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Ratner_Transnational Law_Fall 2009

Older approaches:
o Naturalists: Believed that a law of nature exists that can be uncovered by man. A single, universally applicable law governs a naturally constituted society of nations. Positivists: Believed that law was created by humans for definite conditions and purposes rather than by some supreme being for all eternity.

Contemporary approaches: o Positivism: Theory that international law is no more/less than the rules to which states have consented. Dominates thinking of most international lawyers, and dominates most casebooks.

Institutionalism: agree that states act in self-interest; however, they emphasize that intl institutions can foster cooperation/restraint and common goals. Constructivism: states interests are dependent on (created/changed by) the interests of other states; therefore, participation in intl institutions helps states achieve shared understanding. New Haven School: International law is a process by which various actors clarify and implement their common interests in accordance with their expectations of appropriate processes Natural law a common law of states backed-up by religious and philosophical principles of good faith and good will between men and nations


UN: Charged with promoting peaceful settlement of international affairs. o Secretariat--headed by the Secretary-General, has helped resolve a variety of international disputes, including Rainbow Warrior, infra.

o ICJ: UN's principal judicial organ, serves as another forum for dispute
resolution. Article 38: Statute of the ICJ Court's function is to decide in accordance with international law disputes BETWEEN STATES that are submitted to it. Shall apply: International conventions, establishing rules expressly recognized by the contesting states International custom General principles of law recognized by civilized nations Judicial decisions and teachings of "the most highly qualified publicists of the various nations." ***NOTE: Order is not a formal hierarchy but is nonetheless suggestive. Specialized organizations: o GATT/WTO--rules govern more that $9 trillion per year in international trade. It, along with IMF, International Bank for Reconstruction, and World Bank, are primary international economic bodies created to address international economic issues. o Regional organizations: Coordinate policies on a sub-global level. Non-state actors: Increasing in importance. ICJ and WTO's Dispute Settlement Body only entertain state-to-state disputes, but in many other for a, NGOS can institute cases or intervene a s parties.

Why do nations comply with international law? Depends on your perspective: Realists: Argue that nations comply with international law only when it is in
their interest to do so. States do what they want to do or what theyre forced to do. o Dominant theory until recently basically is saying intl law is irrelevant

Institutionalists: Say that states have both conflicting and mutual interests. Hence, international regimes serve as a mechanism for restraining states and achieving common aims. o Ex comply w/ issue A, and well reward you w/ issue B. The rules are effective b/c they are backed by institutions. Constructivist: States have no preexisting interests or identities; rather, they're created by and through interactions with other states. o Ex EU is a part of Frances identity Kantian: compliance with international law is a function of domestic policies

Scelle (Ratner likes this) people in govt who deal w/ intl law play two different roles. Not only do they make claims on behalf of their own govt, but they ALSO react to claims made against their govt AND others. o THUS, because of this double role, States dont want to stretch their own claims b/c of fears that other countries might make the same claim/argument against them!


Recognizing international law is difficult because of the spectrum of legal norms. However, to determine if its law we should look to the authority, a sense that the process is legitimate and the way the norms are developed are fair, and control, there are mechanisms in place to promote compliance and ensure effectiveness. o People expect both of these factors in order to recognize hard law.
Consequences of the authority/control approach o Intl law isnt just a set of rules that apply themselves, its a dynamic of competing claims by multi-party interactions o Law and politics are inseparable o Intl law is in a state of flux some norms are stable, but many are constantly moving and/or unclear.

II. Examples of International Law in Operation

Background: The Aouzou Strip rests on the border between Libya and Chad (north/south). Neither Libya nor Chad regard the Strip as having any kind of economic, military, or strategic value, but ownership of the Strip has been hotly contested. Libya was an Italian colony until 1951, and Chad was a French colony until 1960 o Chads perspective: Chad claims that the border was fixed by the 1955 Treaty of Friendship between Libya and France because Libyas assent to the treaty indicated a formal acceptance of Frances claims to the borders of its colonial possessions in Africa. Libyas perspective: The Treaty should be considered invalid because Libyas king was (allegedly) coerced into signing it. In addition, the Treaty did not recognize that particular border. Furthermore, the various inhabitants of the Strip (allegedly) identify themselves with

Libya. Also, prior title to the territory was held by the Ottoman Empire and Italy, both of which had colonized Libya. Libyan-supported rebellion and occupation: o In early 1970s, Libya supported a rebellion by inhabitants of northern Chad against the central government, and central government subsequently lost control of the Strip. Libya then set up a de facto administration in the Strip. Chad ousted Libyan troops from much of North Chad in 1987, but Libya remained in control of the Strip.

Attempts at mediation o o Soviet Union vetoed a UN resolution calling for withdrawal Organization of African Unity (OAU) tried to reach a solution as well, and after two years of OAU-sponsored mediation and negotiation, two states agreed in August 1989 to settle the border dispute by political means within one year or, if they failed to do so, to submit it for determination to ICJthe judicial organ of the UN.

Case Concerning The Territorial Dispute (Libya/Chad) (I.C.J, 1994) -ICJ: Treaty was valid, and while treaties can be withdrawn from, treaties fixing boundaries can't, because that would undermine the purpose of having fixed boundaries. Thus, the treaty was valid, borders are fixed, so Libya's claims about its historical rights to the land and colonial grants to them don't need to be heard. NOTES: o Nothing required Libya to go to the ICJin fact, ICJ cant hear a case unless a state consents to have their case heard before the ICJ. Can do this in one of two ways: o 1) either give them general jurisdiction over the state, or 2) give them specific jurisdiction in a particular case.

Why did they consent to ICJ jurisdiction here? A lot of pressure from OAU Maybe Libya was condemned to a greater degree than they thought they would be, and this was a face-saving way to get out.

Significance of this dispute from different perspectives: Realist: Might say that Libya complied with the decision because it had no other choice. Its military might paled in comparison to the might it would face if it contested. Naturalist: The decision reinforces respect for borders as a norm of international law. Positivist: the decision creates a nice precedent because the countries were willing to abide by the third partys decision


Background: The French government sent agents to bomb Greenpeaces Rainbow Warrior boat while it was docked in New Zealand. The explosion destroyed the ship and resulted in the death of a Dutch crew member. Two of the agents were arrested and charged with murder and arson under New Zealand law. France placed pressure on NZ to release the agents, to no avail. Under NZ law, individual liability attaches to state actors. Under French law, it does not. France tried to economically hurt NZ, which prompted NZ to file a complaint with the Organization for Economic Cooperation and Development (OECD) and the GATT. France and NZ agreed to submit all issues before the UN Secretary-General. Ruling Pertaining to the Differences between France and New Zealand Arising from the Rainbow Warrior Affair (UN Secretary General, 1987) Holds that: o o o France must apologize. France must compensate NZ for all of the damage it has suffered. With respect to the most heated issue, the French agents, their sentences should be reduced from 10 years to 3, and they will serve their time in a French military facility on an isolated island outside of Europe. France must not oppose continuing imports of NZ butter or otherwise hurt NZ economic interests. An arbitral tribunal should dispose of any future conflicts

AFTERMATH: France and NZ consented, but neither of the French agents spent three years on Hao island, much to NZs chagrin. The intl tribunal (an

ad hoc tribunal consisting of law professors) held that France committed a breach, but that nothing could be done as the three-year period had passed. France was publicly condemned. NOTES: o Greenpeace couldnt take France to ICJ, because ICJ only adjudicates conflicts between states. New Zeland couldnt take France to ICJ, either, because France hadnt submitted to its jurisdiction. This can happen if: Treaty that has a clause to subject it to the ICJ There is a special agreement with regard to particular dispute The situation falls within the conditions of a particular states agreement under Article 36-2 of the ICJ.

Realist would point to this case to show that the parties acted as they would have had international bodies not been involved. France just helped itself save face. Rainbow Warrior case: Demonstrates the intense messiness of international law. Difficult to discern how to go about pursuing case, what venue, and whether to be enforced. These present real problems. Aouzou Strip States Border-treaties, rules for interpreting treaties OAU --> ICJ Rainbow Warrior States, NGO, individual UN Charter, extraterritorial killing, immunity of state agents GATT, OECD --> UN (and a lot of bilateral negotiation), arbital tribunals Victory (initially) for NZ --> no one wins; mixed outcome ?? - France paid damages, BUT didn't enforce sentences of individuals in contradiction of the agreement

x Claimants Norms Arenas

Outcome Effectiveness (was outcome observed?) Legitimacy

Victory for Chad YES

? - African nations ok with colonial lines, but what

about people in the Aouzou strip??

Part 2. Sources of International Law

Statute of the International Court of Justice, Article 38
-Describes the law that the ICJ (the UNs principal judicial organ) should apply to resolve disputes (its the traditional starting point for understanding how international law works); the Ct. shall apply: a) rules of intl conventions which are expressly recognized by the contesting states (this includes treaties) b) international custom c) general principles of law recognized by civilized nations d) soft law - judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law 35 ***NOTE: Order is not a formal hierarchy but is nonetheless suggestive. - Treaties, general principles, and custom are given prominence. The remaining are really secondary, and should be used really as evidence of what is or isnt, a rule of intl behavior. Similar to a domestic lawyer citing a law review article

I. Treaties
o Vienna Convention on the Law of Treaties (1969): o Art. 2, Definition: "Treaty" means an international agreement, conducted between States, in written form and governed by international law.

NOTE: treaties are only binding upon parties who sign the agreement through a negotiating process.

Art. 3 International Agreements Not Within the Scope of the Present Convention: Although the Convention doesn't cover other types of international agreements (e.g. those conducted between states and other subjects of international law, like non-state entities), that does not affect the legal force of such agreements.

A unilateral statement by a state can be legally binding o ICJ says look at the states intent, and you do NOT need reliance on a statement for it to be legally binding. The key factor is whether the declaring state intended to create a legal obligation or induce reliance on the part of other States. So now, when a state makes a statement they often make clear it is not legally binding. Ex when France announced the termination of atmospheric nuclear testing it was held to be legally binding.


o Advantages of using treaties to determine law:
o o o Consent is relatively easy to determine In most cases, treaties reflect the formal consent of the parties Treaties are more familiar to more people, so decisions based on treaties are more likely to result in compliance. Treaties have text that can be consulted; they are recorded and available in an immediate form for everybody (in a way that customary law is not). Charles Lipson: Treaties (because formal) raise the political costs of noncompliance, and so are distinguished and have values beyond informal agreements.

o Why do states observe treaties?

International legal system does not have an enforcement mechanism for treaties. BUT, almost all nations observe almost all of their international obligations almost all of the time (Henkin). Why?
o Realists: Discount treaties, say that countries only follow treaties for shit they were going to do anyway. Institutionalists: Accept some of realists premises, but argue that states nevertheless have powerful incentives to enter into treaties. o o Draw on game theory, reputational costs, etc.

A violation of a treaty has higher/bigger repercussions than other agreements o They raise the political costs of noncompliance Though, some states dont have much to lose when breaking them

o o

Possibly retaliation The national reputation is affect they are seen as untrustworthy and deceitful

There is a reputational loss by signing and breaking a treaty


Instrument covering the rules governing treaties. Serves as sort of the basic background rules for treaties, and is a treaty itself. NOTE: ONLY applies to treaties between statesa treaty between, e.g., the United Nations and states is not governed by the Vienna Convention.
o Vienna Convention on the Law of Treaties (1969): o Art. 2, Definition: "Treaty" means an international agreement, conducted between States, in written form and governed by international law. o Art. 3, International Agreements Not Within the Scope of the Present Convention: Although the Convention doesn't cover other types of international agreements (e.g. those conducted between states and other subjects of international law, like non-state entities), that does not affect the legal force of such agreements. o Art. 6, Capacity of States to Conduct Treaties Each State has the capacity to conclude treaties

o Art. 7, Full Powers [of people representing a state] (capacity)

(1) A person is considered as representing a state if: (a) he produces appropriate full powers or, (b) it appears from the practice of the states concerned that they intended to empower them. (2) The following are considered representative of a State even if they dont produce full powers: (a) Heads of State, Heads of Government and Ministers of Foreign Affairs; OR (b) Representatives accredited by Statesfor the purpose of adopting the text of a treaty. Art. 8: Subsequent Confirmation of an Act Performed Without Authorization: If a treaty is conducted by an unauthorized person, it doesn't go into effect unless the state confirms it. Art 20 (Acceptance of and Objection to Reservations): (1) Reservations expressly authorized by a treaty do not require any subsequent acceptance unless the treaty so provides. (2) If, because there's a limited number of negotiating States and the purpose and object of the treaty is that it must be applied in its entirety, a reservation requires acceptance of all members. (3) If a treaty is a constituent instrument of an international body, a reservation requires acceptance of the competent organ of that organization unless otherwise provided for; (4) In cases not falling under the preceding paragraphs, and unless the treaty provides otherwise: (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States; (b) (OBJECTIONS TO RESERVATIONS DO NOT PRECLUDE THE TREATY FROM ENTERING INTO FORCE UNLESS THE OBJECTING PARTY EXPLICITY SAYS SO): an objection by another concerning State to a reservation DOES NOT preclude entry into force of a treaty as between the objecting and reserving state UNLESS a contrary intention is definitely expressed by the objecting State; (c) an act expressing a States consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. Art. 21 (Legal effects of reservations and objections to reservations): Reservation modifies for the reserving State the treaty and modifies the provisions to the same extent for the other party/parties in its relations with the reserving State.

Art. 42: Validity and Continuance in Force of Treaties: (1) Validity of a treaty or the consent of a state to be bound by it may be impeached only through the application of the present Convention. (2) Termination, suspension, denunciation or withdrawal from a treaty may take place only through the application of provisions within the treaty itself or within the present Convention. o Article 45: Loss of a Right to Invoke a Ground for Invalidating, Terminating, Withdrawing from or Suspending the Operation of a Treaty A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under Articles 46-50, or 60 and 62 if, after becoming aware of the facts, it: (a) Expressly agrees that the treaty is valid/remains in force, or, (b) by reason of its conduct, must have been considered to have acquiesced in the validity of the treaty or its maintainence in force or operation. o Article 56: Denunciation of or Withdrawla from a Treaty Containing No Provision Regarding Termination, Denunciation, or Withdrawal: A treaty is not subject to withdrawal or denunciation unless it contains a provision that allows for it, the parties establish it, or it can be implied. o Article 60: Termination or Suspension of the Operation of a Treaty as a Result of its Breach (1) Bilateral treaties: A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as grounds for termination. (2) Multilateral treaties: (a) A material breach of a multilateral treaty by one of the parties entitles the other parties BY UNANIMOUS AGREEMENT to suspend the treaty in whole or in part or to terminate it either (i) in relation to the breaching party or (ii) between all parties. (b) Party specifically affected by the breach can invoke it to suspend the operation of the treaty in whole/part or in relation to the breaching state. (c) Party other than the defaulting state can use it to suspend operation of the treaty with respect to itself if the breach "radically changes the position of every party." (3) What constitutes a material breach (a) Repudiation of the treaty not sanctioned by the present Convention;; (b) violation of a provision essential to the accomplishment or the object/purpose of the treaties. o

(5) Does not apply to humanitarian treaties. Paragraphs 1-3 DO NOT apply to provisions relating to the protection of the human persons contained in treaties of humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. o Article 64Effect of new general norms of international law on treaties: If a new preemptory norm of general international law emerges, any existing treaty that is in conflict with that norm becomes void and is terminated. ***NOTES: o Treaty Termination: Three types: mutual termination, withdrawal, material breach.

if a State terminates a treaty, but then later finds out it was wrong, then it has breached!

UNITED STATES IS NOT A PARTY TO VIENNA CONVENTION ON TREATIES: The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties. the executive branch has said its the authoritative guide to current treaty law and practice


o Background: For most of its history, Cyprus was occupied by a foreign power (Turkey Great Britain). In 1960, 80% of the population was Greek Cypriot, and 18% was Turkish Cypriot. Before independence, both groups sought selfdetermination, with the Greek Cypriots wanting Cyprus and the Turkish Cypriots wanting a partition of Cyprus. o Treaty of Guarantee: o Signatories were Greece, Turkey, Britain and Cyprus. Gave Cyprus its independence, and a constitutional structure that balanced power between Greeks and Turks on the island. o Under the Treaty, Cyprus agreed to ensure "respect for its Constitution" and to eschew any activity tending to promote union with any other country or partition. The other signatories agreed to "recognize and guarantee the independence, territorial integrity and security of the Republic of Cyprus. o Art. IV gave each power "the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty

Cypriot objections to Treaty of Guarantee o Said that treaty, as interpreted by Turkey, could be construed to permit military intervention. This is a problem because: It would violate fundamental norms of international law, including principles of sovereign equality and non-use of force in international relations Any treaty obligation inconsistent with UN Charter Article 103s prohibition on the use of force would violate Article 103 of the UN Charter, which provides that UN Charter prevails over any other international agreement. Article 103:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Said treaty was coerced and imposed on Cyprus, and that they had no choice but to accept treaties that were unequal, inequitable, and unjust. Turkish invasion: o Coup in Cyprus put into power a leader who wanted to unite with Greece, Turkey invades, relied on Treaty of Guarantee to justify it. Argument about Treaty Termination: CYPRUS CLAIMS: Turkey breached the treaty by using unauthorized force; this constitutes withdrawal: o Vienna Convention Article 56: Says that without a termination clause a treaty cannot be withdrawn from unless its established that the parties intended to admit withdrawal or right to withdraw can be implied by the nature of the treaty. Hard case to make in this case that there was an explicit/implicit termination clause. BUT: o Vienna Convention Article 60: Says that a material breach by one party entitles the other to withdraw. Part 5 says that this doesnt apply to humanitarian treaties; Turkey tries to claim this is one of those. o

Invalidating Treaties: Coercion and Consent

Vienna Convention on the Law of Treties o Article 51: Coercion of a Representative of a State Expression of a States consent to be bound by a treaty that has been procured by the coercion either of the representative through acts or threats directed against him shall be without legal effect. o Very narrow interpretation

Usually must be gun to the head/afraid of life Unequal bargaining power is not a valid ground

There is always pressure and repercussions not valid grounds o Article 52: Coercion of a State by the Threat or Use of Force Treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodies in the Charter of the UN. o NOTE: Usually the threat of force must be unapproved

Ex 1995 Bosnia, Croatia, and US sit down to hammer out a treat, and then the US dropped some bombs w/ Security Councils coercion!

Ex NATO bombs Serbia to stop attacks, did NOT get ok for UN Sec. Council this would be a violation of Art. 52. economic and political pressure was purposely left out.

A state usually has to claim the invalidity of a treaty rather soon, but Art. 51 & 52 can be raised at any time.

HOW IS A TREATY INTERPRETED Why is coercion under Art. 51 and 52 of Vienna Convetion on Treaties
interpreted so narrow? Article 31 says to interpret treaties by how parties have performed/interpreted treaties in the past, and parties have interpreted coercion to be very limited to invalidate a treaty. o Art. 31 (interpretation):

Text look at the text in the context and in accord with the object and purpose of the T Look at agreements between the parties What was their intent? What was the purpose of the T?

Subsequent practice w/o protest a party may acquiesce if one State interprets it one way but the other state doesnt protest o Art. 32 (supplementary means of interpretation): If interpretive means in Art. 31 fail, recourse can be had to supplementary means of interpretation, including preparatory work on the treaty and the circumstances of its conclusion. - Note: preparatory work is down the list b/c states change their mind, and the words are not included for a reason! Jus cogens o Article 53 Law of Treaties: Violations of jus cogens norms: Treaties are void if, at the time of their conclusion, they conflict with a preemptory norm of general international law (jus cogens norms).

There are certain norms of intl law a Treaty simply cant violate. States are often leery of this idea, b/c it constrains their govt with unnamed norms that they dont even know about which can invalidate a treaty. Ex 2 states agree/consent to intrude a 3rd state o ALSO, slavery, genocide, torture Ratner: This is overused as a way to invalidate Treaties, so be careful when using this defense.

III. Customary International Law

Art. 38 of the Statute of the ICJ: o Includes "international custom, as evidence of a general practice accepted as law "state practice out of a sense of legal obligation." So you have two prongs: 1. State practice (objective) Essentially requires a comprehensive look at what states have done and said in the past (a huge area to explore) 2. Opinio juris : A belief that an act was carried out because of a legal obligation. (subjective)

So, you need to be doing it because you feel legally obligated to do it. You can't just be doing it because of reciprocity or whatever. How to you show this? o Rely on written evidence often scholarly o Diplomatic correspondence, military manuals, or even newspaper accounts.

In theory, usage or repeated state acts become custom over time, as divergent practices of various states converge and achieve a level of uniformity, consistency, and regularity that in turn generates a sense of legal obligation (opinio juris). Getting out of evolving customs: o If a state wants to get out of an evolving custom, they must express their objection; otherwise they are deemed to have consented

Newly founded states are subject to all customary international law up to that point. The general presumption is that, for global custom, silence in the face of an emerging custom means acceptance of a new rule

Custom as a source of law is s signal of strength and flexibility for intl law it allows intl legal actor to informally develop rules of behavior, without the necessity of resorting to more formal and difficult means of law making

The Paquete Habana (Supreme Court, 1900) United States naval squadron seizes two Cuban fishing vessels off the coast of Cuba and wants to keep them as prizes of war. Court holds that international law is part of our law, and where there is no treaty, we need to refer to the customs/usages of civilized nations. Says that it is an established rule of international law today (not in 1789) that fishing vessels are exempt from capture as a prize of war. International law also applies because the President issued a proclamation holding it desirable to conduct the war in a way that's consistent with international principles. Emphasizes state practice to determine international law.

NOTE: If we're just inferring opinio juris from state practice, which is what the
Supreme Court in Paquete Habana did, why bother making it a separate prong? Is the doctrine nonsense, because you're just relying on objective state practice? One theory: This whole notion of opinio juris is garbage, because states are only going to stuff when they get reciprocal benefits anyway. Court does say that there was a time when ships didn't fuck with shipping vessels out of a sense of comity, not out of obligation. But, how do they know that? Maybe attaching opinio juris prong allows us to distinguish the things from where states are acting in their self-interest States might do things because they see things in their selfinterest but want cover for it, or might not want to do things that are in their self-interest, and need opinio juris to fill that gap.

History: o During colonial era, international law supported the dominance of the developed world over the developing world. So, countries would directly invest in developing countries but these countries would see little, if any, of the money.

Post WWII, relationship changed dramatically. Developing states began to expropriate resources that were owned by other countries. Question is whether they need to compensate, and if so, how much. General Assembly resolutions regarding expropriations: o Resolution 1803 (1962): Expropriation/nationalization must be based on grounds or reasons of public utility, security, or national interests; these are seen as overriding purely individual or private interest. o

Owner shall be paid appropriate compensation in accordance with the rules in force in the country doing the expropriating.

If there is a controversy, the national jurisdiction of the state where the expropriation took place must be exhausted. Resolution 3171 (1973): "Strongly reaffirms" inalienable rights of states to permanent sovereignty over all their natural resources.

Affirms the application of the principle of nationalization that implies that each state is entitled to determine the amount of possible compensation and the mode of payment. o Resolution 3281 (1974): Each state has the right to nationalize, expropriate, or transfer ownership, but appropriate compensation must be paid in accordance with the laws and regulations the State "considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed upon by all States involved that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means. NOTES ON GENERAL ASSEMBLY RESOLUTIONS: o All say you can expropriate. o 1803 says state can determine it "in accordance with international law," whereas 3171 and 3281 do not have any reference to international law. o Also, have a shift towards domestic tribunals as a method of resolving these disputes--international adjudication or arbitration in 1803, but domestic tribunals in 3281. o Given these differences, how do you determine which are customary international law and which aren't? (Of course, you'd want to look to other stuff too, but let's just assume that this is everything we've got).

Arbitrations and the use of General Assembly resolutions to determine customary international law
In the two cases that follow, international arbitrators apply customary international law to determine the standard of compensation to be paid for the expropriation of foreign enterprises. In attempting to identify the relevant customary norms, the arbitrators consider, among other things, the UN General Assembly resolutions above: o Interlocutory Award in Case Concerning SEDCO, INC, v. National Iranian Oil Company and Islamic Republic of Iran (Iran-United States Claims Tribunal, 1986) Iranian government expropriated numerous foreign enterprises after the Islamic Revolution. Among these was the interest owned by SEDCO, a subsidiary of a U.S. corporation, in a drilling company. US and Iran agreed to resolve this and other commercial disputes through arbitration before a special arbitral panel. SEDCO: wants full compensation, including future earnings. Iran: says that customary law tells us that appropriate compensation must be measured with reference to the circumstances. Notes that customary international law pre-WWII was that compensation equivalent to the full value of the property taken should be given; only since then has it been challenged. Admits that there has been some debate as to whether the UN General Assembly Resolutions have eroded the customary international law standard that full compensation should apply. But, says that even those who argued that it eroded the standard say that it did so for formal, systematic nationalizations, NOT, as here, when theyre expropriating a discrete industry. So, concludes that under customary international law, a discrete expropriation of alien property must be offered full compensation. CRITIQUE: This is absurdhow can they say what the vast majority of countries implicitly said was no longer their law constitutes customary international law?

Award on the Merits in Dispute Between Texaco Overseas Petroleum Company and the Government of the Libyan Arab Republic (1978) Libya nationalized oil interests and properties in Libya of nine international oil companies. Libya denies there is any arbitral dispute, but ICJ appoints a sole arbitrator anyway, who opines on the effect of General Assembly resolutions on customary international law.

Arbitration dispute in front of the ICJ arbitrator. Arbitrator looks to the history of the UN Resolutions. For Resolutions 3171 and 3281, there were misgiving recorded by developed countries on the operative parts that leave it to the states to decide what is appropriate compensation. BUTsince 1803 received broader support (both from developed and developing countries), it trumps the other two. Opines that the absence of any binding force of the resolutions of the General Assembly implies that such resolutions must be accepted by the members of the UN to be legally binding.

NOTE: Post-these cases, how do you determine which resolutions manifest customary international law and which dont? Arguably, later General Assembly resolutions will be ever-more reflective of the current time it is. Also, as you go later in time, more countries tend to sign onto it.

BUTas the Libyan dispute said, you dont want to just look at the sheer number of countries signing onto it, you want to look at what kind of countries are signing onto it as well. But why, for example, should the 16 industrialized countries get to decide stuff? o One argument is that, at least in this context, they have far more at stakethey are always going to be the ones that invest in other countries. Because theres a huge split between developed countries on the one hand and developing countries on the other, its not fair to say that those with a particular interest get to dictate what governs. And with Resolution 3281 you dont have that, because there arent enough states from different interest groups signed onto it. o BUTeven if 3281 isnt necessarily customary international law, why doesnt that at least suggest that 1803 isnt either? At least theres a number of states that have moved away from 1803 to suggest that its not customary international law either. One could say that its not, because there werent enough developing countries signed onto 1803.

Alternatively, one could say that we need something, so if we havent succeeded in

changing a previous custom, that custom still stands (seems to be, perhaps, what the Libya arbitrator was getting at).

POSTSCRIPT: Investors didn't want to invest in developing countries because of the uncertainty of customary international law. Then the states figured out that, whatever their stance in the General Assembly, they actually wanted investment. So, since the 1970s, we've had a flowering of bilateral investment treaties. These are between one state and another state, and largely parallel each other by specifying the substantive norms for where expropriation is possible. o Treaties, of course, will not always work out problemsthey rely on consent, after all. But they can serve to fill gaps.

Inherent Difficulties in Defining Custom Study by the Red Cross - A huge study on the content of customary state humanitarian law o Previously, there was 4 General Counsel resolutions and 2 A.P. which were all universally ratified o BUT, lots of rules of IHL (Intl Humanitarian law) are not included, so the ICRC wanted to put together a comprehensive study of customary IHL, to say what states can do in an armed conflict. - In the article, its not really clear whether you have to prove opinio juris depending on how consistent the practice is o In the end, ICRC comes up w/ 100s of customary rules - The US was concerned w/ the methodology 1. What constituted state practice? 2. Opinio juris. o First, US is concerned about the ICRC using military manuals as evidence of state practice rather, the US says look at actual state practice US argues, how can you determine the level of authoritativeness of military manuals when we arent sure even who made them (captain, liet, president, military commander?) Also, just because it is written in a manual, doesnt mean thats the practice Not to mention, we dont even know if what is in the manuals b/c of opinio juris (that is, who says states put things in military manuals out of a sense of legal obligation to conform w/ customary intl law?) o BUT, does it really make more sense to look at actual practice as the US argues? First, its difficult to really know whats going on during warfare

Second, 95% of the countries never use war, so how could we ever tell what they think the customary laws are. This is a shortcoming of using soley state practice to try and show a customary intl law. US also concerned with whos practice should we look at o US argues lets just look at States who use force Well, the US uses more force than anyone else, wouldnt their practices than dictate customary law in this regards What about the states w/ manuals, but never are engaged in war?

****This shows a difficulty in determining how much weight you give to specially affected states, compared to those who just use words (manuals but no force) o The balance between all these factors is why Treaties are preferred US also concerned w/ opinio juris o just b/c a State signed a Treaty doesnt mean they are codifying a custom Ratner: absolutely right ****Just b/c 2 states sign a treaty doesnt mean they are required to act in a certain way in the absence of a Treaty

Soft Law
Formally, soft law is not legally binding o Ex G.A. Resolutions o Administrative decisions of intl organizations o Codes of conduct for an industry o Previous judicial decisions whether from intl tribunals or domestic courts NO STARE DECISIS! HOWEVER, intl tribunals almost invariably follow their precedents, especially procedural issues. But it should not be assumed intl courts have to follow precedent. Scholars approach to binding or not? Hard v. soft -3 factors 1. How precise is the instrument 2. How authoritative a. The more states that view the instruments as a legitimate process and reflective of their conduct, the more its viewed as binding to them 3. Are the instruments subject to enforcement mechanisms? Soft law tries to change normative expectations without creating binding instruments o Tries to do so gradually o Soft law tries to find similar grounds parties agree on

The hope is that the guidelines harden over a matter of time through practice/custom And hopefully, over time, there will be consequences for not complying w/ the guidelines But at the same time, market forces will go there way

World Bank creating soft law about compensation for expropriation - Problem: the world bank wanted to come up w/ non-binding guidelines about compensation for expropriation o They focused solely on state practice o Goal: come up w/ a proposal accepted by all states AND further the goal to encourage FDI And hopefully over time receive broad acceptance in practice, leading to customary intl law - Remember the two competing views here o Developed countries lets use international law US Hull Formula prompt, adequate, and effective compensation o South strictly national law should apply Could the WB just accepted the US views? o NO, the WBs goal is to find a balance/compromise. The US tends to gets its way in Treaties, so it cant be the worlds view Also, the WB wants to further standards, not just resuscitate existing views Wouldnt US views promote FDI?

Developing countries may not feel comfortable, want something that reflects there views so they actually want FDI What about letting the market handle it? o If the South wants FDI, they will comply w/ the North views, so North doesnt invest there money somewhere else So why does the WB even get involved? o The WB probably views it as a service to its members and representatives a lot of its reps are developing countries They want to give the developing world some way to act cohesively and to give them some bargaining power How does the solution differ from the US view? o It starts off by saying the investor country is entitled to appropriate compensation It then states: If its adequate, effective and prompt, then its appropriate

***NOTE: this is NOT saying, its only if ifs a, e, + p, then appropriate It is leaving area for exceptions o Exceptions when compensation is appropriate even though its not adequate, effective, and prompt 1. Exceptional circumstances specifically, if you dont have money Then you can pay in installments 2. Large scale nationalization a. NOTE: in these situations, this is almost ALL cases! These are the exact cases the US insisted on using the Hull formula! Also noteworthy, paragraphs 3, 4, and 5 give an economic meaning to adequate compensation o Hardening a very vague standard

Critiques of the solution o Even though its followed by states, its not law, therefore we wont recognize it This can always be the argument against soft law Did the WB accomplish their goals? - The WB wanted states to look at the document, recognize the WB as an organization, and hoped the states practice would eventually gravitate to the new standards o At least, they wanted states to begin speaking a common language and give a definition to tossed-about terms. o Also, it could possibly lead to Treaties being entered into w/ this type of language, even though they might not be the use - ***The US would still be delighted to adopt the WB standards over the status quo if they are signing a new Treaty o Developing countries lose the argument they cant pay anything - ***Also, if the WB guidelines are looked at when drafting a Treaty they reduce transaction/arguing time, and so each time states dont have to reinvent the wheel - Critiques o Redundant (its just a restatement of what we already know) o Unnecessary (the market will solve it) - Really though, we arent sure if the WB accomplished its goals yet. The intl field is sill changing and it will take time regardless.


Traditional Actors - States the notion they possess unique authority and control over territory is the foundation for their predominant role in international law - International organizations they start as an agent of the states that create them (usually via treaty), but can come to take an identity separate from the member states - NGOs usually entities based on shared agendas - all actors, are in a sense, the results of decisions by individuals to combine their talents in different spheres and for various purposes - Why study treatment of these participants as a discrete subject, rather than the substantive norms they agree upon 1. The norms resulting from law making very much reflect who is involved in the law making 2. International law has rules as to which entities are entitled to take part in different stages of the legal process 3. Its important to know who has rights and duties 4. The implementation of norms depends upon the different roles played by various actors

Krasner: international legal sovereignty a state is state b/c of the recognition by other states o It gives them a ticket of general admission to the intl arena o States can make treaties with each other o Positivist view intl law is based on the consent of States, thus if a State is recognized by others, then can do what a state does Orthodox international law o States were the only entities that could enjoy full international legal personality meaning that they could create AND be the direct subject of international legal obligations. It is very advantageous to be recognized as a State o States have special rights, privileges, and duties. o Can sign treaties o Only states are eligible to become members of intl organizations (may want to check this) o Greater influence on intl stage o Only states can declare/prescribe war o Control immigration

A states ruler can enhance his standing just by being seen with other leaders part of the UN or shaking hands w/ the President of the US

Formation Processes 1. Decolonization independence from colonial empires 2. Secession one territory breaks off from another 3. Dissolution one state dissolves into two 4. Merger two states become one 5. Peace treaties new states emerge from peace settlements (ex East Europe after WWI)

1. How do we know a State Exists???

According to the Montevideo Convention, a state exists when there is a permanent population in a defined territory with a government and it has the capacity to enter into relations with other states. However, in reality, these requirements are interpreted quite flexibly, and often times in the absence of one of these requirements a state is often not deprived of their statehood. Black letter - Requisites of Statehood - From the 1933 Montevideo Convention on Rights and Duties of States a. Permanent Population b. A defined territory c. Government d. Capacity to enter into relations with other states - Although it has been criticized, the dominant view is that this remains the customary intl law standard of statehood. - Note: these are interpreted quite flexibly o What if you lose one of these traits? usually its govt Almost always the state is still consider an occupied nation ex where govt is weak and has no control we still recognize/pretend they are a Statewhy? o negative consequences mischevious actors taking advantage people traveling become Stateless? Fighting over territory There are lots of instances where a border is in question, or the govt is weak defined territory still recognizes States w/ unknown boundaries (e.g. Israel)

Even when govts collapse, no state has claimed that the collapse of central govt control (Somalia and Afghanistan) has deprived them of statehood Changes in govt do not matter E.g. Kuwait didnt lose its legal status during Iraqs occupation Maybe this shows that implicit in these rules is statehood depends on how other nations are prepared to treat a particular entity as a member of the family of nations. o Some would argue this should be a requisite to the ones above o The other extreme argues statehood is declaratory purely object Are there international law norms regarding the legitimacy of separation from states? o traditional criteria suggest statehood is about effective power. o A state exists and enjoys benefits of statehood as long as the govt enjoys effective control over the territory States have generally recognized the right of a state to defend itself against internal threats to its unity Thus, international law has a strong presumption in favor of the continuity of states On the other hand, groups w/I a state may have legitimate reasons to separate (such as repression by central govt)

2. What rights do people have to create States? Normally, secession is up to the domestic jurisdiction of the state and it is not a matter of international law. However, two limited exceptions have been recognized. - First, a de facto situation, if the state is in a time of transition. This time of transition does not become clear until the period of development is completed and a definite new situation, which is normal in respect to territorial sovereignty, has been established. - Second, secession is also up to international law if there is a continued and manifest abuse of the claimants rights that wishes to secede.

Problem Aaland Islands After WWI, the League of Nations faced a number of selfdetermination claims, including from the people of the Aland Islands, an archipelago of about 300 small islands between southern Finland and southern Sweden. Almost all the people are basically Swedish and speak Swedish. From the middle of the 17th century, islands were administered as part of Finland, which was then a part of Swedish kingdom. In early 19th century, Finland--along with the Alands--were ceded to Russia. When Finland declared independence from Russia, Alanders tried to seek reunification with Sweden. Brought claim to League of Nations, which the

entrusted a committee of jurists to determine whether the League had competence over the issue: - The League of Nations first needs to know: is this for us to decide, or is this a domestic issue?... Report of the Intl Committee of Jurists Entrusted by the League of Nations w/ task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question (1921) - Normally, secession is up to the domestic jurisdiction and is not a matter of intl law - EXCEPT 1. De facto situation if the State is during a time of transition a. The situation does not become clear until the period of development is completed and a definite new situation, which is normal in respect to territorial sovereignty, has been established. Here, Finland is definitely not a sovereign state b/c it just broke up from Russia (?) Essentially, the normal rules dont apply b/c Finland itself is in transformation (Finland is trying to secede, so how can they claim Aalanders cant?) Therefore, this is an international dispute 2. If there is a continued and manifest abuse of claimants rights (not really an issue here) So, the they give these guidelines to the Commission of Rapporteus (1921) and they find: a. Aalanders are a small fraction of Finland b. Aalanders situation isnt quite analogous to Finland trying to secede, b/c Finland was once independent, and Aalanders never have been c. Finns are not oppressing Aalanders o So, they find Aaland cant secede from Finland, the separation of a minority from the State and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees. P. 122 o HOWEVER, even though Aaland cant secede, Finns have to give Aalanders special autonomy for their culture Note: Finland doesnt mind this, they were already doing this o Commission said, if Finland doesnt follow these guidelines, then they would re-evaluate the situation (could fall under the 2nd abuse exception) Why was this opinion inevitable?

o o -

The League was just formed, and they couldnt have told one of their members to give up territory They ruled in favor of the powerful to be on the safe side

Why not let people secede if they dont want to be part of the State? o Even if there is some black letter rule for a group of people to secede, who says groups that want to secede will follow it o Also, there would be fear/chaos if everyone could/would do it

Colonies to Statehood - After WWII big change in view on self-determination (of all the people in colonies) o A right to independence o Self determination (check w/ ratner on this self-determination stuff)really, its a customary intl law norm as an implicit qualification of statehood This idea that in order for states to have any meaning and validity, they should be representative of the people. If intl law is going to give them the privileges of statehood, then the State must be supported by some form of natl consensus

UN Charter Provisions VERY protective of countries current colonies: o UN Charter Article 1: Purpose of the UN include "to develop friendly relations among people based on respect for the principle of equal rights and self-determination of peoples, and to take appropriate measures to strengthen universal peace."

o UN Charter Article 73: Says that members who assume

responsibility for the administration of territories that haven't yet achieved a "full measure of self government" must recognize the principle that the interests of inhabitants are paramount, and promote their well-being, including: (a) political, economic, social, educational advancement (b) developing self-government (c) furthering international peace and security (d) promoting constructive measures of development, encouraging research, and to cooperate with one another and with specialized international bodies with a view to the practical achievement of the goals of that article.

***NOTE: Nothing in it saying people in colonies have a right to independence

As times change, people in colonies protest and drone on the host countrys resources In turn, there was a mass independence of colonial areas

The UN Charter majority changes b/c of all the colonial areas that now became states, these states are now the majority in the UN - G.A. Res. 1514 (1960) is passed Declares that: 1. Subjugation of people is a denial of fundamental human rights 2. All people have a right to self-determination 3. Inadequacy of political, economic, social preparedness should never serve as a pretext for delaying independence 4. Armed action or repressive measures against dependant peoples must cease 5. Immediate steps should be taken to transfer power to people in the territories 6. Partial or total disruptions of national unity/territorial integrity is incompatible with purposes/principles of UN G.A. Resolution 2625, 1970.- supposed to be an authoritative interpretation of the Charter States have the duty to refrain from forcible action which deprives people of their right to self-determination Non-self-governing territories have a status separate and distinct from the territory of the State governing it None of this should be construed as impairing the territorial integrity/political unity of sovereign and independent states. o o Basically saying: You can have your own state, be fully integrated, or even and , so long as the people decide, it is ok On the other hand, if youre non-self-governing, you have a separate status

Hard question: what does the GA Res say about people that want to secede? - In the last paragraph nothing is authorized to impair/dismember a state o So technically, secession is not authorized o HOWEVER, you can secede if youre not given your full rights

This closes the door on secession except under certain circumstances

Scope of right to create a state?


We know: o If youre a colonial people (esp. post 1514) you are entitled

to independence if you want it. o If youre an existing state (the people of a state), youre entitled to self-determination o If youre a minority people within a state you cant secede, UNLESS People are deprived of their own equal rights to be part of the country The govt isnt treating all of its people in a representative way
Usually, theses exceptions have to be pretty bad, i.e. genocide

uti possidetis juris: Principle of international law that says that newly formed states should have the same borders they had before their independence. Principle was at the heart of the Aland Islands case, supra. o Right to self-determination must not involve changes to existing frontiers at the time of independence. o Big problem in Africa, because they had a bunch of colonial borders. o Organization of African Unity (1964): Argues that they need to settle , within a "distinctly African framework," all disputes between African states." o Case Concerning Frontier Dispute b/t Burkina Faso & Mali (ICJ 1986): Basically said that colonial borders had to stay for stability's sake.


History/Background Yugoslavia was an experiment in self-determination that came into being after the Allies won WWI. Many ethnic groups were combined into one Yugoslavian state. Tito came to power, and eventually Yugoslavia consisted of six republics: Serbia, Montenegro, Macedonia, Croatia, BosniaHerzegovina, and Slovenia. Only Slovenia was close to ethnically uniform. Once Tito died in 1980, nationalist sentiments grew in the republics, and ethnic groups, particularly the Serbs, yearned for selfdetermination. In 1991, both Slovenia and Croatia declared independence. Violence occurred in both countries. European Commission Response: The EC announced that it would not recognize changes of frontiers which had not been

brought about by peaceful means or agreement, set up a conference for all of the republics to negotiate, and further created the Badinter Commission, a five-person arbitration commission, to address legal questions. Macedonia and Bosnia-H subsequently declared independence. In BH, Serbs clamored for a common Yugoslav state. Lots of fighting occurred. There was uncertainty in major countries about whether to recognize new states and to what level. Two key legal questions posed by the situation:

1) Did intl law specify the criteria any new entities must meet to constitute a new state? 2) What did the formation of these entities mean for Yugoslavias status as a state?

Badinter Commission Opinion #1: (European Commission) Issue: Are the events in Yugoslavia best viewed as a secession of entities from Yugoslavia or the dissolution of the state itself? Analysis: The composition and workings of the essential organs of the Federation no longer meet the criteria of participation and representativeness inherent in a federal State. The State has proven itself powerless to control violence and enforce respect for agreements initiated by the UN and EC. the existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory i.e. it doesnt matter if other States recognize a state or not. Therefore, Yugoslavia is in a state of dissolution. Important because if it was a secession, that would mean less international legitimacy. Calling it a dissolution allows the EC to have more active involvement. Law traditionally has felt that keeping a state together trumps, but Badinter Commission allows dissolution Badinter Commission Opinion #2: o Issue: Does the Serbian population in Croatia and Bosnia-Herzogavania have the right to self-determination? o Analysis: Intl law doesnt spell out all the implications of the right to self determination. HOWEVER, Uti Possidetis Juris it is well established that the right to self determination must not involve changes to existing frontiers at the time of independence except where the States concerned agree otherwise.

the territory of the new states are determined by their pre-independence colonial borders borders between imperial domains and administrative borders w/I imperial domains But, the Serbs do have every right afforded minorities under international norms and conventions: (these arent components of self-determination, theyre separate rights) a right to recognition minority rights nationality of their choice human rights but it explicitly does NOT say a right to self determination o

Badinter Commission Opinion # 3 should the internal boundaries be regarded as frontiers internationally? o i.e. Burkina Faso/Mali ICJ opinion on border 3 objectives 1. They want borders clearly distinguished so a statement to outsiders that theres no empty land to grab. 2. Message to states: Dont go to war with your neighbor over borders (collective injustice cannot be rectified with new borders) 3. Message to internal minorities: You cant move a border to please disaffected minorities b/c there are more important things to deal with, i.e. the economy o Uti Possidetis: the territory of the new states are determined by their pre-independence colonial borders borders between imperial domains and administrative broders w/I imperial domains This is what the Badinter commission applies They say that even though this is used in decolonization, it can be applied to the break-up of a state. Critique of Uti Possidetis: These borders were drew over a century ago w/ no regard to the will of the people and little regard for preexisting boundaries of tribal or ethnic entities The Badinter commission says that even though Uti Possidetis was originally applied in settling decolonization issues, the ICJ in the Burkina Faso/Mali case recognized it as a general principal Is this right? o Trying to avoid more powerful countries taking land

Internal borders served a purpose, but upon dissolution isnt it appropriate to make new borders? o Ratner: this sends the wrong message to Slovenia, Macedonia, Croatiait tells them they will have internationally recognized borders when they do secede (encourages secession). Good argument to use representing a state on an exam wanting to secede!!! o Also, if were really having a de facto situation, maybe its time to adjust the borders to encourage long term peace Ratner: Badinter Commission and UN Security Council took this off the table, which was a mistake b/c they could have renegotiated the bordersthey gave up on Yugoslavia too soon. o Conflicts w/ the idea of self-determination, but is often the wisest course to avoid disruption and to preserve what has already been achieved. The alteration of existing frontiers or boundaries by force has no legal effect, boundaries may not be altered except by agreement freely arrived at. o

We get an actual Supreme Court (of Canada) opinion addressing legality of unilateral secession under intl law (and Canadian Constitution) Two types of self-determination: 1. The right of self-determination is normally fulfilled through Internal self determination a peoples pursuit of its political, economic, social and cultural development w/I the framework of an existing state. 2. External which takes the form of the assertion of a right to unilateral secession a. And this is only for extreme cases and Quebec doesnt have right to external self-determination b/c theyre not persecuted/oppressed and they have rights proportionate to their population. b. P.136 Canada is a sovereign and independent state conducting itself in compliance w/ the principle of equal rights and determination of peoples and thus possessed of a government representing the whole people belonging to the territory w/o distinction.

They note: the intl law principal of self determination has evolved w/I a framework of respect for the territorial integrity of existing states. A state whose govt is representative of its people w/I its territory, and respects the principles of self-determination w/I its own internal arrangements, is entitled to the protection under intl law of its territorial integrity Crees: indigenous people in Quebec o Worried about Quebecs secession and their subsequent rights and representation o They want to be a party of the bigger, more diverse Canada; minority groups do NOT do well in new ethnically homogenous states historically o Crees say theyre not a Quebec people Views of English and French speaking Quebecers are quite distant The Crees are on to something here They are saying, look, if you make us Quebecers, youre deny our right to self-determination, b/c were not Quebecers, were Canadian people, and we have the right by the right of self-determination. However, Canadian Supreme Court declined to decide the claims of the Crees b/c of its holding that Quebec lacked a unilateral right to secede


Potential arguments that can be made on behalf of a group that wants to secede (note the difference between secession and dissolution, though easier case for dissolution a la Yugoslavia, but even then youre going to run into the problem of the hesitance to break up large chunks of territory into smaller chunks of territory): Self determination argument BUTthose General Assembly resolutions with language like all people have a right to self-determination were made in the decolonization context; not clear how they apply outside of it. If youre being oppressed, much better chance of getting own state (contrast Aland, Canada, Bosnia) If youve got predetermined borders (especially within a dissolving state), much easier to make the argument.

International Organizations
A. Why do states create international organizations?

a. Governments and other international actors perceived a need to engage in some institutionalized form of cooperation. b. Jacobson: i. Federalism the expansion of the territorial domain of political authority 1. Benefits must outweigh costs govt is giving up some of its autonomy to achieve some purpose that can only be gained by aggregating authority ii. Functionalism 1. Govts pressured by citizens so they can take advantage of technological developments 2. The technological developments bring people closer together and increase material welfare iii. Theory of public goods 1. Groups need to organize to ensure wide participation in pursuit of common goals e.g. to enforce sanctions


Organization of the Structure and Decision-Making Processes of International Organizations: Constitutive instruments: International organizations are usually the product of treaties, though some (notably the Organization for Security and Cooperation in Europe) are the products of political instruments. These instruments describe: membership policies; powers of the organization; roles for different organs, and; decision-making procedures. Assembly of Members: International organizations typically have one organ that includes all members. These bodies are entrusted with broad policy questions as well as structural matters. E.g. General Assembly in UN. Specialized and Executive Organs: Members of an international organization often establish entities composed of less than the entire membership to carry out particular functions: E.g: Security Council, Economic and Social Council, Trusteeship Council in UN. Secretariat: Because member states cannot undertake all the work required for an organization to function, each has a professional staff, headed by a secretary-general, director, or the equivalent. They do stuff like prepare public reports, administer financial assistance programs to states, and mediating disputes

between government. It essentially gives the international organization a life of its own beyond the member states. NOTE ON IMF: The Articles of Agreement of the IMF allocates votes based on each states financial contribution to the IMF.

Legal personality of international organizations: Reparations for Injuries Suffered in the Service of the United Nations (149 I.C.J. 174) UN sent a mediator to Israel in 1948 in the hopes of achieving a cease-fire; mediator was blown up in his car and Jewish extremists were suspected. In traditional international law, a state whose national is injured in the territory of another state has the right to bring a claim for damages. Question here is whether the UN has the same right; UN asks ICJ for an advisory opinion. ICJ says, yeah, it has the right. UN exercises functions (given to it by states) that can only be explained "on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane" Thus, the UN is an international person--NOT the same as a state, but a subject to international law and one that has the capacity to bring international claims. Also, it must be able to bring claims against a member that has wronged it on its own accord. Furthermore, an agent of the UN should be able to get protection through the UN--if he has to rely on his own state, that can compromise his independence. UN essentially thus has international legal personalitythe capacity to sue member states and enter into international agreements. Positioned itself as an actor on the global stage. Structures and Decision making Processes of Intl Organizations Usually organized along two axes Breadth of participation from regional to global Issues they have a mandate - from specialized to those w/ a mandate to consider all issues Ex global and general: UN Breadth of power differs Can serve merely as a fora for dialogue, or can have decisionmaking powers that bind their members Influence and power is a function of the mechanisms for making decisions, and the effect of those decisions upon states Smaller organs = faster decisions (ex GA, 191 members v. Security Council)

Some orgs give more voting power based on financial contribution


Security Council is the only mechanism of the UN (absent ICJ in some cases) that has binding resolutions, but if you get the General Assembly riled up enough, that does have an effect on the way that the international community acts. E.g, with Israel: General Assembly resolutions have an effect on the way that countries treat Israel, though of course the Security Council takes a more measured approach. o Tension between efficacy and legitimacy: Security Council is more efficient, but General Assembly is seen as more legitimate. UN ORGANS: General Assembly: Every state, every state has one vote. Not authorized to make binding decisions, but can make decisions that represent the conscience of the international community and can be cited to make international law. Sometimes, they are just statements of policy Sometimes, they may be evidence of opinio juris, especially in the cases where everyone agrees on a unanimous vote. Problem is if trying to establish a customary law make sure that you still show State practice! Security Council: 5 permanent members, 10 non-permanent members. Has the authority to issue binding decisions under Chapter 7. So, when you see the UN acting under Chapter 7, those decisions are binding. ICJ: Then you have ICJ, which is the adjudicatory body. But, oftentimes the security council undertakes a lot of those functions Secretariat: Basically UN civil service


PARTS OF THE CHARTER EMPOWERING THE SECURITY COUNCIL: Chapter VII of the United Nations Charter sets out the UN Security Council's powers to maintain peace. It allows the Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace and security". Article 5 Suspension of membership: Says how a member state can be suspended from membership; requires approval of Security Council. Article 23 Structure of Security Council:

Security Council shall consist of 15 members. China, France, USSR, Great Britain, and US are the permanent members; 10 non-permanent members are elected by the General Assembly for a two-year term. Article 24 Security Council has primary responsibility for promoting/maintaining international peace and security: Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that the Security Council acts on their behalf. Article 25 Members agree to accept/carry out Security Council decisions: Members of UN agree to accept and carry out decisions of the Security Council. o *****NOTE: INSTANTLY OBLIGATORY! Article 27 Procedural matters of the Security Council: Procedural matters in Security Council need 9 votes; decisions on all other matters need 9 votes with all 5 permanent members concurring. Article 103: In the event of a conflict between the obligations of the Members of the UN under the present charter and their obligations under any other intl agreement, their obligations under the present Charter shall prevail. o ****Sec. Council decisions are SUPREME.

PARTS OF THE CHARTER PROMOTING INTERNATIONAL ECONOMIC AND SOCIAL COOPERATION: Article 55 With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based for respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: (a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 56 All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55. Article 60 Responsibility for the discharge of the functions of the Organization set forth in this Chapter shall be vested in the General Assembly and, under the authority of the General Assembly in the Economic and Social Council, which shall have for this purpose all the powers set forth in Chapter X.

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

Created by UN Charter Consists of 15 judges of different nationalities, elected by the General Assembly and Security Council for nine-year renewable terms. o Informally, theres always at least one judge from each permanent Security Council country. o In cases where a national of a litigating party is not on the court, the party may appoint an ad hoc judge. Hears two kinds of cases: 1) advisory proceedings, where it provides nonbinding but authoritative answers in response to questions posed to it by the UN 2) continuous cases between states that are parties to the Statute. Security Council has the power to enforce the ICJs decision.

IMPORTANT: ICJ can ONLY hear cases where the states have
consented in advance to its jurisdiction. Ratification of the UN Charter doesnt cut it. Jurisdiction can be granted in three ways: o Cases arising from treaties to which both states are parties that provide for settlement of treaties in the ICJ o Cases arising from a special agreement of the parties to send a dispute to the ICJ o Cases covered by declarations given by both parties in which they accept the compulsory jurisdiction of the ICJ.

Increasingly, specialized tribunals, such as the WTO and human rights courts, have played an important role.


Apartheid in South Africa the system of racial separation and discrimination as a matter of govt policy from 1948 until abolition in early 1990s. Led to denial of basic human rights to the black population, which was 90% of the population. Entire communities were completely wiped out. apartheid violated the United Nations Charter and the Universal Declaration of Human Rights insistence that states respect human rights without distinction as to race. Sparked a series of General Assembly and Security Council Resolutions, though General Assembly Resolutions are nonbinding.

South Africa maintained its diplomatic relations with many states and was/is a member of the United Nations. As a result of the basic consensus to abolish apartheid among East and West, the UN was able to engage in a sustained and proactive policy of placing pressure on the SA govt. Apartheid expressly violated UN Charter. So the UNs work was an effort by its members to secure the compliance of SA w/ one of the most basic norms of intl law.

GENERAL ASSEMBLY RESOLUTIONS: General Assembly Resolution 616 B (1952)Very mild and general
condemnation of human rights abuses o Invokes Article 56 of UN Charter: "all members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55" Article 55 includes: (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion). General Assembly Resolution 1761 (1962)Directed at South Africa, uses stronger language, and requests that members take certain action against South Africa. Requests member states to take the following measures in conformity with the UN Charter: (a) break off diplomatic relations with South Africa (b) Close their ports to all vessels flying the South African flag (c) Enact legislation prohibiting ships from entering South African ports (d) Boycotting all South African goods and refraining from exporting goods, including arms and ammunition, to South Africa (e) Refusing landing and passage facilities to aircraft belonging to the Government of South Africa


Security Council Resolution 134 (1960)explicitly calls out South Africa for causing international friction; still kind of soft and vague though. After a massacre of black protesters by South African government officials, there's a Security Council resolution that: o Recognizes that the situation in South Africa is one that has led to international friction and might endanger international peace and security o Deplores the loss of life o Calls upon government of South Africa to initiate measures aimed at bringing about racial harmony. NOTE: South Africa objects because it says that Article 2(7) prevents the UN from intervening in matters which are within the domestic jurisdiction of the state. Security Council Resolution 181 (1963)

Adopts a resolution saying that it is "convinced" the situation in South Africa is seriously disturbing international peace and security, "calls upon" the government to abandon its policy of apartheid, and "solemnly calls upon" all states to cease the sale and shipment of arms, ammunition of all types, and military vehicles to South Africa. o NOTE: US only supports this resolution because it says the language keeps it outside of Chapter VII, which it says is appropriate only to "a fully matured threat to, or breach of, the peace." Security Council Resolution 418 (1977) Passes a binding decision (unlike before) that says that there is an arms embargo on South Africa.

In Sum
The UN has the power to make intl law instantly obligatory (Art. 25) and Supreme (Art. 23) Was the S.A. episode a success for intl law??? o Within the UN we saw legal argumentation taking place within a political forum o The law made a difference. Triumphant?...maybe not But South Africa was NOT kicked out of the UN so not a complete defeat for intl law. Two unanswered questions o Do permanent 5 have too much influence??? w/ their right to veto??? They were voting for the principal that it is better to have a global body and to have S.A. We want one place in the world for all states, no matter how obnoxious they are. o Is there a disconnect b/t the UN speaking w/ two voices? The GA and the Sec. Council? Really, their mechanisms and voices supplement each other, and even influence each other. Cynical view: the G.A. is just a talk show and things dont get done until Security Council takes action.but really, this is kind of right.

Term of art used to describe groups of individuals united to advocate a particular agenda on the domestic or intl stage.
Not all human rights NGOS, you have business NGOs, religious NGOs that don't necessarily advance Western liberal ideas of tolerance, you might have issue-specific NGOsetc. They participate in the international process informally, necessarily (as in Rainbow Warrior) and formally. Operate in various ways, go to centers of power, lobby, create civil disturbances in some cases, and also do aid with the money of their own members in some cases.

Traditionally, intl lawyers thought only states enjoyed rights and duties directly under intl law that States alone created law, they created it for each other, and all intl actors were mere objects of the law. o HOWEVER, non-states have always made claims under intl law and states have choosingly endorsed many of them. Why should NGOs be allowed to participate in intl law making? What do they add? 1. Expertise 2. Recognition of Influence a. Ex make intl conferences they participate in more transparent by attracting media attention 3. They represent views that governments dont a. Ex plants and animals cant vote! 4. Future enforcement o Concerns:

Who is funding them? Are they legit (i.e. really public spirited) or just a front for a company?
A state worries about their presence b/c even if they are legit, they are not the ones who agreed to the WTO. Perhaps the most worrying problem: Oversightthe potential that a powerful secretariat can hijack an agenda or misuse donor funds without suffering any real restraints from its membership or from governmental actors

NGOs now take positions in intl legal arenas they dont always have to lobby their own govt to take such positions


The population is booming. To highlight the issue the UN convened in 1994 at the International Conference on Population and Development (ICPD) at Cairo. Third conference in a series of seven world conferences by UN to provide a forum for govts to meet and discuss some of the worlds most pressing problems. In addition, United Nations accredited various NGOs to the conferences, the participatory rights of the NGOs varied at each conference. Each conference had a lot of preparatory work where govts, intl orgs, and NGOs met to argue out differences and draft documents. o UN Charter: Art. 71: Authorizes the ECOSOC (Economic and Social Council)to make suitable arrangements for consultation with NGOs. o In determining whether or not to grant consultative status to an NGO, the UNs ECOSOC requires the NGO to: Have a democratic decision making mechanism

Major portion of funds should come from national affiliates, individual members, or other non-governmental components. Also considered Transparency Value of Information EXPERTISE o Problem: some NGOs simply have a moral stance (ex planned parenthood)

NGO role in Cairo NGOs played a major role in the preparatory proceedings, but were meant to be present only as observers. o Womens NGOs proved very influential and very busy, and became direct participants. So did the Holy See (supreme organ of Catholic Church). not legally a state, but has diplomatic relations w/ over 100 states, has status in intl orgs, and has signed treaties. (even listed as a State at ICPD)

Programme of Action The product of the Conference. Focused on the promotion of womens rights in the form of equality, abuse, and right to control fertility. It left abortion as a national issue.

e.Broader Effect Since the Conference, NGO participation in international law-making fora has accelerated, as they now routinely observe and participate in major international and regional conferences, lobbying governments behind the scenes. o At the conclusion of ICPD, two new women chapters were included in the Programme of Action, and by 2006 population experts were attributing a greater than expected decline in fertility rates to the Programme of Action. Follow up conference some NGOs w/ consultative status automatically accredited.

Participatory Rights of NGOs at ICPD How do you decide to call on which NGOs? 1. Sources of Funding 2. Structure/Representativeness/decision making 3. Transparency 4. Value of information expertise

Accountability of NGOs
A. NGOs now routinely observe and participate in major intl & regional conferences, lobbying govts behind the scenes B. Their influence extends well beyond conferences preparing political documents to more direct forms of law making a. Ex 1200 NGOs from 60 countries lobbied govts intensively in 1990s to enact a global prohibition on land mines. After endorsement by the Red Cross, in 2006 the Landmines Treaty with 154 parties was signed which prohibits production or use of landmines. C. NGOs also play active role in the judicial process a. Represent people before tribunals D. Have demonstrated the ability to disrupt law-making processes instituted by governments a. Ex got 30 rich govts to abandon a Mulitlateral Agreement on Investment protecting them from discriminatory practices of foreign investment by obtaining a confidential copy of the agreement, posting it on the internet, and lobbied against it E. Critical question: w/ increased power of NGOs, what is the appropriate level of participation of these entities in the intl legal process? a. Less consensus NGOs should be accepted as representatives of a state i. b/c of vastly different constituencies and relationships w/ constituencies. b. The chances are the best information comes from NGOs w/ the most money WEST i. At world conferences do we really want MORE voices coming from the West??? F. Director, Global Trade Watch: a. What holds coalition together? i. Philosophy and members are all affected b. Money comes from members, and foundational funding (other orgs who believe in their purpose) c. They are accountable to their members d. Oversight by members i. Not by checkbooks, theyll just stop being members G. Spiro, NGOs and the Unregulated Marketplace a. there is an actual marketplace for NGOs. Competition among them will eliminate excess. Or if some get to big more specialized NGOs will come in. b. also, possible targets of NGOs might buy them off corporations, govt??

c. if an NGO is large enough, and companies dont want to oppose them, complying w/ the NGO can lead to a new intl norm i. ex Greenpeace not letting shell oil dump old oil rigs at the bottom of the ocean. Essentially, no one wants to deal w/ repercussions of Greenpeace so it has turned into an intl norm. Critical Considerations - How much do we want NGOs involved in the intl legal process? o Governments usually push NGOs to the margins But some are certainly welcome o Less civilized countries are the most suspicious of NGOs b/c they are worried about controlling them.especially domestic NGOs. Do NGOs exacerbate the North/South separation??? o NGOs are still subject to economic inequality due to their sources of funding o Really, allowing the more credible NGOs to the table in national conferences is bringing more Northern voices to the table!

*The economic power of business enterprises (including their ability to provide or withhold funds to politicians seeking election) has given them great influence over govt policy on intl issues. Two examinations of Corporations 1. To what extent are they a Target of intl law? That is, how does intl law regulate corporations? a. We know intl law can be directed at States, but can intl law be directed at Corps? 2. To what extent are they a source of intl law? How do they participate in making of a treaty and how do they make their own roles?


International scrutiny of the apparel industry began to change as NGOs in both developing and developed countries began to mobilize intl attention to the issue. Corporate activity has long been a subject for regulation by intl law. Treaties between states on trade directly affect the way companies do business, as do many other agreements. Also, intl law has often relied on law making to regulate corporate treatment of employees.

ILO Intl Labor Organization the oldest regime specifically governing employment conditions. o GOAL: develop intl standards for works to avoid a situation where each state would cut back on worker protections in order to make exports more competitive the race to the bottom. Convention Concerning Occupational Safety and Health and the Working environment (ILO Treaty 1981) Art. 4 each member shall review a coherent natl policy on occupational safety, occupational health and the working environment. Art. 8 each member shall, by laws or regulations,take such steps as may be necessary to give effect to Art. 4 NOTE: this is a Treaty between States directed at States. o THUS, it is binding upon States, and the obligation is upon the State. o As an intl lawyer for the workers, it does you no good unless the state itself passes and enforces worker protection laws. So, does Nike have to pay attention to the Treaty even? o If depends if 1) the corporation has operations in the States that are binding with the Treaty, and 2) if the State is a party, is that State enforcing the Treaty??? o Intl Lawyers role To ignore treaties entered into would be at your own risk. A corporate lawery may make location decisions depending on 1) whether the State is a party to the Treaty, and 2) whether that State is enforcing the treaty.

Workers and NGOs didnt give up getting intl law regulating corps. They switched venues to the OECD Organization for Economic Cooperation and Development organization of 30 economically wealthy states. OECD Guidelines for Multinational Enterprises (2000) not a legally binding agreement. Even though its not legally binding, the fact that it comes from the wealthy states makes it about the best possible soft law as you can get. o Ex govts might possibly use it as a basis of legislation. Enterprises should this was an attempt to put a soft law obligation directly on the corporation. THOUGH, the document is very helpful in pointed out violators to possibly influence the intl community

Additionally, NGOs also go back to the UN. A body of 26 experts, the UN Commission on Human Rights Sub-Commission on the Promotion and Protection of Human rights.

Norms and the responsibilities of Corps. w/ regard to human rights (2003) Within their respective spheres of activity and influence, transnational corporationshave the obligation to promote, secure, respect human rights recognized by intl law and natl law. o Basically saying, if you cant fulfill your human rights duties, b/c of the countries policies, then dont have a factory there. Really, this was a very ambiguous document, and the Northern companies basically say that its not their duty to make sure human rights are respected, rather its the State.

Are codes adopted by private actors legitimate and effective? o Corporations argument: NGO codes of conduct are unrealistic/illegitimate b/c they dont take into account any corporate factors such as supply chain, therefore, Company Codes of conduct should be used All of these codes are watering down intl standards. We dont need soft law, but we need enforcement of hard law. HOWEVER, it can help workers where there is no intl standards at all. Corps in intl law making ADVANTAGES Expertise lies w/ companies, especially in technology Consensus via multiple participation (efficiency argument) Compliance more likely if the people who are going to be regulated are involved in the decision-making process. Accountability DISADVANTAGES Accountability companies responsible / respond to less people (?) Motive - self-interested parties o govts & others are self-interested too, but their more accountable b/c of more constituents Imbalance btwn north-south, industry-labor o Gives northern companies an extra voice at the table o No consumer groups either o Imbalance w/in industry large v. small ILO doesnt do this for free co. has to pay airfare, fee from ILO, etc. Big business benefits much more from this.

Intrastate Actors
o Article 27 of Vienna Convention of Law of Treaties: A state is
responsible for violations of treaties by a substate entity, regardless of the legality of the action under either the law of the substate unit or of the state as a whole.

o Massachusetts Statute: An Act Regulating Contracts with Companies Doing Business with or in Burma: o State is barred from buying goods or services from any person or business doing business with Burma. o Protests from allies: US allies, principally EU and Japan, protested the Massachusetts law from the outset, because it resulted in the exclusion from bidding of many European and Japanese companies that conducted business in Burma. Relied on the Governmental Procurement Agreement (GPA) during the Uruguay Round of WTO trade talks. Under the GPA, WTO members are supposed to ensure that governmental entities procure goods and services on a nondiscriminatory basis vis-a-vis companies of the other parties. o US proposed that US states (which were excluded from a predecessor agreement) be excluded; compromise was that 37 states (including Massachusetts) agreed to abide by it. Crosby v. National Foreign Trade Council (2000) Massachusetts statute: Prohibited state entities from buying goods or services from any person or organization who was identified as doing business with Burma. Congressional action: In 1996, Congress passed a statute that allowed the President to prohibit new investment in Burma if he found that Burma had committed large scale repression of the democratic opposition. Statute also directed the President to work to develop a comprehensive strategy to promote democracy and human rights in Burma. President Clinton finds that Burma repressed democratic opposition, and bars new investment in Burma. HELD: Massachusetts law is pre-empted. Congress intended the federal act to provide the President with flexible and effective authority over economic sanctions.

President is thus acting at the apex of his power (according to Youngstown analysis), and it seems implausible that Congress would have empowered the president if his effectiveness in shaping policy towards Burma could be complicated by state ordinances. President was to steer a middle ground towards Burma sanction it but also promote democracy. The Massachusetts law is not saved by the fact that it had a similar goal in mindthe fact of a common end hardly neutralizes conflicting means. Nor was it saved by the fact that Congress did not explicitly preempt state statutesCongressional silence, court says, is at best ambiguous. NOTE: Crosby is framed in terms of obstacle preemptionbut the obstacle appears to be that Congress wanted the President to occupy the field in terms of policies and sanctions towards Burma, so the dichotomy comes apart in a way.

American International Association v, Garamendi (Supreme Court

2003) Clinton administration reached an agreement with European companies/governments that they would set up foundations to pay out Holocaust survivors. Executive agreed to "use best efforts" to convince states and localities to use these as the way of paying out Holocaust victims. California has a "Holocaust Victim Insurance Relief Act," which requires any insurer doing business in California to disclose information about policies sold in Europe between 1920 and 1945. Majority (Souter) Sufficiently clear conflict to require a preemption of the California law. This is something that the President has power to do, and California has taken a different tack by requiring regulatory sanctions to compel disclosure and payment. Has used an "iron fist" where the President has chosen kid gloves. Even if the iron fist might be a better idea for getting them to pay Holocaust victims, it might conflict with other aspects of foreign policy. Cites Burma case--this is one of those delicate foreign policy balances. Preempts the California law based on the implied dormant foreign affairs power of the President. Dissent (Ginsburg--weirdly with Stevens, Scalia, and Thomas) These deal with separate issues--California deals with regulation and disclosure, while Federal law establishes a freakin' foundation. So, no preemption.

NOTE: Potentially not even a conflict in Garamendi. One could say (like Souter) that the executive has chosen a middle path to deal with Holocaust claims, but its possible to comply with bothall the California statute requires is that insurance companies disclose what they did. IF the California statute, for example, enabled litigation claims on these outstanding policies, there would be some question of whether the executive agreement trumps it. But there is no such provision in the California statute, so where does the Court get off preempting this? Hakimi: I am outraged by this. This is not a statute or a treatyits some executive agreement. Why not require the President to take some sort of domestic action to make clear what the federal interest is?

NY banned purchasing from South Africa o US DOJ said state and local anti-apartheid law did not conflict w/ any federal laws or Commerce Clause o Zschernig the Court will scrutinize state statutes to determine whether such statutes have a direct impact on foreign relations Court struck down an Oregon law because it had a direct impact on foreign relations and may well adversely affect the power of the central govt to deal w/ those problems. o The Court will balance the degree to which the statute intrudes on foreign affairs against the degree to which the exercise of the state power falls w/I traditional state powers. How should a court resolve a conflict between an intra-state and the Federal/executive power o Obviously, if there is a intra-state statute, Federal legislature preempts by

Supremacy Clause tough decisions is when it is an intra-state statute and executive action 1. Look to the degree of interference 2. Look to the States prerogative

Part 4: International Law in Domestic Legal Systems: The United States

Making International Agreements In the United States
o Monists: International law is automatically part of a state's domestic legal
system, and international law is superior to domestic law (as constitution is superior to a statute) in the case of conflict. Think that international law determines the status of international law in the domestic legal system. o State does not have to take any subsequent action for international law to be binding domestic law. o Dualists: See international law and domestic law as governing different issues: international law governs relations among states, while domestic law governs relations between a state and its citizens. Think that domestic law determines the status of international law in domestic legal system. o State has to take some subsequent action to implement international law domestically.


TAKEAWAY: EU COMMUNITY LAW CONFERS RIGHTS ON INDIVIDUALS IN MEMBER STATESEVEN IF DOMESTIC LAW IS LATER IN TIME. Individuals could rely upon treaty provisions in national courts Intl law creates private rights for individuals, even if a States constitution says otherwise. o Ven Gend en Loose v. Nederlandse Administratie Der Belastingen
(European Court of Justice, 1963) Held that the Rome Treaty has direct application within the territory of a Member State; individuals can rely on treaty provisions in national courts. o Costa v. Ente Nazionale per l'Energia Ellettrica (European Court of Justice, 1964) o Customer and shareholder in a power company challenged an Italian law nationalizing the electric industry; claimed it was inconsistent with the Italian Constitution and the Rome Treaty. Italy's argument was that the domestic law trumped the Rome Treaty under the "last in time" rule. ECJ holds it does not, holding that the creation of the European Economic Community meant that the member states from that point forward had limited their rights and what they could do. o Later opinions expanded these principles:

First, court applied the direct effects principle not only in cases where an individual invokes Community law against a member state (the "vertical" dimension) but also to cases where Community law is invoked by one individual against another (the "horizontal" dimension). Second, court applied the principle not only in the context of treaty law but in the context of secondary community legislation, such as directives and decisions.


U.S. has at least three different methods to enter into international agreements:

Treaties: Art. II gives President the power to make treaties, by and with the advice and consent of the Senate w/ a 2/3 vote. Congressional-Executive Agreements: Executive Branch enters into agreements with either the prior authorization or with subsequent approval of both Houses of Congress

Sole Executive Agreements: Agreements without Congressional participation, made on the basis of inherent constitutional authority. Question: does the Constitution limit which form to enter into a Treaty must be used???

Missouri v. Holland (1920): Issue whether a Treaty can provide a

Constitutional foundation for a statute, when the statute itself was already found unconstitutional? US and Britain (Canada) had entered into a treaty to protect migratory birds. Secretary of Agriculture issued directives to states to enforce the treaty. Suit claimed that treaty was violating 10th Amendment rights and infringing on state sovereignty. Court assumes the statute would be unconstitutional if it wasnt passed in the scope of a treaty, but allows it anyway. 10th Amendment is going to apply differently when treaties are involved. Constitutional source for Missouri v . Holland? Court suggests that the language implies that the Federal government can do stuff through treaties that is not allowed otherwise in the Constitution. Where does this come from? Potential arguments: Potentially, the "under the authority" language in the Supremacy Clause (Art. VI) gives them that power: all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. Also, perhaps the authority comes from the treaty power itself although to say that the Federal government alone can make

treaties does not mean it can make treaties on anything it wants. Potentially some kind of necessary and proper clause power that is like a broad commerce power and allows the government free reign in the national arena? Limits of Missouri v. Holland? What if, say, we made a treaty that required discrimination against Jews? Friedman: Probably would be invalid. Difference is that it would trample on individual protections guaranteed by Constitution (Federal power is really expansive now, so probably a moot point today). Reid. v. Covert: Often cited for the proposition that expansive federal treaty powers cannot override individual rights.


Reid v. Covert (Supreme Court, 1957) Deals with two military wives outside the U.S. that killed their husbands. U.S. has military agreements with Britain and Japan that permits it to try these women by court-martial. Question is what obligations does the U.S have to provide these women with a right to jury trial under the Constitution? Applicable provisions: Art.III, Sec. 2: The Trial of all Crimes, except in Cases of Impeachment, shall by Jury, and such Trial shall be held in the State where said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by law have directed. Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. Plurality (Black) Rejects the notion that US can act against citizens free of the Bill of Rights. Government argues that the UCMJ can be sustained under necessary and proper clause for carrying out obligations in other countries. Executive Agreements with Japan/Britain irrelevant: no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. NOTE: Suggests that Constitution is the basis for the governments authority and therefore a restraint on its authority at all times. BUTthis seems in conflict with Curtiss-Wright, where the Court said that the

federal government has sovereignty and authority and can do things by virtue of its sovereignty that may not be part of the Constitution. Constitution is SUPREME, and it requires a jury trial--Art. III sec. 2 speaks of "all trials" and then speaks of trials not within a state. United States can only act within Constitutional authority. Harlan (concurring) Concurs, but just because it is a capital offense. Wants a more particularistic, pragmatic approach: Cites Ross (upholding statute allowing American consuls to try citizens in non-Christian nations) and Insular Cases (no jury trial is required when US is temporarily occupying territories with wholly dissimilar traditions. Sees these as suggesting that we need to take into account the particular local settings. But, capital offenses have a particular gravity that can't be overturned. Reconciling Reid v. Covert and Missouri v. Holland - When a treaty potentially runs up against specific requirements (e.g. power of the purse or the 4th Amendment) then governments power can be constrained, but the more ambiguous nature of the 10th Amendment does not constrain it. o In Missouri v. Holland, the treaty was butting against the 10th A which is vague and really doesnt specify what the govt can and cant do. However, in Reid v. Covert both the 5th and 6th Amendments are very clear, and the violations of these were very clear! - Treaties that fly in the face of the Bill of Rights will fail.


Arguments regarding the legality of Congressional-Executive

agreements generally: Arguments against Congressional-Executive agreements: The 2/3 concurrence needed in the Senate provides a structural control that you dont have when both houses of Congress just sign on. Arguments for Congressional-Executive agreements: Art. II does provide a mechanism for treaties, but it doesnt provide an exclusive mechanism Structurally, its not clear that 2/3 of the Senate is better of more democratic than both houses of Congress Historical perspective: As a matter of historical practice, the US government has used Art. II treaties for certain kinds of

agreementse.g. human rights, arms control, etc, while Congressional-Executive agreements have been used for other types of agreements, like commerce. How do we identify what international agreements need to go through Art. II treaty process and which dont? One argument: Anything that Congress can do on their own should be able to go through CongressionalExecutive process. BUTeven if there are limits to what Congress can do on its own, why shouldnt Presidents foreign affairs power authority to be able to fill the gaps? Maybe a combination of Presidents foreign affairs powers and the necessary-and-proper clause? Another argument: If you accept that historical practice should have an effect on the constitutionality of something, maybe that gives us guidance. Interchangeable with treaties? Restatement (Third) of Foreign Relations Law thinks that Congressional-Executive agreements can be used as an alternative to the treaty process in every instance. Tribe: Argued against this on the Senate floor, arguing that state sovereignty concerns find special protection in the Treaty clause because the Senate is the only body that represents states as states. Clinton Administration's Response to Tribe: Says this kind of stuff has always been decided by the various branches of government working in concert with each other; this stuff is more fluid, especially given that foreign commerce can be regulated either through the Treaty Clause or through the Foreign Commerce Clause. If they are the same, do they have the same scope? E.g, does Congress get the same additional powers through Congressional-Executive agreements as they do through treaties (as in Missouri v. Holland?) If its based on independent Congressional power, how the hell does that work? Self-execution? Last-in-time rule?


First President Bush got fast track authority from the US Congress. Under "fast track" legislation, now called "trade promotion authority," Congress authorizes the President to negotiate trade agreements with other nations; agreements and implementing legislation are then submitted to Congress under an accelerated timetable that limits floor debate and the ability to introduce amendments.
Made in the USA Foundation v. United States (N.D. Ala. 1999) Question is whether NAFTA is constitutional, because it was

entered into by congressional-executive agreement (concluded by the President with both houses of Congress passing by a majority vote). The plaintiffs argue that this must be concluded as a treaty. Government's claim is that the President negotiated the agreement through the fast-track procedure given to him by Congress in two trade acts. This is Constitutional because Congress has the power to regulate foreign commerce. Court holds NAFTA constitutional because there is no specific limiting language in the Treaty Clause, so the Foreign Commerce power of Congress is "at least concurrent" with the Treaty Clause power. ***NOTE: The substance of this particular argument cuts in favor of Congress being able to pass it through a simple majority vote of both houses. Congress could pass this legislation anyway through its foreign commerce power, so if they can do it without NAFTA in existence, why cant they do it with NAFTA in existence?
Made in USA Foundation v. United States (11th Circuit, 2001) Declined to decide the case, holding that it is a non-justiceable political

question. Cites Goldwater , finds a lack of clear textual standards to judge the authority that is granted by the Constitution. Does not say that they'll never look at this stuff, just says that in the context of international commercial agreements (where there is a lack of judicially manageable standards AND Congress has constitutionallyenumerated power to regulate commerce) it's a dead letter.


Dames & Moore v. Regan (Supreme Court, 1981) o During Iranian hostage crisis, Carter issues an order authorizing judicial proceedings against Iran. Those orders allowed for the entry of a prejudgment attachment of Iranian assets, but not a final judgment. Dames & Moore filed suit against Iran and got a pre-judgment attachment. After the hostage crisis is over, Carter terminates legal proceedings against Iran,

and Reagan confirms it. Question is whether they had the authority to do so. o Court more or less applies Jackson's three boxes from Youngstown, but notes that it 's more of a spectrum than boxes. Court COULD NOT find specific statute that conferred on President the authority to suspend private claims against Iran pending in US courts. Still, basically decides it's OK because International Emergency Economic Powers Act (IEEPA )allows President to "nullify " or "transfer" any property in which foreign country has any interest, and Hostage Act provides that president can use means he thinks are necessary to effectuate a release of American hostages. This isn't dispositive, but Congress has a history of allowing President to settle claims by executive agreement-passed a law to that effect dealing with Yugoslavia in 1979 and continues to amend it. Narrow holding: It's incident to the resolution of a major foreign policy dispute between US and another country, and they can say that Congress acquiesced. Not clear what the limit of Presidential authority is here. It's generally accepted that he has it in the particular context of claim settlement. No question that the court here was concerned with the major foreign policy crisis at hand. But it's also the case that, as a general matter, when you're setting up major international institutions, the President shouldn't be able to act on it alone. So the court here is trying to step out of the way to let the President resolve a major foreign policy crisis, but this sort of pushes at the boundaries of the President's authority here.

CRITIQUE: Professor Koh: this approach "elevates the president's power from the twilight zone Jackson's category two to its height in Jackson's category one"--essentially interprets silence as consent. Congressional Weakness o Congress has delegated expansive authority to the executive on issues of foreign affairs and so it would be hesitant to try and take back that authority, that is why it is rare for the congress to stand up and strongly oppose. Hakimi says that Congress is relying on its institutional incompetence. o So, post Dames & Moore, how could Congress act in the zone of twilight (category 2) to control the executive?

Bluntly? Could withdraw support, funding, explicitly take back authority. Legislative response? If, for example, a senator was uncomfortable with executive use of IEEPA, could look at history and formulate a legislative response to limit the use.

Hierarchies of Law in the U.S.

What happens if a states domestic law conflicts with its international legal obligations? A. OVERVIEW
International law: o Article 27 of Vienna Convention Law of Treaties: A state "may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

But, while this goes to the international law, the domestic law may be different.

U.S. Constitution: Silent on the issue of what happens when there is a conflict between a treaty and a statute (according to the Supremacy Clause, both are the supreme law of the land). o In treaty context, the Supreme Court has long applied the later in time rule. However, because a statute trumping a treaty would still result in an interference with international legal obligations, the Court has been reluctant to construe statutes as being in conflict with treaties if any other construction exists. (Charming Betsy canon of construction).


Article 36 of the Vienna Convention on Consular Relations: Requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest.

Breard v. Greene, The Republic of Paraguay v. Gilmore (Supreme Court, 1998) First ICJ action against the United States for noncompliance with the Vienna Convention on Consular Relations. Breard did not raise Vienna Convention claims at trial, on appeal, or in state habeas proceedings, and testified at his own trial that he had committed murder but did so under the influence of a satanic curse. Paraguay filed suit in the ICJ, ICJ issued a determination indicating that "the United States should take all measures at its disposal to ensure that Breard is not executed prior to the final decision of these proceedings. Both Breard and Paraguay sought relief from Supreme Court. Court rules against Breard for two separate reasons:

o 1) Supreme Court holds that the Vienna Convention itself says

that it "shall be exercised in conformity with the laws and regulations of the receiving State," and in the US, assertions of error in criminal proceedings have to be raised in state court to form the basis for relief in habeas. 2) In any case, although treaties are the supreme law of the land, Vienna Convention was at least partially superseded by a Congressional statute, and accordingly, the last in time rule. The Antiterrorism and Effective Death Penalty Act, which provides that a habeas prisoner alleging that he is held in violation of "treaties of the United States" will not be afforded an evidentiary hearing if "he has failed to develop a factual basis of the claim in State court proceedings."

***AFTERMATH: Breard executed later that evening, Paraguay drops suit. LAGRAND (ICJ)
LaGrand case (ICJ,2001) Karl and Walter LaGrand, German nationals, were arrested, not informed of Vienna Consular notification rights, and executed. Basically same fact pattern as Breard except Germany brought ICJ action. o ICJ found that failure to notify the LaGrands of the Vienna Convention rights violated US obligations under the treaty. Said that the "procedural default rule" prevented the US from "attaching any legal significance" to the treaty violation, and therefore, the application of the procedural default rule itself violated the Vienna Convention. o Also said that, for the first time, an order indicating provisional measures is binding and created a legal obligation for the United States. USs actions of simply forwarding the ICJ decision to Arizonas governor, stating to the Supreme Court that an ICJ order wasnt binding, and Supreme Courts rejection of a stay constituted a failure by the U.S. components to take all the steps they could have taken to give effect to the Courts order.

Case Concerning Avena and Other Mexican Nationals (Mexico v. US), 2004 In 2003, ICJ granted Mexicos request for provisional measures and ordered the US to take all measures necessary to prevent the executions of three Mexican nationals who were at risk of execution in the coming months. In 2004, ICJ issued its ruling:

HOLDING: In almost every case the US breached its treaty obligations by failing to inform Mexican detainees of their rights and for failing to inform consular officials of the arrest. REMEDIES: The Ct. discussed remedies: -Remedy should consist in an obligation on the US to permit review and reconsideration of these nationals cases by the US courts with a view to ascertaining whether in each case the violation of Article 36 . . . caused actual prejudice to the defendant.. 301

Avena had dramatic and substantial effect in several cases that were proceeding through U.S. courts. E.gOklahoma judge recognized that Vienna Convention treaty is binding, and stayed an execution


Sanchez-Llamas v. Oregon (Supreme Court, 2006)

Article 36 consular relations case; Honduran guy wasn't informed of his rights. (NOTE: Difference between this and Medellin is that Sanchez-Llamas was not one of the Mexican nationals in the Avena decision). Accused didnt raise it at trial or on direct appeal. General federal habeas rule is that a defendant who fails to raise a claim is prohibited from raising it on collateral reviewProcedural default rule. But the accused says that the ICJ has interpreted the Vienna Convention to preclude the application of procedural default rules to Article 36 claims. ICJ says that the United States has to provide review and reconsideration, including on habeas, where it fails to provide notification to consuls. Majority (Roberts): Procedural default rule applies even in Article 36 cases, for both functional and technical reasons: Functional: ICJ decisions don't even have binding force as to precedent, and treaties are enforced by the countries they are in, not by some court out there. Cites Article 36s clear instruction that Article 36 rights shall be exercised in conformity with the laws and regulations of the receiving State. Technical: ICJ, as an international court, gets only respectful consideration due to an interpretation of an international agreement. Although the treaty is the supreme law of the land, US gets to determine what it means under domestic law. ICJs decision doesnt make sense in an adversarial system where stuff has to be raised by partiessaid that denying Article 36 violations because of procedural default prevented courts from giving them full effect. But, the procedural default rule prevents any otherwise tenable legal doctrines from getting full effect if not raised as well.

Breyer (dissent): Says we can interpret the ICJ ordinarily and in conjunction. The treaty is meant t be implemented in conjunction with the implementing country's rules, but it can't do so in a way that would completely strip the treaty of force. Where the failure to raise it at trial or on appeal was because of the fault of the US to notify, and only in those cases would we have to have a review that would undermine the procedural default rule. If the cause is defense counsel's own incompetence, we don't have to provide review or reconsideration. But when the cause is shown to be the US's failure itself, then we have to do it. Says Vienna Convention is widely assumed to be self-executing, and that means that US courts, when faced with a habeas petition relying on the Vienna Convention, are faced with a legal rule that is the supreme law of the land.

What does it mean for a treaty to be non-self-executing? Medellin: Court says that non-self-execution means a treaty has no domestic effect. This means that while a non-enforceable treaty might be binding federal law in terms of how U.S. conducts foreign policy, it is not domestically enforceable law. How can this be? It's one thing to say that a law doesn't provide a private cause of action. It's another thing to say that it's not law. How can it be law if it's not judicially enforceable? Even if you read it a different way, how can it be any less than the supreme law of the land? One argument: The supremacy clause provides a mechanism for government to make treaties the supreme law of the land if it so chooses. E.g, Congress now could have passed a statute saying that all courts had to give effect to the ICJs decisions in consular detention cases. But it doesnt have to.

Statutory background to Medellin

Article 36 of the Vienna Convention: Requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention: Provides that disputes arising out of the interpretation or application of the Vienna Convention "shall lie within the compulsory jurisdiction of the International Court of Justice. US withdrew from this in March, 2005.

Article 94 of UN Charter: Each member undertakes to comply with an ICJ decision in any case to which it is a party. 94(2): Provides for explicit enforcement for noncompliance by referral to the United Nations Security Council, and for appeals to be made only by the aggrieved state (not an individual such as Medelln). ***United States had withdrawn from general jurisdiction of ICJ in 1985. *** President Bush issued a memorandum to "have state courts give effect" to this particular decision


Ex parte Jose Medellin (Court of Criminal Appeals of Texas, 2006) -Looks at President's memo, says that the President "exceeded his constitutional authority" by intruding into the independent powers for the judiciary, by stating that the United States will discharge its international obligations by having state courts give effect to the decision. o Says you can't rely on Garamendi, because there's no executive agreement here. o o

Medellin v. Texas (Supreme Court, 2008) In Avena, International Court of Justice held that, based on violations of the Vienna Convention, 51 Mexican nationals were entitled to review and reconsideration of state-court convictions & sentences. Medellin was convicted of murder in Texas and filed a writ relying on ICJ's decision. ISSUE: Is the ICJ's decision automatically binding on domestic courts? o Majority (Roberts) o Court rejects the argument that it's binding because the US agreed to submit Vienna Convention disputes to the ICJ. Although the submission to the ICJ is a grant of jurisdiction under international law, it doesn't have any domestic effect. o Thus, the only way it can be enforceable is through Article 94 of UN charter . But the Court rejects a reading of Article 94 that would make the ICJ decisions binding on U.S. courts , because it says each UN member "undertakes to comply" with the decision. o The "undertake to comply" language demonstrates political commitment, not a legal commitment. So, it's for the Senate and the President to deal withit doesn't make it legally binding upon them. It doesnt mean that ICJ decisions are going to necessarily be enforceable in domestic courts.

Further evidence that the undertakes to comply language does not mandate domestic enforcement of ICJ decisions: Article 94(2) gives a mechanism for non-compliancestates can appeal to Security Council. So, the possibility of non-compliance is assumed. o Also, ICJ statute forbids individuals from being parties to suits before the ICJthus, only states can seek its judgment. o Says President doesn't have the power to make a non-selfexecuting treaty into a self-executing one on the basis of a memorandum. Separation of powers concern--Congress authorized a different treaty. o Rejects argument that President is acting with "acquiescence" from Congress--failure to act is not the same thing as acquiescence. (CONTRASTapproach in Dames & Moore, supra. Difference may be national emergency or crisis or dealing with hostility towards the U.S. or something) o Practical concerns: Must set a baseline for non-enforceability, because otherwise Senators would essentially never know what they were ratifying. Breyer (dissent): o Presumption: Treaties are self-executing. Cites Supremacy Clause Treatiesshall be the Supreme Law of the Land. o Language of "self-execution" does not need to be in the treaty itself. o Admits that neither the Protocol nor the UN Charter bind a party as a matter of domestic law--but they CAN'T, because they're multilateral, and different countries have different ratifying rules. o Doesn't see what's inadequate about the phrase "undertakes to comply." o Would find the relevant treaty provisions self-executing for the following reasons (taken together): o Language: The language of the relevant treaties strongly supports direct judicial enforceability, at least of judgments of the kind at issue here. compulsory jurisdiction," ICJ has "binding force" logic suggests that a treaty provision providing for final and binding judgments that settl[e] treaty-based disputes is selfexecuting o Has to do with the meaning of Vienna Convention as it applies to people rights therefore judicially enforceable. Maybe Senates comfort in alternative Security Council procedures for non-compliance with ICJ is important in the context of politically critical decisions, but not in your run-of-the-mill criminal case here.

Practical considerations Were in a bunch of treaties like this, and this is going to unravel them. Other factors make judgment well-suited to judicial enforcement--Congress does not normally legislate in respect to individual cases. Does not require non-judicial activity:. To find US treaty obligations self-executing as applied to ICJ judgment does not require non-judicial activity on the part of the courts. No separation of powers concerns: Neither President or Congress has expressed concern about it.


What is the effect of the Undertake to comply language in Article 94: Roberts: Undertakes to comply language represents a political commitment, not a legal commitmentits for the Senate and the President to deal with, but it doesnt mean that its legally binding on them.

***Roberts is saying the degree of clarity needed to be Self Executing is shall be binding in domestic courts w/o the need for legislation. Breyer says there is enough clear language in Medellin just look at the Treatys language

Breyer: Whose conception of undertake to comply can we rely on? Shared conception by signatories to UN Charter makes no sense: Makes no sense to say that theres a shared conception of what undertakes to comply means, because the UN charter is a multinational treaty involving both monist and dualist systems, and monist systems never need subsequent action to domestically implement a treaty. Breyer understands that the formation

process of a T, and thinks states make a treaty with the intention that it will be binding! having to include specific language for each State undercuts the whole idea a treaty is legally binding law.
Therefore, each nation must decide for itself, under its

own system, what effect the law has: Here, the Senate and the President in no way suggested that it should not be self executing, even though they had the tools to do so at their disposal.

E.gdidnt attach a declaration saying that they didnt consider it to be self-executing. Note that for Roberts and Breyer, the position you take on whether a treaty is self-executing really depends on what you view as the background norms. Roberts thinks that there needs to be an indication in the treaty text if it is to have domestic effect; Breyer thinks that treaties are regularly made the law of the land without additional Congressional action. BUTany adoption of a presumption against selfexecution to be found in Medellin is implicit at best.

If the Vienna Convention is not itself self-executing, and if the US has given the ICJ the power to interpret the Vienna Convention, should the Vienna Convention obligation to notify necessarily be interpreted the way the ICJ interprets it, given that we have delegated that authority to the ICJ? Supreme Court interprets law domestically? Perhaps theres a distinction between the ICJs ability to interpret the law for international purposes and the Supreme Courts ability to interpret the law in the United States. But in that case, why do we always refer to the Executive Branch for the implementation of treaties? Also, theres a difference between viewing it as binding and deferring to it. ICJ decisions lack precedential effect? Argument made in the DC Circuit Court that ICJ opinions are only for the parties between them. So, if the ICJs interpretation are not binding on other states under international law, how could they possibly bind the U.S domestically?


**NOTE: The ICJ issued a binding judgment that the US consented to, and it still could NOT be enforced, even where the president wanted it to! Ramifications o Will future treaty partners make sure a self-execution clause is included? How will this affect negotiations? o Past treaties many didnt have specific language, can the president switch the interpretations now? o Pro the drafters must be explicit! o Con are we eliminating self executing treaties? the Constitution seems to provide for them.

What about the treaties we want to be self executing??? E.g. FDI we want them to be self-executing so other countries give them binding effect.


Why isnt Presidents memo asking for state courts to give effect to the decision dispositive? Garamendi: President was able to preempt the California insurance act; Medellin: Why cant President preempt Texass procedural rules? Strength of state/international considerations? One argument: Medellin seems to more fundamentally touch on state issues CRIMINAL LAW-or at least, Garamendi seems to more explicitly touch upon international agreements. Kind of agreement involved? In Medellin, the Court sees the statutes giving effect to the ICJ decisions as non-self-executing treaties. Court seems to suggest that if the President wants to give effect to a non-self-executing treaty, he cant do it unilaterallyhe has to go through Congress. In Garamendi, though, it was an executive agreement, and thus touched on executive foreign policy power. So, potentially, if the President just went to Mexico and said This is US policy instead of going through UN/Vienna convention process, the Court might give it domestic effect. Types of claims involved? Medellin Court distinguishes Garamendi by saying that Geramendi dealt with international claims. Thats completely different than displacing state law to help a foreign national, as in Medellin. HAKIMI: Ultimately, Medellin might actually be a good thing in that it constrains the Executive. Garamendi allowed President to basically have his cake and eat it too--placate international interests without going through the messy process of getting national interests on board. Medellin says he can't do both. But it is, nevertheless, difficult to square with Garamendi. Medellin: A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the Presidentacting on his ownto achieve precisely the same result.

Integration of Intl Law through the Alien Tort Claims Act

The ATS is a specific statute that explicitly opens/closes the U.S. court to international law claims.

A. Basic Framework
Alien Tort Statute (ATS) (1979) the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or of a treaty of the United States. - Rarely used for 200 years until Filartiga v. Pena-Irala. B.

History of ATS adjudication- ATS was rarely used for 200 years
until Filartiga v. Pena-Irala

Filartiga v. Pena-Irala (2nd Cir. 1980) Filartigas, citizen of Paraguay, brought action in E.D. of NY against Pena for torturing and killing Joelito Filartigas. Filartigas served Pena when he was in Brooklyn, and the complaint invoked the ATS as a basis for jurisdiction. The only issue the court decided was whether the conduct violated the law of nations? Analysis Treaty? not one specifically here Customary International Law o State Practice - the Judge never shows a consistent state practice of NOT torturing! o Opinio Juris Says there are lots of treaties banning torture, the UN Charter, UDHR, G.A. Resolutions, and State Constitutions. ***NOTE: what would the ideal document say to show opinion juris? we are not torturing b/c intl law says we cant torture Really, the analysis to find opinio juris is quite loose. Court finds the prohibition is clear and admits no distinction between treatment of aliens and citizens Aftermath:***This case sparks a number of ATS suits Tel-Oren v. Libyan Arab Republic (D.C. Cir 1984) creates a separation between jurisdiction and the cause of action. 13 PLO members took people in cars and buses traveling on Israeli highway hostage, shot them, tortured them, and murdered them. The victims filed suit in federal district court under the ATS. District Court dismissed for lack of jurisdiction. Affirmed! First, court says it is essential that there be an explicit grant of a cause of action before a private plaintiff can be allowed to enforce principles of international law in a federal court. So, since no body of law expressly grants the victims a cause of action, can a cause of action be inferred??? o NO, Separation of Powers concern concerns inherit in the field of intl relations must be taken into account. Does the federal common law automatically provide a c/a for intl law violations???

Court holds that the federal common law is something that is applied to appropriate cases, but it itself does not provide the right to ask for judicial relief. Holding: the plaintiffs need a separate cause of action, and the ATS merely grants jurisdication. o

AFTERMATH Congress responds and passes Torture Victim Protection Act (TVPA) anyone, from any nation, who tortures someone else shall be liable in a civil action. o Commentators worried this, along w/ ATS, would interfere w/ prerogatives of the executive in foreign affairs. In addition, some argued it would impose corporate liability and thus chill trade and investment w/ states that have poor records of respecting human/labor rights. Indeed, lots of suits were brought against US companies for aiding and abetting on this theory. Sosa v. Alvarez-Machain (SCOTUS 2004) what types of claims could be litigated under the ATS? We think the statute (ATS) was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject. The Court mostly shuts the door, EXCEPT for a few narrow claims, such as slavery, torture...basic intl norms. Analysis First, court says in the early years the law of nations had two elements 1. General norms governing behavior between states w/ each other occupied by the Executive and Legislative domains 2. Judicial Element regulating conduct outside domestic boundaries. HOWEVER, there is a sphere where these rules binding individuals overlaps the norms of State relationships. This is the narrow set of violations that the drafters of the ATS had in mind admitting of a judicial remedy in violations that at the same time threaten serious consequences in international affairs. 3 offenses Congress intended to be actionable when the ATS was enacted o Offenses against ambassadors, violations of safe conduct, and piracy So, the court says there must be judicial caution in recognizing a cause of action in order to decide what claims could be litigated under the ATS they must be defined w/ specificity comparable to the 3 original norms. (dissent disagrees w/ this) Why be so cautious? several reasons o Foreign Policy Implications Are there enough implications that this should be a consideration? Also, how much deference should we give to the president in this area. Also, it should depend how clear the norm is. If the norm is clear, then maybe foreign policy implications dont matter nearly as much.

Local Remedies Should be Exhausted First However, this is often not feasible for a lot of victims; courts sometimes are not open and/or fair. However, this is a general rule of intl law. Does Congress have a say? Here, Congress has never said anything does this mean it should be a broader or narrower area for the courts? Also, Congress has no right answer to which claims should be allowed. Besides, realistically they have a lot more pressing issues than this. Arguable, their inaction may show that they are fairly happy w/ the line drawn in Sosain their view, it is probably a workable line for now

Holding: Arbitrary arrest does not meet this specificity standard. BIG POLICY QUESTIONS REMAIN ABOUT THE ATS where do we want intl disputes decided - Pros o If President says it is good to do it in the US, then maybe its good! o Some intl law needs to be enforced in domestic courts? - Cons o waste of resources. C.

Case Study: Pursuing Ferdinand Marcos in U.S. Courts

The Problem Ferdinand Marcos was elected president of the Philippines in 1965 and reelected in 1969. At the time, the Constitution said he could only serve two terms. He ordered ratification of a new Constitution eliminating this limit, and he was also granted sole immunity, named himself Commander-in-chief, and directed all parts of the govt. Thousands of persons were tortured and beaten b/c of their real or apparent opposition. He also stole a shitload of money from the Philippine govt and people. In 1986, he was finally ousted, he and his family flew to Hawaii, and soon after lots of suits were brought against him in U.S. Courts. The Claims trying to be brought in U.S. Courts Trajano v. Marcos Trajano was kidnapped, interrogated, and tortured to death asking Marcos daughter a question at a forum. Brought suit for false imprisonment, kidnapping, wrongful death, and deprivation of rights. Philippine torture and summary execution victims class action (about 100,000 people) Republic of Philippines to try and recover some $1.5Billion Marcos stole from the Treasury.

Part 5: Extending the Reach of Domestic Law: Jurisdiction

I. Jurisdiction to Prescribe
o When someone speaks of a nations jurisdiction they could be referring to three different kinds of assertions: 1. Jurisdiction to prescribe (prescriptive jurisdiction): power of the nation to legislate and to make its law applicable to a certain kind of conduct 2. Adjudicative jurisdiction: power of a tribunal to decide a particular dispute 3. Jurisdiction to enforce: power to enforce both its rules and its judgments.

Five potential bases for jurisdiction over extraterritorial crimes (in descending order of acceptance): 1. Territorial, wherein jurisdiction is based on the place where the offense is committed; 2. National, wherein jurisdiction is based on the nationality of the offender; 3. Protective, wherein jurisdiction is based on whether the national interest is injured; 4. Universal, wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity. 5. Passive personal, wherein jurisdiction is based on the nationality of the victim Usually enables state to criminalize certain conduct that is criminal, and not civil.

Territoriality, nationality are the least controversial principles, it's relatively well-established that states can exercise jurisdiction if it can hook onto those two principles. The argument that territoriality/nationality is insufficient wins out, and there is thus a move to try to expand these legal principles.

Most famous decision by the Permanent Court of International Justice, the ICJs predecessor.
Lotus Case (Permanent Court of International Justice, 1928) French mail steamer (the Lotus) hits Turkish boat on high seas; kills 8

people (although French try to rescue). Lotus docks in Constantinople (this was a mistake on their part). Turkey had jurisdiction in its territory,

therefore over the boat? France had jurisdiction over boat/sailors. Some overlap. French Lieutenant arrested (pending trial) and convicted by Turkish courts. Diplomatic onslaught leads to a French/Turkish special agreement to move proceedings to Geneva to Permanent Court of Justice (precursor to ICJ).


Under the rule States are free to assert their jurisdictional competences to the absolute limit that international law allows. States are able to insist on their jurisdiction over a particular individual, matter, or transaction. Intl law is a permissive system when it comes to State jurisdiction: everything is permitted, save that which is expressly and unambiguously rejected. NOTE: several intl actors set forth a process that got this overturned.

C.Prescribing Law Based on Territorial Limits

American Banana Company v. United Fruit Company (Supreme Court, 1909) Civil action brought by one fruit company against another for restraint of trade under Sherman Act. Prohibits every contract, combination..or conspiracy, in restraint of trade or commerce. The monopolistic banana company bought the property and business of several of its previous competitors, with the provision against their resuming trade. So, the plaintiff was deprived of the use of the plantation, the railway, and the supplies. But all the acts causing the damage were done outside of the United States. Court holds that in regions with no sovereign (like the high seas) or no law that countries would recognize as adequate, countries might treat relations between their citizens as governed by the old law, and keep the notion of personal sovereignty alive. But absent that, whether an act is lawful or unlawful must be determined wholly by the law in which the act is done. "The foregoing considerations would lead, in case of doubt, to a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power. 'All legislation is prima facie territorial" Court thus limits the scope of US law to conduct that occurs in the United States. Court seems to be worried about a positive interference: if the U.S extends its law to cover other states, that undermines another states authority over its territory, and that can be an irritant in international relations.

Clearly conflicts with the Lotus case. Not only goes the other way, but does so to preserve the interests of other countries.

Extending the Reach of The Territorial Principal - States found this overly restrictive, the US and elsewhere began to replace the territorial test w/ one that examined whether foreign conduct had an effect in the forum State


Protective principle is usually used for security issuesthings like terrorism, cyber-warfare, etc.
United States v. Aluminum Co. of America (ALCOA) (2nd Circuit, 1945) Complaint charged that Aluminum (Canadian entity) had formed a cartel with German, Swiss, and British companies in order to control the world aluminum market. US charged that that constituted a violation of Sherman Act. RULE: There is extraterritorial jurisdiction to prescribe if agreement had been 1. intended to affect US imports, and 2. actually did affect them, then there is liability L. Hand concerned about effects doctrine reaching too broadly; needed a limit. Tries to impose proximate cause NOTES: How do you reconcile Alcoa with American Banana? You cant. Hand just ignores. If foreign companies could get around Sherman Act, no way for us to protect our domestic markets 1982 Sherman Act was amended to not apply extra-territorially unless such conduct has a direct, substantial, or directly foreseeable effect on trade/commerce in US. Note: OPEC has executive exemption The effects test gained wide acceptance in the US, but created friction w/ outside countries NOTE: Intl law has always recognized prescriptive jurisdiction based on actual consequences, but why does the Court add intent factor? change in intl scene. Note: congress acquiesced to this decision. This is a US CASE, interpreting a US STATUTE. It doesnt say much about international law. Other states may come up w/ a different answer (which the U.S. courts were oblivious to for 30 years).

Timberlane Lumber v. Bank of America (9th Cir. 1976) realizes Alcoa doesnt take into account other state interests. Timerlane, a US company, imported lumber into US from Central American, and wanted to establish in Honduras, however BOA conspired w/ Honduran lumber companies to driver Timberlane out of business. - Adds an additional factor to whether a state has extraterritorial jurisdiction to prescribe. 1. The agreement must have intended to effect American commerce 2. There must have been an actual effect in violation of the antitrust laws 3. Adds, international comity and fairness which is a lot of factors to be weighed a. Degree of conflict w/ foreign law b. Nationality or place of business of the parties c. The extent the enforcement can be expected to achieve compliance d. .(p.367) NOTES o The problem w/ this is whether or not is a workable standard? it seems as if a EC judge, or any judge for that matter, could apply this test very differently than a US, or other judges. A judge could always use the factors in their favor/bias. Hartford Fire Insurance v. CA (Supreme Court, 1993) the key Supreme Court modern case after the effects test, simply ask whether it is possible for the foreign actor to comply w/ both US and foreign law, if so, they must comply with both. There is a clear effect on the U.S., but clearly permissible/legal actions in the UK, but these actions may be in violation of U.S. law. Here, the question is whether US antitrust laws governed by British reinsures concerning reinsurance written by them in London, relating primarily to insurance written by companies in the US, where the British Parliament has already established a legal scheme over the London reinsurance market??? - Analysis 1. Yes, the foreign conduct was intended to have an effect on American commerc 2. Yes, the actions produced substantial effects in the US 3. Even if the reinsurers were in compliance with their own law, it doesnt bar the application of US (antitrust) law unless there is a direct conflict with US laws. a. Here, the court holds that no conflict exists if the reinsurers are to comply with both laws! So there is in fact liability, and the U.S. does in fact have the jurisdiction to prescribe over the reinsurers! Dissent

Lets use Timberlane factors and here, the UK has much more interests than the US, so it does NOT meet the test!

EUROPES RESPONSE Re Wood Pulp Cartel (ECJ 1988) upholds the extraterritorial assertion of EC competition law. - Analysis 1. First, adopts the effects test 2. Is there a direct conflict in laws? Can both laws be complied with, if so, then they need to be. - NOTE: The EC adoptes the same exact test that they balked at, the Hartford, rule it was inevitable b/c they, like the U.S., want to be able to regulate activity abroad!

Problem: Beoing-McDonnell Merger Two US airplane companies want to merge, leaving only one competitor of aircrafts in the world in Europe. The EC asserted authority to fine the new company up to 10% of its earnings b/c they found the mergers is not compatible w/ the [European] common market. Again, on July 16, 1997 antitrust regulators from all 15 EC members publically reaffirmed their opposition to the merger. In response, President Clinton threatened trade sanctions, and also the Senate and House passed resolutions denouncing the ECs unwarranted and unprecedented interference in a U.S. business transaction. What if EC applies the majority in Hartford test? o EC could say, simply dont merge and they you will be able to comply with both our laws and US laws! Under Wood Pulp, it is clear the EC had jurisdiction to regulate Boieng (and so did the U.S.) o OUTCOME: it resulted in a compromise, since it was recognized both had jurisdiction. BIG POLICY QUESTIONS Who has a better rule? Multi-factor v. the black and white True Conflict test. o There is a general sense of reasonableness in intl law, no matter which test is adopted. Yahoo Case o There was a clear conflict between French law (you could NOT post Nazi shit on the internet) and U.S. law (freedom of speech is an absolute right). o Well, there is no clear set of rules for jurisdiction, so what would be the alternative?

May a single set of worldwide antitrust laws? Or a single uniform body for decision making? Probably not possible. SO, stuck with this reasonableness standard that can be interpreted many different ways and there is no clear consensus how to interpret.


1. There is no specific rule. a. The threshold is Effects there must be effects on a country to prescribe jurisdiction. i. NOTE: even this has an exception: the universality doctrine. b. Then, it must be reasonable but how to determine this i. Timberlane factors? ii. OR Supreme Courts direct conflict test. 2. States are NOT willing to concede jurisdiction on areas they find important! a. So now, when an international lawyer sees a merger, the

drafters MUST take into account laws of more than one State.
3. Its important to note, besides jurisdiction to prescribe based on territoriality, more than one state may claim jurisdiction by more than one mechanism.

Jurisdiction to Enforce Law (Enforcement Jurisdiction)


International legal rules: Normally, when one state wants to obtain custody over a subject in another country, it files a request pursuant to an extradition treaty. Or, in the absence of an extradition treaty, it engages in a similar request and allows the transfer from one state to another. State that is being required to extradite the subject usually doesn't have obligation to hand them over. Even with an extradition treaty, they have the option of pursuing a criminal investigation and prosecuting themselves. In U.S, extradition treaties are always bilateral, and seen as selfexecuting

Takeaways from both these cases: 1) The more serious the crime, the easier it is to assert jurisdiction over them even if theyre kidnapped; 2) Complaints of violations of sovereignty are the states, not the individuals.

Attorney-General of the Government of Israel v. Eichmann (Israeli District Court, 1961)

Facts: Eichmann was a lead figure for the extermination of Jews. He fled to Argentina and lived in anonymity. In 1960, Israeli agents kidnapped Eichmann and forcibly brought him to Israel. Argentina wasnt happy they lodged a complaint with the Security Council. Holding: Ct. decides to disregard the circumstances of Eichmanns kidnapping, says that thats a foreign relations issue and not a jurisdictional issue; says that if anyone can challenge Eichmanns being tried by Israel, its Argentina, not Eichmann.

Does say that Israel should give appropriate reparations to Argentina, however, since Argentina and Israel worked out their issues there is no longer an inter-state matter!

Prosecutor v. Nikolic, Decision on Interlocutory Appeal Concerning Legality of Arrest (ICTY 2003)

Nicolic was abducted by a NATO-led stabilization force in Bosnia, acting with unknown individuals from Serbia and Montenegro. Issue was whether the ICTY could exercise personal jurisdiction over a defendant that had been kidnapped. Court rules they can. Rationale is twofold: 1) A state can set exercise jurisdiction in cases where the seriousness of the crime is good reason to set aside jurisdiction (genocide, crimes against humanity, war crimes, etc) (cites Eichmann).

NOTE: Does not address the fact that the ICTY is not a state.

2) Absent a complaint by the state whose sovereignty has been breached or in a diplomatic resolution of the breach, its easier for courts to assert jurisdiction.

Dokmonovic (ICTY): Dokmonovic entered Croatia of his own free will on the basis of his belief that he would be meeting to discuss his property in Croatia. As a result, the prosecutors ruse did not constitute a forcible abduction or kidnapping. Absent an extradition treaty, its OK to abduct somebody. Court looks at gravity of the crime, and abuse during the abduction. Also says lack of protests make it easier to assert jurisdiction. Also, who kidnaps (here, UN, not a state).

United States v. Alvarez-Machain (Supreme Court, 1992) DEA offered a reward for a Mexican citizen that the U.S. wanted to indict. (DEA had informally negotiated with Mexico, but never made a formal extradition request). Somebody kidnapped him and flew him to the U.S. Question is whether this violates a formal Extradition Treaty between U.S. and Mexico. Precedent involved: Rauscher--said that somebody extradited according to an extradition treaty could only be charged with one of the crimes under the extradition request; Ker: A defendant who is brought to the United States forcibly (but with no government action) can still be tried here. Rehnquist: If the treaty does not prohibit the abduction, then Ker applies, and there is no bar to jurisdiction here. Treaty is silent in this case Art 9 does not purport to be exclusive means of extradition Negotiation history of the treaty shows no attempt to curtail the Ker doctrine Court refuses to imply any exclusivity based on only general international law This is a matter for the Executive branch. It is a political issue. Stevens (dissent): Clearly contrary to the intent of the treaty that you can just kidnap somebody, just as it was clearly contrary to Rauscher that you could charge them with a different crime. Majority fails to distinguish between private act and someone acting in official capacity of U.S. government. NOTES:

Under Ker Fresbe doctrine, it's generally accepted that the suspect cannot raise the illegality of his detention to get around jurisdiction. The exception to that is that you can do that when it violates a selfexecuting extradition treaty. SOAlvarez-Machains argument is that 1) The US was actually involved in this case, and 2) there was discussion with Mexico. Customary international law: Alvarez-Machain argues that customary international law prohibits non-consensual abductions. Is this separate from, or complementary to, his treaty argument? Alvarez-Machain says that the treaty itself does not discuss extraterritorial abductions precisely because of the international law norms. Treaty was silent because it was based on the background norms that hold extraterritorial abduction to be prohibited. COURTS RESPONSE: Cites Raucher, an early 1800s case in which the court held that you cant prosecute somebody pursuant to an extradition treaty for something that falls outside of it. Negative space in the treaty is excluded from action. Note: The Treaty is self-executing, thus there is judicial supervision over it. Inter-American Juridical Committee of the Organization of American States: Expressed concern about Alvarez-Machain, because taken to its logical end, it could seriously undermine territorial sovereignty because it permits states to violate with impunity the territorial sovereignty of another state.

Individual rights question: One thing that can be said in favor of giving him an indivdiaul remedy is that if you don't give an individual remedy--by preventing states from prosecuting the individual they abducted--then there's really nothing to prevent states from abducting.

DIFFERENT INTERESTS AT PLAY IN THESE EXTRADITION CASES: o Individual interest o o Due process concern? State interest Has state sovereignty been violated? International interest

International law been broken? Question then becomes, how do you balance all of these? Is there a hierarchical regime?

1. Standing 2. Protest/lack of protest/consent of the state 3. Relevance of a Treaty violation 4. Defendants rights 5. Gravity of the Crime committed 6. Human Rights violation during the abduction 7. Attitude of the harboring country 8. New factor? - What happens after the abduction? is the purpose for interrogation? or criminal penalty?

United States: so long as the other states agree it is ok lack of protest or express consent

It depends on why you dont want abductions. If you dont want abductions because of state sovereignty, then, for Alvarez-Machains case, theres a strong case that there shouldnt be an individual remedy. (And, if you had Mexicos consent, of course it wouldnt matter). If you dont want abductions because of individual rights, then consent wouldnt matter, and Alvarez still doesnt get a remedy. Other countries approaches o UK the courts have discretion to decline jurisdiction. But, relevance of a treaty violation is the most important consideration, then custom, then comity. o South Africa it is mandatory to decline jurisdiction

Insulating Foreign States from Domestic Law: Sovereign Immunity

Sovereign immunity is a limit to applying law even when events take place on your territory. - This is a very old doctrine in which granted absolute immunity. Schooner v. McFadden (Supreme Court 1812) Court holds that sovereign immunity is based upon an implied waiver of jurisdiction. So yes, it applies to Frances warships that committed an offense against the US. - This is the customary international law AND the U.S. law o In fact, it is considered part of the Federal Common Law A Change in Attitudes Letter from State Department Acting Legal Advisor Jack B. Tate (1952) if we dont change to a restrictive theory it could have a negative impact on international commerce. o Was the U.S. required to go from an absolute to a restrictive theory? NO, b/c there was no opinio juris yet, NOR was there a Treaty

o o

Here, it was simply a time when the law is changing and a clear policy for the sake of American business. newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized w/ regard to sovereign or public acts of a state, but not with respect to private acts.

Notes Problem was the State Departments letter gave no definition of the distinction between private and public acts. Congress reacts and makes a clear statutory framework to implement international law! this rarely happens

Foreign Sovereign Immunities Act (1976) FSIA is the exclusive means for obtaining jurisdiction over foreign states and their instrumentalities in courts in the U.S. The statute provides that foreign states are immune from the jurisdiction of federal and state courts UNLESS one or more of the FSIAs exceptions to immunities is applicable. 1. State waives their right 2. The state is involved in commercial activity 3. Property taken in violation of intl law 4. Immovable US property 5. $$$ damages for personal injury or death 1603 Definitions A commercial activity carried on in the United States by a foreign state means commercial activity carried on by such a state and having substantial contact with the United States. a. BIG INTERPRETIVE QUESTION what does this mean? 1 and 2 are clearly recognized international law 3, 4, and 5 the US is attempting to create international law


Republic of Argentina v. Weltover (Supreme Court 1992) Argentina is supposed to pay bond-holders in the U.S. back, but they dont. - Direct Effect? o The court says the place of performance is in the United States. An immediate consequence of the defendants activity. Thus, the place to pay the bonds is the united States banks so there is in fact a direct effect. - Commercial Activity? o Court says look to the type of transaction, NOT the purpose. Here, BONDS, clearly commercial. Court thinks that if you look to the purpose of the transaction then everything will be a State activity, and well revert right back to absolute immunity. Saudi Arabia v. Nelson (Supreme Court 1993) A Saudi Arabia run hospital takes a doctor of the hospital out back and commits all kinds of onerous crimes against him.

Court doesnt even look at whether or not there is a direct effect. Court says there is no commercial activity Question though? isnt this a 1605(a)(1) case that says state immunity is waived if there is a personal injury? NO, personal injury has to take place in the U.S. o This would be contrary to the whole purpose of the FSIA, which is to get around state immunity when there is commercial activity, the purpose isnt to let in human rights claims. The international view of restrictive immunity is about commercial activity.

The Problem: An American company is trying to get its airplane back from Nigeria, even after already paying it $100,000 to get it back. - The court looks at the tort, and it is ALL in Nigeria. - The American company said this has a direct effect on the American commerce because they are supposed to get paid the money into US banks. o However, this isnt enough, this is kinda of incidental. NOTE: - Why dont we use minimum contacts like the US system for personal jurisdiction o This is unanswered

Ancient doctrine that serves a modern purpose avoiding tension between states Restrictive theory recognition that the need to avoid tension between states needs to be balanced w/ commercial needs which states are a player In light of adoption by UN on jurisdictional treaty on immunities and acceptance of restrictive theory, Custom today requires that states only grant restrictive immunity to foreign sovereigns no longer requires absolute immunity o But if a state wants to grant absolute immunity, they can do this.

What if a State gives less immunity than restrictive? o Ex - FSIA US provides for less immunity than restrictive theory provides Most States would probably feel this is in a violation of customary intl law Ratner: Probably some disagreement about this, but most states would probably say this. Not a huge amount of State protests to section 1602 of FSIA which suggests US can do this.

Though, some protests later on to amendments suggests US couldnt do it w/o violation intl law

Jurisdictional immunity is not a human rights concept its about protecting states against infringements on their dignity. o Ex there is a reluctance to say states cant afford state immunity when the state has engaged in gross human rights violations. States are not depriving other states of immunity if they commit torture Immunity is such an entrenched notion, and even though we recognize human rights, immunity is winning

Immunity is important in human rights, b/c it seems clear in intl law that the one remedy far from being realized is that a foreign victim can sue their own country in a foreign court for a human rights violation!!!! b/c of immunity.

State immunity is very solid, but the immunity of individual officials is being chipped away through intl criminal law o Eliminates immunity for officials, but continues to recognize it for the govts

Human Rights Norms And Their Enforcement


Compared to previous part of semester, where we look at things from the standpoint that states have duties to each other. o Ex if you have State A, and State B, and a person from state A claimed something against state B, the idea is that State B harmed A. But A had no recourse. o Human rights a business/traveler can have a human rights claim against States youre visiting. And you can have a claim against your own state!!! o So now, States are not the only players.


Universal Declaration of Human Rights (General Assembly Resolution, 1948) Note: not a Treaty. Now it is looked at as a statement of customary intl law

so turned into binding intl legal obligations and binding domestic obligations bill of human rights o Article 1. All human beings are born free and equal in dignity and rights .They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. o Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status... o Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. o Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. o Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. o Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. o Article 9. No one shall be subjected to arbitrary arrest, detention or exile.

CONTRAST WITH ICCPR (International Covenant on Civil and Political Rights)

Similarities: In many ways, the ICCPR closely resembles the first half of the Universal Declaration. Many of the political and civil rights in the Universal Declaration are in almost identical form in the ICCPR. Differences: o ICCPR is a formally binding treaty, not an aspirational declaration o ICCPR establishes a formal international institutionthe Human Rights Committeeto assist parties with the interpretation and implementation of the treatys provision o ICCPR and Universal Declaration differ in their approach to articulating the circumstances in which specified rights and freedoms may be properly limited. ICCPR structure is that certain rights are non-derogable 3 categories of rights (this is black letter law) Derogation there are certain circumstances in which an obligation under a treaty can be suspended. First category absolute non-derogable (2) NO DEROGATION from articles: o 6 (right to life) o 7 (ban on torture) o 8, paragraphs 1 & 2 (ban on slavery) o 11 (ban on imprisonment for debt) o 15 (ban on ex post facto crimes) o 16 (recognition as a person before the law) o 18 (freedom of thought, conscience, and religion) Two other categories o 1. Derogable rights can suspend them in a natl emergency, but if the state doesnt derogate, then they are absolute rights Ex criminal procedure rights if a state doesnt assert its right to deregate then it must provide the crim pro rights o 2. Derogable rights, but if the state does not derogate, then they are still non-absolute What is the theory that we can put all rights under one of these 3 categories? Do we want to say some human rights violations are more serious than others? Should we rank human rights and say some are more important than others?

States apparently thought this esp. w/ WWII in mind certain violations of certain human rights have resulted in more death/suffering than others. There is a sense that the derogable rights impose a special cost on states, and that we want to give the states more leeway o Banning torture/executions/slavery does not impose a cost to the state. As opposed to the other rights, they may impose a cost to the state in the state of an emergency. And w/ some rights, even in non-emergency settings the right can be derogated from Ex free speech With some rights, we let states make a judgment when a right should be derogated from b/c they have the best information. Other rights, we have a notion that it doesnt matter what is going on, no matter what a state cant derogate from the Treaty.


Background: Israel needs to stop terrorism. Primary responsibility for combating terrorist attacks within Israel lies with the General Security Service (GSS).

o 1987 Landau Report: Commissioned by the Israeli government, concludes

that GSS investigators were entitled to apply a moderate degree of physical pressure in order to elicit information required to save human lives. Methods included severe shaking, prolonged interrogation in awkward/painful positions, excessive tightening of handcuffs, and prolonged sleep deprivation.

Israeli Domestic Law Pertaining to Torture: o Article 277: Public servants shouldnt torture: A public servant who commits one of the following is liable to imprisonment for three years: (1) uses or directs the use of force or violence against a person for the purpose of extorting from him or from anyone in whom he

has an interest a confession of an offense or information relating to an offense (2) threatens any person, or directs any person to be threatened, with injury to his person or property, or to the person or property of anyone in whom he has an interest, for the purpose of extorting from him a confession of an offense or information relating to the offense. Article 34(ii): Necessity Defense: A person shall not bear criminal liability for an act which was immediately necessary in order to save a life, freedom, person, or property, be it his own or that of another, from a concrete danger of severe harm stemming from he conditions existing at the time of the act, and having no other way but to commit it.

International legal obligations:

Israel is a party to the 1991 Convention Against Torture (supra). Like most other UN human rights conventions, state parties are required to prepare periodic reports specifying the steps they are taking to give effect to the treatys provisions. Torture Convention also establishes a special committee of expertsCommittee Against Tortureto review these reports and make observations and recommendations:

Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Israel, 1994, Committee Against Torture Report by the Committee Against Torture: critical of Israels practices.

Minor physical pressure constitutes inhumane and degrading treatment and is prohibited. Israel has failed to implement the Article 1 definition of torture. The necessity defense is a violation of Article 2 and unacceptable. Calls for an immediate end to current interrogation practices that breach the convention.

Second Periodic Reports of States Parties Due in 1996: Israel, 1997 (p.420)

Landau Commission. Set the interrogation guidelines for Israel. Determined that terrorism was serious enough to merit a moderate amount of physical pressure to obtain information. Other democracies do this too. Draws a distinction between inhumane and degrading treatment and torture. Cites a European Court of Human Rights decision (below) to imply that those tactics, while inhumane and degrading treatment in combination, do not rise to the level of inhumane and degrading treatment in isolation

Public Committee Against Torture in Israel v. State of Israel (Israeli Supreme Court, 1999) Israeli Supreme Court directly confronts the question of whether the GSS interrogation methods constituted either torture or cruel, inhuman, or degrading treatment. Says: The Israeli laws current balancing process results in the rules for a reasonable interrogation. Says that you should use the least restrictive means. o Shaking, it says, violates this balancing testit is never the least restrictive means. Other methods, though, IF USED HUMANELY, may be allowed. o Seems to imply that physical invasion is necessarily a prohibited investigation method. Also notes that this is under current Israeli lawthe Israeli legislature could authorize such treatment. Necessity Defense: Court says that a necessity defense is necessarily a defensean ad hoc decision. Admits that there may be times where torture is excusable under a necessity defense, but says were not going to give you pre-clearance to engage in torture under this rubric. NOTE: International law played virtually no role in this decisionits barely mentioned.


Republic of Ireland v. United Kingdom ( European Court of Human Rights, 1978) UK admitted that, in combating terrorism in Northern Ireland, British security forces employed a number of methods that violated international human rights law. By the time of the decision, the UK had already taken steps to eliminate these methods. Still, court felt obligated to consider their legality

under Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment. o Interrogation techniques included: forcing the detainees to remain in a stress position Putting a black or navy-colored bag over detainees head and keeping it there all the time except during interrogation Holding detainees in a room where there was a continuous loud hissing noise Sleep deprivation Deprivation of food and drink Court held that ill-treatment must attain a minimum level of severity if it is to fall within Article 3 [of European Convention] and that level of severity depends on all circumstances of the case.

Here, these were cruel and inhumane in conjunction with each other, even if they werent necessarily cruel and inhumane in isolation. o Distinction between cruel inhuman and degrading treatment and torture: Court says it derives principally from a difference in the intensity of the suffering inflicted.

U.S. Incorporation of Human Rights Treaty Obligations

Treaty reservations: States may make reservations to treaties in order to modify or exclude the application to the reserving state of a particular provision of the treaty, provided that: 1. the reservation is not prohibited by the treaty and 2. The reservation is compatible w/ the treatys object and purpose o ICJ in advisory opinion concerning reservations to Genocide Convention, said reservations to human rights treaties should be allowed so as many states as possible join the treaty Sure enough, multilateral human rights treaties frequently have reservations, and they often apply to important substantive provisions of the T On the other hand, most multilateral Ts have few or no reservations, and if so, dont go to heart of the T

Further, when these important reservations are made, states even less often insist the reservation is incompatible w/ the object and purpose of the T

Problem: US Reservations to ICCPR (Intl Covenant on Civil and Political Rights) - To begin, US played major role in drafting, but took 25 years to ratify after open for signature. US has always been reluctant to accept intl scrutiny of its own human rights practices. Why? 1. Back in the day, conservatives thought it would threaten segregation and other discriminatory practices. 2. Such treaties inappropriately transfer decision-making authority from the Congress and the states to intl bodies. - So, in the handful of situations they have ratified intl h.r. treaty, usually attaches a detailed list of Reservations, Understandings, and Declarations (RUDs) to limit the extent of obligations under the T. Excerpts from ICCPR - Article 6(5) Sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried on pregnant women. - 19(2) everyone shall have the right to freedom of expression o But 19(3) exercise of these rights may be subject to certain restrictions - 20(1) propaganda for war shall be prohibited by law President Bush was faced w/ 3 Alternatives in the ICCPR Advice and Consent Process 1. Change all inconsistent U.S. law and then seek Senate advice and Consent a. Several difficulties w/ this option i. Political challenges and processes ii. Constitutionally impermissible there is a true conflict with the ICCPR regarding the Right to Free Speech. 1. also, this poses a problem for the limits of federal power over state law b. so, this option isnt taken 2. Ratify ICCPR and have that override inconsistent state laws by the Supremacy Clause of the Constitution a. Difficulties i. Still political challenges Senate probably wouldnt do this. ii. Still have a Constitutional impermissible problem 1. Conflict

2. Missouri v. Holland says Congress can do it, but this might not be good law, and the president doesnt want to deal w/ it 3. Combo of RUDs give advice and consent subject to conditions a. Reservation not ratifying party of the Treaty b. Understanding unilateral interpretation. i. Ex our civil rights laws are not as open ended, so we are going to interpret them as our laws do. ii. Here, the US wants to make sure the intl interpretation of other states is not the same as the US so they become bound by it. c. Declaration how you are going to implement US Ratified ICCPR in 1992 o Acceptance is qualified by 5 reservations, 4 understandings, and 4 declarations. o First declaration provisions 1-27 of the Covenant are non-selfexecuting. o Third declaration o Senate Committee on Foreign Relations explains its approach and RUDs for ICCPR They say an overwhelming majority of the provisions in the Covenant are compatible w/ existing U.S. domestic law, but where they diverge, US proposed a RUD Should U.S. law be made to bring U.S. in full compliance at intl level??? the Committee anticipates that changes in U.S. law in these areas will occur through the normal legislative process. Basically saying, our human rights standards are enough, and when they change, theyll change. By doing it this way it will allow the U.S. to ratify so they can participate w/ greater effectiveness in process of shaping intl norms and behavior in area of human rights o Explanation of Bush administration conditions 1. Free speech art. 20 directly conflicts w/ 1st Amendment by requiring prohibition of certain forms of speech and express. US cannot accept such an obligation. 2. Capital Punishment because of U.S. policy, and b/c of Supreme Court decisions for permitting death penalty to 16 & 17 yr olds, prohibition of capital punishment for crimes by minors is unacceptable. 3. Torture/punishment Since the Bill of Rights already provides for this, ratification is condition upon reservation of limiting undertakings to that of 5th, 8th, and 14th Amendments.

4. Non discrimination US civil rights law isnt as open ended at the ICCPR, discrimination is prohibited for specific statutes, and certain exceptions allow for discrimination. (ex age). 5. Non-self-executing the intent is to clarify that the Covenant will not create a private right of action in US courts NOTE: the only real true conflict is with the Freedom of Speech all of the other RUDS are political choices its simply not worth it to try and get the states to change laws. o US points to ONE EXCEPTION: saying they didnt issue a reservation even though it was constitutionally impermissible to the article saying pregnant women cant be executed however, the U.S. is giving up nothing for thisno women on death row are pregnant. With respect to the understandings the US shouldnt have to worry if the treaty is non-self executing, b/c this is when the U.S. says it doesnt matter where intl law goes, it wont affect domestic law b/c we are going to interpret it or include it in domestic law as we see fit. o HOWEVER, the reason the US makes sure the majority is non self executing is two fold What if the US didnt think of an incompatibility that later arises? OR, what if the US law later changes on something they did not have a reservation!

Reactions to the U.S. RUDs - NGOs and intl law scholars criticized US b/c felt the RUDS ensured the treaties would have no effect on US law or practice. o On the other hand, if the goal was to ratify the Treaty, then yes, this was the best and fastest way to do it. - Several States party to the treaty objected to reservations (especially reservation to Art.6(5)), however the objecting states indicating they did not wish to exclude US as a party, even though they considered US RUDs incompatible w/ object and purpose of the T - Recall Vienna Convention provisions o If a state doesnt object to a reservation, the T enters into force between them, as modified by the reservation. o Also, if a state objects, but doesnt oppose entry into T with them, the T enters into force between them, and the reservations apply o However, if an objecting state definitely expresses its intention not to be be bound, the T does not enter into force between the objecting and reserving state.


The Legality of the US RUDs

Human Rights Committee comment on reservations First, There are several prohibited reservations b/c they violate the object and purpose test o Provisions in the Covenant that represent customary intl law may not be the subject of reservations o reservations to non-derogable rights. o Reservations to remove supportive guarantees, which provide necessary framework for securing the rights, are essential to object and purpose, so are not acceptable Because this is not a normal treaty, the Vienna Conventions view on reservations doesnt work. Silence by a country does not mean they are consent o Because operation of classic rules on reservations is so inadequate for the ICCPR, States often dont object, and so the pattern of objecting is so unclear its not safe to assume a non-objecting state thinks particular reservations are acceptable. *****An unaccepatable reservation will be severable, in the sense that the ICCPR will be operative for the reserving party without the benefit of the reservation a. HR Committee says they will be the ones to decide if reservations are legal/permissible to the object and purpose of the Treaty. US Responds 1. Reservations to custom law norms and non-derogable rights is ok 2. Its up to the States to give reaction, and the Vienna Convention certainly applies, therefore silence=consent. 3. There is no role for the HR Committee, the legality of the RUDs is for the States to decide. Third Forum Analysis The International Law Commission 1. Reservations are ok to that of Custom law and non-derogable rights a. However, you cant make reservations for jus cogens 2. The Role of the HR Committee is that of a middle person they can offer an opinion, but they are just a function of the treaty.

Subsequent Precedent
Trinidad and Tobago case Kennedy v. Trinidad & Tobago (HR Committee) 1999 guy awaiting execution claim his trial and death penalty violated ICCPR. T&T said HR Committee lacked jurisdiction to consider the petition because of their reservation. Committee said the reservation was severable, and found T&T in violation of ICCPR.

Dissenters said this cant happen when acceptance of the reservation is a condition upon which the State enters the Treaty. W/o the reservation, they arent a party to the protocol.

Michael Domingues v. State of NV Amicus Brief (SCOTUS 1999) Domingues petitioned suprement court for writ to challenge death sentence imposed on him for a crime committed while 16 arguing it violated ICCPR, and US reservation to that provision was void. Court holds his argument is incorrect. A reservation in which the President and Senate have concurred is controlling as a matter of domestic law, and it became part of the Treaty. a. If States want to protest the reservations, they can do so, and decline to enter into T w/ US State practice shows that the US reservations to Article 6(5) are valid b/c not one of the states who objected said the ICCPR isnt in force between the State and US Also, even if 6(5) is non-derogable, there is no necessary correlation between nonderogability of a right and its importance or centrality to the T. a. If parties to the Covenant intended to prohibit reservations to 6(5), they should have said so in the T. Subsequently, field petition w/ Inter-American Commission on HR they said not executing offenders of a crime committed before 18 has become a rule of jus cogens Roper v. Simmons (US 2005) 8th and 14th A prohibit execution of offenders who were under 18 at time of offense. Uniform abolition of this practice and US was only country in the world to do this,

U.S. Policy on Torture

U.S. D.O.J Memo for Alberto Gonzalez (August 1, 2002) Looks for reasons that US conduct doesn't violate Convention Against Torture as implemented by Section 2340. Says: o Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the CAT. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340As proscription against torture

o Even if an interrogation method arguably were to violate Section

2340A, the statute would be unconstitutional if it impermissibly encroached on the Presidents constitutional power to conduct a military campaign, as one of the core functions of Commander in Chief is capturing, detaining, and interrogating members of the enemy. o Also says that the necessity defense can be maintained as a response to a 2340 violation because of September 11, and any harm in torture "pales in significance" to preventing another terrorist attack like it. U.S. DOJ Memo for James Come, Deputy Attorney General (December 30, 2004) Supersedes the previous memo in its entirety. o Disagrees with the statements limiting "severe" pain under the statute to "excruciating and agonizing" pain. Replaces it with a common definition of severe--"extremely violent or intense" and stresses that torture is supposed to be really limited. McCain-Graham Amendment to 2006 Department of Defense Appropriations Bill (Dec. 2005)Imports language from the cruel, inhuman, and degrading punishment stuff; extends them to every individual in the custody/under the physical control of US government No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. In this section, the term cruel, inhuman, or degrading treatment or punishment means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

Conclusions and Recommendations of the Committee against Torture (May 18, 2006) Critiques some US policies vis--vis war on terror: 15. A number of the CATs provisions are expressed as applying to territory under [the State partys] jurisdiction (articles 2, 5, 13, 16). The Committee reiterates its previously expressed view that this includes all areas under the de facto effective control of the State party, by whichever military or civil authorities such control is exercised.

Says the US view that those provisions are geographically limited to its own de jure territory (U.S. proper) are regrettable. 16. Says that by not registering people it detains, US is depriving them of an effective safeguard against acts of torture and thus in violation of CAT Article 2. 17. Voices concerns over allegations that the US has established secret detention facilities, which are not accessible to the International Committee of the Red Cross. Detainees are deprived of fundamental legal safeguards, including an oversight mechanism in regard to their treatment and review procedures with respect to their detention, and the people detained there could be subject to prolonged detention. Thus, Committee considers this might violate (articles 2 and 16). 22. Noted that detaining persons indefinitely without charge is a per se a violation of the Convention, is concerned that detainees are held for protracted periods at Guantnamo Bay, without sufficient legal safeguards and without judicial assessment of the justification for their detention. (articles 2, 3 and 16) 24. The Committee is concerned that in 2002 the U.S. authorized the use of certain interrogation techniques, which have resulted in the death of some detainees during interrogation. The Committee also regrets that confusing interrogation rules and techniques defined in vague and general terms, such as stress positions, have led to serious abuses of detainees. (articles 11, 1, 2 and 16) I) WRAP UP A) Practice of U.S. w/respect to interrogations shows how states whove signed & ratified CAT nonetheless have incentives to interpret it narrowly...other states actually interpret to zero, as U.S. that as it may, not all things were confidential, senate included their own definition of torture...DOJ went even further until it reversed itself. B) Most interpretation of intl law certainly isnt done by intl courts...even in domestic sphere, a lot of activities such as human rights never make it to courts. Ultimately something U.S. says may hold until some rare case is brought to a court and it says otherwise. C) Is reciprocity important is that why states comply w/CAT or Geneva? Was the U.S. about-face based on internal pressures....or does U.S. do what it wants, ignoring laws? D) If U.S. isnt engaging in torture right now and were satisfied w/the current list...then what is the problem? It took a long time to arrive at list. Somehow rogue elements in DOJ managed to commit rogue acts at Abu G and elsewhere? E) What has galvanized media and others about behavior of U.S. forces, if the memo talks of relatively non-invasive techniques? Goes to mystique of treatment of prisoners, the violation of which resonates worldwide it may be a situation where the cach of torture is that as soon as the word starts getting thrown around, its not always used in the legally limited way or groups expand or contract the definition as they see fit...there are always going to be political forces and people in positions of power who misuse the word in one direction or another.

Two Parts of the Torture Convention has failed in light of this - First, the duty to provide a remedy - Second, the obligation to prosecute those who commit torture.

Cultural Relativism and Human Rights

Implementing the ICESCR
relationship between civil and political rights and economic, social, and cultural rights o achievement of a minimum standard of economic and social welfare is an essential precondition to the realization of political and civil rights? developing countries think this among others o or, importance of political and civil rights to economic progress? o Or, are economic and social rights to be considered rights at all? UDHR sets out both types of rights, but UN set out to make a single covenant to give binding legal effect on both types o However, US and others said International Covenant on Economic, Social, and Cultural rights is too much a descendent of Western theories of political liberty and civil rights. SO, UN Human Rights Committee drafted a covenant containing only political and civil rights o Cultural relativism problem In 1950s, GA reaffirmed that the two sets of rights are interconnected and interdependent, but GA accepted Western demandss and created two covenants (but stipulated the two should be promulgated simultaneously) o Reasoning of GA the question was intimately related to the question of implementation Civil and political rights thought as legal rights can best be implemented by the created of good offices committee Economic, social, and cultural rights thought of as programme rights can best be implemented by the establishment of a system of periodic reports.

Intl Covenant on Economic, Social and Cultural Rights Art 2 Each State Party undertakes to take steps, individually and through intl assistance and co-operation, to the maximum of its available resources Art 6 Right to Work Art 9 right of everyone to social security, including social insurance Art 11 recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through intl co-operation Note: The ICCPR has obligations for results thus it is absolute o The ICESCR has obligations for conduct it is flexible

Ex Art. 2 Each State Party undertakes to take steps, individually and through international assistance and cooperation, to the maximum of its resources with the view to achieve it and use the appropriate means.

The US has NOT ratified the ICESCR why? there is a fundamental distinction between the concepts of the Treaties. - ICCPR provides negative rights to individuals; it prohibits things rights against a State o These can be implemented immediately and w/o money - ICESCR provides positive rights creates affirmative duties of states o Takes both time to implement and takes $$$ HOWEVER, this reasoning only holds true for Western cultures o Its cheap to meets positive rights, but very expensive to implement negative rights in countries that are violating them! Ex the cost to train police what rules of laws mean and to not torture in a rule of law society the overall cost of this would be HUGE. o Really, depending on the society, all rights cost money, both positive and negative rights, you cant just say absolute rights are only negative rights b/c they dont cost money!

Clash of Cultures: Female Genital Mutilation

Ratner: FGM is a clear violation of intl human rights The Problem: Female Circumcision/mutilation of female genitalia - Has been going on for 2000 years. Usually w/ consent or insistence of a parent or guardian. Form and severity of practice varies greatly. Physical affects range from bad and long term physical effects to psychological harms. - However, many women in the countries that practice it vigorously defend the practice as an important rite of passage and a central element of the culture. Its a joyous event, time of celebration, festivities, and gift-giving. - Critics condemn it for more than just adverse health effects. See it as a way of controlling womens sexuality, promoting virginity and marital fidelity, and perpetuating womens subordination to mean. o Pressure from a lot of places Domestic activists womens groups to local doctors intl actors WHO, concerned States, Western feminists o ex Sierra Leone some 90% of women, and most women fervently adhere to the practice. Second to last in quality of life female literacy, and maternal and infant mortality rates which some doctors are closely bound by the ritual Originally, this wasnt viewed as a human rights issue

o o

Since it was in the home or community it was seen as a private issue; perpetrators were private actors rather than state officials Outside intervention risked being perceived as cultural imperialism.

Background on Womens Rights - UN, with the womens rights supporters, saw their general human rights system was not adequately protecting womens interests CEDAW Convention on the Elimination of All Forms of Discrimination Against Women o Adopted in 1979 o March 2006, 182 states parties to it. Art 1 discrimination against women shall mean any distinction, exclusion or restriction Art 2- agree to pursue by all appropriate means and without delay Art 3 State parties shall takeall appropriate measures, including legislation Art 5 - State parties shall take all appropriate measures: o To modify the social and cultural patterns


1. Should Regulation of FGM be regulated by a State b/c it is in the private sphere Intl lawyers have long made this distinction between public sphere deemed appropriate for regulation by intl law, and private sphere deemed suited to regulation by domestic law. Female circumcision/mutilation genereally viewd as a private sphere practice something done by women to women w/o govt involvement HOWEVER, scholars and NGOs criticize this distinction as one that privileges mens concerns over womens. NOW, it is well established that states can be held responsible not only for human rights violations directly perpetrated by state authorities, but also for failing to take appropriate action to prevent or punish right violations committed by private actors. 2. Can Religion be an Excuse for FGM? Two venues this is argued in o Religious states say culture and religion is more important o What, are we supposed to re-write Islam??? Secular states say religion is no excuse.

Debating cultural relativism - Universalists human rights derive from our common humanity and so should apply equally to all - Relativists human rights norms must be adapted to reflect wide variations in culture, beliefs, and economic and political circumstances.

Executive Board of American Anthropological Association individuals from the moment of birth have their thoughts, hopes, aspirations, and values shaped by customs of the group they are a member Prof. Jack Donnelly international human rights should be relatively universal o There are a certain core of human nature which is relatively universal o we can justifiably insist on some form of weak cultural relativism; that is, on a fundamental universality of basic human rights, tempered by a recognition of the possible need for limited cultural variations. regional exceptions/perspectives??? o

Solving FGM Relativism Problems

Want to have some type of goal in mind that you want to get to Procedural solutions o Top down start at intl orgs and NGOs, OR o Bottom up use local orgs and doctors to educate about the problems of FGM Substantive Solutions o Enacting some type of law. o Make it a crime? Need some type of transition approach. o Educational campaign??? BUT, need to decide where you stand on relativism/universalist stance. o AND, where does religion fit in? o Need to be careful of a relativism argument b/c it is easy to use as a subterfuge of humans right violations ALSO, need to be aware who is conveying the message? Because of cultural diversity (without which there would be no intl law), there is no one size fits all

Part 8: The Use of Force

I. Responding to and Containing Aggression

o o

"Classical period of international law" (19th century) placed no limits on the right of states to resort to war. WWI: Changed peoples' attitudes about war; led to the League of Nations which did not prohibit war altogether, but did have Article 12(1) which provided that members had to put issues of dispute before an arbitration committee. Parties agreed not to resort to war until three months after the award. Policy goal was that the new world order should be based on law and negotiation, NOT force to secure states interest Kellogg-Briand Pact (1928)--condemns recourse to war for the solution of international controversies, and parties "agree that the settlement or solution of all disputes or conflictsshall never be sought except by pacific means."


Generally, you can use force in three ways: 1) With Security Council authorization, 2) in self-defense under Article 51 (but question for how long); 3) with consent. o UN Charter: Article 1:PURPOSES OF UN Purposes of UN are "to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace." Article 2:SHARED PRINCIPLES OF THE UN Organization and its members shall act in accordance with the following principles: o 2(1) Sovereign equality of all its members o 2(2) To ensure the rights and benefits resulting from membership, all members shall fulfill in good faith the obligations assumed by them in accordance with the Charter o 2(3) All members shall settle their international disputes by peaceful means in a manner that does not endanger international peace, security, and justice o 2(4): Prohibits the threat or use of force against the territorial integrity or political independence of any state. o 2(5) All Members shall give the UN every assistance in any action it takes in accordance with the charter. o NOTE: This provision (2(5)) doesnt actually give additional force to ANY Security Council resolution whatsoever. o (6) Organization will ensure that states that are not members act in accordance with these principles insofar as its necessary to maintain international peace and security o (7) Nothing in the Charter authorizes UN to intervene in matters which are essentially within domestic jurisdiction, or

submit matters to settlement under the Charter, but this principle does not prejudice the application of enforcement measures under Chapter VII. Article 24: DELEGATION TO SECURITY COUNCIL RESPONSIBILITY FOR PEACE/SECURITY (1) Members confer on the Security Council primary responsibility for the maintenance of international peace and security. Article 25: MEMBERS CARRY OUT S.C DECISIONS Members of UN agree to accept and carry out decisions of the Security Council. Article 33: SEEK PEACEFUL SOLUTIONS FIRST Parties shall first seek a peaceful solution to any dispute.

CHAPTER VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (The following provisions sets out the
UN Security Council's powers to maintain peace). ***NOTE: Security Council will say it is acting under Chapter VII when it is issuing mandatesthis is the code that what its saying is actually binding. Article 39: S.C. DECIDES WHAT MEASURES TO THREATS TO THE PEACE MUST BE TAKEN Security Council shall determine the existence of any threat to the peace and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42. Article 40: BEFORE MAKING RECOMMENDATION/MESURES IN ART. 29 S.C. may, before making recommendations or deciding upon measures in Art. 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Article 41: S.C CAN DECIDE WHAT NON-FORCEFUL MEASURES MAY BE TAKEN Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its measures, and may call upon members to apply such measures. Article 42: S.C CAN TAKE MILITARY ACTION IF ART. 41 IS INADEQUATE If the Security Council considers that the measures provided for in Article 41 are inadequate, they may take action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Article 43 MEMBERS MUST ASSIST S.C MILITARY ACTION IN ACCORDANCE WITH AGREEMENTS (that never happened) o (1): All members of the United Nations shall undertake to make available to the Security Council armed forces, assistance, facilities,

and rights of passage in accordance with a special agreement or agreements o (3)Agreements shall be negotiated as soon as possible. o NOTE: At the framing of the UN Charter, it was anticipated that countries would soon enter in these agreements. Article 51: INHERENT RIGHT OF SELF-DEFENSE REMAINS UNTIL S.C. TAKES APPROPRIATE ACTION Nothing impairs the inherent right of an individual country to selfdefense if an armed attack occurs against a Member, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefense SHALL IMMEDIATELY BE REPORTED to the Security Council and SHALL NOT in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Article 53: S.C CAN AUTHORIZE REGIONAL ARRANGEMENTS Security Council shall utilize regional arrangements/agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements/by regional agencies without the authorization of the Security Council.


UN Charter Article 51: Requires an armed attack to occur for selfdefense provision to kick in.

CUSTOMARY INTERNATIONAL LAW In addition to the UN Charter's requirement for an armed attack, additional conditions for the legitimate exercise of the right of self-defense may be found in customary international law:

CAROLINE CRITERIA: Force must be both o a) necessary, and o b) proportionate. Textual hook? o Nothing in Article 51 says self-defense must be necessary or proportionate.

Maybe Article 51 implies that measures taken in self-defense have to be necessary, by suggesting that the right to selfdefense exists until the Security Council has taken measures necessary to maintain peace and security, but thats a long-shot the necessary aspect of that is up to the Security Council, not the country acting in self-defense, to decide. (Article 42, likewise, only defines what the Security Council can do).

So, where do we get necessity and proportionality? Theyre not in the text, and why do we even need it in addition to saying that a country needs to be the victim of an armed attack? We already have a threshold as to whether a "use of force" constitutes an "armed attack." So, for example, lobbing a missile doesn't even constitute an armed attack, and you can't even use force in response to it at all, according to the ICJ. So why do you need these requirements? One argument is this: say Iraq invades Kuwait, Kuwait can use self-defense to push them outside of Kuwait, but then they cant go further and overthrow Saddam Hussein.

Of course, at least one argument (e.g Michael Schmitt, p. 913) says that this kind of regime change under the rubric of anticipatory self-defense is precisely whats necessary in the current security environment. Governments and scholars disagree over the meaning of those two terms:

Necessity: Daniel Webster test (1842): Said that although a right of selfdefense existed, it should be confined to cases in which "necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment of deliberation." o Some scholars argue that Webster's definition, with its focus on temporality, applies only to cases of anticipatory self-defense; others argue that it applies to all self-defense. Proportionality: Ill-defined concept; in general, though, it precludes a state from using force beyond that necessary to repel an attack or to restore the status quo ante. o Professor Schachter: Says that proportionality is closely linked to necessity as a requirement for self-defense, as acts done in selfdefense may not exceed in manner or aim the necessity provoking them. Thus, when defensive action is greatly in excess of the provocation, as measured by relative casualties or scale of weaponry, international opinion will more readily condemn such defense as illegally disproportionate. o Geography: A significant factor in determining proportionality--an isolated attack in one place does not, e.g. warrant a defensive action deep into the territory of the attacking state. o BUTthe fact that countermeasures must be proportional doesnt necessarily mean that you can do no more than has been done to you.

Because the proportionality test is vague and amorphous, you have different sides purporting to apply it different that do apply it differently.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States, 2003 I.C.J) During Iran/Iraq war, a missile hit a U.S.-flagged merchant vessel, and a mine damaged a U.S. naval vessel. U.S. attributed these and other incidents to Iran, and attacked Iranian oil platforms, claiming right of self-defense. ICJ decided these were not necessary/proportionate under self-defense--it was just the mining of a single US warship, without loss of life, which could not excuse US actions under proportionate use of self-defense.


Language of Article 51 of UN Charter, which permits self-defense "if an armed attack occurs" suggests that a use of force in anticipation of an attack is premature and thus unlawful: o BUT--Israel did it in Six Day War after Egyptian President Nasser withdrew peacekeepers and mobilized Egyptian military units in the Sinai--this was given tacit support by the US and Western states, although opposed by Arab and communist states. o Israel also did it in 1991 when they bombed Iraq's nuclear reactor in Osiraq, Iraq. This time, international reaction was overwhelmingly critical. National Security Strategy of United States (2002)from o Says that international law has long recognized the ability of countries to preemptively attack in the face of an imminent threat o US must adapt the concept of an imminent threat to the capabilities and objectives of today's adversaries. o In times of weapons of mass destruction, the greater the threat, the greater the risk of inaction, and the more compelling the case for taking anticipatory action to defend the US. Kofi Annans High-Level UN Panel (post Iraq war) to consider collective responses to contemporary threatsLAYS OUT REQUIREMENTS FOR ANTICIPATORY SELF-DEFENSE Considered the question of anticipatory self-defense. (188): A threatened state can take military action as long as (a) the threatened attack is imminent (b) no other means would deflect it, and, (c) the action is proportionate. (190): Preventative military action and non-imminent threats Doesn't buy preventative military action without a threat being imminent. Says that if there's good evidence to support preventative military action, it should be put before the Security Council. Risk to the global order is too great to simply allow preventative military action willy-nilly.

NOW, A STATE CAN USE FORCE BEFORE ARMED ATTACK IF IT IS ABSOLUTELY SURE AN ATTACK IS GOING TO HAPPEN, AND IT SHOULD BE PROPORITIONAL o ANTICIPATORY SELF DEFENSE IS VERY LIMITED Even a high level of panel of non-US scholars recognized this right though US tries to take this, and says well, the greater the threat, the less we should have to wait. So, it turns into a preemptive/preventative self defense. o A strict textualist might say hey, Art. 51 says cant used self defense until attacked

However, this would be absurd. Small states would be screwed.


Hypothetical: Taliban havens in Pakistan. We know theyre plotting 9/11 style attacks, we dont know when/where theyre going to strike. Can we use anticipatory force against them? o Traditional criteria for anticipatory self-defense laid out in Kofi Annans high-level panel: (a) the threatened attack is imminent (b) no other means would deflect it, and, (c) the action is proportionate. o Seems to run into problems under the old international law system particularly the requirement that a threatened attack be imminent. This also seems like a clear violation of Article 2(4) and its prohibition against using force to violate the political independence or territorial integrity of a country. Bush administrations position: when a state is unwilling or unable to do something, it has the right to strike against alQaeda or terrorists.

Argument is that either theyre actively supporting terrorists (by being unwilling to do anything about it) or they dont really control that territory (failed state argument), in which case its not even a violation of Article 2(4) because theres no territorial integrity or political independence there at all. o Still run into the imminence problem, though. One way to avoid the imminence requirement is to say that its not even anticipatory self-defense, that its in response to 9/11, and thus under Article 51, we maintain the right to self-defense until the Security Council steps in.

Overall, this kind of action is very difficult to justify under the old international system, which is very statist. BUTother states have sort of looked the other way. And the more that happens, the more it seems permitted. So, while its unclear that any of the traditional arguments hold water very well, the longer it goes on, the more you might have a new customary international law norm.


Failing of the international system? On its face, Iraqs 1990 invasion and annexation of Kuwait constitute a classic instance of unlawful international force. Iraqs attack of Kuwait openly breached one of the core norms of the international system; evidently, Iraq anticipated that it would benefit from doing so. In this respect, Iraqs action might be taken as a sign of the weakness of international law and institutions Working of the international system? On the other hand, the international response may be seen as at least a partial vindication of international law and institutions. Invasion was overwhelmingly condemned by governments around the world, UN Security Council moved quickly to impose sanctions and, eventually, to authorize a collective military response, which succeeded in expelling Iraqi forces from Kuwait.

Iraq never really accepted Britains drawing of the borders of the former Ottoman Empire, always laid claim to Iraq because it had been an administrative subdistrict of Basra during the Ottoman period. Post Iran-Iraq war, Iraq owed Kuwait tens of billions of dollars. Saddam Hussein complained Kuwait was exceeding OPEC quotas and slantdrilling. 1990: Iraq invaded Kuwait, temporarily achieving three objectives: 1) cancelled the debt, 2) controlled Kuwaits oil assets, 3) signaled to other Gulf states that they should accommodate Iraqs oil price policies.


Security Council Resolution 660 (Aug. 3, 1990)Condemns invasion, demands withdrawal Condemns Iraq's invasion of Kuwait as a breach of international peace and security, demands that "Iraq withdraw immediately form Kuwait."

Security Council Resolution 661 (Aug. 6, 1990)Instituted sanctions and an embargo on Iraq Invokes Chapter VII of UN Charter, imposes broad international sanctions on Iraq, including an embargo o Meanwhile, US starts a military buildup, and uses it to tighten the embargo on Iraq. US argues that Resolution 661 and the right of self defense enshrined in Article 51 of the UN Charter permitted the use of force to compel compliance with the embargo, and instructs its warships to use "minimum force" to block Iraqi ships from loading or unloading cargo. No question that 661 itself doesnt give any authorization to use force under UN charter to attack Iraq straight up. The question is whether 661 or 661 and self-defense gives us the authorization to bomb a ship (e.g from Yemen) that goes through an embargo. Security Council Resolution 665 (Aug. 25, 1990) Permits member states to use "measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargo and destinations." o Awkward wording emerged after days of difficult negotiations between US and Soviet Union. After declaration was adopted US declared it was "sufficiently broad to use armed forcedepending on the circumstances." Security Council Resolution 678 (November 29, 1990) (1) Demands that Iraq comply fully with resolution 660, and decidesto allow Iraq one final opportunity as a pause of goodwill, to do so (2) Allows member states cooperating with the Government of Kuwait to use all necessary means to uphold and implement resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area. o Gave explicit authorization to U.S. to use force.

US DEBATE ON THE USE OF FORCE: Real debate was s to whether to allow sanctions more time to take effect. Administration's rationale for using force was in a national security directive: o National Security Directive 54:

Bush says it's consistent with inherent right of collective selfdefense under Article 51 of UN charter. Limited Goals for Military Campaign: Bush limits goals to withdrawal from Kuwait, defending Saudis against attack, destroy WMDs, and Iraq's command and Republican Guard. BUT, says it recognizes the

territorial integrity of Iraq, and will only seek to affect regime change if Iraq uses WMDs. NOTE: Could US (or, for that matter, Kuwait) have used force to drive Iraqi troops out of Kuwait even in the absence of the authorization to use all necessary force in Security Council Resolution 678? UN Charter Article 51 recognizes the inherent right of self-defense. BUTunclear when the right of self-defense must give way to collective action taken by the Security Council. Four arguments; 1) Article 51 authorization is extinguished when Security Council asserts jurisdiction (Thomas Franck) If states use armed force under the self-defense rubric of Article 51, that activity is only licensed until the Security Council takes action. This reading is bolstered by the fact that the Charter, in creating a new police power, intended to establish an exclusive alternative to the old war system.

So, U.S. did have to wait for Security Council to give its consent. 2) States can act pursuant to Article 51 until the situation is effectively resolved by the Security Council (Eugene V. Rostow) This cautious reading of Article 51 seems inevitable because the practice of subordinating the right o self-defense would be fatal to the right of states to defend themselves. So, US might have been able to attack as long as Iraq was still in Kuwait. 3) US absolutely needed Security Council approval (Abram Chayes) During the Cold War, maybe there would be an argument that there was no likelihood of serious substantial outcomes from the Security Council. But here, where the international system was working as intended, if the US could not induce additional Security Council members to agree that additional measures involving the use of force are necessary, the Charter clearly precludes unilateral action. 4) Potential middle ground: It might be too much to say that just because the Security Council passed 660, Kuwait itself no longer had a right to act in self-defense, but it might also be too weak of a reading to say that they can continue to act in selfdefense until a cease-fire is arranged. Again, no clear boundaries with this stuff.
OPERATION DESERT STORM/DESERT SABRE: Quick war, ended with a formal cease-fire on February 27. First President Bush outlined the coalition's cease-fire terms, including: Immediate release for all coalition prisoners of war and Kuwaiti detainees;

Provision of information to Kuwaiti authorities on all land mines and sea mines; Full compliance with all relevant UN Security Council Resolutions, including " a rescinding of Iraq's August decision to annex Kuwait and acceptance in principle of Iraq's responsibility to pay compensation for the loss, damage, and injury its aggression has caused." POST-WAR INTERNATIONAL ACTION: Security Council Resolution 686 (1991):--Incorporates coalition cease-fire Incorporated the coalition cease-fire terms; accepted by Deputy Prime Minister Tariq Aziz: (2) Demands that Iraq implement its acceptance of 12 prior resolutions, in particular that Iraq: (a) Rescind immediately its actions purporting to annex Kuwait (c) Release all Kuwaiti and third country nationals (d) Immediately begin to return all Kuwaiti property seized by Iraq (3) Demands that Iraq: (a) Cease hostile or provocative actions by its forces against all Member States, including missile attacks and flights of combat aircraft. (4) Recognizes that during the period required for Iraq to comply with Paragraphs 2 and 3 above, the provisions of paragraph 2 of 678 (authorizing "all necessary means" to implement prior Council resolutions) remain valid.

Security Council Resolution 687 (1991):--Additional demands on Iraq for the end of the war Security Council: (2) Demands that Iraq and Kuwait respect the inviolability of the international boundary (8) Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless of: (a) All chemical and biological weapons, and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities related thereto (b) All ballistic missiles with a range greater than 150 km (9) Decides that

(a) Iraq shall submit to the Security Council the locations, amounts and types of all items in paragraph 8. (b) Secretary General shall develop and submit for approval a plan calling for the completion of the following acts within 45 days of such an approval: (i) the forming of a special commission to carry out on-site inspection of Iraq's biological, chemical, and missile capabilities (ii) Yielding by Iraq of possession to the Special Commission for the destuction, removal, or rendering harmless of everything in Paragraph 8, above. (22) Declares that, upon fulfillment of Iraq's disarmament and reparations obligations, the prohibitions against the import of commodities and products originating in Iraq and the prohibitions against financial transactions in resolution 661 shall have no further force or effect. (34) Decides to remain seized of the matter and take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area. NOTE: The regime established under Resolution 687 for monitoring and destruction of Iraqs chemical/biological and nuclear weapons capabilities was highly intrusive, open-ended, and unprecedented. Some question as to whether the Security Council actually had authority under the Charter to conduct the regime, or whether the coalition states could have established a comparable regime in the absence of Security Council resolutions.


Security Council Resolution 1441 (2002): Recalls that Security Council Resolution 687 imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security: (1) Decides that Iraq remains in material breach of the resolution, through its failure to cooperate with UN inspectors. (2) Decides to afford Iraq a "final opportunity" to comply with its disarmament obligations

(3) Decides that Iraq shall provide a full, complete, and accurate declaration of all aspects of its programs to develop chemical, biological, and nuclear weapons (4) Decides that false statements shall constitute a further material breach of Iraq's obligations (11) Directs the Executive Chairman of UNMOVIC and the IAEA to report any interference by Iraq with inspection activities (12) Decides to convene immediately if a report is received in accordance with Paragraphs 4 or 11 above. Authorization for the Use of Military Force Against Iraq (U.S. Public Law, 2002) Says the President is authorized to use the Armed Forces of the US as he determines to be necessary and appropriate, in order to: (1) defend the national security of the United States against continuing threat posed by Iraq (2) enforce all relevant UN Security Council Resolutions.

Iraq submits 12,000 pages of documents saying they don't have weapons, US says they are not complete. Security Council meets pursuant to Paragraph 12 of 1441 to discuss Iraqs alleged noncompliance. Convinced that UN is not serious about disarming, they put together a "coalition of the willing, declares that Iraq had failed to take the final opportunity afforded to it in resolution 1441. Attacks Iraq, etc.


US circulated, behind the scenes, an anticipatory self-defense argument, but that seemed to go nowhere. Arguments that it is legal: 1. Security Council Resolutions 678 (1990), 687 (1991) and 1441 (2002) provided sufficient authorization for the use of force Effects of the Security Council Resolutions Could US have invaded Iraq even in the absence of resolution 1441? o Argument is that the authorization for using support in 678 never expired. B

BUTas argument from Szaz says (infra), the counterargument is that 678 cant give you authorization at all, because it cant refer to subsequent resolutionscan only

refer to previous resolutions, and the weapons-inspection resolution (687) wasnt contemplated until after 678.

Another argument against that is that 678 and 686 go together678 authorized force, and 686 was the cease-fire. So, the argument goes, maybe if they were violating the cease-fire, that would reinstate 678. But all this weapons-inspection stuff has nothing to do with the ceasefire.

One can also make the argument that 1441 in fact extinguishes 678, and is thus explicit in not authorizing the use of force. 2. War was a legitimate exercise of preemptive self-defense. Arguments that it's not legal: 1. Iraq had committed no armed attack permitting a use of force against it in selfdefense 2. Resolution 678 could not be used to justify a use of force so many years after the end of the First Gulf War. Australian Memorandum of Legal Advice on the Use of Force Against Iraq (2003)--Argument for use of force:

Argues that between the adoption of SCR 687 and the present day, Security Council has found that Iraq has failed to comply with its obligations under SCR 687, and that in the preamble, SCR 678 authorized the use of "all necessary means" to uphold and implement SCR 660. Since Iraq is in material breach of SCR 687, the authorization for the use of force in SCR 678 (authorizing all necessary means for first Gulf War) is reactivated. Doesn't think that authorization for the use of force in 678 can expire, or that, coupled with 687, it is confined to the limited purpose of ensuring Iraq's withdrawal from Kuwait.

Legal Authority for the Possible Use of Force Against Iraq (Paul Szasz, Former Deputy UN Legal Counsel):--Argument against the use of force

Says that the phrase in 678 authorizing member states to use all necessary
means to uphold and implement Resolution 660 and "all subsequent resolutions" necessarily refers to the above-mentioned resolutions (between 660 and 678), not resolutions subsequent to 678. Resolution 687 did not reauthorize use of force, it just set up weapons inspections, and sees the primary penalty for that as economic sanctions. DID INTERNATIONAL LAW WORK - DID THE PROCESSES OF THE SECURITY COUNCIL WORK???

Well, if your viewpoint is that the S.C. should be making the decisions then they probably lived up to their responsibilities. NO AUTHORIZATION OF FORCE SHOULD HAVE EVER BEEGN GIVEN B/C NO WEAPONS OF MASS DESTRUCTION WERE EVER FOUND. And, the U.S. paid a pretty hefty price OR, you see the security council as blocking funding to uncover WMD

And besides, the Security council could do anything to stop the US anyway INTERESTINGLY, note how the US made decisions on one theory that a 12 year old resolution, 678, granted them the use of force but publically the US used a complete different justification for the war that it was in self defense! o This would be some great stuff to throw in an exam to justify a states acts internationally w/ a legal argument, but then justify it to their nation w/ another argument!

Effectiveness The War on Terrorism

There are two branches of law pertaining to states using force 1. Jus as bellum supra when states can actually use force. a. Here, the decision was made by the Security council and Article 51 was triggered i. There was a huge debate on this, but we are ignoring for sakes of analyzing the war on terror. 2. Jus in bello the conduct in using force the humanitarian law

A. Is the U.S. Involved in Armed Conflict, and if so, what kind?

Geneva Conventions: ARTICLE 2 the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the Parties, even if the state of war is not recognized by one of them. ARTICLE 3 In the case of armed conflict not of an international character occurring in the territory of one of the parties, they are still bound to treat people humanely. ARTICLE 4 TREATMENT OF PRISONERS OF WAR A. POWs are persons belong to one of the following categories: o (1) Members of armed forces of a Party to the conflict, as well as members of militias or volunteer corps

(2) Member of other militias, belonging to a Party to the conflict, fulfilling the following conditions: (a) Being commanded by a person; (b) Having a fixed distinctive sign recognizable at distance; (c) Carrying arms openly (d) Conducting operations in accordance w/ laws of war ARTICLE 5 Release of POWs o The convention applies from the time they are with the enemy until release. Should any doubt arise as to whether persons belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. o

United States View of Applicable Intl Law

Is there armed conflict If so, what kind? Afghanistan/Taliban Yes Inter-state armed conflict governed by Art. II of the Geneva Conventions Al Qaeda Yes Well, this is NOT an armed conflict between 2 states. And its not an armed conflict w/I a state (civil war) So its a new kind of war not governed by Geneva Conventions Not POWs, but will get human treatment

If so, how do we treat the detainees

Not POWs, but will get humane treatment

***NOTE: Under Art. V of the Geneva Convention, if the U.S. is not sure whether a person is a POW they theyre supposed to make a determination. - HOWEVER, the US does not do this b/c the administration says that no doubt they are not POWs Why doesnt the armed conflict with Al Qaeda fall within Art. III? b/c Article III can certainly be read to cover all armed conflict not covered in Art. II. o BUT, the U.S. simply says not covered by the Geneva Conventions Is this even possible? 1 argument well then its a peace time and so the treatment of the detainees should be governed by the ICCPR. So the US basically has 3 options o Treat this as a time of law enforcement o Treat as governed by the Geneva Conventions o OR, as Bush admin does Say its a time of armed conflict, but still dont have to follow the Geneva Conventions! By doing this, the US gets flexibility in the way they get to treat POWs. Powell: Well still have flexibility even if we follow Geneva Convention. Besides, we want reciprocity and our troops to be treated as POWs.

Dont have to follow detailed rules Dont have to release them at any time And the interrogation standards dont apply.

After looking at the issue more closely, the Administration says the armed conflict with the Taliban is in fact covered by the Geneva Conventions. o However, this does not affect the way the US treats the detainees the Taliban detainees are still NOT given POW status SO, DID THE LAW MATTER EVEN? WAS IT EFFECTIVE? o Ultimately, it was a policy decision for the US administration. The decision was made before the law was even looked at. o Yes, the law got the US to change its mind and say the Geneva conventions apply, but really nothing changed for the Taliban. All international lawyers would agree that if the Taliban is the fighting force of the govt, then it doesnt matter if they are holding themselves out as people of the country or not, they should get POW status. o Is this just a bunch of academic bull shit??? o Intl lawyers always want to look at the old rules, and the US wants to look at the new rules. BUT, then intl community says who is going to make the new rules, you? The acting super power? HOWEVER, the US says yeah, its us that is in the conflict so we will make the new rules as we go.

Final Thoughts - When we have new situations that dont fit into current intl law what are the options? The U.S. basically came up with the idea of harboring detainees which seems to be at odds w/ ICJ. o New law But then the question arises how we make the new law. Should it be through a conference with lots of actors? Or just the State actor who is involved in the situation (though US would get tons of power here) HOWEVEr, US is concerned that the law could come back to haunt them o Or reinterpret the current law - Notice, in Hamdi, our own Supreme Court barely even thinks about international law o Only the concurrence points out that hey, why doesnt Art. 5 apply in this situation to determine if these detainees are POWs? o This is typical of US courts to stay away from intl law at all costs! Ontological Questions Krauthammer: - realist view - International law is a policy issue. We should do whats right and then look at the legal issues. - He thinks that intl law is not binding o First, States are free to disobey it b/c there is no central enforcement

o Second, States act (and should act) out of their own self interest Role of the intl lawyer? quite small

Hart: Intl law is law. It doesnt require centralized enforcement, the law can be socially enforced and thats enough. - Rationale: States make claims and seek compensation and thats what people do in a legal system. The reasons for compliance are irrelevant. Boutros Boutros Ghali intl law provides a common language of communication, and intl law exists b/c states talk to the talk. Henkin: Intl law exists - Why? B/c States comply with it 99% of the time. - People violate it rarely, but thats just the way law is. There are always outliers. - Effective law isnt one which punishes the most violators, rather its the law which has few to punish b/c of deterrence. - Also, motivation for compliance is irrelevant. DOES LAW ACTUALLY EFFECT BEHAVIOR? - Really, you need to look beyond compliance. Does it actually make a difference in the 95% of the times it is complied with? - If Henkin cant show there is an influence on norms, then we really need to question whether or not law is there that has an effect. - Maybe we need some type of social science to look at intl law from a neutral point of view to help answer this question. Ratners Concluding Thoughts on Major Themes (which sounded a lot like issue spotting on an exam!!!) Whats the deal with the S word.SOVEREIGNTY (honestly, dont used this word at all on the exam) - What issues should be left w/ domestic law, and which issues should we let intl law answer? - Secession/Formation of States o Who decides borders? Who decides if someone can secede? - Non-state actors o Who should get to decide how much they get to participate? The states they come from? Or the intl forum they want to participate in? o How much should they be allowed to participate? - International law in Domestic systems o The struggle of the US govt trying to say they have sovereignty over intl claims o When should a State (or the U.S.) defer to intl law? Or some other foreign law??? - Jurisdiction o How can law be applied abroad w/o violating the abroad sovereignty of a State? o Or do all of these types of laws interfere w/ a States interests?

o What should be the scope of immunity?? Human rights o sovereignty is used to keep scrutiny from outsiders out Ex FGM, South Africa o How much cultural relativity should be allowed See S in treaties o Right of a country to derogate o RUDs Or rather than using sovereignty is it better for a State to have a claim based on culture? Religion? War on terrorism? o Along with S, these are all mechanisms that can be used to avoid intl law! Use of force o How much can states decide on their own to use force? Or how much control can/does the intl arena have on this? You have to be weary and aware when a government makes a claim based on their sovereignty or domestic jurisdiction o Sometimes this can be a camouflage for a legitimate claim Ex to protect borders o Sometimes this is simply a way to say we reserve the right to not follow the rules Which is what most claims of sovereignty are

Really, class is about a PROCESS oriented theme - Two key phases in the process o Prescription of law o Enforcement of law Prescription HIERARCHY its pretty clear really, so we know where to look for law! - Ex look to a Treaty first, and look to its text, and then look to the rules of interpretation o Dont forget, Chapter VII of Security council can override, and likewise jus cogens. - Then, look to custom (sort of default rules) o Usually, custom covers areas a T doesnt! Though, States can certainly contract around custom w/ a treaty o Two necessities State practice Opinion juris o It requires an extensive look at these G.A. Resolutions (G.A. Res. 2625 e.g.), expert body opinions, ICJ, domestic courts. o Still though, how do we find opinio juris? And do we really need it? o Are treaties making custom less important? And how do we figure out when custom law is in transition? - Soft law o Embraced during a transitional phase? Or is it a threat to legitimate law?

Enforcement - Some clear methods! o Self restraint many states enforce certain things simply b/c they are worried what implications it would have on them as a state Will they be condemned publically? Will another state act reciprocally expecting the same treatment? o Domestic systems the highest courts (ex SCOTUS) decisions do matter in particular states! And on the intl level the ECJ, or ICJ o Intl orgs can do powerful things Sanctions Authorize use of force o Horizontal mechanisms Severe reputational costs (ex US using torture) Diplomatic protests - Enforcement is out there, but itd be ridiculous to say it was fully effective. PRACTICAL ADIVE FOR A LAWYER HELPING A CLIENT THAT DOESNT UNDERSTAND INTL LAW 1. Describe the rules to your client that govern the situation, and describe the processes to him that come w/ the rules a. Identify the law and the identify how compliance is enforced. HOW the law is made? b. ALSO, need to look at whether the law is even enforced in the State, and need to take a look at where the law is changing or where it is solid. (i) Ex - UN resolution wow, 10 whole states have backed this! And you say well, actually they were the most concerned about this issue, this really isnt very authoritative b/c its contentious. We need to look at something else. 2. Where the law is not clear propose something principled and realistic a way to get the client where they want to be! a. Discuss the ramifications. i. Will it get decided in an intl court? ii. Will the State expect to be able to act reciprocally? iii. Will there be condemnations or intl repercussions to your reputation? iv. What will be the effects of the precedential value! There IS law that exists outside of the US, and it is in many different venues, shapes, and sizes. Law is relevant to both public and private actors. o At minimum, it provides a framework for discussion.

Where there is authority AND control the intl law does in fact restrain conduct! The law is not just statutes and cases! It is about a wide range of venues, actors, etc o