the tw o States would be full y compens at ed b y future reductions in J apan’s catch. J apan’s final claim w as that the tw o States res ume negotiat ions w ith a new view on the total allow able catch, annual quotas and continuation of EFP.

d. The defendants clai m that the J apanes e EFP is a violation of its dut y to cooperate in the cons ervation in the SBT treat y and UN CLOS. U nilatera lis m is not in the SBT Treat y and w ould thoroughl y hurt the framew ork of the defined regional fis hery organization.

UN Convention of Law of the Sea UNCLOS Article 286: CCSPT: Article 16:

Ques tionsa. Does the ITLO S under UN CLOS have juris diction to hear and decide this cas e?b. Does N ew Zealand and Aus tralia have a right to s top J apan’s EFP under the

CCBST?

D ecis ionsa. The arbitral tribunal found that article 16 of the CCSBT cons titutes an agreed lis t

of choices for the purs uit of peaceful s ettlement. (mandatory dispute resolution) The UN CLO S and CCSBT are intertw ined in that it imp lemen ts broad principles s et out in UN CLOS. Therefore, this cas e did have j uris diction to be heard.

b. If there is no judicial s ettle me nt or other peaceful means of their ow n choice, they are then referred to the ICJ . The Tribunal pres cribed provis ional meas ures for the three States . The y w ere to prevent aggravation or extens ion of the dis pute, parties to keep catches to levels las t agreed, refrain from conducting an experimenta l fis hing programme , res ume negotiations and to s eek agree ment w ith others engaged in fis hing for SBT.

Principlesa. The ma in principles of this cas e fall under the articles in the UN CLOS and in the

Convention for the Cons ervation of Southern Bluefin Tunab. Article 290(6) of the UN CLO S w as the deciding principle in this cas e s tating that the

parties in dis pute mus t co mpl y w ith the provis ional me as ures s et forth under the articl e.c. This cas e als o illus trates the principles of A rbitral Tribunals

Conclus ionThere are man y current fis hery dis putes w ith dis agree men ts over catch li mits and cons ervation. The Law of the Sea is very vague w hich means that dis putes mus t be address ed thoroughl y in the UN CLO S. It s eems to be very hard to develop w orkable policies in the area of fis hery manage me nt w hich means that the dis putes can w ors en and man y more cas es w ill develop. This cas e w as import ant becaus e it show s the i mportanc e of cooperation and negotiat ion in a regional organization. UN CLO S and ITLO S hope that thes e cas es w ill s et precedence for thos e tryin g to caus e more dis putes concerning fis hing.

Barcelona Traction Case (Belgium v. Spain; ICJ 1970; p. 325) Case was very traditional and pushed the law backwards! Govt of things did things to BT causing it to go bankrupt. Canada tried to get Spain to

agree and Spain refused. Canada wasn’t allowed to bring an action. Spain was being cynical knowing Belgium suit wldn’t succeed. (Some stockholders lived in Belgium).

Holding: Belgium cannot represent citizens whose shareholder rights were affected by Spain.

Ct relies on erga omnes. No genuine link btwn BT/Belgium so no standing. What about corporation as an individual? Like SW Africa Case—Canada can’t really take action unless Spain agrees to

arbitration. N. 4, p. 337—where does BT go? If there had been a bilateral treaty btwn

Belgium/Spain—it wld have had to be constructed in a way to recognize the rights of shareholders. N. 5, p. 337—“genuine link.”

Cas e C oncerning The Barcelona Traction, Light And Pow er Com pany, Lim ited

(Belgium v. Spain)

I.C.J . Reports 1964

Facts

a. The Internation al Court of Jus tice delivered judgment, by 15 votes to 1.

b. Belgium filed a clai m agains t Spain for damages agains t Belgian nationals who w ere shareholders of Traction Compan y.

c. Traction Compan y is incorporated in Canada but has man y s ubs idiaries in Spain.

d. The Spanis h s ubs idiar y, Barcelona Traction, filed for bankruptc y in which Belgium believed w as due to actions of the Spanis h State.

e. Belgium clai med that man y nationals had a very larger s take of the compan y but w as not proven b y the Spanis h Government.

f. Belgium clai ms it has the right to us e diplo mat ic protection over its shareholders .

g. Both Belgiu m and Spain are s tates .

Ques tions

a. Does s overeign immun it y and diplomatic protection extend to shareholders of that particular s tate?

b. Does Belgiu m have the right and juris diction to bring Spain to court for the actions of aCanadian compan y?

c. Do internat ional compan ies and s hareholders have legal pers onalit y?

D ecis ions

a. The court found that Belgium did not have jus s tandi, recognized rights , to exercis e diplomatic protection for its nationals that held s take in the Traction Compan y. Internationa l law s tates that the national State of the compan y can exercis e this right and s eek paymen t.No s uch law has been es tablis hed for s hareholders . If a wrong w as done to a compan y which res ulted in harming of the s hareholders , then onl y the comp an y has the authorit y to s eek compens at ion. In turn a shareholder mus t turn to the compan y in hope that it w ill s eek action w ithin the courts . O nly through a s pecial treat y or agree ment can s hareholders have thisright. N o s uch treat y exis ted.

b. The court found that Belgium did not have the right to bring Spain to court s ince Traction Compan y w as located in Canada. The court acknow ledged that the compan y w ent bankrupt in Barcelona but s tated that the corporation as a w hole s till exis ted and w as s till capable of operating. Thus , the shareholders could seek legal action but onl y through Canada agains t Spain. The Traction Compan y w as es tablis hed b y the court to have taken on the legal identit y of Canada w ho has exercis ed the right of protecting Traction Compan y, making the suit agains t Spain invalid.

c. Onl y certain organization al entities have legal pers onalit y. Compani es such as Traction mus t us e their home s tate to bring about law s uits agains t other s tates . Individuals or in this cas e s hareholders , do not have legal pers onalit y when it comes to internat ional law .

The court therefore dis miss ed the cas e on the bas is that individuals or s hareholders do not have legal pers onalit y and cannot be protected b y diplo mat ic tools w hich are res erved for s tates .

Principles

a. The internat ional law ele ments of the cas e are s overeignt y, diplomatic protection, j uris diction and legal pers onalit y.

b. The rule of law that w as us ed in this cas e w as the general rule/princip le of internat ional law .This law s ugges ts that individuals or in this cas e s hareholders do not poss es s the s ame rights as s tates and cannot be offered diplo mati c protection. Further more, Spain cannot be s ued by Belgium for its actions agains t a Canadian comp an y. O nly Canada has proper j uris diction and authorit y to sue Spain.

c. One principle of law that arous e w ithin this cas e w as that of jus s tandi or recognized right.States have recognized rights that individua ls do not have when it comes to internation al law . If a law is recognized and becomes a cus tom a mong nations then it is cons idered law in the internationa l real m.

Conclus ion

The court’s ruling of dis miss al of the cas e adequatel y demons tra tes the differences betw een s tates and individuals and who is cons idered s overeign in the internat ional realm. The court ruled in favor of Spain s ince Belgiu m had no juris diction to do so and the s hareholders s eeking compens at ion w as not given diploma tic immun it y. How ever, if the s hareholders w ere to s eek aid from Canada in w hich the compan y is headquartered and given correct identit y w ith, a law suit could occur. Thus an individual cannot bring a clai m agains t a s tate s ince it is not given that authorit y. This cas e w ill be view ed as an excellent reference for cas es dealing w ith organizations and sovereign immu nit y claims and how to correctl y deal w ith them.

Last week:

US v. Iran: - Jurisdiction based on treaties- ICJ rejects Iran’s bigger picture argument- State responsibility through failure to act and adoption- Big win for diplomatic immunity

Compulsory Jurisdiction

The Wall: Advisory opinions and discretion not to adjudicate.

Southern Bluefin Tuna: How do we deal with conflicting adjuditory regimes

Nottehohm: genuine links

Barcelona Traction: Court rejects genuinelinks for corporations; instead uses national laws pointing to state of incorporation.

B. International Human Rights Law - Role of international law in creating righs and duties for individuals - Relatively recent espousal of International Human Rights Law amounts a partial rejection of positivism - How far do we set the parameters for how far the law should protect these rights?

1. Rules of public international law should apply to individuals a. Article 55 of UN Charter supports this:

i. The Peoples of the UN are determined to reaffirm faith in fundamental human rights

ii. UN shall promote universal respect for & observance of human rights & fundamenatla freedoms of all w/o distinction to race, sex, language or religion

b. Article 228 Treaty of Versailles i. The principal of International Law which in some siutatiosn protects the

representative State can’t be applied to acts which are condemned as criminal by international law. Person acting can’t shelter themselves behind their official position in order to be freed from punishment

2. The Nuremberg Judgment After WWII the Allies UK, US , France and Soviets entered into an agreement establishing a Tribunal to try War criminals , part of the agreement was that the tribunal would try and punish Nazi individuals who had under Article 6 of the Charter committed crimes against piece , war crimes or war against humanity, they also had the power to declare any group or organization that harbored such individuals as a criminal organization

a. No individuals had been been prosecuting for these things before. “Novel and Experimental.”

b. Was the tribunal applying existing international law or creating new law? c. D’s argued that they couldn’t be punished w/o there being pre-existing law

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d. However the court held that these individuals working for the German government would have known about some of the Treatise that Germany was a part and thus must have known that they were acting in defiance of international law

3. The court held that the Kellog-Briant Pact which was binding on 63 nations including Germany declared that these signatories were bound to promote the welfare of mankind

a. Court also held that international law imposes duties on individuals as well as states and just these individuals violated international law can’t be immune because they were acting under the authority of their State

b. Its not a defense that a soldier has been ordered to kill and torture C. UN & Human Rights

1. UN drafted: Universal Declaration of Human rights - Sets forth rights a. Right to life, liberty & security of persons b. Equal protection of the law c. Right To fair trial d. Right ot owne property e. Right to freedom of thought, conscience and religtion

i. Note: its not binding as international obligation though can be cited as evidence of customary international law of human rights

ii. Product of Eleanor Roosevelt, considered customary international law2. Following WW2, expansion of human rights substantive rules as seen in Buerenthal article. 3. Damian Thomas v Jamaica

a. Human Rights Committee established article 28 of the International Covenant on Civil & Political Rights & Jamaica became a party to the Optional Protocal

i. The Committee found that the State party has failed to discharge its obligations under the Covenant with respect to Damian for keeping him in an adult prisoner while he was still a minor

ii. By becoming a party to the Committee the State recognized the competence of the Committee to determine whether there was a violation of the Covenant

iii. Violations found: 1. State has failed to provide Damian with such measures of protection as

are required by his status as a minor iv. Remedy:

1. to be placed in juvenile facility & be compensated D. European Human Rights Law

1. European Convention on Human Rights enumerates substantive rights & has enforcement mechanism

a. To ensure observance of the engagements undertake by the High Contracting Parties the Convention establishes European Court of Human Rights

b. Article 33 of the Convention States are authorized to go to the ICJ regarding any alleged breach of the provisions of the Convention by another High Contracting Party

i. This means that there is no Nottebohm or Barcelona Traction requirement that an individual be protected only by the individuals national state

c. Article 10 i. Everyone has the right to freedom of expression : holding opinions, receive &

impart info w/o interference by public authority 1. States can require licensing

ii. The Exercise of these freedoms may be subject to formalities & conditions or restrictions… that are necessary in the interest on national security.. public safety to prevent crime, to protect health & moral to prevent disclosure of info received in confidence or for maintaining the authority & impartiality of the judiciary

2. Sunday Times Case a. Injunction was sought against Sunday Times from publishing articles about research done

on a birth defect drug that victims were suing the producer for. b. The case went all the way up to the House of Lords (highest court in England) Sunday

times lost but appealed to the European Court of Human Rights

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i. Able to do so b/c UK had accepted both right of individuals to petition the Commission and to the jurisdiction of the European Court of Human Rights

ii. The Commission decided that British govnt had infringed on the Sunday Times right to freedom of expression under article 10 of the Convention

1. The interference of enjoinging the printing of the article didn’t correspond to a social need sufficiently important to outweigh the public interest in freedom of expression.

2. proportionality3. Soering Case

a. Soering was detained in England pending extradition to the US for murders in VA. Request was made for extradition to the US from UK under Extradition Treaty. P argued that extradition w/give rise to breach under the treaty which proscribed “subjecting persons to torture or inhumane treatment or punishment”, since he would subjected to the “death row phenomenon”

b. Extradition would be violating article 3 of the treaty i. Factors court looks at to determine what amounts to inhumate or degrading

treatment or punishment : all circumstances of the case 1. Nature & context of treatment or punishment

1. here sex abuse 2. Manner & method of its execution

1.3. Duration

1. w/b waiting for 6-8 years 4. Physical or mental effects 5. sex, age, state of health of victim

1. at time of killing was 18 & had mental impairment E. International Criminal Law

1. International Criminal Court was established in Rome by 160 Countries a. 116 Statesb. US (under Bush) unsignedc. Not bound, but can’t do anything contrary. Signed but not ratified, because of concern of

World Police. d. Cases have been limited to Africae. Jurisdiction over genocide, crimes against humanity and wars of aggressionf. Complementary Principleg. Too political

2. Adhoc Criminal Courtsa. Nuremberg (Created by victorious alled powers after WW2

i. Created by LONDON CHARTER:1. Article 6

1. (a) crimes against the peaceb. Tokyo – instituted by US General Macarthurc. Former Yugoslavia (creted by NC Security council)d. Rwanda: created by UN Security Council—65 Cases, 57 convictions

F. Law of the Sea 1. Territorial Sea extends out 12 nautical miles 2. Contiguous Sea- is 24 nautical miles out 3. Exclusive Economic Zone – out 200 miles from state coast4. High Seas

G. North Sea case dealing with 1. UN law of the Sea I and II 2. Equidistance rule was jus cogens

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Last week: - Nuremberg: an omlet? Or rotten eggs?- Grwoth of international human rights normsand supportive infrastructure- ICCCPR Committee- Sunday Times and Soering:Well developed European System for the protection of human rights.

VIII. STATES & INTERNATIONAL LAW A. Core Concept: Sovereign Equality of StatesB. Montevideo Convention: 477

1. Article 1 2. Purpose of recognition:

a. Necessary for a state to be a stateb. Other approach, if you meet qualifications, you are a state. The first one is

concerned with external influence.

The Tinoco Arbitration(1932-1934) 2 Annual Digest of Public International Law Cases 341

Background:

o 1917 - Government of Costa Rica [President Alfredo Gonzales] overthrown by Federico Tinoco.

o Tinoco assumed power & established new constitution

o During his tenure, he:

Granted certain concession to search for oil to a British company

Passed legislation issuing certain new currencies, and British banks [in the course of business] became

holders of much of this currency

o 1919 - Tinoco retired, left the country – Government fall.

o Old constitution restored and elections were held.

o August 22, 1922, restored government passed Acts nullifying the currency laws it had made

o Consequence: Invalidated all transactions involved

o The restored government is a signatory of the treaty of arbitration.

Should the new government be held to the obligations of the old government?

The Claim:

o Brought by Great Britain on behalf of two British Corporations:

Royal Bank of Canada

Central Costa Rica Petroleum Company

o Royal Bank of Canada claimed:

Banco Internacional of Costa Rica and the Government of Costa Rica are indebted to it proven by the

holding of 998 1000 colones bills

o Central Costa Rica Petroleum Company [CCRPC] claimed:

It owns the rights to explore and exploit petroleum reserves in Costa Rica

This is based on a grant issued by Tinoco

The Defense:

o Great Britain:

1 At page 176 and 379.

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On behalf of its nationals, legislation passed invalid

Restored g’ment should recognize the concessions given to CCRPC and the validity of Tinoco’s currency

held by the Royal Bank of Canada

During the period in question, the Tinoco Government had been the de facto and de jure government2

Supported by the fact that the government was not opposed in any significant manner

Thus giving the government legitimacy

All its acts were valid and its successor has no right to repudiate[annul] them

o Costa Rica:

Objected. Claimed that any acts carried out by the government were void because the Tinoco regime

violated the Costa Rican constitution.

Because Great Britain did not recognize the Tinoco Government as legitimate, it cannot then turn around

and claim agreements with an illegitimate government as binding.

Held:

o Rejected Costa Rica arguments

o While the failure on the part of Great Britain to recognize Tinoco government was evidence to be taken into

account in deciding on the status of that government, it was not decisive as the status of the government had

to be determined in the light of all evidence

o In fact, the Tinoco g’ment had been a de facto g’ment during the period of its existence

For the two years while in power, the Tinoco government served its role in a peaceful environment

No objections, no revolution and no power dispute.

o The court then holds that “the Tinoco government was an actual sovereign government.”

o The court finds in favor of the Royal Bank of Canada, but finds the petroleum concession to be a violation of

the 1917 Constitution (which means Tinoco could have nullified the agreement as well).

Courts arguments which is significance to the aspect of International law:

o Scholarly writing: Dr. John Basset Moore: “Changes in the government or the international policy of a state do

not as a rule affect its position in international law.”

o States may change between forms of government without ceasing to be that state in the eyes of international

law, or in terms of its international obligations.

o “The principle of the continuity of states” = “state is bound by engagements entered into by governments that

have ceased to exist; the restored government is generally liable for the acts of the usurper.”

C. Rights & Duties of State s1. As result of their sovereignty states are entitled to international rights & legal duties such as the

right to legal equality2. Other rights

2 UK always refused to recognize the Tinoco g’ment as either de facto or de jure government. H/ever, they still claim at the arbitration proceedings that the Tinoco g’ment was in fact a de facto and de jure government.

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a. Sovereign state are entitled to make international law in conventional & customary forms and establish international organizations & tribunals

b. They may decide when international law will be incorporated into municipal law & may sometimes escape jurisdictional reach of foreign courts & laws

c. Sovereign states are allowed to defend themselves, to recognize other states and to participate in international regimes

d. They are bound to carry out their international duties whether those obligations are to States or private parties

e. States may not violate international human rights law no matter whether the duty is owed to aliens or nations

3. Self-Defense, Intervention & Integrity a. Sovereign state is entitled to protect its territorial integrity b. No state has the right to intervene in the internal or external affairs of another

i. Exceptions: 1. its not illegal intervention to send armed forces into a foreign state in

order to support a foreign govnt already in power when the foreign govnt requests outside assistance

2. Right to intervene on behalf of insurgents if the rebels are deemed to be democratic & fighting against a repressive regime

4. Recognition & Succession of States & govnt a. In international law the recognition of a state is the act by which one state acknowledges

that other state posses the essential elements of sovereign statehood.i. Even though a state may recognize another state it doesn’t have to maintain

diplomatic relations with it. b. Distinction between De Jure & De Facto recognition

i. De Jure - Govnts recognized to be constitutionally & rightfully in powerii. De Facto - those govnts simply in control of a state in practice

c. Constitutive Theory i. State doesn’t exist as a subject of international law until it has been recognized

by other states participating in international relations d. Declaratory Theory

i. A state recognized by another state, basically recognizes that the other state has real existence & that state is already a subject of international law

e. Who is Subject to international law i. STATES not their GOVNT’s are subjects of international law ii. So long as the state remains the same a succession of govnts doesn’t affect the

state’s international legal rights & duties f. When does Succession of govnt/state occur:

i. Where a states territory & population remain the same more or less, a new political party in power or a new constitution in place merely indicates a succession of govnt

1. Implies continuity of the State ii. Succession of state occurs where there is a discontinuity in the states existence

g. States bound by agreements i. Successor states are not bound by the international agreements of their

predecessors except in territorial agreements 1. Successor states may choose to keep some treaties in force rather than

begin with an absolutely clean slate 2. they are responsible for may of their predecessor obligations to private

parties 5. 3 kinds of Non-State Actors

a. Intergovernmental International Organizations b. Private persons

i. Individual

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ii. Corporations c. International Non-Governmental Organizations

Autocephalous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts, Inc., 

717 F. Supp. 1374 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990), reh’g denied, No. 89-2809, 1990 U.S. App. LEXIS

20398 (7th Cir. Nov. 21, 1990), stay vacated by 1991 U.S. Dist. LEXIS 6582 (S.D. Ind. May 3, 1991) (ordering judgment

entered for plaintiffs), cert. denied, 502 U.S. 941 (1991), reh’g denied, 502 U.S. 1050 (1992). 

 

Case Summary

A number of Byzantine mosaics were looted from an Orthodox church in Turkish-controlled northern Cyprus sometime after

1974. The Church of Cyprus learned of the theft in 1979. In 1988, an Indiana art dealer, Peg Goldberg, purchased four of the

mosaics in the free port of Geneva, Switzerland for over $1million, from a Turkish art dealer living in Germany. Cypriot

authorities learned of the mosaics’ location when Marion True, then curator at the J. Paul Getty Museum, notified them that

the works were being offered for sale by an American art dealer. Goldberg refused requests to return the works and the

Republic of Cyprus and the Greek Orthodox Church brought a successful suit in 

federal district court Any general jurisdiction trial court of the United States federal court system (one or more in each state).

Also known as United States District Court.   

Federal District Court in Indiana. 

 

Facts 

Four sixth-century Byzantine mosaics were looted from the Church of Panagia Kanakaria in northern Cyprus sometime after

the invasion of Turkish military forces in 1974. The Church of Cyprus learned of the theft in 1979. The Republic of Cyprus and

the Church immediately began an extensive campaign to recover the mosaics by publicizing the theft to a wide variety of

international agencies, foreign governments, museums, and experts in Byzantine art.

In 1988, Peg Goldberg, an Indiana art dealer, traveled to Amsterdam to purchase art. A fellow Indiana dealer, Robert

Fitzgerald, introduced Goldberg to Michel van Rijn, whom she knew to be a convicted forger in France. The two men offered to

arrange the sale of the Byzantine mosaics, in the possession of a Turkish art dealer in Munich, Aydin Dikman. Goldberg

agreed to purchase the works for $1,080,000, which she obtained as a loan from her Indiana bank. In July 1988, Goldberg

inspected the mosaics in the free port of Geneva, purchased them, and then returned to Indiana with the works in July 1988.

Seeking to sell the works, Goldberg contacted two art dealers who both contacted the J. Paul Getty Museum in Malibu,

California. Marion True, curator of antiquities at the Getty, notified her colleague Vassos Karageorghis, Director of Cyprus’s

Department of Antiquities, that the mosaics were in the United States. In 1989, Cyprus demanded the return of the mosaics,

and Goldberg refused.

 

Court History

 

In 1989, the Church of Cyprus and the Cypriot government brought a

replevin A legal action in which an original owner seeks to recover possession of property wrongfully taken or retained by

another party. 

 replevin action against Goldberg in federal district court in Indiana to recover the mosaics. The court concluded that, under

choice of law principles, Indiana law, and not Swiss law, governed the case. The Court held that the Indiana 

statute of limitations 1) A law that bars claims after a specified period; specifically, a statute establishing a time limit for suing

in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered). The purpose of

such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs

and ensuring that claims will be resolved while evidence is reasonably available and fresh. 2) A statute establishing a time

limit for prosecuting a crime, based on the date when the offense occurred (Black’s Law Dictionary (8th ed. 2004)). 

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statute of limitations governed and applied the 

Discovery Rule The rule that a limitations period does not begin to run until a plaintiff discovers (or reasonably should have

discovered) the injury giving rise to a claim (Black’s Law Dictionary (8th ed. 2004)). 

Discovery Rule under which a plaintiff must be reasonably diligent in seeking to locate the stolen property at issue.   In light

of the actions taken by Cyprus in publicizing the theft of the mosaics, the court concluded that the plaintiffs had exercised 

due diligence The diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal

requirement or to discharge an obligation. In relation to the acquisition of art, it refers to a prospective buyer’s investigation

and analysis of the object.  

 due diligence and thus rejected Goldberg’s claim that the suit was time-barred. Despite Goldberg’s (unsubstantiated)

allegations that she had contacted the International Foundation for Art Research (IFAR) and other organizations to confirm the

propriety of the sale, the Court rejected Goldberg’s argument that she was a 

good faith purchaser One who buys something for value without notice of another's claim to the property and without actual

or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith

paid valuable consideration for property without notice of prior adverse claims (Black’s Law Dictionary (8th ed. 2004)). 

 good faith purchaser, concluding that she failed to exercise due diligence.

Goldberg appealed the ruling to the Seventh Circuit, which affirmed the District Court decision that the Church possessed

valid title to the works. The District Court then dismissed Goldberg’s claim for damages.

 

Final Outcome

The Cypriot Government allowed the mosaics to be displayed at the Indianapolis Museum of Art before they were returned to

Cyprus in 1991.

D. Elements of a State : A state is an entity that has defined territory & permanent population under the control of its own government, and that engages in or has capacity to engage in formal relations with other such entities

1. Objective elements (Motevido) a. Permanent Population b. Defined Territory c. Government d. Capacity to enter into relations with the other states

2. Subjective Elements a. Political considerations

i. Political existence of a state is independent of recognition of other states b. Criminality c. Fore to change borders or seize state d. State distinguished from govnt for recognition effective control of terriotyr and

general support of population i. States are judicially equal enjoy the same rights & have equal capacity in their

exercise ii. The powers it has depends on its existence as a person under international law

e. Legality of its coming into power & recognition by other nations i. Recognition of a state may be express or tacit ii. Recognizing a state means that the State who recognizes accepts that the new

state has rights & duties determined by international law 1. Recognition is unconditional & irrevocable

iii. Recognition of other nations is the best evidence of birth, existence & continuity of succession of a govnt however not where there is strong evidence to the contrary as supported by international law

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1. The govnt is effectively in control of the territory & has general support of the population ie De Facto

1. no revolution, power is fully established & peaceably carried out, new constitution, no other govnts asserted power in the country for the relevant time period

2. Successor can’t repudiate its contracts however there are exceptions for newly independent states who have a Clean Slate Tinoco

iv. If not fully defacto govnt , any claims asserted by the old govnt won’t pass to the new govnt – if neither one is recognized Greek Church

1. TFSC dissolved & formed TRNC but the non-turkish world never recognized either one & only regarded Republic of Cyprus as the legitimate govnt, so the Decreees by TFSC divesting the Church of its titles of mosaics were held to be invalid.

v. No state has the right to intervene in the internal or external affairs of another vi. EU

1. States can’t unilaterally acceded to the UN charter 2. According to the Article 4 of the UN Charter peace loving states that

accept the Charters obligations & are able & willing to carry out those obligations may be admitted by action of the UN Security Council & General Assembly

E. 2 Types of De Facto Governments : in determining legality of coming into power & recognition by other states

1. First kind of De Facto govnt a. Exists after it has expelled the regular authority from power & public offices & has

established its own functionaries in its place- so as to represent in fac the sovereignty of the nation

b. This kind possesses rightful authority 2. Second kind of De Facto govnt

a. It exists where a portion of the inhabitants of a country have separated themselves from the parent State and established an independent govnt

b. The validity of its acts both against the parent State & its citizens depends on its ultimate success

c. If its successful in being recognized its cats from the start of its existence are upheld as those of an independent nation

i. Longevity of control doesn’t necessarily mean “ultimate success” ii. Factors as to whether there has been ultimate success

1. did the new portion completely supplant the other republic & its officers 2. are they recognized by others

F. Federal Subject Matter Jurisdiction via “ Alien Tort Act” 1. Federal SMJ exists where

a. The alien sues b. For a tort c. Committed in violation of the law of nations ie international law

i. Genocide & war crimes are violations of international law that may give rise to the ATA

ii. However torture & summary execution when not performed in the course of genocide or war crimes are proscribed by international law only when committed by state official under color of law

1. A private individual acts under color of law when he acts together with state officials or with significant state aid

2. The question is whether the person purporting to use official power has exceeded internationally recognized standards of civilized conduct

2. Kadic

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a. Citizens of Bosnia-Herzegovina formerly republic of Yogoslavia sued the leader of Bosnia-Serb forces in US DC

b. Court held that SMJ existed under the ATA & found Karadzic liable for genocide, & war crimes against humanity in his private capacity & for other violations in his capacity as a state actor even though the US did not recognize Srbska.

c. Must first establish whether Kardazic’s regime satisfies criteria of state for purposes of international law requiring state action. Held that it does meets criteria of state & alternativesly he acted in concert w/ former Yugoslovia

ppellants' allegations that Karadzic personally planned and ordered a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian Muslims and Bosnian Croats clearly state a violation of the international law norm proscribing genocide, regardless of whether Karadzic acted under color of law or as a private individual. The District Court has subject-matter jurisdiction over these claims pursuant to the Alien Tort Act.    (b) War crimes. Plaintiffs also contend that the acts of murder, rape, torture, and arbitrary detention of civilians, committed in the course of hostilities, violate the law of war. Atrocities of the types alleged here have long been recognized in international law as violations of the law of war. See In re Yamashita, 327 U.S. 1, 14, 66 S.Ct. 340, 347, 90 L.Ed. 499 (1946). Moreover, international law imposes an affirmative duty on military commanders to take appropriate measures within their power to control troops under their command for the prevention of such atrocities. Id. at 15-16, 66 S.Ct. at 347-48.    After the Second World War, the law of war was codified in the four Geneva Conventions, which have been ratified by more than 180 nations, including the United States, see Treaties in Force, supra, at 398-99. Common article 3, which is substantially identical in each of the four Conventions, applies to "armed conflict[s] not of an international character" and binds "each Party to the conflict ... to apply, as a minimum, the following provisions":

Persons taking no active part in the hostilities ... shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;(c) outrages upon personal dignity, in particular humiliating and degrading treatment;(d) the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court....

Geneva Convention I art. 3(1).    Thus, under the law of war as codified in the Geneva Conventions, all "parties" to a conflict--which includes insurgent military groups--are obliged to adhere to these most fundamental requirements of the law of war.    The offenses alleged by the appellants, if proved, would violate the most fundamental norms of the law of war embodied in common article 3, which binds parties to internal conflicts regardless of whether they are recognized nations or roving hordes of insurgents. The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed

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at Nuremberg after World War II, see Telford Taylor, Nuremberg Trials: War Crimes and International Law, 450 Int'l Conciliation 304 (April 1949) (collecting cases), and remains today an important aspect of international law, see Jordan Paust, After My Lai: The Case for War Crimes Jurisdiction Over Civilians in Federal District Courts, in 4 The Vietnam War and International Law 447 (R.Falk ed., 1976). The District Court has jurisdiction pursuant to the Alien Tort Act over appellants' claims of war crimes and other violations of international humanitarian law.

G. New States and Customary International law 1. New states are bound by customary international law 2. Republic of Croatia

a. Republic of Croatia wasn’t the funds from the National Bank of Socialist Federal Repuglic of Yugoslavia SFRY since they are the successor state. While the rights & obligations of the banking contract are to be judged under the place of establishment of the credit institution ie Austria; but the question whether the assets invested by the National Bank as an independent legal entity constituted State property are t/b considered according to domestic law of SFRY

i. The Bank of SFRY is a “socialized legal person” 1. it was appointed by the Federal Parliament preformed activities in

political dependence, it had no political autonomy ii. These factors show that the assets of the Bank formed part of State property of

the SFRY & because it no longer exists must be distributed among successor States

b. Under customary international law, in the case of “dismembratio” Vienna Convention holds that property must be passed to successor States in “equitable proportions”

H. Succession 1. 1978 Vienna Convention on Succession of States 2. Newly independent states “Clean Slate” 3. But for Territorial Obligations Exception

I. INTERNATIONAL ORGANIZATIONS, PEOPLES & NGO’S A. International Organizations:

a. Lack defined territory/population to be determined states2. The League of Nations - formed in 1919 after WWI

a. It was the first general association of states concerned w/ social welfare issues, dispute settlement, the development of international law and promotion of peace

b. US senate refused to consent to the ratification of the treaty c. The league of nations fell apart as WWII began

3. United Nations – successor to the League of Nations after its collapse in 1930’s a. Allies in WWII decided to create the UN Charter or agreement created the UN b. UN charter was signed in June 1945 after WWII, by 50 states in San Francisco c. Since the League couldn’t avert WWII, it was hoped that UN could prevent WWIII by

addressing wider range of international economic & social issues & by giving its officials independent power

d. 6 Principal Organs of the UN i. General Assembly – composed of every member of the UN

1. One member/one vote2. Has authority to discuss any question w/I the scope of the present Charter 3. Has unlimited authority to make recommendations as to matters which

Security Council is exercising its functions 4. Has right to consider & approve the budge of the Org

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5. Each member state gets one vote except on important questions 2/3 vote of the members present & voting is required

6. International peace and security and membership require 2/3 vote. Other issues, siple majority but more typically attempts are made to reach consensus.

ii. Security Council – 15 members w/5 permanent members: China, France, Russia, UK & US ; other 10 are elected for 2 yr terms

1. Each member gets 1 vote, 9 votes required to pass a measure 2. Primary responsibility is to maintain international peace & security

iii. Economic & Social Council iv. Trusteeship Council v. International Court of Justice vi. Secretariat vii. And such subsidiary organs as may be found necessary

B. International Personality 1. Does an intergovernmental organization (the UN) have “international personality” of its own

or are its powers limited to those expressly delegated by its member states in the organizations charter?

a. It is an international person which is not the same thing as being a State b. It is subject to international law & capable of having international rights & duties & has

rights to bringing international claims c. Its rights and duties depend on its purpose & functions as specified or implied in

documens & developed in practice 2. Is it international law or municipal law that answers this question?

a. International law govners if the breach is based on obligation by the Member who has breached its obligations

3. What was the capacity of the UN to bring an international claim for reparations when a UN agent was injured due to the responsibility of a state?

a. Under international law Organizations must be deemed to have powers which even though not expressly provided in the Charter but are conferred as by necessity b/c those functions are essential to the performance of its duties

b. UN has the capacity to bring an international calim against one of its Members which have caused injury to it by breach of their international obligations

4. Could the UN itself bring the claim or must the agents state pursue the claim?a. The UN could ask the responsible State to remedy its default specifically it can ask the

State for damages that default has caused to its agent b. By asking for reparation based on injury suffered by its agent the Organization is NOT

representing the agent but is asserting ITS OWN RIGHT – to establish that respect for undertakings entered into towards the Org

5. Repartation Case a. After Palestine Israel divide UN observers were assassinated by Irsaelis b. UN General Assembly asks ICJ for advisory opinion whether UN could bring a claim

against a de jure or defacto govnt in order to obtain reparation for damages caused to the (a) UN and (b) to the victim?

c. Held Yes, where agent of the UN in performing his duties is injured either by a Member State or a Non-Member State, the UN has the capacity to bring an international claim against the responsible de jure or de facto govnt in order to receive reparation as to the damage caused to the UN or to the Victim

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63

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C. Self-Determination & Peoples 1. Self Determination refers to the rights of groups as opposed to rights of individuals

i. This may come up when a state is moving from de facto to de jure

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b. In the absence of express provision in international treaties, the right of disposing national territory is an essential attribute of the sovereignty of every State

i. Positive international law doesn’t recognize the right of national groups to separate themselves from the State

c. The right to grant or refuse the right to a portion of a population is determined by each sovereign State

2. State of Finland a. Finland was originally considered as a province of Russian but later Finish Diet

established a govnt causing Finland to become an independent State. The issue was whether the Aaland Islands which were part of Finland during Russian rule were incorporated de jure in the state of Finland. The court considered the fact that the inhabitants of the island were mainly Swedish & wanted t/b considered part of Sweden.

b. Issue: whether it should be left to the jurisdiction of Finland to determine if the Island should be considered part of Finland. This is an international issue b/c it not only involves Finland but also Sweden

i. This is not a situation of oppressed minority or gross misbehavior against minority

c. This is a question for the League of Nations to decide d. Court held that even though Self-Determination is an important concept however other

principles governing the formation of States must also be considered. e. Here its appropriate that a compromise is reached and a grant of liberty to minorities is

necessary

3. Limits on determining Self-Determination Reference Re Seccession of Quebec a. Quebec wanted to succeed from Canada, but Canada’s constitution opposed unilateral

secession. Court notes the differences between the right of internal and external self determination and holds that Quebec’s population can’t secede because it can’t be said that they were denied access to govnt internally.

b. Issue: Can Quebec Secede from Canada c. Holding & Rule: The International right to self determination only allows external self

determination in situations where people were under i. colonial rule, ii. where they were oppressed by foreigners or iii. where a definable group which were denied meaningful access to govnt to pursue

their political, economic, social and cultural development. 1. In these 3 situations the people are entitled to right to external self

determination because they have been denied the ability to exert internally their right to self determination

d. Secession at International Law i. International law does not grant parts of sovereign states the legal right to secede

unilaterally from their parent state

e. Absence of a Specific Prohibition i. International law does allow unilateral secession but also doesn’t explicitly deny

that right ii. Exceptional circumstances must exist to allow secession under the right of people

to self determination those mentioned for external self determination

f. International recognition of People to self determination i. GR International Law regulate conduct of nation states ii. In some specific circumstances it also recognizes “rights” entities other than

nation state – such as the right to self-determination of “peoples” 1. Peoples – portion of population of an existing state

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1. Doesn’t necessarily mean entire states population

g. Self-Determination either Internal or External i. Right to self determination is fulfilled either through : ii. Internal self-determination - people’s pursuit of its political, economic, social

and cultural development w/I the framework of the existing state iii. External self-determination – right arises only in extreme cases which may be

right to secede. It means right to: 1. establishing a sovereign & independent state, 2. the free association or integration with an independent sate or 3. emergency into any other political status freely determined by a people

1. all of these are ways to implement right to self determination

4. External right to self determination given to 3 types of peoples 1. Those under colonial rule,2. Those under foreign occupation, or 3. People who are blocked from meaningful exercise of the right to

self determination internally as a last resort can exercise secession

iv. Right limited by treats to existing states’ territorial integrity1. the exercise of self determination must be limited to prevent threats to an

existing states territorial integrity or stability of relations between sovereign states

v. Restriction once granted self determination 1. Once a state affirms a people’s right to determine political, economic,

social and cultural issues doesn’t meant that they are authorized to do anything to impair the territorial integrity or political unity of sovereign & independent States who are in compliance with equal rights

II. INTERNATIONAL LAW & THE USE OF FORCE A. Definitions

1. Jus in belloa. Rules about the conduct of hostilities b. It is also international humanitarian law addressing the treatment that states and their

armed forces to be provide to combatants, civilians and prisoners during armed conflict c. How you use force/methods

2. Jus ad bellum a. Rules on when it is legal to use force

b. When do you use force

B. Protecting civilians & combatants from Hague Peace Conference 1. 4 Geneva Conventions detained protections due to:

a. the wounded and sick in armed forces in the field b. wounded, sick and shipwrecked members of the armed forces at seac. prisoners of war and d. civilians in time of war

2. Common Article 2(3) of 1949 Geneva Convention states that conventions apply even between parties involved in the conflict even if one of the belligerents is not a party to the Convention

3. Essence of this is to agree to be accountable for international humanitarian law 4. UN Charter: Artigcle 2(4)

a. Article 51

5. International court of justice 2 Cardinal Principles

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a. States must never make civilians the object of attack & must never use weapons that are incapable of distinguishing between civilian & military targets

b. Its prohibited to use weapons causing them such harm or uselessly aggravating their suffering

The Republic of Nicaragua v. The United States of America[1]  was a 1984 case of the International Court of Justice (ICJ) in which the ICJ

ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had

violatedinternational law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors.

The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the

case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from

obtaining any actual compensation.[2]  The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the

later, post-FSLN, government of Violeta Chamorro), following a repeal of the law requiring the country to seek compensation.[3]

The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against

another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of

its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January

1956."

A. Traditional Laws of War

The Nauliaa Case (Portugal v. Germany; Arbitration 1928; p. 506) A translation misunderstanding caused several Germans to be killed by the Portuguese and

several others were captured. There was a reprisal for the killings. Holding: The force must be proportional. Proportionality makes sense, but deciding what is proportional is more complex? Germans here,

probably went beyond that in this case. Difference btwn reprisals and retorsion (see pl. 509, para. 3). Question of self-help—p. 509, last para. This is a good example of what a countermeasure is—

France/US flights case—Arbitration was going on, but can do countermeasures if it’s proportion.. Can downgrade your embassy, etc.

The Caroline Case (1841-42; p. 510) Canadian Insurrection—rebels got support from US citizens. Caroline ship delivered supplied to

Navy Island and UK attacked and destroyed the ship and one American died. UK citizen was arrested in NY after the incident.

US: This wasn’t self defense—it wasn’t instant, overwhelming, leaving no choice, no means and no moment for deliberation. (This is the necessity argument). UK: Apologizes.

Both the Nauliaa and Caroline: Why not go to arbitration?

o Caroline: maybe special relationship btwn US and UK (even tho Cayuga Indians went to this)—this is a bilateral exchange—can international law be created this way? No, but they are attempting to articulate what is already there—and since then there has been acquiescence in the international community on this.

Principles raised by these two caseso Principle of proportionality. Would going after Al Queda camps in other countries be a

part of this under th Nauilaa case?o Principle of necessity.

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Pg. 512, n.2—The Caroline rule isn’t applicable to 21st century (says student) Does this rule apply today? It has been established that there was a meeting in the Nauliaa case before the reprisal occurred—wld this be enough to justify the US v. Iraq (evidence that Iraq is producing weapons of mass destruction? Muth is trying to get at how Caroline operates today in a world w/ nuclear weapons—under what circumstances—very much an impt part of this chapter w/ today.

Reprisals—the attack is already over usu and w/ self defense it is supposed to be continuing—the problem is use of the term “armed attack” in article 51?

o Other forms of attack—what about these (such as economic and electronic methods [the radio station from Miami broadcasting to Cuba saying to rebel]) These are certainly a hostile acts—but not armed. So how shld the other countries respond? Is there some self-defense there? The scheme breaks down in these situations—esp. w/ nuclear weapons—no way to effectively respond once it is launched. So if there is evidence of an imminent attack—then it is ok to attack if proportional (for ex: Entebbe hijacking case—most people agree this deal was self-defense and proportional)

Today the attack will likely be finished before response occurs, but still self-defense.

B. Article 2(4) and the Use of Force by States: Look at the language of Article 2(4):

o It is addressed to state action and not to non-state actors like Al Queda. You have to interpret it differently today—non-state actors ARE bound (says Muth). This is a principle of customary of intl law—this isn’t just based on the charter—see the Nicaragua case.

o Use of force against the territorial integrity or political independence of any state—the suggestion is that for this to be proper it must threaten the political indep or territorial integrity. Probably what they had in mind was to move this from individ decision making to making determinations of force the job of the United Nations.

Article 51:o Talks of inherent right of individ or collective self-defense. This is a function of sovereignty.

The pwrs are there b/c the US is a country.

Henkin and Reisman articles (p. 513, 520 respectively). Debate is a bit outdated b/c of no cold war. Henkin is very to the left and Reisman is just the opposite. Muth finds Henkin views more persuasive personally. Henkin:

o Use of force in only very limited circumstances—one universally accepted, he says, is intervention for humanitarian reasons.

o Very much concerned about nuclear weapons.o ICJ accepts that there may be cases (p. 524) where in fact –n. 3—nuclear weapons cld be

used in “extreme circumstances of self-defense.” (Muth can’t see how this would ever be plausible)

o Thinks promote peace shld be the paramount principle of intl relations. o He talks about use of force—erga omnes.??o He sees only a narrow area where force is allowed—collective/indiv self-defense. Henkin

wld prob accept the Afghanistan situation as ok. o Chapter 7 of the Charter—enforcement action—assuming this is arrived at in a proper way—

this wld be ok (but in Iraq case this has been questioned).o Is a good legal policy to go beyond what Henkin accepts?

Reisman:o He is doesn’t like black letter idea of no use of force no matter what.

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o He sees international law as a system of authorized coercion.o When he talks about self-determination—Muth says you must be careful of who is inviting

you in these situations.o Idi Amin Uganda situation—see p. 521—people took over after this murdered even more

people. Reisman thinks this was good thing—but Muth is not so sure! It killed the economy, e.g.

o He criticized the assumptions under a stiff reading of Articles of the UN Charter. Which of the two has a better argument?

Nicaragua Case (ICJ, 1986, p. 526) US and Nicaragua—US gave arms to rebels and blew things up itself. Court’s treatment of the different concepts of “armed attack” and “self-defense” is what is

important in this case. Very conservative and rule oriented approach—not a policy discussion. Armed Attack

o US reservation—excepted cases w/ multilateral treaty interps--ct cldn’t look at the UN charter use of force issues, but could look on customary international law. Ct came up w/ the same answer.

The resolutions show practice, but opinio juris here says the opposite? Three impt parties: Nicaragua, US, and El Salvador. Ct says armed attack is: para. 195 on p. 530

o Armed attack isn’t sending logistical support (but these still may be problematic and you will be able only to do countermeasures)

o Armed attack is sending people to carry out acts of armed force. (This includes using planes as weapons, biological weapons)

o Ct concludes this definition is part of international law— Don’t be carried away by this opinion b/c ICJ not binding except to parties. This case shld have gone to arbitration. Ct’s opinion is just one side of a debate.

Collective Self-Defense:o US argues that under customary and treaties it was entitled to come to the aid of El Salvador.o Court takes a narrow approach to this.

This was way after the fact of the actual attack on El Salvador. Overly technical point—UN says you must inform security council immediately and

US did not. o Collective self-defense-under what circumstances does it operate?

Armed attack (ct narrowly defines) Only the country affected has the right to initiate and must ask the others to

come to its assistance. (narrow approach) W/ El Salvador it was only a matter of time. Art 51 does not make it clear that the affected countries must go and ask for

assistance. P. 513— If the threat is against one country but is a threat to intl peace, then other

state’s could come to the aid that country w/o doing all that other stuff. Was ct being too cautious? Is this correct? Barcelona Traction is another case or the Iran Case

(Diplomatic) This is again a country trying to make a political point rather than to get the dispute settled.

Court takes a narrow approach to this saying no force legally except in self-defense. Ct says countermeasures wld be legal.

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What about human rights? Is force justified? Was the court right? Was Reisman entirely wrong? Reisman may have a point in extreme situations.

Para. 199, p. 530—rules here—ct implying that custom has emerged on the basis of resolutions. When does the dichotomy btwn UN resolutions and what states actually do—then state practice cannot be the thing. You end up talking about customary law w/o state practice—and this is not necessarily appropriate. Must be a higher norm, more important norm. para. 190, p. 538—court is concerned w/ this question—has it attained jus cogens. Ct doesn’t take a position on this. If it is, you don’t have to worry about state practice. Ct seems to say that it recognizes some people see this as important, but the ct doesn’t want to go that far.

Has the use of force attained the status of jus cogens or not? Maybe intl law is moving in this direction or maybe not? Use of Force will never become normative on the basis of state practice b/c of the fact that states will always use it—it would have to become normative in another way—jus cogens or erga omnes.

If you have real issues—the ICJ may not be the best forum—maybe arbitration is better. Congo case in note 1, p. 536—not all of these have been as dramatic as one—Congo hasn’t been

resolved. Congo ambassador to Belgium was arrested and charged w/ war crimes and Congo suing Belgium on this.

Afghanistan/September 11 stuff: Some extreme cases where international law isn’t helpful (such as 9/11) Use of Force issue: Art. 51—self-defense is not applicable under article 51. Although possibly

under reprisal law. Harboring Bin Ladin is not a violation of international law except if he is allowed to use the territory

to plan attacks. US using Article 51 to justify strikes on Afghanistan—was 9/11 an “armed attack?” Perfectly w/in federal law to seize assets of Bin Ladin people. Trade w/ Enemy Act in WWI is still

there and until recently US w/ natl emergency. US didn’t use mediation in Afghanistan due to public outcry. Afghanistan is use of force—Allies have bi-passed the UN and gone directly to action, but this is

self-defense under Article 51 (but UN does expect you shld come to Security Council—except maybe in situations of extreme danger and terrorism might fall in under this).

Afghanistan isn’t a reprisal b/c the Taliban didn’t carry out the attacks so it can’t be described as such.

Article on p. 29 of newest US News and World Report on Al Queda activities. You can offer asylum to someone but you cannot let that person/group launch attacks from your

country (think osama bin ladin and al queda)—this is part of state responsibility.

C. Differences between Human rights & the Law of war 1. The Law of war [humanitarian law] unlike human rights allows or tolerates the killing &

wounding of innocent people not directly participating in an armed conflict a. It limits the appeal rights of detainees b. It allows limitations of freedom of expression & assembly

2. Human rights law protect physical integrity & human dignity in ALL circumstances a. Protect governed from their governments b. No one may be deprived of life except if by judgment of court

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D. Role of the Military Lawyer 1. Military Lawyers provide technical advice that commanders rely on in solving complex problems

during military commissions 2. Protocol I, Article 82: imposes affirmative obligation to provide legal advisors to military

forces for those party to the Protocol a. The high contracting parties at all times must ensure that legal advisors are available

when necessary to advise military commanders 3. Duties of lawyers

a. Draft, train, disseminate, inspect & enforce the Rules of Engagement & command policies that provide a link between classroom & the field

b. Negotiator – the must negotiate legal norms c. Enforcer – they must enforce the substantive body of the norms through criminal

investigations & prosecutions d. Reporter – they advise commanders on proper application of humanitarian law & have

vested interest in ensuing that those norms are respected & implemented in the future i. the must be engaged in all levels

E. Differences between Combatants, POW’s 1. International humanitarian law distinguishes “Lawful” combatants from other combatants and

civilians a. Belligerent Persons – those participating in hostilities who are not lawful combatants –

lack the privileges that armed forces of a State get to engage in warfare with immunity from liability under national or international law

b. Prisoner of War- a lawful combatant is entitled to POW status when captured meaning they get the full protections of the 3rd 1949 Geneva Convention Relative ot the Treatment of POW’s

i. POW’s according to Geneva Convention include 1. members of armed forces of a Party to an international armed conflict as

well as members of militias or volunteer corps forming part of such armed forces once they have fallen into enemy hands OR

2. members of other militia & other volunteer corps including those of organized resistance movements who operate under a command structure a fixed distinctive sign recognized at a distance, carry arms openly & conduct their operations in accordance with the laws & customs of war

ii. Any doubt at to their status Article 5 Geneva Conventions 1. any doubt as to whether persons have committed a belligerent act &

having fallen into the hand of the enemy, belong to any of the categories of POW’s such persons shall enjoy protections of the present convention until their time as their status has been determined by a competent tribunal

iii. Protections: 1. right to be released w/o delay at the end of active hostilities 2. right not to be interrogated w/o consent 3. right not be subjected to torture or coercion to get into 4. right not to be subjected to any unpleasant or disadvantageous treatment

of any kind for failure to answer questions 5. right to be tried for an offence “only by a military court” offering

“essential guarantees of independence & impartiality” 2. Hamdi v. Rumsfeld 3. US held Hamdi a US citizen as enemy combatant because they feared that he had been helping

the Taliban. Hamdi’s father filed a habeas corpus petition claiming that Hamdi was being detained illegally

a. US 4th circuit held detention was legal , Hamdi appealed the US Sup Ct 4. Issue: whether he could be detained as a POW

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5. Holding: Court held that Congress had authorized Hamdi’s detention through the AUMF even though it didn’t use specific language of detention.

a. Detention is necessary and appropriate force because in order to prevent a combatant from returning to the field he must be kept in captivity.

b. Hamdi further objected that Congress didn’t allow for indefinite detentions. 6. The court held that it’s an established principle of the law of war that detention may not last

longer than active hostilities & that indefinite detention for interrogation purposes is not authorized by the AUMF explicitly.

7. Determination of the President is final as to your status as combatant 8. However by Congress granting necessary and appropriate force to be used , this includes the

authority to detain for a duration of the relevant conflict 9. Since active combat operations are ongoing against the Taliban the US may detain individual for

the duration that these hostilities go on & so long as those individuals are determined to be Taliban combatants who engaged in an armed conflict against the US. Thus detentions are necessary and appropriate force & thus authorized by the AMUF – Authorization for Use of Military Force

a. AUMF authorized President to use “all necessary and appropriate force” against “nations, orgs, or person associated with Sept 11th 2001 terrorist attacks.”

10. Note: Even if AUMF didn’t exist, Under the article 2 powers of the President the President could hold him

F. Factors in the Existence of Armed Conflict 1. When Does Armed Conflict Exist?

a. Armed conflict exists whenever there is armed force between States or between governmental authorities & organized armed groups or between these groups w/I a State

2. When does International humanitarian law apply? a. It applies from the initiation of such armed conflict & extends beyond the cessation of

hostilities until the general conflict has ended & peace is reached OR b. If internal conflict –where peaceful settlement is achieved

3. Where does International humanitarian law apply? a. It applies in the territory of the warring States or b. If internal conflict – the entire territory under the control of a party whether or not actual

combat takes place there 4. Tadic Case 5. During hostilities in Yugoslovia crimes Tadic had committed certain crimes and was arguing that

there wasn’t any armed conflict either internal or international He argued that according to the Geneva conventions article 3 which allowed for prosecutions of persons who had violated the laws/customs of war or those responsible for specific crimes against humanity, that he couldn’t be prosecuted unless there was an actual armed conflict. He argued that in his town there was not such conflict where the crimes had occurred

6. Issue: Whether there was an armed conflict under international law. 7. International Tribunal for Yugoslovia held that the crimes in Yugoslavia were committed during

armed conflict. Those conflicts had both internal & external aspects.a. Factors: see above what is considered existence of armed conflict b. See paragraph 69 of case

8. Held that the violations entail individual criminal responsibility regardless of whether they were committed internally or in international armed conflict

G. Traditional Limits on Resort to Force 1. Self Defense Elements 2. Naulilaa Case

a. Portugal claimed damages after Germans attacked their outposts in Naulilla in response to Portugese killing three Germans.

b. First Arbiters determined that the aggression was not legal reprisal because of lack of demand &proportionality of the attacks

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c. The damages to be compensated depend on whether they are immediate damages caused by the German attacks for which they are held fully liable or other damages

3. The Caroline Dispute a. The Caroline was a privately owned American ship which was docked in a US port &

was attacked by the Britishb. To show a necessity of self defense, instant, overwhelming, leaving no choice of means

and no mement for deliberation. THIS IS THE STANDARD. Carolina Rule. c. d.

H. Reprisal1. What is it? It’s an act of self help on the part of an injured state after an unsatisfied demand , so

injured states is responding to an act contrary to the law of nations ie an intentionally wrongful act

a. Reprisal doesn’t need to use force it could be detentions of foreign vessls or seizures of vessles or cargo in the high seas

b. Right to take reprisal is provided by there being a prior act contrary to the law of nations 2. Elements of Reprisal

a. Illegal act by other b. Reprisal is Only appropriate after unsatisfied demand c. There must be prompt response d. Response must be proportionate between the reprisal and the offense

I. Self Defense 1. What is it? is legality of a states use of force in self defense against an armed attack violating

territorial integrity, there is an invasion or attack or military occupation, however temporary 2. Unless a state has received UN Security Council authorization it must meet 4 conditions in

order to engage in self defense a. The defending state must be victim of a significant armed attackb. The armed attack must either be underway or victim of attack must have clear &

convincing evidence of more planned attackes c. Defending state’s target must be responsible for the significant armed attack in profess d. Force used by the defending state must be necessary for the purpose of defense and it

must be proportional to the injury threatened i. Necessary means the force to be used must be necessary to accomplish a

reasonale military objective 3. Elements

a. Self defense must be necessay b. There exists no neutral territory c. The response must be proportionate andd. It must be prompt

4. Retortiona. Something you do to suggest your lack of pleasure over a situation

5. Countermeasures: Follow popwer point:

Just War Theory

Covenant of the League of NationsArticle10, Article 12, Article 13, Article 16

III. INTERNATIONAL LAW, THE ENVIRONMENT & COMMON SPACES A. State Responsibility & the Development of International Environmental Law

1. Environmental law 3 principals

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a. 15 rio declaration – just because the science isn’t clear isn’t reason not to take precautionary measures

b. consequence of doing it & being wrong – cleaner environment c. Consequences of not doing anything & being wrong – catastrophic effect of end of earth d. Clinical method Take the safest course to achieve the min objectives

B.1. Trail Smelter Case

a. Canadian company was emitting pollution into air in Washington. Case was brought before a US/ Canadian tribunal which found there was not international case dealing with environmental pollution. So Ct looked into the US Supreme court regarding US/others as to pollution

b. Why didn’t bring suit in Canada? Nationality bias or it may be permitted under their laws c. Issue: Whether Canada was legally responsible for the nuisance caused d. Decision: Found there was Canadian responsibility for using their territory to do damage

on other territory e. What law did they use ot determine?

i. What sup court say its power under eh Constitution equally applies to the extraordinary power granted to the Tribunal under the Convention

ii. The Comprimis allowed for the legal systems of the two countries to be looked at

f. Rule: under principles of international law as well as the law of the US, no state has the right to use or permit the use of territory in such a manner to cause injury by fumes in or to territory of another

a. The Trail Smelter Case (pg 623)i. Facts : Smelter in Canada; US alleged the fumes from smelter caused nuisance in Washington

state. Tribunal set up to try the case, which exists per U.S.-Canada Convention, to resolve disputes.

ii. Relevant Law here – CIL and U.S. law1. Tribunal relied heavily on US law.

a. No relevant CIL decisions (no other cases like it in an int’l tribunal)b. b/c of the US-Canadian conventionc. US law is particularly fitting - many analogous cases (intrastate cases)

2. Also looked at Stockholm declaration and Rio declaration (below)iii. Smelter found liable for nuisance. Now what?

1. Figure out damages. How much would Smelter owe for pollution.2. Going forward, can there be some type of injunction. If they know of these risks

and conditions, Trail Smelter has to refrain from these activities3. Tribunal established checks on what Trail Smelter was doing

iv. Very seminal case - established basic principle of int'l law1. State has right to use resources how it wants, but has to stop when it starts

infringing on rights of other states to use the environment.

II. Examples of “soft-law” – these declarations are not legally binding (but still is CIL)a. Stockholm Declaration of the United Nations Conference on the Human Environment (pg 632)

i. discharge of toxic substances will be done in a way so that they are harmless to the environment

ii. States can do whatever they want with their environmental policies, as long as they don’t damage other states or any natural areas outside of the boundaries of the state

iii. states will cooperate to further int'l environmental lawiv. US has signed, not ratified.

b. Rio Declaration on Environment and Development (pg 632)i. humans are #1 priority, and entitled to live healthy and w/ nature

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ii. States can do whatever they want with their environmental policies, as long as they don’t damage other states or any natural areas outside of the boundaries of the state

iii. states will cooperate to further int'l environmental law & develop own national environmental law

iv. states should discourage and prevent activities & substances that are harmful to healthv. States should notify int'l community of natural disasters/emergencies that might affect

other statesvi. states should tell others states info about things that might harm other states

(transboundary environmental effect)III. More on International Environmental Law

a. Request for an Examination of the Situation in the Nuclear Tests Case (pg 635) i. Facts : New Zealand asked the ICJ to rule on the legality of French underground nuclear

testing on islands in the Pacific. CJ said no jurisdiction.ii. Dissent – Says court has a duty to listen. Discusses principles of Stockholm Declaration -

that int'l community is responsible for making sure there are no harmful things being placed into the environment.

1. State responsibility (like in Trail Smelter case)2. Precautionary principle

a. There is a big emphasis in int'l law on preventing pollution, rather than letting it happen then trying to stop it

b. Burden is placed when there is a significant risk of pollution, on party that wants to engage in the dangerous activity, to assess how much damage would occur, and to prove that it is justified.

3. Procedural guaranteesa. Like impact assessment - a burden on sharing information, and assessing

environmental damage to preventb. Protection of the Stratospheric Ozone Layer and the Structure of Int'l Environmental Lawmaking ,

David D. Caron (pg 643)i. Ozone depletion

1. Vienna - Framework principle - sets the framework by establishing the fundamental principles, and nebulous abstract goals

2. Montreal - More specific, by setting up Deduction rate, timetable, and a secretariat

3. London - Even more specific, with phase out of all CFC'sii. Challenges to Int'l env law

1. Conditions and technology always evolving. How do lawmakers take this into consideration when creating treaties?

a. Write in provisions that deal with changes that they foresaw (Montreal)b. Amendments - Usually to change a treaty, you go through an

amendment processc. Adjustments - Give a legislative status to the regime d. (Montreal) set up scientific, periodic meetings, where scientists would

assess the situationiii. How do we monitor compliance?

1. "Carrots and sticks"2. Giving money and technology to states who comply3. Elimination of trade to people trading CFC. If there is a critical mass of ppl who

wont take the CFCs there's no point in trying to sell them by exporting them76

4. Shame5. Developing countries - provide technological assistance, and delays to allow

longer periods for complianceIV. Treaty Regimes and the Protection of the Environment

a. The Shrimp Turtle Case (pg. 654) i. Facts: U.S. imposed ban on shrimp harvested in ways that could damage sea turtles.

Some countries challenged U.S.'s policy before a panel established under the WTO's (World Trade Org) Dispute Settlement Understanding, arguing that it violated the General Agreement on Tariffs and Trade (GATT 1994).

ii. Why does the WTO have jurisdiction? 1. Countries signed on to it2. WTO developed from agreement, GATT3. This is a trade issue, so it makes sense for WTO to deal with it. Not just any trade

issue goes to WTO, but these state consented to WTO, so they have jurisdictioniii. Background on how WTO works as a dispute resolution

1. 1st step: consultation - States agreed to get together and discuss the dispute be4 bringing in 3rd parties. If that fails, they go to step 2. Like an arbitration

2. 2nd step: go to panel of experts - If either party doesn’t like it, go to step 33. 3rd step: appellate body - Like a Court of final appeals for the WTO4. 4th step: Dispute settlement body - Enforcement body; If party doesn’t comply

with appellate body decision, they will impose economic sanctions on the offending party. b/c if this, they have good complying rates b/c of the enforcement.

iv. U.S. defense in Shrimp Turtle Case – if falls under GATT exception “exhaustible natural resources”

1. WTO uses 2 part analysisa. 1st - if it falls within one of the exceptions - for exhaustible natural

resourcesb. 2nd - does the US's restriction satisfy the preamble for the exception?

2. Analyzing the 2nd part of the analysisa. Even if a law, on its face, is neutral, it can still be discriminatory, and you

can find this out when applying itb. Unjustified, b/c not closely related to goal of conservationc. Boats were using environmentally safe procedures, but still penalizedd. Arbitrary - There wasn’t a process

i. States were not given a process to challenge US's qualification. There was no way for countries to say that they were using safe methods of catching shrimp

3. US ended up modifying its laws, creating a more nuanced law dealing with sea turtles, and helped countries to comply

UNCLOS: Internal Waters

3 to 12 nautical miles. Reagan extended US jurisdiction, but not states’s Territorial Sea Contiguous Zone Exclusive Economic Zone

Law of the Sea 

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Internal WatersJurisdiction over internal waters is equal to a state's jurisdiction over its land territory. Sovereignty is absolute. While private foreign vessels can enter internal waters, they are routinely boarded and inspected. In port, both the flag state of a vessel and the coastal state have jurisdiction. Most matters are left to the flag state unless the crime "disturbs the tranquility of the port" as in Wildenhus' Case, (1887), p. 246.Territorial SeaThe territorial sea is that part of the sea immediately adjoining the coast. There are three topics related to the territorial sea: its width; where to draw the "baseline" from; which powers the coastal state has within the territorial sea.

WidthOriginal limit established by European powers was 3 miles. After much controversy this was extended to twelve miles. Problems arise, however, when the territorial sea of two states conflict. In such a situation, the states may either have a maritime border at the median line; negotiate some other solution; or rely on historical claims to control over the territorial sea. Today, a 12 mile limit is recognized for the territorial sea in the absence of such a conflict. 

BaselinesWhen calculating the territorial sea, a problem that frequently arising is deciding where the 12 miles should be measured from. Obviously, any coastline is not a perfectly straight line, but for purposes of calculating a maritime border we want a generally discernible line that is not too complicated. Thus a line first needs to be drawn along the coast (a normal baseline) tat will generally follow the major (but not the minor) contours of the coast. A problem arises when a coastline is deeply indented. The classic example is the coast of Norway. Norway applies a straight baseline system that follows the general contour of the coast but the indentations of the coast. This method might also apply to fringe of islands. A similar problem arises with regard to archipelagic states such as Indonesia and the Philippines. On the one hand, allowing such states the use of some island to island baseline will enclose large areas of what was formerly considered the high seas; on the other hand, from those states’ perspective, not using such a method restricted their sovereignty. UNCLOS accepted a limited archipelago theory so that baselines could not exceed 100 miles of open water. Similar problems also arise with bays and Gulfs. For example, could the US draw a baseline from the tip of southern Florida to the tip of southern Texas? Obviously not. Aside from certain historic bays, countries cannot draw a baseline across the mouth of any gulf or bay that is wider than 24 miles. This principle was related to the US conflict with Libya in the 1980s over the Gulf of Sidra. Libya wanted to draw a straight baseline across the 300 mile head of the Gulf and extends its territorial sea from there. The US refused to recognize that claim, resulting in an engagement between US and Libyan jets in 1986. 

Rights of Coastal State in Territorial SeaStates have a right to treat the territorial sea as their own territory with a few exceptions. One important exception is the right of innocent passage. Foreign ships have a right to navigate through the territorial waters of a state if on a continuous voyage to other ports. They must observe pertinent regulations. This right may be suspended in the interests of national security, etc. Coastal states also exercise certain rights over foreign vessels entering the territorial sea from the high seas or from the territory of another country. Generally, however, as to criminal jurisdiction aboard ship, the Flag state exercises such jurisdiction Except when criminal activity in a port "disturbs the tranquility" of the coastal state. See Wildenhus’ Case (1887). Ships are also the subject to civil suit in the coastal state as we have seen in many cases studied so far. In both criminal and civil cases there may exist concurrent jurisdiction between the flag state and the coastal state. Public vessels, such as warships, are somewhat different: Generally the coastal state does not exercise any jurisdiction aboard foreign public vessels. Some states specifically exclude such vessels from the general right of innocent passage unless they receive specific permission. International StraitsThe US treats International straits (connecting two oceans or seas) as a special part of the high seas. Submarines must surface, but otherwise, the coastal state has little authority. The internationalization of a strait may present an intrusion into the coastal states authority that coastal states frequently object to, see the Corfu Channel case (1949). Notice an important broader principle declared in this case involves the duty of every state not to allow its territory to be used to injure the rights of another state. Contiguous ZonesUnder the 1982 Law of the Sea Convention states are allowed to claim a contiguous zone that does extend more than 24 miles from the baseline (discussed above). In this zone states may both punish and prevent infringements of its customs, fiscal, immigration and sanitary laws. Exclusive Economic ZoneThis zone extends 200 miles from the baseline. Here the coastal state has sovereignty related to exploiting, conserving and managing the natural resources of the zone. The coastal state can also establish artificial islands. Other states, however, have rights to navigation

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and overflight, as well as fishing within limits established by the coastal state. This latter right was at issue in The M/V Saiga (1997), p. 260. Continental ShelfProvisions on the continental shelf (the gentle sloping of the seabed away from the landmass) allow states to exercise some rights to 200 miles or more. Coastal states have an exclusive right to exploit the resources of the seabed in this zone, although other states may lay submarine cables for example.Some confusion is created by the application of several different treaties to this topic, with the 1982 LOS being the most recent; however, since a number of countries are not yet bound by it, a complex situation can arise. High SeasFreedom of the high seas applies to all states. It includes the following rights under UNCLOS: navigation; overflight; submarine cables; creation of artificial islands; fishing; and scientific research. Stopping other ships on the high seas (by warships) is very limited (in peacetime): suspicion of piracy or the slave trade; false flagging; unauthorized broadcasting; statelessness. Foreign vessels can also be stopped if "hot pursuit" conditions exists—an uninterrupted pursuit of a suspected criminal vessel that began in the territorial sea or contiguous zone of the coastal state. Deep SeabedUNCLOS contained controversial provisions on deep seabed mining. The provisions provided that any mining in the seabed below the high seas (The Area) would be governed by the seabed authority which would establish an organization (The Entity). This would provide for private mining authorized by the authority next to public mining carried out by the entity, with profits to be shared among all the nations of the world. This structure is based upon the principle that the seabed represents "the common heritage of mankind" and therefore should not be subject to expropriation by individual countries.

2. Stockholm Declaration on the Human Environment a. Principal 6 In order to prevent irreversible damage to ecosystems states have a duty not to

pollute b. Principal 21 States according to he UN Charger have a sovereign right to exploit their

own resources pursuant to their own environmental policies & have the responsibility to ensure that activities w/I their jurisdiction does not cause damage to the environment of other States or areas beyond the limits of national jurisdiction

C. International Common Spaces1. The Antarctic Treaty -

a. Countries can agree to use area for peaceful purpose, that no one will assert a new claim against it

b. Its in the best interest of all mankind for Antarctica to counties to be used exclusively for peaceful purpose and not to become the scene of international discord

IV. THE LAW OF THE SEA A. The High Seas

1. The high seas have traditionally been regarded as international common spaces open to all vesels and subjects to the sovereignty of no state

B. The Continental Shelf, Fisheries Zone & the Exclusive Economic Zone 1. The Truman Proclamation 2. UN Convention of the Law of the Sea

V. INTERNATIONAL CONFLICT OF LAWS A. Principles of Jurisdiction

1. The Territorial Principal : American Banana Co v. United Fruit a. Imposing strict territorial limits on State jurisdiction b. Crt refused to apply federal antitrust laws to monopolistic activities overseas of one US

company injuring another in the US domestic market c. Held: no state had the right to extend its legislative or judicial power into the territory of

a foreign state expect with consent of the foreign state d. Strict Territorial view of prescriptive jurisdiction.

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i. GR: determining whether an act is lawful or not must be determined by the law of the country where the act is don’t

e. Today the principal of territorial jurisdiction is universally accepted but its no longer thought of as constituting the exclusive basis for asserting state jurisdiction authority

2. The Effects Principle: US v. Aluminum Co of America a. The effects principal is a form of extraterritorial jurisdiction

i. The premise is that a state has jurisdiction over extraterritorial conduct when that conduct has an effect within its territory

b. Canadian firm Alum Ltd participated in a cartel based in Switzerland restricting imports to the US. Court held that since the companies in the cartel had intended to affect US commerce & since they had affected US imports, Limited’ activities were properly w/I regulatory reach ie legislative jurisdiction of the US

i. Any state may impose liabilities even on persons no w/I its allegiance, for conduct outside its borders that has consequences w/I its borders which the state reprehends and where these liabilities are ordinarily recognized by other states

c. Did congress intend to attach liability to outside the US to people who don’t hav allegiance to su

d. Conclusion; overcame presumption that no extraterritorial jurisdiction i. The effects doctrine:

Blackmer: Nationality Jurisdiction

Alcoa: Intent Plus Effects Test (a form of territorial jurisdiction.

Protective Principles: excersise jurisdiction to protect security of the state Ex. CounterfeitingUniversality : Pricacy, war crimes, etc.

Passive Personality Jurisdiction: most controversial, based on the jurisdiction of the vicitim.

a) Domestic Courtsi) M/S Bremen v. Zapata Off-Shore Co. US Supreme Court 1972 (Burger)

(1) Unterweser contracted with Zapata to tow a drill from Louisiana to the Adriatic Sea. In the contract was a forum selection clause that all disputes would be tried by a court in London. When in the Gulf of Mexico, a storm hit and the drill was damaged. Unterweser towed the drill to Tampa, where it was promptly sued.

(2) Rule: Forum selection clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.

(3) Rule: The forum clause should control absent a strong showing that it should be se aside.(4) Rule: A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a

strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.(5) Rule: A forum selection clause will not be upheld if it is the result of fraud, duress, or other public policy problem.(6) Rule: A forum selection clause will not be enforced if will deprive a party of their meaningful day in court. (The

only time this has been enforced was with US-Iranian companies.)(7) The forum selection clause should be upheld. The court found that the choice of that forum was made in an

arm’s-length negotiation by experienced and sophisticated businessmen, and absent some compelling and countervailing reason it should be honored by the parties and enforced by the courts. The court further found that even though US courts follow the Bisso rule, stating that exculpatory clauses have no effect, and that English courts don’t do so, it doesn’t matter.

(8) J. Douglas dissented, stating that forum selection clauses should not be upheld when the substantive rights would be greatly adversely affected.

M/S Bremen v. Zapata Off-Shore Co. (U.S. 1972) Holding: We hold that far too little weight and effect were given to the forum clause in resolving this

controversy. Facts: Plaintiff Zapata contracted with Unterweser, a German corporation, to tow Zapata’s drilling rig

from Louisiana to Italy. The contract contained a provision that all disputes were to be litigated before the “London Court of Justice.” After the rig was damaged in a storm and towed to Tampa, Zapata

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commenced suit against Unterweser in federal court in Florida. Unterweser, citing the forum selection clause, moved to dismiss or to stay the action pending submission of the dispute to London.

Procedural History: District Court refused to dismiss and Court of Appeals affirmed. Case taken to Supreme Court.

Important Legal Reasoning: The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.

B. Resolving Conflicts of Jurisdiction 1. The Balancing Test: Timberlane Lumber Co v. Bank of America

a. Case dealt with the extraterritorial application of US antitrust laws b. Question asked: whether the interest of the US including the magnitude of the effect on

American foreign commerce is sufficiently strong vis-à-vis those of other nations to justify asserting extraterritorial authority

c. Anti trust requirement for jurisdiction: The balancing test i. Anti trust laws required there there be some effect actual or intended on

American foreign commerce before federal courts may legitimately exercise SMJ under those statutes

ii. There must be a greater showing of burden or restraint to show that the effect is sufficiently large to present a cognizable injury to the P and thus a civilian violation of antitrust laws

iii. Must determine whether the interest of and links to the US – including the magnitude of the effect on American foreign commerce – are sufficiently strong compared to those of other nations to justify an assertion of extraterritorial authority

2. International Comity a. GR: It is generally agreed that there are principles of international comity that should

guide state and judges in moderating assertions of jurisdiction i. “Comity” is deference given by one nations courts to the courts and laws of

another state b. Comity defined by Guyot

i. It is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of persons who are under the protections of its laws

c. Hartford Fire Co v. CAi. Question: whether US antitrust law applied to activities of London reinsures who

allegedly promoted an illegal restriction ( illegal under US Law) to the terms of commercial general liability insurance policies available in the US

ii. Held: court held that international comity didn’t counsel against exercising jurisdiction in the US & thus court didn’t have to decide whether to defer to UK laws or its own laws because there was no true conflict between the domestic and foreign law, because since British law allowed the activities which are illegal in the US, Britian didn’t order the London reinsures to violate US antitrust law

C. Foreign Sovereign Immunities Act of 1976 1. States that Foreign states are immune from the jurisdiction of the courts of the US except they are

not immune from a. Its has waived immunity b. Action is based on commercial activity carried on in the US by a foreign state c. Property taken in violation of international law d. Right to property in the US which are acquired by gift or succession or real-estate

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