Date post: | 06-Apr-2018 |
Category: |
Documents |
Upload: | brittany-stonesifer |
View: | 241 times |
Download: | 0 times |
of 40
8/3/2019 PIL OUTLINE3
1/40
1
Public International Law: Keitner, Fall 2011Brittany Stonesifer
I. Sources and Methods of International Law
1. Nature and History:
a. Natural v. positive law:
Argue both sides of the question does the slave trade violateinternational law in early 1800s when the northern US states
and the UK had outlawed slavery but other countries continues
to engage in the slave trade
b. History: Creation and structure of League of Nations and UN, PCIJ, ICJ,
GA, SC
International law used to be law of nations, but hasdiversified because of incorporation of organizations andindividuals
Most growth in international law has come after periods ofintense global conflict
1. Differentiation: 2. Codification: 3. Institutionalization: 4. Globalization:
c. Nature specificity, enforceability, role of CONSENT
d. Theory:
Realists Liberals International relations theory Institutionalists
2. Sources
ICJ Article 38:o A. Treaties:
International conventions, whether general or particular,
establishing rules expressly recognized by contesting states
o B. Customary International Law (CIL):International custom, as evidence of general practice accepted
as law
o C. General PrinciplesGeneral principles of law recognized by civilized nations
o D. Subsidiary Sources:
8/3/2019 PIL OUTLINE3
2/40
2
Judicial decisions and the teachings of the most highly qualified
publicist on the various nations as a subsidiary means for the
determination of the rules of law
a. Treaties
1. Treaty nomenclature:o No legal difference between various kinds of international
instruments based on name; treaties, pacts, protocols,
conventions, covenants and declarations are all the same
o Bilateral treaties: Between two nations
o Multilateral treaties: Between three or more nations
o Vienna Convention on the Law of Treaties (VCLT) of 1969:An international agreement is one concluded between States
in written form and governed by international law; US not a
party but sees some provisions as CIL
A. Between states: VCLT governs only nations, notinternational orgs, individuals or companies (governed
by other agreements or CIL)
B. In written form: VCLT governs only writtenagreements, but other agreements may still be
enforceable:
Eastern Greenland(PCIJ; 1933): enforced oralpromise to renounce Norw. claims to Greenland
Unilateral declarations can also be enforceable
K law: Key factor in determining binding andenforceable character is whether State in tended
to create a legal obligation or induce reliance
Gentlemans agreements/ aspirational texts: Notintended to be binding, but may eventually be
state practice that could contribute to CIL
C. Governed by international law: controlled by intent 2. Treaties and CIL:
o Jus tertii: treaties can never bind non-parties or takesomething away from non-parties that they are entitled to
under CIL (though they may confer benefits upon them, which
may potentially later claim reliance through possible treatyarbitration mechanism), with some exceptions:
Objective regimes: treaties that bind non-parties; ICJfound UN Charter to create rights and duties for non-
members; some environmental regimes
o Codification of custom: North Sea Continental ShelfGerm. v. Den./Neth. (ICJ;
1969): Germ. refused to sign equidistant rule in treaty;
8/3/2019 PIL OUTLINE3
3/40
3
treaty was progressive development (new law) not
codification of custom
o Treaties and CIL are co-equal sources of law; treaties can bestate practice and help for CIL or could violate and circumvent
certain kinds of CIL (exceptjus cogens)
3. Process of treaty-making:o VCLT articulates rules; must have capacity to enter into
agreements (see subjects of international law):
A. Negotiation B. Drafting C. Signature
Authority/ agency becomes important becausesome treaties are legally binding at moment of
signature
D. Ratification Required for most international agreements State makes clear intent to be bound Ex: U.S. treaties must be signed by President and
ratified by 2/3 of Senate
VCLT Art. 18: Between signature andratification, States must not act in a way to defeat
the object and purpose of the treatyunless they
make clear their intent not to ratify the treaty
E. Termination May generally withdraw as a signatory (before
ratification); ex: US with Rome Statute
Some treaties (ICCPR) says no party (post-ratification) is allowed
o Reservations: Attempts by a State to unilaterally change thelegal effect of some part of the treaty
Only applicable to multilateraltreaties (reservationsto bilateral treaty would be rejection and counter-offer)
Reservations to the Genocide ConventionAdvisoryOpinion (ICJ; 1951): Reservations must not be counter
to the object and purpose of the treaty
What defines a reservation? VCLT Art. 19 & 20: Reservation is anything that
purports to change the legal effect of a treaty;declarations and interpretive statements at
ratification are not reservations
Treaties themselves often contain parametersfor reservations, sometimes barring them
entirely
States may object to another nations reservation 4. Application and interpretation:
8/3/2019 PIL OUTLINE3
4/40
4
o Basic assumptions: A. International agreements generally are only
proscriptive; treaty must specify to be retroactive
B. Applied throughout territorial sovereignty of theState party unless otherwise specified
o Treaty interpretation subject to CIL: Silence may meanacceptance of a prevailing interpretationo Methods of treaty interpretation:
A. Textualism: Focuses on the words in the treaty and uses
cross reading of different provisions to resolve
ambiguity
VCLT Art. 31: Interpret in light of ordinarymeaning in light of prevailing international law
at the time of drafting (Bankovic v. Begium,
ECHR, 2002)
B. Intentionalism: Intent of drafters, including travaux
preparatoires (negotiating history) is disfavored,
largely because of time between signature and
ratification
VCLT relegates to secondary role only used whentext is ambiguous or obscure
When ambiguous, a treaty may be interpretedcontrary to the interests of the drafting state
(esp. when unequal negotiation)
C. Teleological : Interprets to give full meaning to fundamental
purpose of treaty
Captures VCLTs object and purpose goal ICJ (1950) rejected notion of maximum
effectiveness (construing treaty so as to give it
fullest effect)
5. Amendment, invalidity and termination:o A. Amendment:
Generally done by agreement of parties Treaty may contain procedures
Very commono B. Modification:
Some but not all parties agree to material change VCLT Art. 41: so long as treaty does not bar
modification, States can give notice of modification,
provided change does not derogate from rights of other
parties and does not affect an essential provision
o C. Invalidity
8/3/2019 PIL OUTLINE3
5/40
5
Defects in treaty (presumed not to contain mistakes): Contrary to fundamental domestic constitutional
law
Error Fraud Corruption Coercion
If one provision invalid, rest of treaty may continue State may lose right to claim in validity f acquiesced in
operation over sufficient time
o D. Termination (unilateral): May terminate if another party has breached
obligations
CIL and VCLT Art. 60: Only for materialbreachessential to the accomplishmentof the object or
purpose of the treaty
Changed circumstances: Must fundamentally chanceconditions which led to conclusion of treaty
VCLT Art. 62: Seeks to limit use of changed circ.doctrine:
o i. Change must be fundamentalo ii. Unforeseen by drafterso iii. Current circumstances must have been
essential basis of consent to be bound
o iv. New circumstances must radicallytransform obligation for party seeking
termination
o v. Obligations are yet to be performed War: Matter of CIL; VCLT deliberately silent
Outbreak of hostilities only suspends thoseobligations the performance of which is
incompatible with a state of conflict between the
countries
Certain kinds of treaties (humanitarian) cannotbe terminated by war
b. Customary International Law
Required elements:o 1. General state practice:
Objective component Need not be universal, but should reflect wide
acceptance
Nicar. v. US(ICJ; 1986): Conduct of statesinconsistent with general practice should be
8/3/2019 PIL OUTLINE3
6/40
6
treated as breaches of the rule not as an
indication of a new rule
Rules change by new state practice; enough statesbreaking the old rules or actively resisting the
formation of new rules
Need not be observed for a long period of time ifuniversal and consistent enough New states are still bound by CIL; must try to change
through new state practice
o 2. Opinio juris: Subjective component Practice done out of sense of legal obligation (rather
than comity or self interest)
If states generally follow the practice but would feel freeto disregard it, not CIL
Responses: International lawyers: redundant requirement
because lawyers just try to prove practice
Academics: something more than action isneeded to prevent anachronistic results
(reasonableness, utility, etc.)
Evidence:o Diplomatic correspondenceo International organization reportso Military manualso Newspaper accounts of contemporary eventso Judicial decisionso GA resolutions?
Development of CIL:o Paquete Habana: (SCOTUS; 1900); small fishing boat not a
war prize so compensation ordered.
Points to usage, treaties, royal order precluding seizureof fishing boats, US practice during revolutionary war,
1785 treaty between US & Prussia Art23, US practice in
1846 during war w/ Mexico as evidenced by letters,
similar French & English prohibitions during several
wars to distill CIL
Even though Young Jacob (English High Court; 1798)ruled no opinio juris, this changed in those 100 years
o S.S. Lotus: France v. Turkey (PCIJ; 1927); Where effects are felt on Turkish territory, nothing can
stop Turkey from asserting jdx
Court embraces principle thatinternational law ispermissive (all is permitted unless clearly prohibited)
8/3/2019 PIL OUTLINE3
7/40
7
extreme positivism/permissive view of international
law (states can do anything not prohibited)
Permissiveness favors the autonomy of states The burden of proof is on France to show that Turkey
violated an existing principle of international lawby
asserting jdx Compare with opposite burden shift in US courts
where plaintiff faces bars to justiciability
But Courts finding yields a non-liquet(unclear law) asto how to interpret in absence of evidence
No expressed consent No law Noviolation
o Though being able to function withoutconsent gives international bodies
authority and establishes global rule of
law
Ct says nothing specifically allowed or prohibitedTurkish jrx so allow it
But in the absence of evidence this holdingseems weak per Nuclear Weapons Advisory
case decision, judge said should declare
lacunae/non-liquetwhere unclear
Presumptions in the formulation of CIL:o Asylum: Colom. V. Peru (ICJ; 1950): military leader sought
refuge in Colombian embassy after failed coup
Regional custom of diplomatic asylum (Colombia askedfor leaders safe passage, Peru denied and won case)
Colombia bears burden to show Perus violation ofregional custom is violation of CIL:
Counter to normal presumption: silence atregional custom is rejection
Disrupts formation of regional custom Protects institutional role of ICJ because
overrules fragmented rules and institutions
Presumptions may shift for political reasons orwhen ICJ wants to declare contentof
international law
oAnglo-Norwegian Fisheries UK v. Norw. (ICJ; 1951): Norwayclaimed ocean by drawing straight lines
Court back to presumption that silence isacceptance
Norways bidding and UKs lack of protest means UKcant protest now
8/3/2019 PIL OUTLINE3
8/40
8
o Right of Passage: Port. v. India (ICJ; 1960): duringdecolonization, India refused to allow passage of troops to
isolated Portuguese colony
Presumption that silence is acceptance Question about rights of passage too broad; Court
considered based on course of dealing between States Right of passage for civil admin. binding CIL;
right for troops was mere comity
Since Portugal didnt protest formation acceptance
c. General Principles/ Res justi
Principles recognized by most of worlds legal cultures Civilized nations in Article 38 refers to common law, civil law,
Islamic law and ideological legal systems
Used to fill gaps where CIL and treaties are not on point Jus Cogens:
o Peremptory Normso Even if have (1) general practice and (2) opinio juris (accepted
as law), still have problem of persistent objector(e.g., arguably
US capital punishment) some things are binding on all
nations, without consent and may never be derogated from (no
treaties or CIL)
o What arejus cogens norms? No clarity; very ill-defined. Some clear ones are
prohibition on:
Slavery Genocide Agression
Additionally other norms that are probablyjus cogens: Prohibition against piracy (yet Congress can
authorize letters of marquee & reprisal)
Prohibition against Terrorism Humanitarian laws (Geneva Conventions)
Apply to states andindividuals Per Military Activities Against Nicaragua (conspicuous
example of prohibition on use of force as jus cogens),
may even trump domestic law
d. Other Sources and Evidences
VCLT Art. 38: Differentiates between sources and evidences ofinternational law; some materials have only subsidiary significance
In addition to general principles, CIL and treaties (which are allpositivist) some natural law principles shape international conduct:
o 1. Equity
8/3/2019 PIL OUTLINE3
9/40
9
Abuse of right: one may not use their rights so as toinfringe the rights of others
Unjust enrichment: grants relief in absence of formalcontract
Clean hands: a party that seeks equity must do equity Caveats:
A. Equity does not mean balance or judicialcompromise; ICJ Art. 38: Expressly bars court
from deciding based on what is just and good
unless the parties agree to that
B. Equity does not mean equality or socialjustice; Libya-Tunisia Continental Shelf: Court
refused to grant Tunisia resources simply
because they were poor
o 2. Humanityo 3. Growing trend to consider representative democracy an
affirmative value of international lawo 4. Stewardship and rational use of global resources
Legislation, judicial decisions and scholarship:o ICJ Art. 38: Recognizes these sources but only as a subsidiary
means of establishing evidence of the content of international
law
o 1. UN Resolutions: Do UN General Assembly Resolutions (UN Charter Art.
10: Only recommendations) make law?
Some scholars say because only theyre onlyrecommendations, they lack opinio juris because
chose not to make binding law By contrast, ICJ has considered GA resolutions as
evidence of state practice in occupation of
territory and IHL
TOPCO Arbitration Texas Overseas Petrol v.Libya (Arb. 1977): Libya relied on GA resolutions
to claim tribunal under concession contract had
no jdx; court rejected because resolutions not
supported by wide enough cross section of states
o 2. Judicial decisions: ICJ, specialized tribunals, ICC, etc. have no stare decisis
between courts or for their own decisions; should be
regarded as subsidiary
ICJ Art. 59: Except between parties to a dispute, adecision of World Court has no binding
In reality, however, most courts follow their ownprecedent, at least for procedure
o 3. Legal publications:
8/3/2019 PIL OUTLINE3
10/40
10
ICJ statute recognizes teachings of the most highlyqualified publicists of the various nations as evidence
of international law
Classics are favored before newer writers, but mostrelied-upon seconfary sources are reports by UN
International Law Commission, American Law Institute,etc.
Integration of sources and methods:o Trail Smelter Arbitration US v. Can. (1941): Rule emerged
that one should not use ones territory in a way that injures the
rights of anothers territory; rule started as general principle
rooted in natural law state practice became CIL
codified in treaties CIL continues to shape and change treaty
rules
II. Subjects and Objects of International Law
Subjects: Entities that bear international legal rights and duties; known asinternational legal persons
Objects: Who and what being acted upono Distinction has been blurringo Most notable shift in modern international law is inclusion of International
Orgs and individuals as subjects
Used interchangeably:o Nations/ nation-states/ states/ countrieso
Self-determination/ secession/ irredentism/ uti possidetis Not interchangeable:
o Peoples: some sort of collective entity making claims to politicalindependence
Doesnt include women/ children/ elderly/ etc Generally, doesnt include tribes or religious groups b/c matter of
internal law and not seeking political autonomy
May include groups that are defined by ethnic or cultural traitso Sovereignty: internal control and insulation from external control; exclusive
jurisdiction; independence; not accountable to other powers; non-
intervention
Exists on a sliding scale; can be small country with relatively littlepower1. States
State identity, sovereignty:o Essence of statehood is sovereignty and self-determination;
relates back to consent
8/3/2019 PIL OUTLINE3
11/40
11
o Rights of sovereignty: Capacity to enter into agreements Only states are able to become full members of
international organizations
States may claim breaches of international lawobligations and seek redress
Enjoy privileges and immunities from other nations jdx States may engage in war or armed conflict as an
instrument of policy
No international right to cessation, unless a formercolony
o 1933 Montevideo Convention Art. 1: Elements of statehood;expressed CIL:
A. Permanent population Whether a population is small, nomadic or
widely dispersed is not important so long as
population is a group of persons leading acommon life and forming a living community
B. Defined territory Need not be perfectly demarcated but only
relatively consistent
Must be naturally formed part of the Earthssurface
C. Government D. Capacity to enter into relations with other states
C and D are often combined to be a question ofsufficient independence to exercise international
rights and discharge responsibilities Ex: Liechtenstein delegated foreign relations to
Switzerland which qualified it from League of
Nations but was later allowed to sign ICJ statute
and has litigated cases before World Court
o CIL implied 5th qualification of self-determination, but stillmany notable exceptions
o Stimson Doctrine: US articulated principle after League ofNations refused to accept Manchukou; US and UN will not
accept forcible creation of entities in violation on international
law; useful from historical perspective
o Sui Generis entities: Some international territories do notaspire to statehood but are instead disputed area placed under
the nominal sovereignty of one nation but with actual
supervision of an international organization
Recognition:o Unspoken assumption that other nations are prepared to treat
an entity as a fellow nation
8/3/2019 PIL OUTLINE3
12/40
12
o Area defined by theoretical constructs: Constructive recognition: Theory that recognition by
other states is a requisite
Declaratory theory: Statehood is purely objective andrecognition is largely irrelevant
In reality, there is a mixo In transfers of power, as long as there has been no state
succession, change in government should not affect recognition
Tinoco Concessions Arbitration (Majority rule) UK v.Costa Rica (1923): Where a government is the de facto
ruler of a country, recognition by specific nations does
not matter and that governments acts are
presumptively valid
During period of transition or civil war, theinternational community will have to at some critical
mass of state recognition ofde facto rulers; effective
control of territory test(ex: During fighting in Libya,eventually UN gave GA seat to NTC, not Ghadafi
loyalists)
De jure would be government that has noeffective control (ex: Dhali Llama in Tibet)
o Consequences of Non-recognition by US; point now is whetherwe have diplomatic relations with country more than formal
recognition:
1. Access to US court limited: A. If seeking to be plaintiff in a case filed in US
court, must be affirmatively blocked by executive
B. If sued as defendant, will still be accordedforeign sovereign immunity so long as they are
de facto regime
2. Validity of entities acts may be questioned State succession:
o Occurs when there has been a fundamental transformation inthe identity of the State itself, not just its government
(substantial change in territory, decolonization, etc.)
o Area largely governed by CIL and legal consequences dependon nature of change and type of issue involved
o Treaties: Newly independent states start with a clean slate;decolonized states may pick and choose treaty obligations of
former colonial master
Ex: US still would have been bound to Rome statuteafter Bush took office b/c US was same country; Former
Yugoslavia shed some of its obligations b/c new states
were formed
8/3/2019 PIL OUTLINE3
13/40
13
o Property and debts: Public property of ceded territory may beseen as assets while debts are liabilities
o Torts: International law relieves successor state of liability fortortuous acts of predecessor regime
o Contracts: Given uneven treatment by international decisions;some courts have ruled no obligation to respect predecessorscontracts, while World Court has ruled that successor is
obliged to pay compensation if it cancels contracts
o Brown (UK v. US) (1923): Bederman overstates that new statesstart with a clean slate. Instead, in decolonization context,
state can pick and choose which contractual and treaty
obligation it wished to uphold, but state had to pay
compensation if it chooses to cancel the contracts of a
predecessor
2. International Organizations
International law has been slow to recognize the international legalpersonality of international organizations or institutions but has
recognized the status of certain orgs
Generally now, extent of rights and obligations depend on teleologicalapproach
History and structure of International Orgs:o 1815 Final Act of Vienne: Ended conflict after French
Revolution and Napoleonic conquests; established first modern
international organizations
o League of Nations in 1919:
Aimed at resolving international disputes; not good atmaintaining international peace but helped protect
rights of minority populations and resolving small
disputes
Established blueprint for UN: Assembly: Each member state had one vote Council: Great powers had permanent seats and
smaller nations rotated through
Secretariat: Created permanent, independentstaff
Permanent Court of International Justice (PCIJ):o United Nations in 1945:
General Assembly, Security Council, Secretariat, ICJo Agencies:
Many specialized agencies with various degrees ofconnection to UN; most notable:
World Bank and IMF International Maritime Org International Civil Aviation Org
8/3/2019 PIL OUTLINE3
14/40
14
World Meteorological Org World Health Org
o Regional Orgs: Org of American States European Union
o Types of International Orgs: i. International Public Orgs: Only States can be members
ii. NGOs Mostly individual members Mostly influence law but are not subjects (except
some orgs like International Committee of the
Red Cross [ICRC])
iii. Multinational Public Orgs: Run by consortia of governments; includes orgs
like OPEC
International Orgs as Subjects:o Reparations for Injuries Suffered in the Service of the UN
Advisory Opinion (ICJ; 1949): UN diplomat killed by Jewish
troops after sent to mediate between Jewish radicals and
Palestinians; question whether UN could bring claim (1)
against non-recognized state and (2) whether UN had
international legal personality
Though not in UN Charter, UN had a right to bringclaims because this was key to the organizations
success (teleological approach)
UN could bring claim against nonmembers because ofits objective nature
Constitutional Law and Institutional Liability:o Certain Expenses of the UN(ICJ; 1962): France and Soviet
Union refused to pay dues for peacekeeping forces deployed to
Africa and Middle East by GA (rather than SC as prescribed by
Charter); Court rejected separation of powers and stated
ultra vires (beyond the powers) acts could only be challenged
if contrary to the entire object and purpose of the organization
(expanded legal personality of international organizations)
o International organizations can now:
Conclude treaties with each other and with states Bring claims for reparations when suffering loss or toprotect their interests
o Meaning unclear for certain international orgs: International Tin Council: Org engaged in what would
otherwise be prohibited price-fixing in most countries;
collapsed on its own; in subsequent litigation, UK and
US would not lift the corporate veil (provide
8/3/2019 PIL OUTLINE3
15/40
15
exceptions to corporate personhood and allow suits of
member nations/ individuals)
3. Individuals
A. Nationality:o Since international law is originally predicated on actions of states
and has only recently accepted individuals as subjects, nationality is
essential for individuals to exercise rights and duties
o Jus sanguinis: Nationality transferred by blood from parentso Jus soli: Nationality conferred on basis of birth place
Many states, including the US, use some combinationo Statelessness: Stateless persons have no right to abode or travel and
can be arrested if found in any particular jurisdiction
Mitigation: Some international agreements on refugees andreducing statelessness
States prohibited from terminating nationality if thatwould mean the individual would become stateless
American Convention on Human Rights establishesright to nationality, which limits the power of states to
make constitutional changes to nationality rules
o Dual nationality: Problems of dual nationality:
Treason if two countries of nationality are at war witheach other
Double taxation Inability to have claim brought on ones behalf
Nottebohm Liechtenstein v. Guat. (ICJ; 1955): Nottebohm livedand owned land in Guat. but was German citizen; at start ofHitlers rise decided to become Liechtenstein citizen; Guat.
refused to recognize Liechtenstein nationality and confiscated
property bc at war with Germ.
Rule: Other countries are not obliged to respect a grantof nationality; must be a real and effective/ genuine link
between an individual and his state of citizenship
B. Duties:o Piracy and universal jurisdiction:
Piracy considered one of the oldest crimes which an individualcould commit in international law
Some international crimes of individuals (including piracy)give rise to universal jurisdiction (any nation can prosecute
because the crime was erga omnes)
o Nuremberg Trials (1945) Key point for imposition of international law duties on
individuals
8/3/2019 PIL OUTLINE3
16/40
16
Guided by London Charter, which created particularinternational crimes (crimes against peace, war crimes, crimes
against humanity) subject to the jdx of any subsequently
created International Military Tribunal
Court rejected defense that actions were acts of state whichgranted immunity to the individuals, thereby vindicatingnotion of individual responsibility under international law
Superior Orders/ Command Responsibility: That a defendantacted pursuant to an order shall not free him of responsibility,
but may mitigate the punishment; subordinates thus under
legal duty to refuse orders he reasonably thinks are unlawful
(knew or should have know standard)
Followed by 1948 Genocide Conventiono Ex dedere aux judicare: Principle in many treaties creating individual
duties in which a state promises to prosecute or extradite for a certain
crime
o Modern tribunals: ICTY and ICTR:Ad hoc tribunals created to try war crimes;
have informed much of the content of individual responsibility
ICC: Created by Rome Statute in 1998 (US not a party); if stateparty is unable or unwilling to prosecute one of its own
nationals, ICCs jdx can be triggered; establishes permanent
forum for establishing law of individual responsibility
C. Rights:o Role of states:
Because international law is predicated on the role of statesand most international law is implemented by states, they are
the source of most rights However, natural law theory would suggest that humans are
endowed with certain rights apart from the will of their
governments
Individuals, though endowed with certain rights ininternational law, do not have the same rights as states or
international orgs
o Remedies: Rights generally do not exist without remedies; in
international law, individuals have limited remedies:
i. Diplomatic protection:o Espoused by state of nationality, not individualo Assumes injury by state other than ones owno Depends on political will of state
ii. International human rightso Can be claimed by individual and against ones
own state
4. State Responsibility and Diplomatic Protection
8/3/2019 PIL OUTLINE3
17/40
17
State responsibility includes the entire ofnations duty to respectinternational law rights of other countries and, when it violates them, to
make proper amends and reparations
Lack of consensus on content of State Responsibility; consists of CIL in someareas as well as supplemental bilateral agreements
History and theory:o Equality: Within recognized limits, governments should treat aliens in
the same way as it would treat its own nationals
o International Minimum Standard: There is a threshold of treatmentbelow which no civilized nation should drop
Harry Roberts Claim: US citizen arrested in Mexico and keptin terrible conditions; court rejected argument that Roberts
was not singled out for bad treatment; Mexico still violated
international obligations
o Contract: Can agree to arbitration (need 1. Choice of law and 2. Tospecify who does the arbitration)
o US/ Mexico 1930s Farm Nationalization dispute/ Hull-Haycorrespondence: The foreigner who voluntarily moves to a country
which is not his own, in search of personal benefit, accepts in advance,
together with the advantages he is going to enjoy, the risk to which he
may find himself exposed. It would be unjust that he should aspire to
a privileged positions.
Substance and procedure:o ILCs Draft Articles on Responsibility of States for Internationally
Wrongful Acts (Adopted in 2001 after very long drafting period; UN
GA adopted Articles in Resolution as recommendations):
Art. 1-3: Act or omission (same under international law) byState, attributable to State and is breach of international law(Corfu Channel; ICJ, 1949: Albania knew or should have
known mines were in channel)
Art 7: Includes ultra vires acts but not private acts Art 8: Includes private individuals if acting under direction or
control of state (Military and Paramilitary Activity in
Nicargua; ICJ, 1986: Responsible to actual degree of control)
o An international claim, (1) if otherwise admissible, arises when (2) anact or omission, (3) attributable to a State, (4) wrongfully violates a
duty owed under international law to another State or its nationals,
when (5) it is the cause of the claimants injuries and (6) there is no
justification to excuse it
o 1. Admissibility: States espouse the claim of their injured nationals (can choose
whether to bring the claim, whether to settle or compromise,
what to do with damages, etc.)
Nationality: State can only bring claims on behalf of its ownnationals; if one has dual nationality, one can bring a claim
8/3/2019 PIL OUTLINE3
18/40
18
against one of those states, provided it is not the dominant and
effective one
Barcelona Traction Belgium v. Spain (ICJ; 1970): Forcorporations existing in multiple states, the state of
incorporation is the only one which can bring a claim (in
context of expropriation at least) Algiers Accords: Created Iran-US Claims Tribunal in
1981; adopted rule allowing US to bring claims on
behalf of any corporation in which US national owned
50% or more of stock
ILCs Draft Art. on Diplomatic Protection, Art. 9: Addsexception to Barcelona Traction: Where corporation is
controlled by national of another state and has no
substantial business activities in the state of
incorporation, and the seat of management and the
financial control of the corporation are both located in
another state, that state shall be the state of nationality;Addresses concerns in Barcelonaby making nationality
either/ or, not multiple states
Most claims for expropriation are handles underBilateral Investment Treaties (BITs)
Local remedies rule: Injured aliens should seek redress in localcourts before seeking satisfaction through own governments
espousal under international law, unless it would be clearly
futile to do so or remedies offered are not adequate and
effective relief
Calvo Clauses: Waiver in international agreement (usuallyforeign investment) in which aliens specifically disavow rightsto diplomatic protection; courts have found to bar breach of K
claims but not tortious claims
o 2. Attribution: States are only responsible for injuries suffered by a foreign
national if those injuries were somehow caused by state action
(ex: mugging by street thugs doesnt count)
State action includes those done under color of lawand evenultra vires(beyond the powers) or illegal acts under domestic
law (ex: even if not responsible for acts of street thugs, police
must take reasonable measures to protect lives and property of
foreigners)
Revolutionary movements or insurrections that later come topower may also be held responsible for earlier conduct; if not
successful, state may be responsible for injuries cause by not
quelling rebellion
o 3. Wrongfullness:
8/3/2019 PIL OUTLINE3
19/40
19
Denials of justice: Host states law enforcement or judiciaryfailed to operate properly and, as a result, injured rights of
foreigner; now almost a strict liability standard to follow these
rules
Failure to protect: States charged with omission; most statesadopt some standard of due diligence
Some standards codified in agreements like 1963 ViennaConvention on Consular Relations (right of consular visits,
access to aliens incarcerated in criminal proceedings
Other claims (wrongful expulsion, contract breaches,expropriations) reviewed under tort standards for negligence
or contract standards for breach
Burden is on claimant to show state acted inconsistent withinternational law
o 4. Causation, defenses and remedies: Affirmative defenses might include classics such as
comparative negligence and assumption of risk Damages:
Restitution: intended to restore status quo ante Compensation: party pays for actual damage done Satisfaction: Non-money damages; apology
Expropriations and contract breeches:o Margin of appreciation: International law grants fairly broad
discretion to host states to expropriate or nationalize sectors of their
economies
o Unless restrictions accumulate to the point of irreversibleinterference with foreign investors property rights, generally not
regarded at regulatory takings NAFTA and WTO revisit this somewhat (shocker!)
o If act does amount to regulatory taking, compensation must beprompt, adequate and effective; generally this means fair market
value and claims of appropriate compensation at deep discount for
mass nationalizations have been largely discounted
5. Human Rights:
A. Substance:o Treaty of Versailles of 1919: First authentic human rights regime;
mostly protected ethnic minorities but also established group rights(rather than individual rights)
o UN Charter of 1945: Art. 55(c): Called for universal respect for, and observance of,
human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion; Art. 56: Vested
the UN with power to take joint and separate action to
accomplish this
8/3/2019 PIL OUTLINE3
20/40
20
Enabling provisions allowing UN to proceed with developinghuman rights norms
o UN Declaration of Human Rights of 1948: Led by Eleanor Roosevelt Enunciates civil and political rights as well as economic, social
and cultural rights Not legally binding document; not a treaty Many contained civil and political rights have become regarded
at CIL and some have become incorporated into treaties
o ICCPR and ICESCR of 1967: UN adopted two separate treaties to distinguish between
positive (ICESCR) and negative (ICCPR) rights, especially as
related to property rights differences between the capitalist
and socialist states
US ratified ICCPR in 1992, but took reservations, said thetreaty was not self-executing and essentially made ICCPR
exactly congruous to constitutional protections ICCPR monitored by Human Rights Committee Legal Consequences of Construction of a WallAdvisory (ICJ;
2004): ICCPR applies to states parties exercise of jurisdiction
outside of its own territory
o Other human rights treaties: Body of universal human rights instruments dedicated to
other, more specific, issues
US has only become party to a limited numbero Jus cogens norms:
Certain CIL norms have become jus cogens obligations thatcannot be derogated by treaty (genocide, slavery, torture, etc.)
Also, states that have systematic policy of abusing humanrights may have committed violations of CIL (though unclear
what amounts to systematic policy; regional systems
somewhat help inform this)
o Regional systems Council of Europe (1940s); Org of American States (1950s);
African Union (1980s)
Sometimes difficult to enforce because rule of law isprerequisite
May function as laboratories of new rights and form seeds ofCIL
Sometimes represent different values/ moral relativity (whichundermines natural law arguments that human rights are
universal):
i. Property: Rarely described in human rightsinstruments; 1952 protocol to ECHR provides limited
right to peaceful enjoyment of possessions
8/3/2019 PIL OUTLINE3
21/40
21
ii. Death penalty:o Protocol 6 to ECHR bans death penaltyo Soering Case Soering v. UK (ECHR; 1989): Court
blocked extradition from UK to US because D
could have faced death row phenomenon
which amounted to degrading treatment; didntaddress Protocol 6 b/c neither US nor UK were
parties; UK forced to choose btwn ECHR and
extradition treaty; case subsequently resulted in
Habeas reform in US to reduce length of time on
death row
o Judge v. CA HRC (2004): Under shiftinginterpretation of ICCPR, CA (abolitionist country,
even if didnt sign Additional Protocol 2 on DP)
cant extradite D to US (non-abolitionist country)
without seeking assurances; classic treaty
interpretation; influenced by recent CA sup ctdecision
o US made a reservation to Art. 6(2) prohibition ofcapital punishment for offenders under 18 when
ratifying ICCPR to allow DP for 16 and 17 year
olds
o Derogations: Generally only allowed in emergency situations; war does not
generally eliminate obligations
ICCPR Art. 4: Parties may depart from obligations if: i. Time of public emergency which threatens the life of
the nation ii. Derogation is strictly required by the exigencies of
the situation
iii. Certain core rights (right to life, against torture andenslavement, freedom of thought and conscience) must
be preserved
iv. Notice of the derogation must be communicated toother parties
B. Models for enforcement:o Slavery Conventions (1820s 1926):
Treaties imposed international duty on all states andprescribed universal jdx
Requires commitment of individual stateso Genocide Convention (1948):
Prescribes universal jdx Requires parties to enact domestic legislation Allows for referral of suspicions of genocide to UN Security
Council
8/3/2019 PIL OUTLINE3
22/40
22
Allows ICJ jdx over all cases which involve genocide Requires political will of parties
o ICCPR (1967): Art. 40 requires submission of regular reports on compliance
international shaming
Art. 41: States may allow interstate complaints to request UNbody to investigate actions of another party 1966 Optional Protocol: First mechanism to allow individual
complaint process; individuals must be (1) names and (2) local
remedies must have been exhausted
o ECHR (1950): Allows institutions to hear inter-state complaints and those by
individuals against own states of nationality
Decisions of ECHR are self-executing to member nationso National Courts:
Most human rights enforced domestically US hasAlien Tort Claims Act (1979): District courts haveoriginal jdx over any civil action by alien for tort in violation of
Law of Nations or self-executing treaties to which US is party
without reservation; only aliens may bring claim (Torture
Victim Protection Act of 1991 extends some rights to US
nationals)
Filartiga v. Pena-Irala (1980): Claim for torturesucceeded b/c both international crime and tort
Sosa v. Alvarez-Machain (2004): ATCA is only jdxstatute and does not alone establish cause of action; if
based on CIL, law must be sufficiently definite and
established (technically at point when ATCA wasenacted, though would probably allow for some
violations of IHL)
ATCA does not grant jdx over foreign states orsovereigns, only individual defendants
ATCA is civil action (as is all Human Rights law, whereasIHL is criminal law)
o Direct state action: May punish states politically by breaking of diplomatic
relations, instituting financial sanctions, etc.
o Responsibility to protect (R2P): Developing doctrine imposing an affirmative responsibility to
protect from human rights abuses
Frequently involves physical invasion of offending state andmay clash with other international law norms promoting peace
and security
6. Objects of International Law:
8/3/2019 PIL OUTLINE3
23/40
23
Territory and common areas:o Rules of acquisition:
i. Discovery: old rule in which colonizers were free to claimland occupied by indigenous peoples
ii. Effective occupation: Isle of Palamas Arbitration (1928): by1898, this rule had supplanted Discovery as CIL; states mustexercise effective control of land territory to claim title
Standard depends on nature of land (less occupation forremote islands, etc.)
Implied choice of law issues, which court resolved bypicking critical date when legally significant event
took place
Enforces notions of repose similar to adversepossession
iii. Acquisitive prescription: Gaining rights to territory in CILthrough long and unprotected use; similar to adverse
possession and relianceo Uti possidetis: Modern states in decolonization are obliged (at least
initially) to follow state bounds drawn by colonial predecessors
o Servitudes: States may agree to limits on use of territory (such asdemilitarization of certain areas, preferential rights for canals, etc.)
o Air space: States land territory included air space above itwhich endsat lowest altitude a satellite can continually remain in orbit without
disintegrating
Law of the Sea International Environmental Law International Economic Law
III. International Law and US Law
1. International Law and Domestic Law:
Domestic law (also called municipal law) as grounds for international lawviolation:
o International courts may interpret and apply domestic law in disputesbetween states, but are free to apply and interpret national law as
relevant to disputes before them
o International tribunal may reject a domestic ruling if it is self-serving,fraudulent or erroneous
o International courts will often look for common ground betweendisputants domestic law
o States may not invoke national law as basis for refusing to performinternational legal obligation and international courts generally
decline to follow an authoritative interpretation of CIL or treatymade by one of disputants
8/3/2019 PIL OUTLINE3
24/40
24
Exception: VCLT Art. 46: If party signed treaty in obviousviolation of domestic constitutional law, such treaty is null and
void
International Law in Domestic Law:o International law does not care how international law is applied
domestically and assumes obligations are carried out in good fair,with State Responsibility attaching for failure to observe CIL or treaty
o Monism: Theory that international law and domestic law are part ofthe same legal system, but that international law is higher in
prescriptive value than national law
Most proponents are human rights advocates Some states differentiate between treaty monism and CIL
monism
Civil law countries tend to be more monist (perhaps reflectingmore positivist and group rights values)
o Dualism: Theory that international law and domestic law are separatesystems which operate on different levels and international law canonly be enforced in national law if incorporated or transformed
Most common law countries are firmly dualist, which presentssome problems for US (perhaps reflecting more negativist and
individual rights values)
2. International Law in US Law:
Constitutional provisions:o Congress has power to define and punish offenses against the law of
nations as well as role in making treaties
oPresident may receive and send ambassadors and is commander inchief
o Judiciary has power to resolve disputes involving internationalquestions and is explicitly granted jdx over maritime and foreign
ambassador cases
o Under domestic law, neither treaty nor CIL can abrogate from rightsgranted under Constitution (see Reid v. Covert; 1957)
o Not yet decided whether US can constitutionally delegate certainauthority to international institutions
o Just because a treaty or CIL rule may be unconstitutional does notnecessarily mean international obligations are voided; SCOTUS has
sought to avoid problems by employing principles of international lawto interpret substantive provisions of the Constitution
CIL:o While treaties are clearly federal law, Constitution doesnt mention
CIL
o Though there should be no judge-made federal common law, mostfavored interpretation is that CIL is a matter of federal law because US
states have no accountability under international law
8/3/2019 PIL OUTLINE3
25/40
25
o Federal courts preempt states interpretation of CIL/ state laws to theextent that they interfere with foreign relations interest, even in
absence of explicit act of Congress
o CIL cannot take precedence over a contrary statute or treaty indomestic law because of the institution, democratic way treaties are
enacted, though CIL should be used to interpret treaties and statuteso Newer treaties which codifies CIL can change statute or older treaty
(last in time rule)
o If no treaty or statute on point, US courts must follow CIL (seePaquette Habana case)
o While Executive cant willfully violated clearly applicable and bindingCIL, courts are reluctant to challenge for fear of political question
Treaties:o Power:
Const. Art. II 2: President shall have power, by advise andconsent of 2/3 of Senate to make treaties; Art. VI 2
(Supremacy Clause): Treaties are supreme la of the land andjudges in every states shall be bound
Senate initiates treaty process and president later concludesratification; president may attach reservations, understandings
and declarations (RUDs) but only reservations change legal
effect
Missouri v. Holland(1920): Regulation of migratory birds wasstate power, but US concluded treaty with UK
Rule: Senate power to make treaties exceeds delegateddomestic Congress powers under Art. 1; Senate may
make treaty that is (1) motivated by exigency and great
national interests, and (2) does not violate expressconstitutional prohibition; largely moot now because of
broad Commerce Clause powers
Senate cant conclude treaty that would take awaypower which expressly requires approval of House of
Representatives (declare war, etc.)
o Self-executing vs. non-self-executing treaties: Foster and Elam v. Neilson (1829): Created distinction Self-executing: Binding on US courts without further action/ at
moment of ratification
Non-self-executing: Require further act of legislation to makebinding
Medellin v. TX(2008): Presumption against self-execution;also, US does not necessarily follow treaty interpretations
made by ICJ
Distinction is not clearly defined, but look to: Does treaty have contractual flavor?
8/3/2019 PIL OUTLINE3
26/40
26
Whether terms of treaty mention further actionneeded?
Specific enough in content and manifests intent byparties to be binding in US law without further
implementing legislation?
Use normal methods of treaty interpretationo Conflict between treaty and statute:
Last in time rule: If self-executing, earlier conflicting statutes isabrogated to the extent of the conflict
If non-self-executing, no preemption until Congress acts toimplement treaty through domestic legislation
Later statutes can override domestic effect of treaties (thoughno effect on international law) except:
i. Later statutes cant eliminate rights that have vestedunder the treaty
ii. Charming Betsy(1804): Statute cant abrogate fromearlier treaty unless Congressional intent to overridewas clear and manifest
o Interpretation in US courts: Consistent with 1969 VCLT, courts start with text US more likely to then look attravaux(leg. history) than
international tribunals
US courts look at understanding of ratifying Senate whichinduced them to be bound
US courts attempt to harmonize interpretation withexpectations of treaty partners
o Termination: Presumed that the President, acting alone, can initiateneeded action to end US treaty obligations
Executive Agreementso Executive agreements have the same binding effect in international
law as treaties
o Most international agreements are conducted this wayo A. Congressional-executive agreements: enacted the same way as
ordinary legislation (majority of Congress, signed by Pres)
o B. Executive agreements: President acting alone; limitations: Must promptly report agreements to Congress, who may
protest
May be acting pursuant to specifying details in self-executingor legislated treaty or inapposite to non-self-executing treaties
May be acting pursuant to Art. II powers (Recognition ofambassadors and states and Commander in chief); courts are
reluctant to challenge this
Executive agreements may preempt earlier statutes or treatieseither directly or through dormant powers doctrine
3. Jurisdiction:
8/3/2019 PIL OUTLINE3
27/40
27
Types of jurisdiction:o Prescribe vs. Adjudicate vs. Enforce: each is analytically distinct
Lotus Presumption Fr. v. Turk. (PCIJ; 1927): States are free toassert their jdx to the limit international law allows; views
international law as permissive system and gives parties
incentive to make aggressive assertions of jdx; Exceptions: i. Comity: Hilton v. Guyot(1895): The recognition
which one nation allows within its territory of the leg,
exec, or judicial acts of another nation
o US courts should not lightly assume thatCongress intends to apply legislation
extraterritorially to individuals or to matters
clearly subject to international regulation
o US court may decide that even though it has jdx,it should instead be heard by foreign tribunal
(either through choice-of-forum clause or forum
non conveniens doctrine) ii. Interest-balancing iii. Reasonableness: 1987 R3d of Foreign Relations Law
of the US 403: A state may not exercise jdx to prescribe
law with respect to a person or activity having
connection with another state when the exercise of jdx
is unreasonable (heavily criticized); factors:
o Link of the activity of the territory; connectionsbetween regulating state and the person
principally responsible for the activity; character
of the activity, importance of regulation, extent
to which other states regulate such activities,degree to which the desirability of such
regulation is generally accepted; justified
expectations that may be affected by regulation;
importance of regulation to international
political, economic or legal system; whether
consistent with international system; extent
another state may have interested in regulating
activity; likelihood of conflict
Bases for jurisdiction (in order of strength):o i. Territoriality and Effects
States exercise nearly complete jdx competence on their ownterritory; Exceptions:
A. Consent through treaties to self-derogations ofterritorial sovereignty (ex: SOFAs governing issues like
criminal prosecution of military members in other
countries, Reid v. Covertand Boumediene v. Bush)
8/3/2019 PIL OUTLINE3
28/40
28
Effects doctrine: When state wishes to exercise jdxover person or thing outside of own territory, but which
causes effects inside the states borders; becoming
recognized widely
o US v. Alcoa (1945): US may apply Sherman Actanti-trust law to non-US companies if anti-competitive conduct that has actual effects inside
US; here, court put burden on D to show no
actual impact
o ii. Nationality States are largely free to require compliance by its nationals,
even when they are living abroad
SCOTUS has ruled that US may try and punish nationals foroffense committed abroad even though they may also be
nationals of the state in which the offense was committed
Whip-saw effect: When compliance with US law would putindividual at odds with law of state of residence, or visa versa;softened by:
A. SCOTUS will interpret ambiguous act as not applyingextraterritorially
B. Foreign sovereign compulsion: US national will berelieved of obligation to respect US law when to do so
would place it in irreconcilable conflict with a foreign
nations law; some courts grant defense with showing of
good faith effort to comply, but other courts reject
o iii. Universality Any national can prosecute or assert jdx over person suspected
of certain crimes Some infractions established by CIL, then codified in treaty;
some have recently progressively developed
Ex: UK found Spain had jdx over Chilean PresidentPinochetbecause of accusations of torture; state official can be
prosecuted as individual but not sued for torture; being
challenged in ECHR
Ex: Alien Tort Claims Acto iv. Protective principle
States may sometimes exercise jdx over non-nationals forconduct which occurs outside US but that nevertheless is
prejudicial to the states security, but this depends on how a
nation defines national security
o v. Passive personality Weakest basis for jdx Idea that state can exercise jdx for a crime based on the
nationality of the victim
8/3/2019 PIL OUTLINE3
29/40
29
Historically, US has been very critical, though this has wanedlately; US v. Yunis (1991): Where Congress was express in its
intent to extend passive personality to certain crimes
(terrorism, etc.) the normal presumption is overcome
Extradition and Mutual legal assistance:o States may request aid from other states executive or judicialauthorities in the pursuit of criminal or civil procedures (service of
process, taking of evidence, authentication of documents, etc.)
o Letters rogatory: Requesting assistance from tribunals of anotherstate
o Antelope (1825): The courts of no country shall execute the penallaws of another; US refuses to enforce foreign judgments that they
believe would violate US foreign policy
o Extradition: Surrender by one state of an individual accused orconvicted of a crime in another nation; mostly conducted pursuant to
treaty; Requirements:
Rule of non-inquiry: No independent review of the merits ofthe charges is made; courts merely inquire as to (1) whether
the individual surrendered is the person sought and (2)
probable cause
Common treaty requirements: Must be sought by legitimate government under an
arrest warrant by a court of competent jdx
Principle of double-criminality: Ds crime must bepunishable in both the requesting and the sending
states; usually pursuant to list of crimes
Whether the statute of limitations has run Speciality: D may only be tried or punished in the
requesting state for those crimes for which he was
extradicted
Some bar death penalty Political offense exception: Sending state is not obliged
to extradite a suspect charged with political offences;
attentatclauses make murder of head-of-state or family
not a political offense
o 1985 Supplemental Extradition Treatybtwn USand UK largely eliminate political offense
exception4. Jurisdictional Immunities:
Foreign Sovereign Immunities:o Absolute to Relative Immunity:
Immunity of States in domestic courts of other nations hasalways been matter of CIL
8/3/2019 PIL OUTLINE3
30/40
30
Schooner Exchange v. McFaddon (1812): France seized prizeship from private Americans and rechristened it as a war ship;
US said ship was immune from arrest b/c it was part of the
military force which supports the sovereign power
Distinguished btwn jus imperii (on behalf of thegovernment) and jus gestionis (on the private orcommercial account of the sovereign or govt official)
1926 Brussels Convention: Withdrew foreign sovereignimmunity for state owned commercial vessels; paralleled
spread of restrictive form of foreign sovereign immunities
with exempted commercial activity
Tate Letter (1952): Widespread and increasing practice ofgovernmental engaging in commercial activities makes
necessary a practice which will enable persons doing business
with them to have their rights determined in the courts (no
immunity for commercial activity)
o US Foreign Sovereign Immunities Act (1976): Seeks to convert questions of foreign sovereign immunity from
political and diplomatic questions into judicial and legal ones;
means US courts no longer need permission from State Dept to
try case
FSIA does not govern immunity of foreign officials suedindividually; that is governed by common law
FSIA is exclusive means of gaining jdx over foreign sovereigntyin the US (in this sense, limits Alien Tort Claims Act and blunts
much human rights litigation because suits can only be brought
against private individuals)
Foreign sovereign entity bears burden to show that it iscovered/ protected by FSIA, but once covered, the entity is
presumptively immune unless one of the exceptions applies
(means P carries burden of showing that US court has jdx)
Exceptions are thus the heart of FSIA: i. Commercial activity exception:
o FSIA defines as either a regular course ofcommercial conduct or a particular commercial
transaction or act. The commercial character of
an activity shall be determined by reference to
the nature of the course of conduct or particular
transaction or act, rather than by reference to itspurpose.
o Debt restructuring and finance by foreignsovereigns is commercial activity and there is no
immunity
o 1605(a)(2): Plaintiff must show someconnection btwn activity and US:
8/3/2019 PIL OUTLINE3
31/40
31
A. Commercial activity in US B. Act performed in US in connection with
commercial activity outside US, OR
C. Act outside US in connection withcommercial activity outside US but that
has direct effect on US Saudi Arabia v. Nelson (1993):
State sponsored torture is a
sovereign act and can never be
commercial
ii. Waivers of immunity:o Friendship, Commerce and Navigation (FCN)
treaties with US contain some; other treaties
have forum-selection clauses
o Implied waiver is possible in very narrowcircumstances (entering appearance in US court
without invoking immunity, filing counter claim,etc.)
o Human rights advocates have claimed thatsovereigns who engage in jus cogens violations
waive immunity; idea that universal jdx cancels
out immunity
This view has generally been rejected (Al-Adsani v. Kuwait, UK;Saudi Arabia v.
Nelson, US)
iii. Terrorist states exceptiono Covers situation where damages sought for (1)
personal injury or death or damage to or loss ofproperty (2) occurring in the US and (3) caused
by tortious act or omission of foreign state (4)
while acting within the scope of his office or
employment, except:
When act or omission is based ondiscretionary function OR
When the claim arises out of maliciousprosecution, abuse of process, libel,
slander, misrepresentation, deceit, or
interference with contract rights
o Assassinations and political murders cannot bediscretionary policy
o New 2008 exception; 1605A: Permits USnationals (private right of action) to bring suits
against foreign sovereigns for personal injury of
death arising from torture, extra judicial killing,
air sabotage and hostage taking; no
8/3/2019 PIL OUTLINE3
32/40
32
requirement that tort occur in US but D state
must be one that is designated by State Dept as
state sponsoring terrorism (only 5); 10 year
statute of limitation; claimant must give
offending state opportunity to arbitrate
o Remaining issues Under FSIA, proceedings subject to special removal to federalcourt and no right to jury trial
Executive still has role as amicus curiae and may makedetermination as to who constitutes a head-of-state
Status based immunity: Not mentioned in FSIA and haveabsolute immunity under CIL for criminal and civil suits; after
leaving office maintain immunity for official acts (in UK means
also for things like torture; unclear for US)
Arrest Warrant CaseCongo v. Belg. (ICJ; 2002): Congosminister of foreign affairs, facing war crimes charges in
Belgium, was immune head of state, but wouldnt be immune ifhome state waived immunity if proceeding before
international court (thats why Malosovic would be
prosecuted)
Enforcement of judgments: i. Only commercial property of foreign sovereign or
actual foreign instrumentality that is D in suit may be
attached or executed against
ii. Must be some ink between property to be attached orexecuted against and the claim
Acts of State Doctrine:o Unlike FSIA, allows court to reach merits of the case, but is a
prudential rule of judicial self restraint or choice of law, resulting in
claims being dismissed on the merits
o Doctrine solely restricted to common law stateso Underhill v. Hernandez(1897): The courts of one country will not sit
in judgment on the acts of the government of another, done within its
own territory
o Bernstein letters: Executive indication that it has no dispute with UScourt adjudicating a dispute involving the actions of a foreign
government; indicates act of state doctrine is escape valve to avoid
political embarrassment; indicated that individuals should instead
bring claims to Executive to be espoused by US government
o Banco Nacional de Cuba v. Sabbatino (1964): Indicated that thoughthe Constitution does not mention act of state doctrine, it does have
constitutional underpinnings in separation of powers; any case which
involves an action by a recognized foreign government within its own
territory is barred from adjudication by US courts unless there is a
controlling treaty provision
8/3/2019 PIL OUTLINE3
33/40
33
o Second Hickenlooper Amendment: Reaction to Banco Nacional;courts are not to apply act of state doctrine for expropriation cases
unless the Executive tells them to
o W.S. Kirkpatrick & Co. Inc. v. Environmental Tectonics Corp.(1990):Distinguishes situations where a party seeks to declare invalid the
official act of a foreign sovereign performed within its own territory(protected) and those where the court merely imputes the unlawful
motivation of foreign officials (not protected; bribery, etc.)
Diplomatic, Consular and Organizational Immunity:o Embassies are no longer considered to be territory of foreign state
that occupies them
o Embassies cant be evicted for nonpayment of rento Diplomats:
Type and intensity of immunities depend on nature ofdiplomatic officials and establishments
Diplomats represent the sending state in all political andmilitary relations with the host govt
Governed by 1961 Vienna Convention on Diplomatic Relations Complete immunity from host states criminal jdx and most
civil proceedings
Diplomatic pouches (shipments to and from embassies)supposed to be inviolable
When diplomats commit serious crimes (rare) receiving statecan either demand sending state waive immunity or that
diplomat immediate leave (persona non grata)
o Consuls: Consuls protect interests of nationals resident in host country Governed by 1963 Vienna Convention on Consular Relations Only limited immunity for conduct carried out in pursuance of
functions
Both diplomats and consuls have relief from taxes andpersonal obligations
Immunity for both can be waived by home govt.o International organizations:
Immunity of UN missions generally respected Organizations themselves generally dictate their immunity
through an instrument of the institution
UN employees are subject to civil service protections; immunefrom harassing civil litigation, etc.; protections are functional
IV. War and Peace
1. Counter-measures
Divided into two categories:forcible and non-forcible A. Non-forcible
8/3/2019 PIL OUTLINE3
34/40
34
o Retorsions: An unfriendly, but legal, response made to anothernations illegal act
Withdrawal of diplomats and embassy staff Termination of voluntary aid and support Sanctions:
No state is legally entitled to trade, but growing bodythat severe economic sanctions may run afoul to WTOfree-trade or human rights norms
May foreswear this option in FCN or other BITso Reprisals (non-forcible): Illegal act made in response to another
states illegal act
Most agree these are necessary to promote respect forinternational obligations
Air Services Agreement Arbitration US v. France (1978):France would not allow change in gauge (smaller than agreed
Pan Am plane) into airport; US made reprisal by suspending
Paris-LA flight to force France into arbitration; court ruledcounter-measures are necessary part of punch and counter-
punch; US action was a violation of 1946 agreement, but
permissible and proportional; once effective dispute
settlement triggered, counter-measures must cease
VCLT: Only where there has been a material breach of anagreement can another party terminate or suspend
performance; must be careful of anticipatory breach
UN ILC Draft Art. of State Resp.: Limit reprisals in situationwhere there is available dispute-settlement mechanism
Reprisals against nationals of offending nation resident in hurtnations territory: Consistent rules of State Responsibilitytoward aliens, but may violate human rights norms
Remedies: i. Satisfaction: State admits wrong-doing and
undertakes to conform future behavior with
international law norms; declaratory judgment;
clarified content of international law
ii. Restitution: State affirmatively engages in remedialsconduct; one tribunal has rejected specific performance
and another has granted
iii. Cash awards: Sometimes as settlement; Ex gratiapayment: makes amends without admitting fault; lump
sums; usually only compensatory damages (sometimes
with interest, rarely with attorneys fees or punitive)
B. Forcibleo International Legal Norms Regarding the Use of Force Before WWII
Legal Norms Prior to WWII
8/3/2019 PIL OUTLINE3
35/40
35
Jus ad bellum: laws of war and using force in intl relations;the law going to war
Jus in bellum: laws of warfare itself History:
o St. Augustine: just war doctrine: punish rule-breakers in very limited circumstances, like self-defense (obj)
o St. Thomas Acquinus: punish guilt, wrongdoers.Force ok if used for a moral purpose. (subj)
o Peace of Westfalia, positivism, all states equal, nomore just war
o Napoleonic Wars: tech development and total war(not just armies involved but all of society,
including citizens)
o Lieber code of 1863: minimize violence, putdistance between military targets v. civilian and
non-military targets. The basis for...o Hague Conventions of 1899 and 1907 (definejus
in bellum): minimize violence and protectnoncombatants
Use of Force Ruleso Caroline Doctrine:Diplomatic corespondance
between UK and US; preemptive use of force OK ifthe necessity of self-defense is instant,
overwhelming and leaving no choice of means and
no moment for deliberation; UK agreed it must
show proportionality and necessity
o Developments from WWI to WWIIo The League of Nations: collapsed after Italy invaded
Ethiopia; recommended arbitration and provided for
punishment for aggressors
o The Kellogg-Briand Pact (1928): renounces war as aninstrument of policy and instead says we should use
arbitration. Still good law.
o The Use of Force After WWIIo The Charter of the International Military Tribunal (in
response to Nuremberg tribunals) (Article 6), Art 7: no
immunity for anyone; official position does not free you
from accountability. No problem with imposing ex postfacto laws because the standards, while not codified, were
part of CIL at the time of violation.
o Overview of the UN Charters Use of Force Regime UN Charter, Articles 2(4), 51
Art 2(4): All members shall refrain in theirinternational relations from the threat or
use of force against the territorial integrity
8/3/2019 PIL OUTLINE3
36/40
36
or political independence of any state, or in
any manner inconsistent with the Purposes
of the UN.
o Included all military action, includingtemporary occupation
o Included threat of force, though whatthis means is not clearo Art. 1 prohibits aggression; 1974
Resolution defines this as whatever
the international community and UN
organs think it is; aggression
presumed with occupation,
bombardments, blockades and direct
attacks
Art 51: inherent right to individual orcollective self defense if armed attack occurs;
also based in CILo Caroline assumed to be built in to thiso Collective self-defense: May ask for
help of neighbors; Military and
Paramilitary Activities in Nicaragua
(ICJ; 1984): US funding of guerillas to
topple leftist government; once court
found jdx, Reagan withdrew; US
claimed collective self-def. for El
Salvador but lost; must be a formal
request for assistance
Humanitarian Intervention - Kosovoa. Status quo: only if authorized by SC or self-defense. This
was taken prior to any SC authorization
b. Excusable breach approach: illegal but morally/politicallyjustified
c. Evolving CIL recognizes as legally justifiedd. Codification: not really done yet. On par w/ self-defensee. US argues that it was in response to the excessive and
indiscriminate use of force by Serbia in violation of IL,
regional security, threat to safety of international observers
in Kosovo
f. UK claims that extreme circumstances made actionsnecessary to avert a human catastrophe
Collective Security: UN and Regional Use of Force and Peacekeeping Efforts
B. UN Use of Force and Peacekeeping Efforts (UN Charter. Chapter VII,Articles 39-42)
1. Article 39: SC has responsibility to determine threats and authforce
8/3/2019 PIL OUTLINE3
37/40
37
2. Article 40: SC may take provisional measures to chill outconflicting parties
3. Article 41: non-force sanctions are ok to punish; SC decides whatto use
4. Article 42: use of force ok necessary to maintain/restore intl peacea. Art 43 was meant to create UN army, never happenedC. UN and US Response to Iraq
1. The Iraqi Invasion of Kuwaita. UN Security Council Resolution 678: authorize use of force
2. The Cease-Fire and the Aftermath: 687: ceasefire3. The Second Gulf War
a. UN Security Council Resolution 1441: weapons inspectionbut no automaticity. Still had to get approval from SC
before invading.
b. War legal because article 2 has been amended by CIL?Repeated use of US force without prior SC authorization
could have created a new normc. US: ok under CIL, done it before, Caroline, bla.d. UK justification: 687 authorizes reinvasion if later stuff
breached.
i. Didnt meet obligations, material breach, use offorce authorized
ii. Dumb bc 1441 doesnt auth use of forceRegulation of the Conduct of War: International Humanitarian Law Jus in Bellum
D. Development of International Humanitarian Law1. Lieber Code: Civil War. Union unilaterally gives to soldiers.
Minimize damage to civilians etc2. Field Code: built on Lieber. give to soldiers, rules about war.3. Hague Regulations (1899, 1907): Russian Tsar wants min
damage/violence
4. Geneva Conventions (1949): protect 4 classes5. Geneva Protocols (1977)
E. The Scope of Application of International Humanitarian Law1. 4 Basic Principles of Humanitarian Law/Geneva Conventions
a. Limit use of force to avoid unnecessary sufferingb. Distinguish btw combatants and noncombatantsc. Treat noncombatants humanely/respectfullyd. Occupying power must respect existing legal order
2. International Armed Conflict: Common Article 2: during war, btw2+ parties
3. Armed Conflict Not of an International Character: CommonArticle 3
a. Establishes bare minimum standards for any conflict: sickcare, discrimination/genocide, etc
8/3/2019 PIL OUTLINE3
38/40
38
b. POWs entitled to humane treatment: no torture, no harshinterrogation, red cross gets access, get exercise and
medical treatment, correspondence with family, inform the
other government that theyre held, released upon
cessation of violence.
4. Wars of National Liberation: Protocol I & II: Goals distinctionand proportionalityprotect civilians in the course of combata. Deals w/ asymmetrical wars of insurrection, colonies b. Combatant: act like soldier, get benefits. Act like terrorist,
dont.
i. Commanded by superior officerii. Wear insigniaiii. Carry arms openlyiv. Obey laws & customs of war
F. Substantive International Humanitarian Law Rules1. Protocol I, Article 35: warfare methods not unlimited, prohibits
superfluous injury, cant harm environment2. Protocol I, Article 48: distinguish combatant and civilian
population, targets, objectives
3. Occupying powers must respect legal orderG. Problems of Application: The Law of Armed Conflict and Fight Against
Terrorists
1. Dont really fall into any category. Break all laws of war. How totreat?
2. Martens Clause: if gap in rules, act in way consistent w/ humanitySubstantive International Criminal Law
H. Nuremberg and Individual Criminal Responsibility1. Judgment of the International Military Tribunal: Kellogg-Briand
puts everyone on notice. Individuals not immune. Clearly violated
law.
a. Kind of ex post facto thoughb. Set the bar: put people on noticec. Crimes against peace, war crimes, Hague conv violations:
fair game
2. Why have a war crimes tribunala. The Holocaust was particularly unprecedentedb. Closure for victimsc. Better to deal with crimes in a tribunal than to impose
reparations on Germany again, like in Versailles, which
ended up alienating them
d. World needs to know the extent of the egregiousness of thecrimes
I. Additional Individual Responsibility Issues1. Immunity
8/3/2019 PIL OUTLINE3
39/40
39
a. Arrest Warrant of 4/11/00 (DROC v. Belgium): universaljrx statute calls for C official to be tried for war crimes. D
says I have official immunity B cant sue. In CIL, immunity
applies even if IL violation.
i. Direct opposite holding as Lotus: should be ok bc nospecific positive immunity law on point
ii. Immunity applies when hes in officeiii. C.f. Pinochet: IL violation cant be official act. No
immunity. (See FSI infra)
2. Command Responsibilitya. In re Yamashita: leaders responsible for troops actions
while in command.
i. Codified in ICTY/ICTR articles3. Vicarious Responsibility
a. Prosecutor v. Furundzija: although D didnt rape victim,guilty bc he was complicit in or assisted IL violation
4. Following Orders and Duressa. Prosecutor v. Erdemovic: soldier has a duty to disobeymanifestly illegal order. NOT a complete defense,
mitigating factor.
i. Can only defeat this by showing extreme duressb.c. Article 13: file/bring case
i. State brings case to proscii. UN SC can ask a prosecutor to investigateiii. Prosc can act sua sponte
(A) Lots of discretionpartly why the USchose not to be a party to the ICC; nopolitical check on the prosecutor
(B) Panel can overrided. Article 17: admissibility (SMjrx) hinges on domestic action.
i. Complementarity: ICC jrx only triggered if state failsto act
ii. If state doesnt make a good faith effort, the ICC canstill exercise jurisdiction (1 reason why the USs
decision dont make sense, son)
5. US Positiona. Bush administration insists that we have a unique role in
the world as a protector. We dont want our solders tohave to respond to frivolous claims, thus taking away their
ability to respond where they are needed.
b. Idea that we dont have to respond to the ICCs jurisdictionc. No checks on prosc
i. Good, but panel can overrideii. Crit: funny bc thats the US way in domestic cts
d. Protect soldiers/servicemen
8/3/2019 PIL OUTLINE3
40/40
i. Crit: subject to ICC jrx if in member state.ii. if US were member, then US could investigate/try
and ICC would have to respect
(A) exception: bad faith circumventing ofjrx
6. Legit ICC criticism: violates positive lawa. Able to subject people to jrx even if they dont recognize jrxi. Crit of crit: if you submit to foreign states laws
anyways, the ICC is merely a part of that
(delegation)
7. Other problemsa. Is not joining the ICC equivalent to saying we are not bound
byjus cogens norms?
b. Are we separating ourselves from the rest of theinternational community?
c. Deeply ingrained US fear of international participation andinternational organizations
8. Advantage and disadvantages to each type of tribunalsa. Ad hoc, Hybrid, and truth commissions need definite start
and end points
b. Ad hoc and Hybrid are borne of political conflict and mayhave pre-decided the outcome
c. Precedent can only be set by the ICCJ. Alternatives to Criminal Prosecution
1. Leila Sadat, Universal Jrx, National Amnesties, and TruthCommissions: South Africa: no prosc if you tell everything you did,
historical record