TRANSNATIONAL LAW - HICKEY SPRING 2009 OUTLINE WHAT CAUSED THE ADVENT OF TRANSNATIONAL LAW 1. The End of he Co!

d W"# the division of the world into the east and west, politically, socially, economically, etc. Cold War ended in 1990s, and a period of global immigration was created. 2. $#e"% &' of he So()e Un)on * he !"+ ,o!on)"! 'o-e#. Brea !p of the "oviet #nion 1990s, empire system went away, so the states are free to integrate with other co!ntries. $. /o(e0en of he ",,e' "n,e of he De0o,#" ), fo#0 of 1o(e#n0en a nation sho!ld be democratic. Commonality to the world and transnational behavior. 23 Gene#"! E04#",e of C"') "!)+0 "nd 0"#%e e,ono0)e+ "+ he '#efe##ed e,ono0), en1)ne fo# +o,)e )e+ %. E5'!o+)on of he Info#0" )on A1e Comm!nication has changed drastically. &nternet, telephone, etc. 'his increases transnational law b(c no one has information advantage over the other3 )ow it is easy to find o!t when a state is doing to its own citi*ens. 63 P#o4!e0+ 4e)n1 f",ed 47 he -o#!d od"7 "#e NOT do0e+ ), '#o4!e0+ "n7 !on1e# TRANSNATIONAL LAW IS DIVIDED INTO THREE AREAS 1. +,&-.'/ &)'/,).'&0).1 1.W law that governs the states and h!man beings. 2. +#B1&C &)'/,).'&0).1 1.W law governing private parties 2not states3 in more than one state. $. C04+.,.'&-/ 1.W lawyer compares two different legal systems to render advice in a setting of law 5THESE SYSTE/S OF LAW ARE NOT SEPARATE $O8ES9 PRO$LE/S THAT CAUSED APPLICATION OF TRANSNATIONAL LAW 6 C#)0e "o!th .merica dr!g cartels, &talian mafia, etc. Calls for a global approach and addressing the problem. Crime is increasingly global so the transgressions are &)'/,).'&0).1. 6 Ene#17 708 of o!r oil comes from other co!ntries today. .nd every economy depends !pon energy. 6 C!)0" e ,h"n1e 9o! cannot form a domestic energy policy w(o!t nowing international law 6 Food the world:s fisheries are diminishing greatly. 4eat. 6 In e#n" )on"! T#"de the &4; controls monetary val!es. Sof !"-< "tandards created to serve a p!rpose. 'hey are generally a c!stom, b!t not !s!ally binding. H"#d !"-< When the =c!stom> becomes a stat!te. WHAT IS A STATE: 'he /# has power over its 2? members, b!t o!tside of /!rope, it is no longer those 2? states that are obligated to cond!ct affairs. 'he /# is in charge of this. )@0s range from the international chamber of commerce, ,ed Cross, .mnesty &nternational, @reenpeace, etc. )@0s are creat!res of domestic law SOURCES OF TRANSNATIONAL LAW 6 International treaties 2most international law today is governed by treaties, )0' c!stom3 6

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Customary international law 2similar to common law as the !nwritten law of the #", general practice of states as they accept the law3 General principles of law 24!st be something more than treaty or c!stom3 Court decisions and the works of writers Foreign law 2peremptory norms of international law =A!s cogens.> Cannot be transcended by any law3

;URISDICTION 6 6 6 6 6 Basis of A!risdiction of domestic and international co!rts over persons or events. <N" )on"!) 7 '#)n,)'!e= A!risdiction over yo!r nationals, wherever they are in the world. &f a #" citi*en is harmed abroad the +assive +ersonality +rinciple &f it is necessary for protection and the sec!rity and s!rvival of the state 2i.e. to stop dr!g cartels, etc.3, this does not give rise to invo ing the +rotection +rinciple b!t the W'C bombing does. UNIVERSALITY PRINCIPLE all states have A!risdiction over piracy, slave trade, genocide, etc.

ROPER V3 SI//ONS *200>? '3 9@. FACTSA RULEA HOLDINGA 6 6 6 6 Constit!tional law for the eBec!tion of children 4aAority of the "!preme Co!rt t!rned to both foreign law and p!blic international law to determine the meaning of the #" constit!tion on this iss!e 1esson is that if yo! are a lawyer and yo! are arg!ing a case and there is any relevant international law that might bear on yo!r case, yo! sho!ld arg!e itC KENNEDY OPINION< ;oreign law, p!blic international law =INSTRUCTIVE> WD.' 'D/ &)'/,).'&0).1 1.W C044#)&'9 &" E0&)@ &" RELEVANT .)E 'D/9 .,/ ACKNOWLEDGING 'D/ 1.W 0) 'D/ E/.'D +/).1'9 o 1oo s to p!blic international law and the Children:s Convention o 1oo s to the #F:s law o 1oo s to the only other nations that still eBec!te children and ac nowledges that even these co!ntries have 40-/E .W.9 from eBec!ting children. OBCONNOR OPINION< SCALIA OPINION< &t is beyond comprehension that we sho!ld loo to the A!risdiction of international co!rts a legal, political, and social c!lt!re that is different from o!r own. 'he co!rt sho!ld cease p!tting forth foreigner:s views as part of the reasoned basis for o!r co!rt:s decisions to invo e alien law is )0' reasoned decision ma ing. ;oreign so!rces are decided to set aside cent!ries old .merican practice of letting a A!ry and its 12 citi*ens decide in a partic!lar case )o binding international law, and yet the maAority of the "!preme Co!rt said that in determining the meaning of the #" Const. we will be infl!enced by what foreign states say. Fennedy said it is not binding, b!t we ta e it into acco!nt when determining the law.

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)o conflict of law here. Eeath penalty for children. #" said that this was constit!tional !ntil this case. 4aAority loo s to foreign and international law even tho!gh there is no conflict of law.

FACTS< #" has )0' signed .rticle $? of #) treaty prohibiting capital p!nishment. ISSUECRULE< Whether it is admissible !nder the /ighth and ;o!rteenth .mendments to eBec!te a A!venile offender who was older than 1% b!t yo!nger than 1G when he committed the capital crime. HOLDING< 'he /ighth .mendment proscribes the imposition of the death penalty for crimes committed !nder the age of 1G. Eetermined that the death penalty is disproportionate p!nishment for offenders !nder 1G. 'he /ighth and ;o!rteenth .mendments forbid imposition of the death penalty on offenders who were !nder the age of 1G when their crimes were committed. 'he A!dgment setting aside the sentence of death imposed is affirmed. OBConno# D)++en < )o national consens!s against A!venile death penalty. 'he /ighth .mendment does )0' forbid capital p!nishment of 1?6year6old m!rderers in all cases. S,"!)" D)++en < #" reserves the right to capital p!nishment 0) .)9 +/,"0). )o national consens!s, b!t no contrary consens!s either. 'he Co!rt says that .merican law sho!ld conform to the laws of the rest of the world and this sho!ld be reAected o!t of hand. Co!rt:s special reliance on #F laws is terrible. 'he Co!rt has wrongly reAected a p!rely originalist approach to the G th .mendment. .c nowledgment of foreign approval has no place in the legal opinion of this Co!rt !nless it is part of the basis for the co!rt:s A!dgment. 0:Connor does not disp!te the content or !niformity of international law, foreign law, and international consens!s against the A!venile death penalty or that it has a place in #" Constit!tional Gth .mend. A!rispr!dence. "he does not find any domestic #" gen!ine national consens!s against the A!venile death penalty. Do!se threatened to ban the !se and citation of international and foreign law into interpretation of the #" Const. AUTOCEPHALOUS GREEK OTHRODO8 CHURCH OF CYPRUS V3 GOLD$ERG D FELD/AN FINE ARTS FACTSA 4osaic case. "he might get a better case in &ndiana state co!rt. &f yo! determine that the ch!rch is a s!bAect to Cypr!s, then diversity A!risdiction wo!ld attach. ;irst instinct wo!ld be, let:s s!e where yo! are going to win. 'hey probably wo!ld win the Cypriot co!rts. B!t when yo! get the A!dgment, yo! don:t want money, yo! want the mosaics B.CF. RULEA HOLDINGA L"- o' )on+< 'he @ree Cypriot system of law, the '!r ish law, "wiss law, &ndiana law. What law appliesH Wh" !"- de e#0)ne+ -h),h of he+e !"-+ 7o& "''!7: And "f e#-"#d+? -h" doe+ h" !"+"7: We are in ;ederal Eistrict Co!rt and ;ederal law says that they will apply the law where they sit 2therefore, the Co!rt is in &ndiana so they will loo to &ndiana law to determine what law applies3. &ndiana law says that yo! apply the law of the place with the /OST SIGNIFICANT CONTACTS. 6

Con ", + -) h S-) Ee#!"nd< 'he transaction too place in @eneva airport. &t was in the transit lo!nge of @eneva airport before yo! went thro!gh c!stoms. 0ther than that, not m!ch contact with "wit*erland. Con ", + -) h T&#%)+h Re'&4!), of No# he#n C7'#&+< Where the mosaics came from. .!tocephalo!s ch!rch is located here. #nder this law, who had title to the mosaicsH 'he )orthern Cypr!s government does b(c they iss!ed a decree confiscating title to the mosaics. +robably better contacts here than with "wit*erland. Con ", + -) h G#ee% C7'#)o Go(e#n0en A 'hey are the recogni*ed government of all of Cypr!s, therefore they wo!ld have he same contacts as the '!r ish ,ep!blic of )orthern Cypr!s beca!se of obAections to the way that '!r ey too control of )orthern Cypr!s. Con ", + -) h Ind)"n"< Eefendant is from there, mosaics are located in &ndiana, the art gallery and the b!siness are in &ndiana. Who h"+ he 0o+ +)1n)f),"n ,on ", +: THE COURT HELD THAT INDIANA HAS THE /OST CONTACTS THEREFORE THE FEDERAL DISTRICT COURT IN INDIANA WILL APPLY ONLY THE STATE OF INDIANA LAW3 Doe+ '#o'e# 7 !"- he!' he#e )n Ind)"n": Ind)"n" o# !"- -"+ "''!)ed o de e#0)ne -h" !"+ho&!d "''!73 Re'!e()n3 1. #nder &ndiana law, if the property is !nlawf!lly obtained, than the defendant !nlawf!l detention 2. Wrongf!l possession. $. 'itle. The Ch&#,hB+ C"+e< 'he ch!rch establishes that it is their mosaic 2title3. +eg @oldberg won:t give them bac 2therefore, !nlawf!l detention3. +ossession is wrongf!l b(c she has possession tho!gh she does not have title 2wrongf!l possession3. ;oreign affairs power of the #" resides eBcl!sively in the ;/E/,.1 B,.)CD. 'herefore, the #" state co!rts are not entitled to engage in international affairs. HOLDING< Bona fide p!rchasers prevail. +eg @oldberg is bad, therefore the ch!rch has the valid and s!perior title than she does. +eg new or sho!ld have nown, or sho!ld have been alerted abo!t the s etchy sale in "wit*erland. $on" f)de '&#,h"+e# fo# ("!&e< a good faith p!rchaser for val!e, yo! are going to be protected, even tho!gh the title is not good 2in most circ!mstances3 ;.C'"< ;iled a s!it in ,eplevin to cover the stolen good. &f they wanted money damages, they wo!ld have wanted 'rover. &""#/< Eo #" Co!rts have A!risdictionH I1$$2 Eiversity. &s the ch!rch a s!bAect of a foreign stateH Dere, the ch!rch is in Cypr!s. 'he lawyers have to loo at Cypr!s:s law to determine whether or not the #" law applies. What law do we !seH ;ederal co!rts !se the local law of the state in which they are sitting. 'hey have to go to &ndiana and loo at those r!les to determine what law applies.

CASE OF SOERING CASE V3 THE UNITED KINGDO/ *F9G9? P3 2F. FACTS< -irginia do!ble m!rder case. 'he perpetrators wo!nd !p in the #F and "oering is a @erman national now in the #F, and his girlfriend and accomplice was a Canadian. 'here was an eBtradition treaty between the #F and #". #pdi e 2prosec!tor3 has to get the eBtradition treaty and arg!e to the feds to invo e this provision of the eBtradition treaty. #pdi e tries to ma e concessions to them beca!se the #F and @ermany do not want a german national to be eBec!ted. RULE< HOLDING< The0e+ of Soe#)n1 &. #pdi eH De finds himself getting involved in international law. De has to go to the ;eds and as them to as for "oering:s ret!rn to the #". 'hat implicates< a. ;ederal law 2Const.3 b. /Btradition treaty b(w #F and #" &&. #F 1aw he also has to loo to #F law and see if there are any problems for the #F as a matter of its law. 'he state department is )0' going to do this for him. &&&. @erman law @ermans want to eBtradite "oering for @erman law. 'hey have A!risdiction over "oering b(c he is a @erman national. a. &nternational law on J!risdiction of @ermany. b. #F and @erman eBtradition treaty. &-. 'he #F has its own problems so #pdi e has to help the #F thro!gh it so they can get "oering bac to the #". a. +,0B1/4"< i. #F does )0' have the death penalty and #pdi e made it clear that he is see ing the death penalty ii. #F is concerned with the conditions on death row and they have a treaty defining the conditions of tort!re necessary iii. #F has a treaty with @ermany and #" for eBtradition. -. "oering goes to the /!ropean Co!rt on D!man ,ights and as s them to iss!e a decree saying that he cannot be eBtradited to the #" -&. /!ropean 4a e!p a. Co!ncil of /!rope 2K? states that are parties to it3 i. Was created in a response to the Doloca!st ii. .n organi*ation designed to address h!man rights. iii. 'hey adopted a treaty the /!ropean convention on h!man rights. iv. Created a h!man rights commission and then a /!ropean Co!rt on D!man ,ights in "tra!ssberg b. /!ropean Coal and "teel Comm!nity i. Was designed to ma e access to coal and steel diffic!lt so that war co!ld not easily be waged again ii. 1ead to the c!lt!ral, social, economical integration of /!rope /!ropean #nion iii. Das the /!ropean Co!rt of J!stice iv. 'he end of WW&&, the states of /!rope wanted to address the capacity of @ermany to wage war .@.&) -&&. /!ropean Convention on D!man ,ights 2p. 2?3 no one shall be s!bAected to tort!re or to inh!man, degrading treatment, or p!nishment -&&&. Conditions of Eeath ,ow a. &n a small cell, ept away from other people, does not have the ability to eBercise very m!ch 2?.% ho!rs per wee 3 thrown into the =pod> for a good amo!nt of time, which there is no r!le eBcept the r!le of the >prison> itself !nless the 4ec lenberg prison officials decide to be there b. )othing b!t psychological deterioration, ris of attac s, etc.

c. 1% days before eBec!tion, moved to the =death ho!se> no light in the cell, isolated, neBt to the electric chair, etc. d. We are only applying to the #F:s decision that res!lts in the death row phenomenon &L. &s it contradictory to -. lawH 'here is a range of p!nishments in -. that co!ld be p!t on 4r. "oering. De co!ld get life imprisonment instead, mansla!ghter charges, etc. X. #pdi e certified that a representation wo!ld be made in the name of the #F at the time of sentencing that it is the wish of the #F that the death penalty sho!ld not be imposed b!t #pdi e co!ld have done whatever he wanted afterwards. L&. 'he feds cannot force #pdi e to obey the reM!est of the #F. L&&. 'here is so m!ch foreign and international law that #pdi e is going to have to attempt he is not going to get to help in the arg!ments in the foreign co!rt XIII. 0ther treaties were invo ed 2p. 293 Convention against tort!re and other cr!el inh!man treatment 2to which the #" is a party3, etc. these were invo ed in helping to determine the meaning of .rticle $ of the /!ropean convention. HOLDINGA U'd)%e ,"n 1e Soe#)n1 "+ !on1 "+ he "1#ee+ NOT o +&4He, h)0 o he De" h Ro- 'en"! 7 U'd)%e doe+ h)+ +o he 1e + Soe#)n1 4",% )n he US3 6 6 6 6 6 6 6 )ote $, p. $7, if there were no /!ropean convention on h!man rights, and A!st the eBtradition treaty, does this mean that the /!ropean Convention on h!man rights tr!mps #F law which wo!ld have allowed him to be handed overH Eoes the W'0 tr!mp #" lawH +. 7 reference to .rticle &- of the #" Constit!tion .rticle &- provides all treaties made !nder the a!thority of the #" shall be the "!preme 1aw of the land. 9o! can ma e #" law by ma ing a treaty a treaty that is d!ly ratified &" the law of the land it becomes #" law. Conflict between international law, /!ropean h!man rights law, and -. state law. -. state law said that we can hold prisoners whenever we want and we can eBec!te them. FACTS< Jens "oering and girlfriend /li*abeth Daysom illed her parents so that they co!ld be together. "oering was a @erman c!rrently detained in /ngland pending eBtradition to the #" to face m!rder charges in -.. Daysom is a Canadian national living in Bedford Co!nty, -.. "oering admitted to the m!rders to a -. police detective. 'he two were arrested in relation to chec fra!d. #F does not allow death penalty so they did not want to eBtradite "oering to the #" for fear that the death penalty wo!ld be !sed since he was indicted on both m!rders. Daysom was charged and fo!nd g!ilty of being an accessory to the m!rder and is serving 90 years. #pdi e 2-.3 told #F that they wo!ld not !se the death penalty and even swore in an affidavit that it wo!ld not be !sed. B!t -. a!thorities told the #F @ov:t not to believe #pdi e. +sychiatric evidence showed that "oering was st!pefied by Daysom into believing that he really had to ill her parents for the two of them to be able to be together abnormal mind mansla!ghter. 'here was an eBtradition treaty b(w #F N #" that says )0 E/.'D +/).1'9. 'he treaty also says no inh!man or degrading treatment or p!nishment. ISSUE< Whether .rticle $ can be applicable when the adverse conseM!ences of eBtradition are, or may be, s!ffered o!tside the A!risdiction of the eBtraditing state as a res!lt of treatment or p!nishment administered in the receiving state. ,#1/< . contracting state cannot s!rrender an individ!al !nless satisfied that the conditions awaiting him in the co!ntry of destination are in f!ll accord with each of the safeg!ards of the convention. HOLDING< .rticle $ co!ld )0' have been intended to generally prohibit the death penalty. "ending 4r. "oering to be tried in his own co!ntry wo!ld remove the danger of a f!gitive criminal going !np!nished as well as the ris of intense and protected s!ffering on death row. /Btradition to the #" wo!ld lead to a violation of .rticle $.

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5.fter /CD,:s decision, -. agreed not to p!rs!e capital m!rder charges against "oering and he was tried and convicted in -. and sentenced to two life terms in 1990.

TRANSNATIONAL LEGAL PERSONALITIES 6 6 6 "ince +eace of Westphalia in 17KG the creation of the "'.'/ +ost6WW&&, legal relationship b(w states and other parties has been changing dramatically. )on6state parties have becomes s!bAects of international law. "ince #"", collapse, increase in O #) members. Eefinition of statehood and process by which a state is created.

UNITED STATES V3 RAY *F9@0? P3 2@. FACTS< 'ri!mph and 1ong ,eefs are two coral reefs which lie in international waters K.% miles from ;lorida. Eefendants say reefs were to become an island nation nown as @rand Capri ,ep!blic. &ntervenor says new sovereign co!ntry wo!ld be established on the reefs, to be named .tlantis, &sle of @old. Eefendants had no intention of attac ing the Coast @!ard or )avy. &ntervenor envisioned the reefs as a property worth one billion dollars. HOLDING< @ranted the petition of #" for a permanent inA!nction against the activities of Es and intervenor on these reefs. F999 /on e()deo Con(en )on on R)1h + "nd D& )e+ of S " e+ Sets out four requirements for state< 'he state as a person of international law sho!ld possess the following M!alifications< 2a3 a permanent pop!lationP 2b3 a defined territoryP 2c3 governmentP and 2d3 capacity to enter into relations with the other states. 2a3 Pe#0"nen 'o'&!" )on does not mean permanent, b!t a "'.B1/ pop!lation 2as little as 20F, no maB3 2b3 Def)ned Te##) o#7 precise territory need not be meas!rable in eBact metes and bo!nds. "ome piece of real estate on which the pop!lation is settled and which the government governs. 2c3 Go(e#n0en normally, this means a s!fficient degree of stability and a reM!isite meas!re of effective eBercise of operational control by government of its territory. 2d3 C"'",) 7 o en e# )n o #e!" )on+ -) h o he# + " e+ stresses the independence of a state to cond!ct relations with other states and the need not to be a p!ppet state as mentioned above that the state be self6governing. ,eM!ires formal and informal agreement to enter relations and reciprocity is implicated here. a. So(e#e)1n 7 state has sovereignty generally and may have sovereign imm!nity in specific circ!mstances b. S " e '#)()!e1e+ states can Aoin the #), ma e treaties, appear before the &nternational Co!rt of J!stice, enter into diplomatic relations w( other states, create and participate in international organi*ations, eBercise A!risdiction over persons and events ta ing place inside its territory and over its nationals wherever the are in the world, and eligible for economic development assistance and most favored nation stat!s Le1"! +7+ e0 each state has its own national legal system which provides the primary legal r!les governing the activities of individ!als and entities within that state. In e#n" )on"! Le1"! Pe#+on"!) 7 6 S " e+ 6 S " e C#e" )on In e#n" )on"! O#1"n)E" )on+

H&0"n+ o Roberts case +osits and international minim!m standard for the treatments of aliens o Nottebohm case .ttac s whether or not a state can ta e !p a claim that yo! have. What is reM!ired for a state to ta e !p a claim on yo!r behalf. Co#'o#" )on+ o B C o !resbyterian Church

ransnational "aw 6 Ro'e# (3 S)00on+ o Kenned7B+ maAority opinion international and foreign law were relevant and o!ght to be ac nowledged in determining the meaning of the constit!tion o OBConno#A &nternational law is relevant b!t 0)19 if it reflects a national consens!s. 'hin s that international law is important b!t 0)19 if it confirms a national consens!s. By consens!s she means, state6law, state case law, /Bperts 2restatements3, federal stat!tes, federal reg!lations, federal cases, moral val!es if the s!m of all of this shows the =moral will> of the .merican people eBpressed thro!gh their representatives, administrative officials, etc., then she wo!ld agree with the decision to !se international law. o IS OBCONNORBS VIEW THE SA/E AS SCALIABS VIEW: 'hey are basically saying that so long as international law is .merican law, then they will apply the international lawC o S,"!)"B+ d)++en was )0' well received by the rest of the world. /"4o ,"+e *AUSTRALIA. .!stralian high co!rt overt!rned law against incriminating indigeno!s peoples. /ssentially, they cons!lted international law directly and did not have to give any other information, etc. US Con+ ) & )on? A# ),!e 9 6 /stablished the federal co!rts. 6 .rticle $, I2 says that the A!dicial power of the #" shall be invested in 0)/ s!preme co!rt and in s!ch inferior co!rts as C0)@,/"" may determine 6 J!dicial power shall eBtend to all cases arising !nder< Constit!tion 1aws of #" 'reaties made !nder a!thority of #" /on)+0 (+3 D&"!)+0 6 . A!dge who is monist thin s of the world as one, !nified legal system with international law at the top, and domestic law at the bottom. 'hese A!dges will not be shy to cons!lt international law 6 . A!dge who is d!alist thin s of the world as 'W0 legal systems domestic and international law they are independent and parallel to each other. "o if international law is to be cons!lted directly, it m!st be made into domestic law to be applied. T#"n+n" )on"! L"6 +eace of Westphalia 217KG3 the )otion of the "tate was created replaced ings and M!eens with the entity called the =state>

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'he state had certain characteristics which are important today if yo! are a state, yo! have "0-/,/&@)'9 &f yo! are an entity, yo! can and sho!ld be treated as a sovereign /Q#.1 yo! have legally the same standing as the #" or China or ,!ssia or @ermany, etc. imm!nity, etc.

Un) ed S " e+ (3 R"7 *F9@0? '3 2@. 6 De wanted to be a state b(c then the #" government cannot impose its taB laws !pon him witho!t his permission, he can engage in ban ing however he wants, etc. 6 'ri!mph and 1ong ,eefs that lie in international waters abo!t K.% miles from 4iami. 6 4ontevideo Convention on ,ights and E!ties of "tates that tal abo!t the elements of a state 2p. KG6%03 6 E8A/PLE< "o!th .frica d!ring .partheid to create Bant!stans in "o!th .frica they created 10 of them so that there wo!ld be )0 +/0+1/ 0; C010, within "o!th .frica. 'hey had to meet the definitional reM!irements for becoming a =state> and they were )0' s!ccessf!l. 'his was an attempt by "o!th .frica to create states to avoid reAections of .partheid. 6 REIUIRE/ENTS OF STATEHOODA o Eefined territory o +ermanent pop!lation o Capacity to enter into relations with other states o /ffective and f!nctioning government 6 E5"0'!e+< 'he +alestinians cannot claim statehood beca!se they do not have a E/;&)/E '/,,&'0,9, and they do not have an effective and f!nctioning government 2that is eBcl!sive from other governments3 6 Eefined territory and permanent pop!lation go hand in hand the pop!lation 4#"' be in the defined territory, etc. C!"++ No e+ Fe4#&"#7 9? 2009 The L"- of N" )on+: 6 ;!ndamental M!estion of international legal personality 6 &nternational law !sed to be called the =law of nations> 6 'he ,eparations case changes all of this it is a tr!ly fo!ndational case of international law and its M!estions are still being disc!ssed and resolved today S " e+ 6 What is the stateH 2,/Q#&,/4/)'"3 o Def)ned e##) o#7 We still have disp!tes with Canada and 4eBico establishing where the #" begins and ends. 'here are states aro!nd the world whose borders are serio!sly in do!bt, i.e. @eorgia, etc. B!t we do not say that they are not states. 'hey have a defined territory B/C.#"/ they ho!se a stable pop!lation, and those two go together. o Pe#0"nen 'o'&!" )on "table pop!lation What abo!t .ntarcticaH 'here are people there 2K(? b!t in no sense are they connected to the territory. 'hey are citi*ens of other states there for a temporary time to f!lfill scientific missions 0)19

'here is a defined territory o E+ "4!)+hed 1o(e#n0en Eoes the 4ontevideo Convention tal abo!t the F&)E of governmentH 9/". 'hey see to promote a E/40C,.'&C @0-/,)4/)'. B!t this is not a legal reM!irement. . state, as a person, shall possess a government, b!t not any specific form of government. 4#"' be =effective and f!nctioning> o Fo#e)1n #e!" )on+ 'he charter says that =only states> may be members of the #) "oviet #nion wanted all 1% rep!blics of the "oviet #nion admitted to the #) separately b(c of comm!nist vs. non6comm!nist co!ntries. Capacity to enter into relations with other states now that # raine and Belar!s were members of the #), they had to be concerned with voting power in the #) and then the #" wo!ld be o!tn!mbered. 'hey only allowed two of the "oviet #nion rep!blics into the #) so that the comm!nist votes wo!ld not o!tvote the non6comm!nist votes "tate of &srael eBample and +alestine IS THERE A PROCESS FOR $ECO/ING A STATE: o &f yo! meet the definitional reM!irements, do yo! A!st become a stateH o 4#"' D.-/ ,/C0@)&'&0) ." . @0-/,)4/)'("'.'/ recognition eBtends to statehood so is there a process or a form of acceptance by the international comm!nityH o ,wanda and B!r!ndi how co!ld the #) allow them in when they were only colonies and not statesH o If he UN ,o0e+ )n "nd +"7+ h" 7o& ,"nno Ho)n 4C, 7o& "#e no " + " e? h" 0)1h h"(e %)!!ed he '#o,e++ of ",h)e()n1 +e!f-de e#0)n" )on o /ee )n1 he def)n) )on"! #eJ&)#e0en + ALONE )+ NOT ENOUGH 4& ) )+ (e#7 )0'o# "n

Pe",e of We+ 'h"!)" *F62G. 6 'he establishment of the state 6 'he primary(only actor on the international stage. 0ther entities played on the international stage depends on other states =pic ing them !p> 6 O he# en ) )e+ do no h"(e )n e#n" )on"! !e1"! 'e#+on"!) 7 on he)# o-n REPARATIONS CASE *$e#n"do e. 6 "wedish man, wor ing for a #) organi*ation, was dispatched to &srael to sec!re a peace6fire and he was illed in &srael 6 'he government of &srael, whether it was recogni*ed or not, the government was critici*ed for not providing protection to the man who was illed 6 'he criticism was that they effectively responsible for his death b(c the did not sec!re his safety 6 #nder the old law of nations, he was a citi*en of "weden so traditionally, "weden wo!ld ta e !p his claim and assert it against &srael "weden v. &srael 6 )ew organi*ation, protect employees #) felt that it needed to step in to show that someone was going to act on their behalf. 6 De is left witho!t anyone(any state being responsible for his death. De is illed by the "term @ang that was a terrorist organi*ation in &srael. 6 &srael was not a member of the #) or a party to the #) charter at this part of its life.

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Doe+ he UN h"(e he #)1h +? d& )e+? '#)()!e1e+ "nd )00&n) )e+ h" )n e#n" )on"! !e1"! 'e#+on"!) )e+ h"(e: o &f it does )0' have international legal personality, then it is not a s!bAect of international law &f there is &nternational 1egal +ersonality, co!ld it proceed with a state that is a non6memberH COURT CONCLUDEDA The O#1"n)E" )on )+ "n )n e#n" )on"! 'e#+on3 Th)+ )+ no he +"0e h)n1 "+ +"7)n1 h" ) )+ " + " e? -h),h ) ,e# ")n!7 )+ no ? o# h" ) + !e1"! 'e#+on"!) 7 "nd #)1h + "nd d& )e+ "#e he +"0e "+ ho+e of " + " e3 I 0e"n+ h" he UN o#1"n)E" )on )+ " SU$;ECT OF INTERNATIONAL LAW "nd ,"'"4!e of 'o++e++)n1 )n e#n" )on"! #)1h + "nd d& )e+? "nd h" ) h"+ ,"'",) 7 o 0")n ")n ) + #)1h + 47 4#)n1)n1 )n e#n" )on"! ,!")0+3 Th)+ ho!d)n1 ,h"n1ed f&nd"0en "!!7 THE LAW OF NATIONSA o .fter this holding, are states any longer the only s!bAects of international lawH )0C o &f not, what other entities might also have international legal personalityH o .E-&"0,9 0+&)&0) 0; 'D/ &)'/,).'&0).1 C0#,' 0; J#"'&C/ Re'"#" )on+ C"+eA Whether or not the #) "ecretary general has the power to see compensation for inA!ries to #) employee, #) co!ncil votes and says Rwe donSt now, lets as the &CJ. &CJ analy*es the sit!ation and sees that #) does have right . 'hro!gh implied powers of charter which incl!des necessity to protect members. +olicy reason, otherwise individ!als wo!ld not Aoin #) beca!se no g!arantee of protection IC; HAS THE ULTI/ATE POWER TO DECIDE THE LAST WORD WHAT THE POWERS OF THE ORGANIKATION ARE3 HELDA necessary to provide protection for members of #) on international stage.

C!"++ No e+ Fe4#&"#7 >? 2009 5'he state is the primary international legal personality and has been so since 17KG !ntil 19KG. 6 When yo! have state . ma ing a claim against state B for something that state B did in violation of some international principal or r!le, now yo! have international claim 2from 17KG6 19KG3 6 &n the ,eparations case, we have the #) 2or any organi*ation for that matter, that is )0' a state3, 1. 0rgani*ation a. +ermanent offices b. 0rgans c. .dministration d. ;!nctions 2. 'reaty $. "tate6based a. 4embers of the organi*ation are states 6 6 6 6 Conferences and other entities that are not treaty based and not comprised of state members are also not considered international organi*ations 2i.e. ,ed Cross, @reen +eace, etc.3 ,eparations case changes the definition of an international organi*ation as well as the model that eBisted B/;0,/ 19KG. 'his is an advisory opinion of the international co!rt of A!stice Wh" )+ he f)#+ !e1"! '#o4!e0 h" he IC; h"+:A o H"+ o e5"0)ne he ,h"# e# this is an international organi*ation and there is no provision in the charter abo!t how to respond to this

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='he Charter does not eBpressly confer !pon the 0rgani*ation the capacity to incl!de, in its claim for reparation, damage ca!sed to the victim or to persons entitled thro!gh him. 'he Co!rt m!st therefore begin by enM!iring whether the provisions of the Charter concerning the f!nctions of the 0rgani*ation, and the part played by its agents in the performance of those f!nctions, imply for the 0rgani*ation power to afford its agents the limited protection that wo!ld consist in the bringing of a claim on their behalf for reparation for damage s!ffered in s!ch circ!mstances> 2p. %?3 o Unde# )n e#n" )on"! !" #nder international law, the 0rgani*ation m!st be deemed to have those powers which, tho!gh not eBpressly provided in the Charter, are conferred !pon it by necessary implication as being essential to the performance of its d!ties 2p. %?3 0nce yo! create the organi*ation, they have inherent, implied powers that are necessary to the performance of its d!ties &f yo! have international legal capacity, that still does not give yo! a!tomatic right to bring a claim, b!t yo! are a s!bAect as an organi*ation and capacity can be analy*ed 2p. %93 o Whether the organi*ation has capacity to bring a claim, they have the power in conformity w( international law to bring into being an entity possessing 0BJ/C'&-/ &)'/,).'&0).1 +/,"0).1&'9, b!t not merely personality recogni*ed by the members alone. o 'he co!rt finds both that there is international legal personality and the capacity of this organi*ation to bring international claims. Was it essential that the #) organi*ation bring a claim for Co!nt BernadoteH o 4aybeH De was an employee and was wor ing for the #) when he was illed. &f one organ of an international organi*ation finds powers not in the treaty creating it, to do things that may not be so essential to the f!nctioning of the organi*ation, wo!ld the #) really have gone o!t of b!sinessH

LP3 >2 M <) )+ he #eJ&)#e0en of )n e#n" )on"! !)fe h" ,o0'e!+ he "''#o",h h" he ,o&# oo% -) h #e1"#d o he 0e"n)n1 of he ,h"# e# he#e= TREATIES 6 #nder traditional international law, a treaty was an agreement among states 6 B!t what is a treaty 1/@.119H o )ormally a treaty is considered to be contract!al 2i.e. /Btradition 'reaty in "oering Case3 6 Beca!se of the reparations case, international organi*ation members m!st be a!tonomo!s and have distinct international legal personality C!"++ No e+ Fe4#&"#7 F0? 2009 In e#n" )on"! Le1"! Pe#+on"!) 7 6 +ersons and corporations 6 'he international comm!nity:s response to 9(11 triggered the M!estion on what premise then did the #" and other members of the &nternational comm!nity invade .fghanistan 6 We have to loo bac to the REPARATIONS CASE for this reparations case involved whether the state of &srael was somehow responsible for the terrorist attac s of a non6state actor 2the stern gang3 that assassinated Co!nt Bernadote. 'he ,eparations case held that &srael was responsible and owed compensation to the employee of the #) that was assassinated b(c &srael did not do eno!gh to prevent the terrorist attac .

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J!st li e &srael was liable in the ,eparations Case, so too .fghanistan sho!ld be responsible for .l Qaeda:s attac s on "eptember 11th &n the #" what is the ability of the .fghan government to control attac s of a non6state actor o!tside of the .fghanistanH 'he attac triggered the #" government to give the .fghan government an !ltimat!m< they co!ld allow the #" government to come and arrest the attac ers, co!ld t!rn over the attac ers, etc. they had a d!ty to cooperate in ending the safe6haven for the terrorist gro!p, and they did nothing In e#n" )on"! Le1"! Pe#+on"!) 7A S " e+? In e#n" )on"! O#1"n)E" )on+? H&0"n+ o Eo we have rightsH o What is the process of vindicating these rightsH O4He, + of )n e#n" )on"! !"- *h&0"n+. S&4He, + of )n e#n" )on"! !"- *In e#n" )on"! !e1"! personality, rights and processes3 The#e h"(e "!-"7+ 4een <f)n1e#+= of #)1h + h" -e "+ h&0"n 4e)n1 h"(e M 4& -hen -e '& on he ,!o he+ of " +'e,)f), #o!e? )n,!&d)n1A o +risoners of war o .liens o +eople of a mandate or tr!st area o 1aborers D!man beings were recogni*ed to have certain h!man rights #) CD.,'/, and obligated the members to cooperate in promoting the #niversal ,espect of h!man rights F92G M Un)(e#+"! De,!"#" )on on H&0"n R)1h + an instr!ment artic!lating that h!mans have #)&-/,".1 rights ,/@.,E1/"" of =role> o ,ight to life o ,ight to d!e process o ,ight to be free from inh!man and degrading treatment In e#n" )on"! Co(en"n on C)()! "nd Po!) ),"! R)1h + converts a =soft law> instr!ment into a =hard law> instr!ment /conomic "ocial and C!lt!ral ,ights in one treaty and Civil ,ights in another treaty

Ro4e# + C"+e 6 FACTS< ,oberts was an .merican citi*en in 4eBican who was attempting to brea into the home of a 4eBican citi*en. .fter allegedly r!nning from the police for a few days, ,oberts was arrested in 19$2, was held, did not choose legal co!nsel, etc. and event!ally was not released !ntil 19$$. 6 #" claimed that his rights as an alien was not being treated well !nder 4eBican law he was to be released within a year if they followed 4eBican 1aw. .nd he co!ld not raise this claim on his own beca!se he is in Aail, even tho!gh international law was being violated against him. #" stepped in and too !p the claim against 4eBico on the international stage on behalf of ,oberts. 'here is some international minim!m standard for the treatment of aliens here 2according to the #"(4eBico claims commission3. 'hat standard says that yo! have to be free from cr!el and inh!mane p!nishment the 4eBican government ept the prisoners in facilities that were pretty awf!l conditions for 19 months, which is ? months longer than their constit!tion allows. 6 'D/ #" W." B,&)@&)@ 'D&" "#&' B(C 'D/,/ &" . 4&)&4#4 "'.)E.,E ;0, 'D/ ',/.'4/)' 0; .1&/)" .)E "04/D0W, 'D/"/ C0)E&'&0)" W/,/ J#"' )0' @00E /)0#@D 0) 'D/ &)'/,).'&0).1 "'.@/ 6 ULTI/ATE TESTA ORDINARY STANDARDS OF CIVILIKATION M THE CO//ISSION FELT THAT THESE CONDITIONS FELL $ELOW THESE STANDARDS 6 POLICYA 'hese h!man beings have some meas!re of international legal personality, at least when we p!t on the clothes of an alien, going all the way bac to 19$0s.

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UNIVERSALITY OF HU/AN RIGHTS AND THE DEFINITION OF THOSE RIGHTS HAVING A RIGHT IS DIFFERENT FRO/ $EING A$LE TO HAVE THIS RIGHT VINDICATED TO GET HIS RIGHT TREATED IN ACCORDANCE WITH THE ORDINARY STANDARDS OF CIVILIKATION? /R3 RO$ERTS NEEDED A STATE SPONSOR? AND THAT IS WHAT HE GOT WITH THE US M IF HE DIDNBT HAVE THAT? HE WOULD NOT HAVE $EEN A$LE TO $RING THE CASE #" had to ta e !p his claim in order for his rights to be vindicated. 'he #" too !p his claim, not b(c of concern abo!t his partic!lar treatment, b!t that .11 #" citi*ens sho!ld be entitled to have international law when their rights are at sta e A,%no-!ed1e+ h" 0"74e he#e "#e +o0e #)1h + fo# he )n e#n" )on"! !e1"! 'e#+on"!) 7 of h&0"n 4e)n1+ M 4& -h" "4o& he '#o,e++: When he US +ee%+ ,o0'en+" )on "#e he7 +ee%)n1 ,o0'en+" )on fo# he h"#0 done o /#3 Ro4e# + o# o he US: TO THE USN He h"d " #)1h ? 4& he needed o 1e " STATE SPONSOR o "%e on h)+ ,!")0 h" hen 4e,o0e+ he + " eB+ ,!")0 D!man beings not only have an eBpanded scope of rights that are !niversal, b!t ven!es in which h!man beings can vindicate o!r own rights i.e. in /!rope after WW&&, the establishment of the Co!ncil of /!rope and the /!ropean Convention of D!man ,ights has now recogni*ed the right of &)E&-&E#.1" to petition E&,/C'19 to the /CD, and see A!dgment against their 0W) C0#)',9 for violation of h!man rights law. IT IS STILL VERY I/PORTANT TO GET A STATE TO SPONSOR YOU 4& ,o&!d ANY + " e h"(e "%en &' he ,!")0: Wh" )+ needed fo# " + " e o "%e &' " ,!")0 on 4eh"!f of " ,) )Een:

No e4oh0 C"+e *L),h en+ e)n (3 G&" e0"!". 6 &mpending WW&&. 4r. )ottebohm is worried b(c if there is going to be world war and the #" and @!atemala are going to be enemies of @ermany, 4r. )ottebohm is worried abo!t his b!siness. 6 /Bpropriation foreigners 6 &f yo! are going to #" +roperty, yo! are not allowed to discriminate against other co!ntries 6 )ottebohm leaves @!atemala to visit brother in 1ichtenstein and obtains citi*enship. 6 T"%)n1 -"+ )n ()o!" )on of )n e#n" )on"! !"- of h)+ '#o'e# 7A *G&" e0"!"nB+ oo% h)+ '#o'e# 7. o +!blic p!rpose o )on6discrimnatory o +rompt, active, effective p!rpose 6 Ho!d< )ationality .lone is not eno!gh, @overnment m!st have an interest to ta e !p a claim. OGENUINE LINKO to yo!r co!ntry T R)ationalityR U @ov:t can ta e interest in yo!r claim 6 No e4oh0 !",%ed "n7 4ond of " ",h0en 4e -een No e4oh0 "nd L),hen+ e)n? 4& he7 + )!! oo% &' h)+ ,!")0NNN 1ichtenstein wants to g!ard their citi*enship and g!ard that if yo! are a citi*en of their co!ntry, they ta e it very serio!sly, so they were protecting their own interest in having more people become citi*ens of their co!ntry. 6 C) )Een+h)' ReJ&)#e0en +A o Dad to accepted into the Dome Corporation of 1ichtenstein o )eeded to reno!nce his former nationality 2@erman3 o 'hree years of residence 2b!t that can be waived3 o .pplication of evidence of residency in the territory, proof of good cond!ct from the police of the territory, proof of ownership of property or income and payment of nat!rali*ation fee and application De did not live there, got the three year reM!irement waived, got the taB reM!irement dispensed with, etc. he did -/,9 1&''1/

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L),h en+ e)n "%e+ h)+ ,!")0 &' )n he INTERNATIONAL COURT OF ;USTICE Th)+ )+ he ,o&# -he#e one + " e 1oe+ o +&e "no he# HOLDING< 'he lin between )ottebohm and 1ichtenstein lac ed a ,/.1 1&)F b(c it was lac ing in gen!ineness this case has come to stand for the notion that there m!st be a =@/)#&)/ 1&)F> between the state and that h!man being the co!rt said that there was no s!ch lin here. Co!rt ma es it clear that grant of citi*enship is a matter of 1ichtenstein:s sovereignty international law will not enM!ire into a state:s criteria for ma ing someone a citi*en The Co&# doe+ no 0"%e ) + de,)+)on 4"+ed &'on L),h en+ e)n !"-3 When he ,) )Een+h)' #e",he+ o& 4e7ond he do0e+ ), 4o#de#+ of L),h en+ e)n? he#e /UST 4e " 1en&)ne !)n% 4e -een h" ,) )Een "nd he + " e of L),h en+ e)n )ottebohm co!ld not go to @ermany b(c he reno!nced his citi*enship from @ermany when he became a citi*en of 1ichtenstein. De wo!ld lose in @!atemala he wo!ld have to s!e the @overnment for ta ing his property w(o!t compensation that wo!ld be a big losing case for himC HU/ANS /USTA o E+ "4!)+h h" -e h"(e +o0e #)1h o F)nd " -"7 o 1e h" #)1h ()nd)," ed on he )n e#n" )on"! + "1e

LS " e+ do no -"n o 1)(e &' he)# +o(e#e)1n) 7 he 'o-e# no o 4e )n e#fe#ed -Co& he)# 'e#0)++)on LThe 0o(e0en of h&0"n+ f#o0 o4He, + o +&4He, + of )n e#n" )on"! !"- 0e"n+ he 0o(e0en of + " e +o(e#e)1n 7 +!)d)n1 +,"!e? he 0o#e #)1h + h&0"n+ h"(e? he !e++ #)1h + + " e+ h"(e +o(e#e)1n 7 o(e# &+ C!"++ No e+ Fe4#&"#7 F2? 2009 So&#,e+ of T#"n+n" )on"! L"6 US 6 Fo#e)1n 6 In e#n" )on"! .re corporations directly responsible for international law violationsH Which state may ta e !p a claimH .re corporations directly responsible for international law violationsH 'hin bac to ,oper v. "immons Fennedy fo!nd that international h!man rights law was &)"',#C'&-/ in that case. $"#,e!on" T#", )on Co0'"n7 C"+e 6 Canada("pain(Belgi!m Case 6 /lectric company with operations in many co!ntries. 0ne of these co!ntries was "pain 6 +eople in "pain 2bondholders3 wanted to get their hands on the operations of the company they forced the company into ban r!ptcy. When a company gets forced into ban r!ptcy, that means that there are more creditors than assets. By forcing them into ban r!ptcy, they got the "panish creditors to the =front> of the creditor list. 6 1ater on, Canada withdrew from this place. 6 Canada tho!ght that they had an interest, b!t it became apparent to them that they did not. Barcelona 'raction Company was of diminished val!e in receivership. 'he Belgian shareholders essentially hold the assets and the val!e of the company 2GG83.

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'he Belgian government cared abo!t this b(c Belgian people are being h!rt by the ban r!ptcy of this company. 'he Belgian government m!st have tho!ght that it was within its interest to ta e !p the claim and assert it on behalf of the shareholders. Citi*enship .10)/ is )0' /)0#@D 4#"' have an effective nationality and a gen!ine lin C0,+0,.'&0)" D.-/ 1/@.1 +/,"0).1&'/&" 'D/9 D.-/ ,&@D'" 'D.' .,/ "/+.,.'/ ;,04 0'D/, +/,".0)1.&'&/" Belgi!m is prevented from ta ing !p a claim on behalf of its citi*ens with whom it has direct, gen!ine lin s. 9o! assemble capital yo! will ma e a lot more =widgets> which creates wealth for society if yo! have more of an investment to startC 9o! do not have to worry as an investor(owner abo!t what the company does daily the characteristic of a corporation is that it allows owners to invest with 1&4&'/E 1&.B&1&'9 C0,+0,.'/ -/&1C We have a corporation that is in between the h!man beings that were harmed and the state that is see ing to ta e !p the claim on their behalf. 'he corporation ahs a distinct legal personality with rights and obligations separate from anyone else. &n the #", corporations are creat!res of the "'.'/" of the #" it is a state law matter that creates a corporation. &t is incorporated !nder the laws of the %0 states. 40"' corporations in the #" are incorporated in E/ beca!se there are taB benefits from that state towards corporations. 'he company is &)C0,+0,.'/E &) C.).E. !nder Canadian domestic law registered office, taB records, board meetings, operated there for %0 years, ban acco!nts, What is the relevance that some of the shareholders of Barcelona 'raction Company are BelgianH )othing really, this is a free choice that they made. Belgians chose freely to participate in this corproration they J0&)/E the company. &f there is a state willing to ta e !p the claim, it has to be Canada here as long as the corprorate identity is preserved, the Belgian shareholders are noc ed o!t of bringing their own separate claims thro!gh Belgi!m. +01&C9< 'hin of what wo!ld happen if co!ntries co!ld ta e !p the claims of shareholders that were from other co!ntries to assert those claims against other co!ntriesHC that wo!ld be a messC &f a corporation does something wrong, they will be held acco!ntable !nder the domestic law of the co!ntry in which they operate in. Eo corprorations have d!ties to which they can be called !pon E&,/C'19 to the international stageH o 9/" if they behave in a way that violates ;#)E.4/)'.1 D#4.) ,&@D'"

P#e+47 e#)"n Ch&#,h of S&d"n (3 T"!)+0"n Ene#17 6 )9 Eistrict Co!rt case. 6 A!)en To# C!")0+ A, says that the district co!rts shall have 0,&@&).1 J#,&"E&C'&0) of .)9 civil action by an alien for a tort only committed in violation of the law of nations. C!"++ No e+ Fe4#&"#7 F@? 2009 ROAD/AP #" 1aw ;ederal "tate ;oreign 1aw Civil law, &slamic, "ocialist, etc. &nternational law treaties, c!stom, general principles of law, co!rt decisions and wor s of writers 6 ;o!r so!rces of treaties

P#e+47 e#)"n Ch&#,h ,"+e s!ed Canadian company for violations of the most f!ndamental h!man rights of the "!danese people. J!risdiction is in )9 here normally it is in a place where the tort occ!rred or the law of where the co!rt sits is applied. &' 4#"' B/ . '0,' #)E/, 'D/ 1.W 0; ).'&0)" not A!st any tort !nder #" law. 'he law of nations that is violated is f!ndamental h!man rights. )ormally these cases are being bro!ght against a government. Dere, the case is being bro!ght against a private corporation. .,/ C0,+0,.'&0)" "#BJ/C' '0 'D/ 1.W 0; ).'&0)"H Ve# ),"! N" &#e of US L"- what is the relationship between the federal government and the state governments. /,C&!!o,h (3 /"#7!"nd said that the M!estion of vertical nat!re of #" law is a M!estion that is Vperpet!ally arising: Ho#)Eon "! N" &#e of US L"- the allocation of power hori*ontally at the federal level S&'#e0",7 C!"&+e of he Con+ ) & )on. .rticle && of Constit!tion recogni*es the sovereign power of the states. 0!r federal government is a C/)',.1 government. 'he states are a!tonomo!s 2as were the colonies3, in legal effect and in practice. A# ),!e+ of Confede#" )on D The Con+ ) & )on 6 'he doc!ment that the colonies p!t together to cond!ct the ,evol!tionary War. 6 Was replaced by the #" Constit!tion 6 'he #" Constit!tion has a federalism dynamism embedded in it b(c of the .rticles of Confederation and all of the individ!al colonies that eBisted thro!gho!t the co!ntry 6 "!spicion of power too m!ch power residing in government motivated the #" states to become &)E/+/)E/)' 6 'he Constit!tion ma es all of the branches of the government /Q#.1 C!"++ No e+ Fe4#&"#7 F9? 2009 Co00on L"6 &s there anything that really does separate the #" and other common6law tradition co!ntries from the rest of the world in terms of the style of practice and how we approach legal problems, etc.H 6 1aw that reflects the !sages and practices of peoples that are artic!lated in A!dicial decisions 6 CO//ON LAW DEFINED< 'he ancient, !nwritten law of /ngland 6 We e(en h"(e fede#"! ,o00on !"- "nd ,o00on !"- )n "!! of o&# >0 + " e+N Fo#0"! (+3 /" e#)"! So&#,e+ of L"6 ;ormal< 'he machinery by which law is made in the #", it is the Constit!tional process 6 ;ormal law is made in the #" by &)'/,/"'" coming to Washington to p!sh their interest to the legislat!re 6 'he law that is p!shed o!t of the =machine> is the material so!rce of the law 6 When we loo at a treaty we are loo ing at a partic!lar "0#,C/ of law P#e,eden (+3 S "#e De,)+)+ 6 "tare decisis compels the co!rts to #"/ precedent co!rts are bo!nd to apply the prior decision

+recedent is +,&0, "&4&1., E/C&"&0)"

Wh" d)ffe#en )" e+ &+ f#o0 C)()! !"- +7+ e0+: 6 'he idea of common law, precedent and stare decisis 6 &n o!r system, o!r A!dges are +.""&-/ they are mere =referees> they are not participants or parties in the case, they are there to referee the case and to decide WD0 wins by rendering a verdict 6 &t is the lawyers, m!ch more than the A!dges to decide the case 6 &n civil law traditions, it is !s!ally )0' an adversarial system in the civil law system, A!dges are m!ch more active they will ma e obAections, cross eBamine witnesses, etc. the A!dge is a party trying to reach the J#"' ,/"#1' in the case /"dd&5 C"+e 6 &n this case and the "/ v. "CD case there was a car accident where the inA!ries of the victim were ca!sed by m!ltiple people6 there were chain collisions 6 'he problem is, who did what damageH We want to apportion responsibility b!t we can:tC 6 +laintiff won. Eefendant said that yo! cannot trace the proBimate ca!se for any ind of inA!ry. 'he co!rt held the defendant responsible for all the inA!ry so that the + can recover all the damage from 0)/ defendant. 6 Common law analysis yo! have to deal with bad precedent from 1G29 that analogi*ed sheep and dogs to cars and people by p!shing aside the precedent beca!se of fairness 6 'he co!rt also fo!nd other a!thority for a different r!le the restatement, writers, etc. SE (3 SCH C"+e 6 +laintiff won in a m!ltiple chain collision case 5J!dges get o!t of precedent beca!se o!r co!rts are both co!rts of the law and co!rts of eM!ity. J!dges can p!sh aside precedent even if a case is similar, beca!se yo! can always arg!e that it is &)/Q#&'.B1/ C!"++ No e+ Fe4#&"#7 22? 2009 6 J!dges are passive referees in common law A!risdictions that weigh the positions of the parties

SE (3 SCH C"+e 6 'he Co!rt dealt with the other cases by ta ing =bits> of information from them instead of applying them as mandatory a!thority 6 'hey are not wearing the =handc!ffs> of precedent or stare decisis they hear the cases as =information> 6 'he decision is shorter as well 6 'he Co!rt here is trying to apply the written code provision of the civil code 6 What is most important is that the law accepts certainty and predictability 6 +ractically, yo! sho!ld find someone who nows the system, what is important, how to present cases based on the 1.W of the co!ntry within which yo! are arg!ing 6 0!r legal system is m!ch more !niM!e than other systems aro!nd the world 5'he practice of law is becoming .4/,&C.)&W/E 6 ;rom a common law perspective, other law firms and corporations got global representation more and more so they had to deal with .merican legal perspective 2stare decisis, precedent, etc.3

So&#,e+ of P&4!), In e#n" )on"! L"6 the law governing the relations of states and international organi*ations and sometimes the states and h!man beings 2international h!man rights3 to the eBtent that it eBists 6 there is no =s!per legislat!re> on the international scene 6 formal so!rces of law the process by which a treaty comes into being is a formal so!rce of law 6 what is the evidence for the content of the lawH N" &#"! (+3 Po+) )(e L"6 4odern international law was born in 17KG 6 When international law began it relied heavily on nat!ral law the law that is derived mostly from a matter of logic and rationality it has an air of morality abo!t it international law really began by relying on nat!ral law the notion that states sho!ld behave in a certain way, etc. 6 9o! co!ld act!ally discover what states considered to be the law yo! co!ld find agreements, practices, and c!stoms that states wo!ld engage in this is a very different eBercise than prayer or thin ing yo! are loo ing at an earthly way at what states do POSITIVE LAW 6 H&0"n #)1h + !"- )+ 4"+ed !"#1e!7 on n" &#"! !"- n" &#"! !"- 0"%e+ " #e+&#1en,e he#e 6 In e#n" )on"! Co&# of ;&+ ),e *IC;. 0"7 on!7 he"# ,"+e+ "0on1 STATES M he ,o&# <SHALL APPLY= )n e#n" )on"! ,on(en )on+ *"# ),!e 9G. *'3 F9> M fo&# +o&#,e+ of '&4!), )n e#n" )on"! !"-. F3 T#e" )e+ a. .greements among states and international organi*ations. 'hey have many names. b. Convention is a synonym for a m!lti6lateral treaty c. +rotocols a treaty on a treaty !sef!l in dealing with h!ge problems in the world 2i.e. the 4ontreal Convention dealing with the 0*one layer3 d. 'his is the international law of =choice> states and international organi*ations when they loo to ma e international law will rely on treaties as their so!rce of law beca!se it is easier to A!stify why yo! are ma ing someone adhere to it beca!se it is &) W,&'&)@C e. &f a problem needs to be addressed immediately, yo! can ma e international law Q#&CF19 by way of a treaty f. Where yo! need detail(specifics, how m!ch m!st a certain co!ntry do a specific thing, etc. a treaty is better than any of the other three so!rces of law g. &s a treaty a so!rce of obligation or a so!rce of lawH h. S " & e-!)%e #e" 7 bind everyone. 4any of o!r stat!tes codify the common law i. Re1)0e #e" 7 yo! have to have a regime to ma e s!re that what yo! want done thro!gh the treaty act!ally gets done 2i.e. the #) Charter3 A. &n general, treaties bind 0)19 the treaties to them 23 C&+ o0 a. @eneral practices of states, that is b. .ccepted as law 93 Gene#"! P#)n,)'!e+ of L"23 Co&# +? De,)+)on+? "nd W#) e#+ ;&+ ,o1en+ despite these so!rces of p!blic international law, there are certain peremptory forms of international law that tr!mp .11 so!rces of p!blic international law No# h Se" Con )nen "! She!f C"+e 6 9o! delineate the coast of the co!ntry on an eM!idistance basis 6 @ermany is not a party to the continental shelf convention of .rticle 7

6 6 6 6 6 6

'hey are in this litigation and the treaties bind only the parties to them Eenmar v. the )etherlands 'he treaty represents c!stomary international law the law that represents the general practice to of states accepted as law sometimes there is a relationship b(w treaty and c!stom sometimes a treaty can codify law that is the c!stom of the area &f they say that this is c!stomary international law, then they can say that @ermany is a party to this treaty. /Q#&E&"'.)C/ b!t in this case, yo! have a conveB coast so if yo! do eM!idistance analysis, @ermany gets nothing. @ermany says that this sho!ld be handled eM!itably b(c they are not a party to the treaty !nder article 7. GER/ANY WON THIS CASE the co!rt said that eM!idistance is )0' binding on these parties and says that eM!ity sho!ld apply. 'he co!rt did not draw the new line the co!rt artic!lated the law here and @ermany won the case. When they negotiated the line, they negotiated a line that still left them short of the oilC REIUIRE/ENTS OF CUSTO/ *NEED $OTH.A o @eneral practices of states Gene#"! P#", ),e international c!stom as evidence of a @/)/,.1 +,.C'&C/ of state accepted as law. @eneral means something less than .11 "'.'/" beca!se it is not !nanimo!s 0f states o 'hat states accept as law 2opinion A!risC3

TWO REIUIRE/ENTS FOR UNWRITTEN INTERNATIONAL LAW PCUSTO/Q *A POSITIVE LAW E8ERCISE.A 1. @eneral +ractice of "tates Xand international organi*ationsY 2not !nanimo!s, b!t less than !nanimo!s3 2. .ccepted as 1aw 2opino A!ris3 C&+ o0 6 +ositive acts of state practice are affirmed in votes 6 .ffirmative acts of state practice 6 )egative acts of state practice when yo! obAect to the claim of legal right, that is negative practiceP any ind of diplomatic note of process is a negative process. 6 What abo!t non6statesH o )0)6"'.'/ .C'0," C.) +,0-0F/ 'D/ +,.C'&C/ 0; "'.'/". 'o the eBtent they can provo e states to engage in practices, it is indirect. 1obbying, etc. 6 'he state has to =B/1&/-/> that they are acting o!t of legal obligation. &n international law that is referred to as opinion A!ris. "ome scholars claim that this reM!irement is not necessary for the formation of c!stomary international law b!t it &" )/C/"".,9C 6 'his is the critical difference between mere habits and !sages and 1.W 6 0nly concerned with c!stoms that have attached to them a sense of legal obligation 2i.e. a 21 g!n sal!te is the !niversal practice of states that when a visiting head of state goes to another co!ntry, they get a 21 g!n sal!te3. 'his is the !niversal practice of states. &f 0bama goes to ;rance and the ;rench give him a 19 g!n sal!te, wo!ld ;rance have violated international lawH 'hey have violated the !niversal practice of states, b!t they did not violate the lawC 'his is mere habit, !sage, )0' a c!stom. CUSTO/ /UST HAVE A SENSE OF LEGAL O$LIGATION ATTACHED TO ITN T#e" )e+ "nd Non-'"# )e+

6 6 6 6 6

'reaties in general only bind the states that are parties to them @ermany was not a party to the continental shelf convention so they co!ld not be bo!nd to the treaty with eM!idistance. Can bind non6parties if they .@,// to it. i.e. #" and Canada who got into a disp!te in the @!lf of 4aine where there were rich fisheries. Eisp!te arose o!t of the promise that !nderneath the @!lf of 4aine was !ntold oil. &f the treaty reflects the accepted practice of the states(general practice of states. &f in the years since the treaty came into being the general practice of states adopted that treaty as c!stom, then that treaty will be c!stom international law

Continental Shelf Case 'o become c!stom o 'ime 0ver ten years since the convention was signed 'he generality of practice o )!mber of states o 0pinio A!ris &n the case there was not a s!fficient showing of opinio A!ris 'he treaty was not binding on @ermany that was not a party to it 'he co!rt was as ed to state the principals of international law abo!t the iss!e that the parties disagreed o 'his was the neBt step in the analysis after the co!rt reAected the party:s arg!ment What was the c!stomary international lawH o .miable negotiation 'he co!rt has to go beyond this beca!se this is what the parties tried to do before the case o 'he co!rt:s r!le is on page 1%9 'he agreement has to be in accordance with eM!itable principles @eneral principals of law .rticle $G of the &nternational Co!rt of J!stice &nternational o )ot embedded in treaties or c!stoms, b!t in cases Eomestic )o !sed a lot o -ery vag!e J!dicial decisions and writers So&#,e+ of P&4!), In e#n" )on"! L";&+ ,o1en+ peremptory norms of international law. 'he idea that there are certain activities that cannot be legitimated by legal processes. Certain activities cannot be legitimated by states, h!man beings, or corporations. "ince states are sovereign, to hold them responsible despite their lac of consent, is rather narrow. 5)o A!risdiction of the &CJ over corporations or individ!als 'his means that states . and B ,o&!d no get together and say that since indigeno!s peoples are spreading across their borders, we sho!ld enter into a treaty that is binding on each of !s, that we systematically eBterminate those indigeno!s peoples.

S"4" )n" case #" sovereign imm!nity. &t says that .rgentina implicitly waived its claim to imm!nity. "tates can waive their imm!nity if they want to litigate. Dere, the Co!rt intimates that .rgentina waived their claim to imm!nity. 'here is a difference b(w peremptory norms and the right of states to proceed with a peremptory norm S)de#0"n case cites to the Barcelona traction company case. 'he doctrine of actio pop!lares can be fo!nd in a treaty, etc. where it says that some r!le of law. &nA!ry triggers a right to s!e b(c it creates a legal interest. 'here is a difference b(w A!risdiction to ta e !p a claim. )0' /-/,90)/ D." 'D/ ,&@D' '0 "#/C +eremptory norms create an obligation /,@0 04)/" 2owed to all3 90# "'&11 )//E . 1/@.1 &)'/,/"' ( C.#".'&0) B/'W//) 1.W .)E 'D/ ,&@D' '0 +#,"#/ 'D/ C."/ &f we have an obligation owed to all, everyone can s!e for a violation of ", )o 'o'&!"#e+C &nternational Criminal Co!rt is established by treaty. 'hey do not have actio pop!lares A!risdiction in that treaty. TWO TYPES OF COURTS 1. &nternational Co!rts 2. 4!nicipal Co!rts 2Eomestic 1aw Co!rts3 if m!nicipal law M!estion is before international law co!rt, m!nicipal law will fall before the international law. 4!nicipal law is )0' an eBc!se. Theo#7 (+3 P#", ),e heories# "3 D&"!)+0 i. &f the A!dge is a m!nicipal law A!dge, how are yo! are going to get that A!dge to apply that separate(eM!al body of law internationallyH 1. 4!st show that that international law has been made into domestic law in some way i.e. show a c!stom, a treaty, etc. that incorporates into domestic law 43 /on)+0 i. 0ne system of law international law at the top and m!nicipal law at the bottom yo! wo!ld apply international law as a monist if there is a conflict of laws ii. Re(e#+e 0on)+0 when m!nicipal law is on top and international law is s!bservient to itC 2i.e. "calia in ,oper v. "immons3 H)e#"#,h7 Constit!tion ;ederal 1aw "tat!tes Co!rt decisions /Bec!tive 0rders "tate constit!tions "tate stat!tes "tate co!rt decisions In e#n" )on"! L"- 'reaty, c!stom, general principals, co!rt writers

C!"++ No e+ /"#,h F0? 2009 'heoretical and +ractical 1aw +roblems in &nternational 1aw Th#ee %)nd+ of #e" )e+A $. "elf6eBec!ting treaties K. )on6self eBec!ting treaties %. /Bec!tive agreements D)+ )n, )on+ 7. Eistinction between self6eBec!ting treaties and non6self eBec!ting treaties were made by chief A!stice 4arshall ?. /Bec!tive agreements arose o!t of necessity there are tho!sands of eBec!tive agreements G. 'he senate does not want to be tied !p with a minor agreement so then it is decided thro!gh an eBec!tive order /),%e7 Ed-"#d+ (3 ;"0e+ E"#! C"# e# *'3 F@2. 9. 'reaty that closed the deal between +anama and the #nited "tates 10. /dwards said that the Constit!tion !nder .rticle &-, section $, that Congress shall have the power to dispose of territory belonging to the #" 11. De bro!ght the case against +resident Carter saying that Carter violated the Constit!tion by ma ing this real estate deal with +anama therefore the Constit!tion sho!ld tr!mp this treaty 12. De calls on Carter to bring legislation that wo!ld adopt the +anama Canal treaty before the Congress 1$. Carter too the treaty and went to the "enate it needs 2($ vote to be ratified, and the "enate did that. 4ic ey /dwards: problem is that the C0)@,/"" is s!pposed to have the power to dispose of #" property, therefore, B0'D the "enate and the Do!se have to eBercise their power, and here Carter bypassed the Do!se F23 THE CONSTITUTION DOES NOT SAY THAT CONGRESS HAS THE E8CLUSIVE POWER TO GIVE OUT PROEPRTY? THEREFORE? CONGRES IS NOT THE ONLY $ODY WHO CAN GIVE OUT PROPERTY 1%. 'he Co!rt fo!nd that this is a self6eBec!ting treaty. ;or a self6eBec!ting treaty, there m!st be a p!rpose that is more &44/E&.'/19 )/C/"".,9. Dere, we have a self6eBec!ting treaty that involves a non6eBcl!sive power of Congress 17. HOLDING< . "/1; /L/C#'&)@ ',/.'9 0+/,.'&)@ )0' &) -&01.'&0) 0; 'D/ C0)"'&'#'&0) &" 'D/ 1.W 0; 'D/ 1.)E F@3 The #end no- )+ o #e" ALL #e" )e+ "+ non-+e!f e5e,& )n1 od"7 A+"%&#" (3 C) 7 of Se" !e 1G. 'his ordinance in "eattle forbids aliens from owning and operating pawn shops in "eattle. 19. &""#/< Was the treaty involved self6eBec!ting or notH 20. &f it is a self6eBec!ting treaty, then it tr!mps all state law 21. 'he 'reaty itself says that it operates of itself witho!t the aid of legislation 22. Eid this case care abo!t intentH 9/". 'he intent of the instr!ment sho!ld be analy*ed. T#e" )e+ 2$. 'o have a treaty, the president signs it, then ta es it to the "enate who by 2($rds vote has to ratify it, then it goes bac to the president who signs again and then we have a treaty 2K. &f we have a treaty, what is its internal effectH

2%. What if there is a conflict b(w federal law and state law against that treatyH 27. 'he #) charter is a ',/.'9 Se F&H) 2?. .rticle %7 2G. =.ll members pledge to ta e separate action> a. 'he circ!mstances in determining the intent of the #F, ;rance, #" and "oviet #nion regarding discrimination in the "oviet #nion was to p!nish states li e Japan b. "!rely the #F intended for it to be immediately operative inside the #F LLLLWHETHER THE PARTIES TO THE TREATIES INTENDED FOR THE TREATIES TO $E SELFE8ECUTING IS THE DIFFERENCE $ETWEEN SELF-E8ECUTING AND NON-SELF-E8ECUTING3 THIS TEST IS SU$;ECTIVE3 LThe#e -e#e +e!f-e5e,& )n1 PROVISIONS )n he UN ,h"# e# M '#o()+)on+ 1)()n1 he 'o-e# of he '&#+e o ,on #o! he 4&d1e ? e ,3 4& he#e he7 +")d h" h)+ PIECE of he #e" 7 -"+ NON-+e!f e5e,& )n13 The7 +")d h" +o0e h)n1 0o#e needed o 4e done3

C!"++ No e+ /"#,h F2? 2009 E"+ e#n A)#!)ne+ C"+e *e"#!7 F990+. S"!e (+3 H") )"n Ref&1ee+ ,"+e /",h"een ,"+e *DAA "1en -ho -"+ %)!!ed. 5.11 'D,// 0; 'D/"/ C."/" '#,) 0) 'D/ &)'/,+,/'.'&0) 0; 'D/ 4/.)&)@ 0; 'D/ ',/.'9 Se F&H) (3 S " e 29. +rovisions of the charter that were )0)6self eBec!ting and had )0' been eBec!ted LSe!f-e5e,& )n1 #e" 7 AND non-+e!f e5e,& )n1 #e" )e+ h" h"(e 4een e5e,& ed "#e he SUPRE/E LAW OF THE LAND *UNDER THE CONSTITUTION. $0. ;orever, the states of the !nion have had the power to reg!late abo!t illing birds in their state. $1. Birds that traversed from Canada to the #" and 4eBico began to become a problem. 'his cycle was necessary for their s!rvival. 'hey co!ld not s!rvive witho!t this migration pattern. $2. Congress passed a federal law in 191K saying that the states cannot ill these migratory birds $$. 'he stat!te from 191K was str!c down as !nconstit!tional. $K. &n 1917, 4igratory Bird 'reaty #F and #" enter into a treaty where there was an international agreement where they both agreed to reg!late the illing of migratory birds a non6self eBec!ting treaty !nder either test the treaty co!ld )0' operate of itself there is more that needs to be done 35. 191G, federal law violation of the constit!tionH C0)@,/"" /).C'/E 'D/ "'.'#'/ 0; 'D/ 4&@,.'0,9 B&,E ',/.'9 .C'. . non6self eBec!ting treaty that is /L/C#'/E by stat!te. 'his 191G federal law did eBactly the same thing as the 191K law, and the states challenged the .ct as !nconstit!tional saying that it violates the 10 th amendment. 36. "!preme Co!rt said that possession is not dispositive of ownership the contention of the states that they =0W)> the birds, is str!c down b(c the birds are wild birds and they belong to no one !ntil they are capt!red

$?. &t is m!ch easier to get a treaty signed than to ma e an amendment to the constit!tion T-o Te+ + fo# De,)d)n1 )f " T#e" 7 )+ +e!f-e5e,& )n1 o# no 1. A+"%&#" test 2. Se F&H) intent test A# ),!e II? +e, )on 2 M <T#e" 7 Po-e#= - =De shall have +ower, by and with the .dvice and Consent of the "enate, to ma e 'reaties, providing two thirds of the "enators present conc!r> E5e,& )(e A1#ee0en - .n agreement by the eBec!tive witho!t the participation of the "enate. J!stified by .rticle -& of the Constit!tion that says that the treaties made !nder the a!thority of the #" are the s!preme law of the land. US (3 $EL/ONT *F99@? '3 FGG. $G. ,!ssian revol!tion $9. &n the international law is an eBec!tive agreement and the state law is at iss!e K0. 'he tension arises as follows< before the ,!ssian revol!tion, there was a company called +etrograd 4etal Wor s that had an acco!nt with a private ban er in )ew 9or called Belmont. )ew 9or state law and policy is behind private ban ers in )ew 9or 41. ,!ssian ,evol!tion comes the )ew "oviet #nion, beca!se it is a private state, they iss!e a decree in law that said that no private property eBists it nationali*ed +etrograd 4etal Wor s calling it "oviet "tate +roperty, incl!ding all assets of +etrograd, wherever they are. K2. E8ECUTIVE AGREE/ENT< 'he #" and #"", enter into an eBec!tive agreement saying that the #" wo!ld recogni*e the "oviet #nion. &n eBchange, the #" got assets of the "oviet #nion that had been nationali*ed that were present in the #nited "tates. 'he #" was assigned the rights to +etrograd 4etal Wor s: money. K$. US 1o(e#n0en +&e+ $e!0on the case comes to the #" "!preme Co!rt and they have to decide the legal effect of the eBec!tive agreement. &f they deem it valid as a treaty, it becomes the s!preme law of the land. 'his agreement was not s!bmitted to the senate for a vote. &t was done by the president acting !nder his foreign affairs a!thority. KK. HELD< When there is a conflict between state laws and eBec!tive agreements, state laws are always tr!mped by eBec!tive agreements. Th)+ )+ " ("!)d "1#ee0en WITHOUT he "d(),e "nd ,on+en of he Sen" e. 'he a!thority is from .rticle -&. 2>3 A+ of 7e ? he#e )+ no d)+ )n, )on 0"de 47 he ,o&# + h" he7 0"%e -) h #e" )e+ 4C+e!f-e5e,& )n1 "nd non-+e!f e5e,& )n1? -) h #e1"#d o E8ECUTIVE AGREE/ENTS SOFA AGREE/ENTS M Re)d (3 Co(e# *'3 F9F. K7. #" eBercises military code of A!stice not only over the military personnel, b!t also over their dependents that live with them K?. 'wo women ill their h!sbands one in /ngland and one in Japan. KG. 'hey challenge their convictions on the basis of d!e process. K9. 'hese two women win their case. %0. &f the #" gives !p their A!risdiction !nder the nationality principle, they don:t D.-/ to ta e !p the claim %1. 'hey don:t D.-/ to convict a #" citi*en that commits a crime abroad >23 E8ECUTIVE AGREE/ENTS CANNOT TRU/P THE CONSTITUTIONN