International Law Outline

:
Prof. Bennoune

I. Sources & Methods of International Law

A. Nature and History of International Law

A hundred years ago, a student would have called it the ‘law of nations’. And, indeed it was: States were
regarded as the only legitimate int’l actors, the only entities capable of exercising int’l rights and duties. But
in the 20th Century, States ceased to be the sole subjects of int’l legal rules. This is certainly one of the most
significant developments in this area of law, for it makes possible the application of norms of conduct to a
wide range of individuals, institutions, and businesses. In short, it had ‘democratized’ law for int’l relations
and opened vast vistas of practice opportunities for legal advisors around the world. Int’l law is: i) the
normative expression of a political system; ii) the product of its particular ‘society’, it’s political system; a
construct of norms, standards, principles, institutions, and procedures; iii) about harnessing power (political
or otherwise). Purpose is: to establish and maintain order and enhance reliable expectations, to protect
‘persons’, their property and other interests, to further other values. Constituency is: states, institutions,
individuals, businesses, etc. But states remain ‘basic constituent entities’ and int’l law continues to be
described and characterized as the law of ‘the state system’ or ‘inter-state law’, long ago renamed ‘int’l
law’. Requisites are/were: Int’l law has never flourished in times of anarchy nor, for that matter, in times
of hegemony. The ideal environment for the development of int’l law have been times of multi-polar int’l
relations, where a number of states (which themselves have strong internal institutions and a profound self-
awareness/sense of nationalism) have competed and cooperated in a particular part of the world. The birth
of int’l law is often given as 1648 or the end of the 30 Years War, which culminated in the Treaty of
Westphalia. The Treaty was also the birthplace of the notion of:

Sovereignty: the idea that states are autonomous and independent, and accountable only to the whim
of their rulers, or (in what was then the exceptional case) the popular will of the people. States thus
owed no allegiance to a higher authority – not to god, a moral order, or an ideological ideal. States
answered to nothing but themselves and to the extent that int’l law existed it was only because states
had specifically consented to be bound by such rules; sovereignty is understood to have impose
certain kinds of limits on int’l law; Pros – reflects the local will, self-determination, and
independence; Cons – hyper-nationalism

Corfu Channel Case/U.K. v. Albania (p. 4): “This notion has evolved, and we must not
adopt a conception of it which will be in harmony with the new conditions of social life. We
can no longer regard sovereignty as an absolute and individual right of every state, as used
to be done under the old law founded on the individualist regime, according to which states
were only bond by the rules, which they had accepted. Today, owing to social
interdependence and to the predominance of the general interest, the states are bound by
many ruled which have not been ordered by their will. The sovereignty of states has no
become an institution, an int’l social function of a psychological character, which has to
be exercises in accordance with the new int’l law.”

New Substantive Rules of Int’l Conduct & New Procedures of Dispute Settlement between Int’l
Actors: almost always on the coattails of war; it thus appeared that int’l law was the stepchild of
war and destruction, offering a utopian hope of order and moral renewal.

Corral 1 Fall ‘05

Two Schools on Int’l Law: collision between the two at the height of slavery debate

Naturalists - Hugo de Groot (aka “Grotius” aka “the father of int’l law”) who wrote On the Laws of
War and Peace – a ‘common law’ of states backed up by religious and philosophical principles of
good faith and good will between nations and people; (What we should do/ethics)

Positivists – Emmerich de Vattel (had a greater influence than Groot) who wrote The Law of
Nations – States are subject to no moral authority above them; reigned supreme from 1848-1919
(What we must do/law)

Treaty of Versailles and the Covenant of the League of Nations (1919): history’s first attempt at an
organization for global peace and security; was doomed from the start due to WWII and the Cold War;
established an ambitions program for codifying int’l law and systematizing the rules of int’l conduct;
established a permanent int’l judicial tribunal; was concerned with issues of significance to people, and not
just gov’ts such as: economic developments, protection of the rights of minorities, and prevention of
disease; but these were still unable to keep the peace

The U.N. System: end of war WWII (1945) spawned the system; created an organizational architecture for
the int’l community; the U.N. system has since reached out into every aspect and spectrum of human
cooperation; has placed state concerns (i.e. sovereignty and maintaining peace) side-by-side with the
principle of protecting and extending the dignity of individual human beings; at least partly premised on a
natural law notion of the inherent worth of human beings, and is manifested in the creation of rules by
which a state must treat its own citizens; cannot impose its will on any state; was founded on the
prohibition of the use or threat of force between states (Article 2(4)) so, the Security Council was not
conceived as a body that would police/enforce int’l law generally and the charter did not create institutions
to enforce int’l law, except in respect of the prohibition on the use of force and related threats to int’l peace
and security

Article 1 of the U.N. Charter (1945 - - post WWII) – sets forth its major purposes (p. 1 of the Supp)
1) To maintain int’l peace and security
2) To develop friendly relations among nations
3) To achieve int’l co-operation in solving int’l problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedom for all

Note: Preamble contains a clause whereby the peoples of the U.N. “dedicated themselves to
practice tolerance and live together with one another as good neighbors”

The Cold War: dominated the int’l law scene particularly because both the USSR and the US had veto
power in the U.N.; int’l law took a back seat to this conflict but it flourished in the post cold war era, which
lasted about 10 years

Post 9/11 Era: where we are now; security is the central focus of the int’l law scene

Is Int’l Law Really Law at All?: debate continues since there is no ‘world government’ to legislate, judge,
and enforce int’l laws; the int’l law system is set up horizontally not vertically as is the case within nations;
law is enforced by: sanctions/economic pressure, ‘mobilization of shame’ (the classic example is S. Africa
& Apartheid; usually the role of NGO’s and int’l organizations such as the U.N.), exclusion of participation
in int’l organizations (i.e. the World Bank), national courts are occasionally used to enforce int’l law;
emergence of int’l courts that directly enforce int’l law upon individuals; anyway, most of int’l law is just a
codification of existing mores; Effect: int’l is mostly successful; it affects most facets of our lives (i.e. world
Corral 2 Fall ‘05

trade, security, travel (which includes entering state B but also the actual trip to get there), international
mail, etc.; hard part is building a coherent law in the face of diversity (i.e. race, religion, gender, economic
systems) and different legal systems

In the U.S.: per Restatement 3rd on Foreign Relations Law of the U.S. Part I, Chapter I, “int’l law is
like other law, promoting order, guiding, restraining, regulated behavior. States, the principal
addressees of int’l law, treated is as law, consider themselves bound by it, attend to it with a sense of
legal obligation and with concern for the consequences of violation…It is part of the law of the
U.S., respected by presidents and congresses, and by the states and given effect by the courts.”

Responses to Objections to Int’l Law Based on Lack of Enforcement Mechanisms (p. 23):
1) There is much more voluntary compliance with int’l law than the critics would like to
acknowledge; if we understand the forces that motivate voluntary compliance, then perhaps we
can improve the content of the rules, or improve the system for making rules, so that a greater
portion of the system will exert a greater pull towards compliance
2) There are more sanctions for disobedience than is generally realized, although some of those
sanctions are relatively soft; the force of public opinion and the ‘mobilization of shame’ are not
trivial kids of enforcement mechanisms; also NGO’s effectively bring the glare of publicity on
violations of int’l law, to mobilize public pressure for compliance
3) There are more coercive sanctions for disobedience than the critics would admit, although
those sanctions are largely decentralized and non-forcible; i.e. economic sanctions, suspension
or termination of treaties, etc.
4) There may be non-forcible remedies available in national courts; i.e. a victim state might use
its own courts or other domestic tribunals to adjudicate claims of its national against the
breaching state; alternatively, it may be possible to invoke judicial remedies in 3rd party
countries for violation of int’l obligations
5) There are some forcible measures which provide even stronger forms of compulsion; if one
state violates the rule prohibiting force against another’s territorial integrity or political
independence, then the victim state can respond with individual or collective self-defense
6) There are embryonic centralized enforcement mechanisms, both forcible and non-forcible; the
primary source of these is Chapter VII of the U.N. Charter; i.e. collective economic sanctions,
the use of multilateral military force for enforcement purposes, etc.
7) Some centralized organs now exist for the enforcement of int’l criminal law against
individuals; the ad hoc International Criminal Tribunals have been created through the authority
of the Security Council under Chapter VII; substantial progress has been made toward the
establishment of a standing international criminal court
8) The int’l system is currently undergoing significant changes that could substantially transform
the effectiveness of coercive enforcement

The most important norm of 20th Century int’l law: the prohibition of the use or threat of force between states -
- Article 2(4) of the U.N. Charter

B. Sources and Evidence of International Law

Sources and Evidence of Int’l Law:
1) A rule of int’l law is one that has been accepted as such by the int’l community of states
a. In the form of customary law
b. By int’l agreement
c. Or by derivation from general principles common to the major legal systems of the world
2) Customary int’l law results from a general and consistent practice of states followed by them from a sense
of legal obligation
Corral 3 Fall ‘05

Article 38 (p.S.equity rather than points of law Notes: if you learn nothing else in this class. if the parties agree thereto. for the love of gawd know Article 38. d. any more than yesterday. of some ‘int’l democracy’ in which a majority or representative proportion of states is considered to speak in the name of all and thus be entitled to impose its will on other states. shall apply: a. b. 2. absent voluntarism. it gives no express hierarchy but treaties are placed first in the text because they are express agreements but in actuality both treaties and custom have the same weight (with priority given to what was set up later in time). etc. it holds that int’l legal rules emanate exclusively from the free will of states as expressed in conventions or by usages generally accepted at law.56) ****KNOW THIS**** 1. establishing rules expressly recognized by the contesting states. Summary = tells us about the identity of the sources of international law and that there are different ones Voluntarism: is the classic doctrine of state sovereignty applied to the formation of int’l law. international custom. judicial decisions and the teachings of the most highly qualified publicists of the various nations. Article 38 below is the actual ‘source of sources’ Statute of the Int’l Court of Justice . supporters emphasize its necessity for a heterogeneous pluralistic world society and the importance of maintaining a clear distinction between existing law (lex lata) and law in formation (les ferenda) Positivism: emphasizes the obligatory nature of legal norms and the fixed authoritative character of the formal sources. int’l law would no longer be performing its function Corral 4 Fall ‘05 . as evidence of a general practice accepted as law. 56): goes to international law but is a U.. as subsidiary means for the determination of rules of law. c. international conventions. whose function is to decide in accordance with international law such disputes as are submitted to it. may be invoked as supplementary rules of int’l law where appropriate Where do we look to find the rules of international law on any given point? i) Municipal law: domestic law of other countries (term used in international context) ii) Common law iii) Legislation: statutes. 3) Int’l agreements create law for the states parties thereto and may lead to the creation of customary int’l law when such agreements are intended for adherence by states generally and are in fact widely accepted 4) General principles common to the major legal systems. the int’l norm must be capable. Ex Aequo et bono: according to what is equitable and good on the merits of the case . even if not incorporated or reflected in customary law or int’l agreement. of application by a judicial body Positivist voluntarism: means that states are at once the creators and addressees of the norms of int’l law and that there can be no question today. statement. constitutions. Note: Number of sources makes this a complicated area of int’l law Restatement 3rd §102 (p. whether general or particular. subject to the provisions of Article 59. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono. The Court. the general principles of law recognized by civilized nations. in principle. it also tends to consider that to be ‘law’.

courts to challenge u. year is 1927. official connotations – things done at official governmental level and expressed officially] AND 2) general acceptance of it as a legal obligation (aka opinio juris) – subjective test. executive and monarchical degrees in history. what court is this and how did this question of customary int’l law come up?: U. see Hilton v.s." Comity "is neither a matter of absolute obligation. Guyot. often referred to as one of the greatest upsets in American jurisprudence b/c foreign nat’ls were able to use the U. CIL is resorted to. 66. Note: today ‘civilized’ mean everyone with an organized national government – dropped the racist/time dated connotations/limitations. especially civilian ships. 68): which court are we in? permanent court of international justice – which is a construct of the league of nations (aka PCIJ – first institution of its kind. upon the other. Custom: not clearly written down or clearly agreed to internationally. Int’l Attorneys. ‘civilized’ countries (really just means England and France). important classical rule here: that which is not prohibited to states is deemed permitted Legality of the Threat or use of Nuclear Weapons (p.S.S.s. p. Supreme Court in 1900. also there was another practice in France which suggested concurrent jurisdiction. as a practical matter. parties. court says – seizure was unlawful under customary int’l law (they were willing to look at that law b/c int’l law is part of the federal common law & there was no controlling treaty in place at the time). 62): an incredibly important foundational case for U. previous wars and agreements during them. French come up with one such law." United States courts generally recognize foreign judgments and decrees unless enforcement would be prejudicial or contrary to the country's interests.”. how does the Corral 5 Fall ‘05 . so. national laws in various countries. context is the Spanish American War. “no civilized nation…. honors the judicial decrees of foreign nations is a matter of choice.S.S.S. The Paquete Habana (p. often referred to as a ‘mysterious phenomenon’. you’ll have legitimacy problem of having too many sources. two basic elements we need to establish to say that a customary international law exists/Test: 1) general and actual practice of it (widespread preferred) – objective test [legislation. you really do need to satisfy both Hilton v. he actually looks at. foreign nat’ls going to u.Do we need new sources? Does it have to be enumerated in article 38 to have any meaning? Pros and cons of expanding sources: Progressive development but if you expand. court against U. very active during the period. Lotus (France v. The Case of the S. Turkey) (p. sometimes it is held that only the first prong is necessary however. absent an international law on the matter. nor of mere courtesy and good will. CIL comes up collision b/w French and Turkish ships. governed by "the comity of nations. 77): most important international comment to date. this case was really pushed by non-legal parties (not gov’ts). 1st partial paragraph. won some and lost some). and judgments of national courts. judicial decisions during other times of war. France loses. court rejects this b/c they don’t buy that the rule the French are citing to actually exists/is customarily practiced because that practice only went to one ship crashing into non-ships and only went to French ships = not applicable here. Guyot (p. confiscation/impounding of their boats/property. acts of military commanders. 65): The extent to which the United States. Primary Sources: roughly as a practical matter this is the order in which you approach an issue A. how does he find an int’l customary law to justify his ruling that such seizures is wrong = a history of leaving ships alone during times of war. or any state. looks at mostly European. PCIJ agrees with turkey and says that all they have to show that there is no CIL which prohibits exercising jurisdiction. on the one hand.

 Customary law: what is the problem with this source of law. it tried to maintain credibility when faced with so many conflicting ideas of the use of nuclear weapons Opinio Juris sive necessitatis: (“opinion that an acct is necessary by rule of law”)The principle that for a country’s conduct to rise to the level of int’l customary law. Guyot but you can us it if it is an issue of survival or humanitarian law (you can’t use nukes when it is against the law to do so – PCIJ. Germany v. it’s answering a question posed to it by an authorized body to the UN  Justice Weeramantry is from Sri Lanka. and treaties.the number of ratifications. which the courts find can be evidence of CIL but are not here b/c the ones sited were designed to have international effect.  There are treaties like the Antarctica Treaty of 1959 the Test-Ban Treaty in 1963 that do completely legally prohibit the use of nuclear weapons. question of CIL come up here?: nuclear weapons had only been used once = no custom. and his nation would be dramatically affected by a nuclear war between India and Pakistan  Is the outcome of this case useful? The court did the only thing it could under the circumstances. what is the content of the resolution and the conditions of the adoption of that resolution. it’s not solving a dispute between two states. but there are a range of issues. if these are voted for by all members of the UN then it can’t really show custom  The use of nuclear weapons would be in direct conflict with the rules of armed conflict. court ultimately decides – you can’t use a threat that fails to meet Hilton v. don’t need to have them  There are no parties in this case. this violates int’l law rules on warfare  Possession itself is in conflict with non-usage. but we can’t say that it would always be unlawful). there are assumption we cannot make. the nature of the provision (is it absolute? Is reservation inherent in it?) Corral 6 Fall ‘05 . since then never been used. don’t want to use them. not all states have nuclear capabilities = no custom. general assembly resolutions and the states who have pulled together to say they prohibit the use of nukes. states do not practice deterrence not because of legal requirement but rather because of fear. the amount of practice in support of a treaty. has this treaty become a custom of intl. when they didn’t have to and really should have done the interpretive work to figure this one out. law? • When can treaty law provision rise to level of custom that would bind non-signatory state? The treaty can give rise to a customary norm. Denmark and Netherlands. it must be shown that the conduct stems from the country’s belief that int’l law (rather than a moral obligation) mandates the conduct North Sea Continental Shelf Cases ICJ 1969: 92 The dispute arises over who owns a greater portion of the continental shelf. it’s an advisory opinion. why states follow deterrence is not clear  General assembly resolutions are not binding. when nuclear weapons are used civilians are not protected or excluded. CIL. Issue: is the threat or use of nukes ever permitted (implicitly then ever forbidden) under int’l law?. nuclear weapons have only been used once. the jurisdiction being used is advisory jurisdiction. the need has not arisen. Note: the court does say that there exists an obligation to pursue negotiations in good faith leading up to a nuke threat and/or use. these treaties however do not add up to a prohibition because there are exceptions to the prohibitions. this isn’t a custom because circumstances may arise again where nuclear weapons may be used. court looks at int’l treaties but none of them fully answer the question here. criticism by Higgins of court here is that they turned it into a non liquet = a legal question to which there is no answer.

enshrining. the body of customary norms is separate from the body of treaty law. what about new-born states being bound to pre-existing norms. whereas Codification: is already generally accepted and a more precise systemization of rules (supported by precedent and past customs). can only be replaced by another norm of the same level) • Court does not just rely on treaty principles for use of force but also relies on a separate legal basis. the fundamental peremptory norms. • Treaty law: International convention law: a written agreement between states governed by international law. it binds all States which did not oppose it even if they themselves had not been active in its formation.S. law. This case was resolved by “equitable” principles to be fair to all states involved Case Concerning Military and Paramilitary Activities In and Against Nicaragua ICJ 1986: 96 Nicaragua claims unlawful military action by the U. Corral 7 Fall ‘05 .. • Bilateral treaties are clearly a source of law as to the two contracting parties. a state must expressly oppose it. Treaties: Conventions (written documents). they draft texts for the UN that are to be negotiated by states • Treaty-making goes on all the time and is vibrant. Treaties • No express hierarchy in Article 38 but treaties are placed first in the text because they are express agreements but in actuality both treaties and custom have the same weight (priority to the later in time). putting down on paper what previously existed. Broad source of law. Specific rule prevails over general rule. • Codification and Progressive development: Progressive Development: is about creating new treaty law that comes about with time that still requires ratification. this case goes thru an analysis of customary intl. to NOT be bound by customary norm. If a custom becomes established as a general rule of intl. B. codification is less controversial • Intl. Law Commission is a body assigned the task of promoting both progressive development and codification of the law. some say the treaty only binds the parties in it. breaking with custom. except jus cogens (example: rule against apartheid). To bind non-treaty states it must rise to the level of customary international law. deciding on a new rule. • This case sets the “bar” high for the allowance of customary rules. • What is a Persistent Objector? A state may escape the effect of customary rules of law if the State has persistently. Norm of customary law can get developed to rise to the level of treaty. states changing the rule. Bilateral treaties are not usually considered a source of general international law when the reason for concluding them was to create an international obligation that did not exist under general international law. Live source of international law. promptly and consistently object to the application of that rule from its inception. the norms prohibiting the use of force here are called jus cogens ((“compelling law”) a mandatory norm of general international law from which no two or more national may except themselves or release on another. Some treaties are about obligations between specific states and some treaties are broad law making treaty. why? Because it can bind states that do not agree to the custom so the court must be sure of what it allows becoming a customary norm. law. these states begin with a clean slate (free from all treaties and customs).co-existing custom principles for non-use of force and the attribute referred to expresses an opinio juris respecting such rule.

the least abstract (and more concrete) the principle. law needs to fill in gaps in its rules so it reaches out to laws within nations. or by setting forth a new rule of law by implication affecting all states. but also the more difficult it is to find a consensus among domestic legal systems (good example of this is the principles of statue of limitations/laches or. Near universal private law rules may be indicative of principles of public international law. Extradition treaties fall into the category of contract-law. but there are differences between these general principles and customs 2) General principles of law “derived from the specific nature of the intl. an agreement is a contract between two states and under contract law equity is used to judge such a case • “He who seeks equity must do equity”. principles of equity have been seen in Anglo- American Law. Roman Law. P here was not innocent had done some of the same stuff they were beefing with Belgium about. Albania is exploding mines and UK naval ships are being damaged and the ICJ invokes general principles of humanity. equity has real historic routes. there must be a general acceptance before it can become customary. elementary considerations of Corral 8 Fall ‘05 . either as evidence of what these states declare the law to be. the more useful it is. it is appropriate to use equity in such a case. level are those procedural rules that have more to do with notions of fairness. law is not a complete system. see Quebec Case) and the doctrines of necessity and self-defense. not custom. General Principles of Law (aka int’l common law among civilized nations): include a rule of good faith in int’l obligations (known as pacta sunt servanda: (“agreements must be kept”) The rule that agreements and stipulation. the particular principles that are used in the intl. esp. recognized by civilized nations (done within the nations). general international law would not usually require the extradition of an alleged offender. law is that of general equity. ICJ will not determine presence of GP unless it finds principles across different many systems and legal systems. and good faith Diversion of Water from the Meuse (Netherlands v. Corfu Channel Case (UK v. must be observed. procedural principles are more objective and thus more universal in appeal. equity defined as consideration of fairness. C. Absent a bilateral agreement. Belgium) PCIJ 1937: 128 Belgium wants to build canals and the Netherlands filed this complaint because the canals alter the flow of water of the River Meuse. as its known in civil law systems extinctive prescription). intl. community” 3) Principles “intrinsic to the idea of law and basic to all legal systems” 4) Principles “valid thru all kinds of societies in relationships of hierarchy and coordination” 5) Principles of justice founded on “the very nature of man as a rational and social being” Considerations of Equity and Humanity Most widely used and cited principle of intl. Albania) ICJ 1949: 133 Similar to the Meuse case. The mere existence of a network of bilateral extradition treaties in and of itself has no general law-creating effect. Actual law. See Case Concerning Reservations to the Genocide Convention. level. reasonableness. General Principles of Law and Equity: The Broad Expanse of General Principles of Law 1) The principles of municipal law “recognized by civilized nations”: Laws within many nations that are basically transferred to the intl. those contained in treaties. it’s an emerging system by comparison to the old legal systems of many of the worlds nations. many states derive their civil laws from Roman law. • Multilateral conventions with a large number of States parties may be a source of international law. intl.

courts 3. shall apply: Judicial decisions and the teachings of the most highly qualified publicists of the various nations. only binding on the parties in the case. Arbitral Tribunals and other intl. Decisions of Intl. General Assembly Resolutions: can be cited as int’l law. treaty rule (Hague Convention) not applicable cuz it’s not a time of war. Filartiga v. policy declarations. Interpretive value. attorneys but done this way b/c not all countries in the world have judicial systems where our system/jurisprudence is as important/even exists – civil law countries are very different). of App. 3 kinds a. Not strictly enforceable in court but courts may look to them to interpret law. thus. 34 in Supp: The Court. C. you can undermine the law. Upside: ability to deal with emerging issues. .Other judicial decisions aren’t as persuasive as ICJ Statute of the Int’l Court of Justice – Chapter II Article 38(d) – p.ICJ’s decisions are not binding on future ICJ to the extent of stare decisis but the reality is that successive ICJ courts follow older ICJ cases and distinguish carefully. Problem of national bias not reflective of international view. 1980: 143 Corral 9 Fall ‘05 . Never relied on to make new law but to understand existing law. applies to municipal decisions and ICJ’s decisions . Dynamic understanding. guidelines. whose function is to decide in accordance with int’l law such disputes as are submitted to it. Declaratory resolutions: argued to be less legal end of the spectrum. Helped to create law. Highly persuasive. Decisions of Municipal Courts B. humanity even more exacting in peace than in war. UN Human Rights Commission. Downside: if you’re not careful. allows standards to develop. depending on who & how many voted. Common issuers of soft law: UN Crime Prevention Branch.e. Divergence of view among writers: who do you believe? Who’s right? Historically. 37 in Supp. Decisions of the ICJ – regarded by int’l lawyers as highly persuasive on existing int’l law 2. Example of soft law: Beijing Declaration on women’s rights: global strategy to advance women’s rights. Soft law docs have legally binding sources. Pena-Irala US Ct. .Enforcement is a separate problem. General Assembly Resoluations). rules that are neither strictly binding nor completely lacking in legal significance. Kept track of international law. Scholarly Writings (aka the teachings of the most highly qualified commentators): Scholars/Judges/Professors/Associations. Judicial Decisions: (surprising to U. these include: 1. Its role is less important now due to the sophistication of IL today. 2nd Circ. Law declarations b. Declarations and Resolutions: “Soft law” (Outside of Article 38) Soft law: collectively. especially resolutions of UN Economic and Social Council. Procedural: binding effect on member states c. as subsidiary means for the determination of rules of law. the role of writers was significant. very often used as ways to interpret the primary sources A. General principle of elementary considerations of humanity requires Albania to notify countries that may pass through its waters.S. Secondary Sources: Article 59 – Statute of the Int’l Court of Justice p. Plays an important role in international law. Legitimacy is important in international law. or codes of conduct that set standards of conduct but are not directly enforceable (i.

but any violation by any branch is the responsibility of the state. law. Is the resolution repealed? States reaffirming some legal principles. the companies asked ICJ to appoint an arbitrator to hear the dispute. A wrongful death action brought in fed. law. US court looks at resolutions and declarations as evidence of customary international law. suitable for occasions when principles of great and lasting importance are being enunciated”. things some being grandiose (creating new norms) some very forward looking not just stating law. Is torture a violation of the law of nations?. the resolution that Libya is citing deals more with the compensation that a state can allot itself in such situations. Assembly resolutions are not formally binding (not formally legislation) but these statements have legal value. these resolutions fit in the gray area. the companies assert this is a violation of the deeds of concession granted to them jointly by the govt. Who has voted in favor or against? Major ideological divide. dist.it is a text already followed that is purported to be followed. voting record (adopted without dissent). obligation to int’l law is upon the state not on any particular branch of its govt. equity. • Texaco – looked at the particulars of each resolution and decided one was binding over the other. oil companies within the nation. not independent source of law. certain resolutions need more weight (i. “these are formal and solemn instruments. certain countries will/won’t vote for a certain resolution because they have more interests around the world. and property of 2 intl. all that matters to IL is whether that state is complying with IL. law is binding on the state.. Court takes voting record into consideration: nature. Libya contests this arbitration asserting nationalization = act of sovereignty. the arbitrator looks at the voting conditions in these resolution like who voted and who abstained. another resolution deals with the natural resources of a nation. there is no other body where all states are represented equally. refusal to recognize a UN resolution must be qualified. states may or may not apply resolutions to their own domestic laws. interests. and the principles of intl. regardless of what a state’s domestic law may say about international law. some very technical • UN Gen. violates the “law of nations”. Libyan Arab Republic Intl. ct. the resolution seeks to create a balance between a state’s rights of sovereignty and the adaptation of that sovereignty to intl. but the resolutions were (and are) given some weight internationally = an evolving approach towards sources of int’l law which are debated but evolving nonetheless -Should we make these distinctions regarding UN resolutions? Yes. it does not replace domestic laws. states are obliged to give it effect. diff. A state’s own law is not a valid excuse for non-compliance of international law otherwise int’l law could be totally subverted. but states make and apply int’l law thru their gov’t and their constitutional and legal systems. Corral 10 Fall ‘05 . the way to understand resolutions is in relations to the 3 primary sources. cooperation. jus cogens). law under the Universal Declaration of Human Rights a 1975 UN Gen.e. every state has the duty to carry out in good-faith its obligations arising from treaties and other sources of intl. law. the arbitrator found in favor of the companies saying that the deeds should be given full force and effect. deliberate torture under the color of official authority violated the universal rules of intl. Texaco Overseas Petroleum Et al. they have legal value if seen as similar to treaty law On International Law and Municipal Law - General Considerations: Intl. Assembly Declaration on the Protection of all Persons from Torture. language. a declaration resolution . there is a resolution that supports Libya’s view that protects sovereignty and another that tries to compel compliance to customary intl. Arbitral Award 1997: 148 Libya attempted to nationalize all the rights. resolutions do diff. often unanimously voted. family of decedent bring suit for wrongful death by torture in Paraguay. v..

agreements and customary intl. while abiding by an intl. the status of other intl. federal courts have jurisdiction: coherent foreign policy.2 the Interplay of US and Intl. law? Unless such a law is a violation of jus cogens. (Netherlands is a good example of this). Law as Federal Common Law Treaties are addressed in our jurisprudence but what about customary intl. con = it may be harder to enforce international law with this. it is accorded supremacy over State law Customary Intl. currently customary intl. the constitution declares treaties of the US to be “the supreme law of the land” and provides that cases arising under treaties are within the Jud. agreements. The law of nations as US law: Corral 11 Fall ‘05 . • Role of customary international law as federal law • Modern view: international customary law is our law. Habana • As a matter of federalism. (this is the U. the Supreme Court did abide by the customary intl. Ch. international law cannot be subject to domestic law. really irrelevant to IL. not even to constitutional limitations. as incorporated into municipal law. No implementing legislation if needed to incorporate IL into the state’s legal system. International Law in the Law of the United States Restatement (3rd ) Part I. and like treaties and other intl. with independence it became part of each of the 13 individual states. when the US became one state it became subject to intl. approach for the most part ). and may be repealed or emphasize the international legal personality of states. Better chance for enforcing IL. BUT continues to abide by the rules set forth in that treaty. There must be a relationship between the laws we follow domestically and those that are created and followed internationally. Preserves localism and democracy. law? It’s not even addressed. Power of the US. and as a result can be amended and repealed. and until the treaty is violated.S. is subject to constitutional limitations applicable to all domestic law. law. Implementing legislation is needed. • Treaties are equivalent to legislation. law is part of US law What if a State. Dualist: regard international law and municipal law as separate legal systems which operate on different levels. which stands ‘higher’ in a hierarchy of legal norms. treaty. You still have to abide by international law. laws are created by those whom we as people have elected to those positions. law regarding fisheries during the Spanish/American War (Paquete Habana). one voice. law is not clear. our Supreme Court has yet to declare that the Constitution is supreme over the law of nations and customary intl. law in the US is a kind of federal law. Law Intl. balancing international and domestic law. rather than of individuals or other entities.Prominent Theories re: relationship between IL and Municipal Law: Monist: regard international law and municipal law as parts of a single legal system. international law can be applied by municipal courts only when it has been ‘transformed’ or ‘incorporated’ into municipal law. based upon the holding in this case customary intl. is that legislation a violation of intl. law. traditionally. law was part of English law and as such a part of the American Colonies. international law. Intl. All must comply. • Treaty entered by US is considered as part and parcel of the law of the land. find it easier to maintain that individuals have international legal personality. the domestic legislation itself is not a violation. municipal law is seen as ultimately deriving its validity from international law. creates legislation in opposition of that treaty. It doesn’t absolve anyone.

into war 3) Int’l agreement creating an int’l crime (i. to make Treaties. is unclear. shall be the supreme Law of the Land.”. Restatement 3rd:An int’l agreement can’t take effect as domestic law without implementation by Congress if the agreement would achieve what lies within the exclusive law-making power of Congress under the Constitution. Congress may also consider whether new legislation is necessary. provided two-thirds of the Senators present concur. 209) as they are “framed as a promise of future action by the member nations. Power of the US and subject to Constitutional and statutory limitations and requirements of justiciability are within the jurisdiction of the federal courts 3) Courts in the US are bound to give effect to intl. and the Laws of the US which shall be made in Pursuance thereof. any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Executive Agreements don’t require Senate support Article VI: “This Constitution. agreements are usually non-self executing (i. under the Authority of the US. and the Judges in every State shall be bound thereby. hijacking) 4) Int’l agreement to raise revenue by itself imposing a new tax or tarriff Treaties and the Supremacy Clause: The constitution does not expressly impose prohibitions or prescribe limits on the Treaty power US Approach to Treaty Law: Self-Executing: no implementing legislation required: direct applicability. and of an expression by the Senate or by Congress in dealing with the agreement Corral 12 Fall ‘05 . agreements of the US are law of the US and supreme over the law of several States 2) Cases arising under intl. account must be taken of any statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole for approval. and all Treaties made or which shall be made.S. by and with the Advice and Consent of the Senate. it’s non-self executing.e. agreements of the US except that a “non-self-executing” agreement will not be given effect as law in the absence of necessary implementation 4) The determination and interpretation of intl. law and intl. The UN charter. agreements of the US are within the Jud. Anything that requires congressional action.S. more sweeping intl. law present federal questions and their disposition by the US Supreme Court is conclusive for other courts in the US US Constitution Article II. genocide) or requiring states parties to punish certain actions (i. treaties that create obligations to refrain from acting are generally self-executing Non-self executing treaty: (requires the passing of a domestic law) Requires implementing legislation. grander. law or intl.e.e.Restatement (3rd ) 1) Intl.S. If can’t operate by itself. Constitutional provision “to define and punish offenses against the law of nations” Intl Law and Agreements as law of the US . can depend of whether there is already an existing law on the books as well. human rights laws) If silent: as to its self-executing character and the intention of the U. and in particular its human rights provisions. 2) Int’l agreement to take the U. have been held to be non-self executing (see case and explanation on bottom of p. things that can’t be done via treaty without Congress: 1) Int’l agreement providing for payment of money by the U. It has no direct effect. no further action needed to bring treaty into effect. law and to intl. Section 2: The President shall have Power.

the disposition to construe a treaty to avoid conflict with a state statute is less clear (pg. Charming Betsy Presumption: akin to the U. principally the prohibitions of the Bill of Rights (since they have been incorporated in the 14th Amendment). Justice Holmes. under modern established views of the powers of Congress. Migratory bird treaty not bound to one state therefore no states’ right/10th amendment claim and treaty rights trump the states’ right claim.that is dealt with by treaty that could not also be the subject of legislation by Congress Foster and Elam v. • Treaties entered into by the US are not subject to Constitutional scrutiny but there are checks in place with the requirement of the 2/3 vote by the Senate. these relations suggest limitation on the scope of treaty power. Ct. “an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”. constitution trumps treaties. The states do not conduct foreign affairs . the grant is void because it is subsequent to the transfer to France and the US of the territory in which the land was situated. Holland Sup. that status is no less true of provisions of the constitution itself.. 1818…shall be ratified and confirmed to the persons in possession of the lands to the same extent as if they had remained under the dominion…”.. the existing laws cannot be encroached Breard v. numerous statements also assert limitations on the reach and compass of the Treaty Power. Republic of Paraguay v.S. implementation might be difficult and opposed. Treaties override state’s rights: Supremacy Clause. • Classic trans-boundary problem. Paraguay brought suit in Fed. 197). Congressional Power and the Treaty Power Questions arise about the relations between the ‘treaty-makers’ and Congress. authorities allegedly never informed him that it was his right to contact the Paraguayan Consulate. • Pro: we’ve taken this obligation and we want others to abide. treaty law = legislative law. the one last in date will control the other As a matter of international law. Notes: all treaties are subject to the constitutional limitations that apply to all exercises of federal power. of US 1829: 205 . 1819 treaty between US and Spain “all the grants of land made before the 24th of Jan. but when a contract imposes a particular act on one of the parties. if a treaty and a federal statute conflict. in human rights actions. Covert (p. Neilson Sup. where individual rights are concerned. have less leeway. Sup Ct. Ct.or nothing . in the US. petitioner asserts that his conviction violates the Vienna Convention on Consular Relations. and the extent to which they can do so is also limited by the constitutional safeguards for individual rights What is the Relationship between Treaties and Municipal Law?? Missouri v. to which rules of procedural default apply. this citizen of Paraguay is to be executed. Dist. 220). the court held that “although treaties are recognized by our Constitution as the supreme law of the land. Avoidance Canon. A restriction on the broad Missouri holding. this is a tough task since proper interpretation of a treaty is an int’l question as to which courts of the U. • But in Reid v..S. without Congressional act. Greene. Only way to regulate is with trans-boundary approach. than the legislature must execute the contract before it can become rule. constitution will trump treaties. there is little . Gilmore. sensible approach especially since most national legal systems follow it . Ct against certain Virginia officials. US must adhere to the treaty even though as a practical matter.allows states to reconcile domestic and international obligations Corral 13 Fall ‘05 .Federalism SC preserves integrity of the treaty over states’ rights issues. the treaty did not ratify or confirm appellants title. but they do influence them. 1998: 216 Attempted rape and capital murder trial. of US 1920: 198 .Treaties as Law of the Land Appellants seek to recover a tract of land in Louisiana which they claimed under a grant made by the Spanish governor.

but no minimum number has been set b. so long as they are accorded the above rights under customary int’l law or an int’l agreement In the beginning it was generally held that only fully sovereign states could be int’l legal persons. However.. etc. territorial authority. a new state does not have to extend nationality to its population as a condition of statehood 3) which is under the control of its own government Corral 14 Fall ‘05 . no minimum amount of space required 2) a permanent population a. and other juridicial entities. 5): as applied to a state. individuals. direct application of international law and not by virtue of a transformation into municipal law.Greece: “The generally acknowledge rules of intl. impermeability. but does not cease to be a state if occupied by a foreign power b. some of them do constitute essential characteristics and indicia of statehood today. shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. corporations. equality.International Law in the Municipal Law of Other States: Many handle it differently in the context of their own domestic law . NGO’s. law.Italy: “conforms with the generally recognized principles of intl. Henkin hates the word and its use in int’l law What is a state . but so are individuals. 250): it is an entity - 1) that has a defined territory a. as well as intl. States 1.Austria: “The generally recognized principles of intl. law are valid parts of the Federal law. a significant number of ‘permanent’ inhabitants will suffice even if large numbers of nomads move in and out of the territory c.S. and does not cease to exist when a previously functioning gov’t becomes ineffective or defunct c. integrity and inviolability. Subjects & Objects of International Law A. §201 (p.” . of Germany: “the general rules of public intl. have come into int’l legal personhood via customary international law or international agreement. law shall be an integral part of federal law. law.per the U.Netherlands: monists. and ‘privacy’. Intro An International Legal Person (ILP) – 1) a person or entity capable of possessing international rights and duties under int’l law and endowed with the capacity to take certain types of action on the international plane 2) States are ILPs. elements long identified with ‘sovereignty’ are inevitably only metaphors however. states are still the core actors having the greatest number of legal rights and duties. conventions as of the time they are sanctioned by law and become operative according to the conditions therein. Rep.” . France and Switzerland have similar doctrines . they enjoy a sort of preeminent int’l person status. States don’t exist until they have and evolve into sovereign entities. autonomy.Fed. these include principally: independence. Over time.” . They shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the federal territory. ‘personhood’.? Restatement 3rd. Henkin writes (p. corporations.” .It doesn’t matter how they seek to arrive at the end so long as they comply with their int’l obligations II.

e. before it will be regarded as definitively created b. within its own constitutional system. E. Somalia. or has the capacity to engage in. a. Lebanon = no stable authority but their state status hasn’t been revoked) . book says the new conditions it added were hand tailored to fit their specific interests. state must have competence within its own constitution.There must be some population based in the territory. both formal and real. there is no lower limit to meet the criteria (i.There is nothing that tells us what this means. a new state formed by secession from a metropolitan state will have to demonstrate substantial independence.S. as well as the political. both internal and external. Rwanda.e.000). (i.Capacity to conduct intl. was not recognized until the civil war was over) 4. Liechtenstein = 28. Corral 15 Fall ‘05 .e.No need for completely defined or undisputed territories. Israel) .Formally. Secretary of State Baker added the following: so long as the state adheres to 1) determining the future of the country peacefully and democratically. i.Consistency in the area governed . in other words not just nomadic bands of people in and out of the place 3. the working definition is: a stable organization/public authorities with enough clout to do what is necessary and maintain control (in Finland the govt. Burundi. independence is treated as a predominantly formal criterion 4) and engages in. formal relations with other such entities a. International capacity/Independence . based on full respect for the individual and including equal treatment of minorities (do we have this?) 5) respect for international law and obligations. 259) and are stricter than most other standards. emphasizing the key role of elections in the democratic process (questionable here) 4) safeguarding human rights. 44 of the supplement). added even more (p. especially adherence to the Helsinki Final Act and the Charter of Paris The Determination of Statehood Int’lly – Convention of Rights and Duties of States – Article 1 (p.U. It is much easier for an entity to obtain statehood than it is to lose it (i. where a state is created by grant of power from the former sovereign. Nauru = 8. financial/technical/political means -It is possible for a state to convey its foreign policy power to another state and still retains independence (not vitiated). consistent with the Conference on Security and Cooperation in Europe (CSCE) principles (who says democracy is best?) 2) respect for all existing borders.Sovereignty over a specific territorial area is essential 2. relations. there is no real definition.000) . 4 criteria/conditions of statehood for the purposes of int’l law: 1. it must be strong enough to assert itself without the assistance of foreign troops. technical.Some type of stable and effective authority is required. and change to those borders only through peaceful and consensual means (do we have this?) 3) support for democracy and the rule of law. to conduct international relations with other states. Permanent population . A state that voluntarily turns over these rights/responsibilities to another state does not cease to be a state For the U. and financial capabilities to do so.Does this government really called the shots for this state? . must have ‘competence. Defined Territory . Government .

because of the lack of recognition. Rights. the theoretical gap between these two theories is rather less in practice than in theory. However. primary function of recognition is to acknowledge the fact of the state’s political existence and to declare the recognizing state’s willingness to treat the entity as an int’l person. A state is not req’d to accord formal recognition to any other state. unilateral imposition or delegation of authority 4) cases in which states have merged or formed a union 5) claims by constituents of a union or federation to the attributes of statehood 6) territorial or non-territorial communicates which have a special int’l status by virtue of treaty or customary law and which claim statehood for certain purposes 7) when an entity whose status is in controversy seeks admission or the right of participation in an int’l body open to states alone 8) when parties seek to become parties to multilateral treaties or agreements open only to states 9) for purposes of establishing bi-lateral relationships 10) in national courts. legal remedies 3) capacity to join with other states to make international law. in effect. as customary law or by international agreement Question of statehood comes up in the event of: 1) break-up of an existing state into a number of states 2) secession or attempted secession by part of a territory of an existing state 3) cases in which foreign control is exercises over the affairs of a state. but other nations have already. to make contracts and enter into international agreements to become a member of international organizations. be denied it’s rights or escape its obligations. Rhodesia claims to be a state but its parent nation the UK Corral 16 Fall ‘05 . An entity that meets the conditions of statehood cannot. and transfer property. complaints will arise (i. particularly in respect of entities which have not been recognized as states by the executive branch (for purposes of determining claims to property. Premature Recognition as Unlawful Intervention: If the parent state has not yet recognized the new state. the validity of official act. with capacity to own. the other states by their recognition create the new state 2) Declaratory: existence or disappearance of a state is a question of fact and whether those facts meet the criteria for statehood established by int’l law.S. the right to sue.e. but is req’d to treat as a state an entity that meets the requirements of statehood. acquire. a duty not to recognize may be applicable when an entity does not yet satisfy the criteria for statehood under int’l law or when it has come into existence in violation of fundamental principles of int’l law. 260 – 261) Capacities. whether by treaty. and to pursue. picks and chooses who to recognize and how much to recognize them to suit its own interests too (p. and be subject to. and various other questions linked to statehood) Statehood does not necessarily = the government of that state Two Views on Recognition of Statehood: 1) Constitutive: the act of recognition by other states confers int’l personality on an entity purporting to be a state. immunity from suit. with the full rights and obligations that go along with that (most authority and practice lies here) A Duty to Recognize? Acts of recognition or refusals to recognize may have a significant and at times decisive role in determining controversial situations. So.The U. issues of nationality. and Duties of States include: 1) sovereign over its territory and general authority over its nationals 2) status as a legal person.

Further. Discussion of Revolution v. On Separatist Movements - Reference Re: Secession of Quebec: 274 . Quebecers are equitably represented in legislative. the people of Quebec have not been victims of attacks on their physical existence or integrity or of massive human rights violations. 269) too. Legal Secession: 1) “Successful revolution begets its own legality” (p. nor was there a legal expression of the concept in the Covenant of the League of Nations.e.e. the end of colonialism has opened up a lot of questions on this topic (i. Doesn’t automatically afford the right. but even enjoys the status of a peremptory norm (a norm that is so fundamental that a state cannot contravene it). the principle of self-determination is not only a binding rule of int’l law. rights of minorities. The right to external self-determination has only been granted to peoples under colonial rule or foreign occupation. In the eyes of some jurist and judges.N. legality follows and does not precede a successful revolution. There was no coherent theory of self-determination after WWI. economic. social and cultural development. and in due course became accepted as a principle of customary as well as treaty law. 280). executive and judicial institutions. this is an illegal state because it is as the UN Security Council calls it a “racist settler minority”) Self Determination of ‘Peoples’ – “the right of the people in non-self-governing territories (i. .Advisory opinion regarding self-determination in relation to separatist movements. Their interests are well- represented.SD doesn’t mean that that Quebec can unilaterally secede. and enjoy the freedom to pursue their political.This case leaves open the possibility that the international law right of self-determination could entail secession as a last resort in cases of especially severe oppression in which other channels for exercising internal self- determination had been totally frustrated. colonies) to freely determine their political status” (p.Issue: is there a right to self-determination under international law that would give the National Assembly. . self-determination was embraced as a ‘principle’. 270 – General Assembly Resolution on the Principle of Equal Rights and Self-Determination of Peoples . in 1945 via the U. 269) .Rule: a people’s right to self-determination cannot be said to ground a right to unilateral secession. based on the assumption that both are entities inherently distinct from the colonialist power and the occupant power. Was codified in many other treaties (p. it is widely held that the political future of a colonial or similar non-independent territory should be decided in accord with the wishes of the inhabitants. legislature or government of Quebec the right to effect Quebec’s unilateral secession? . Charter. self- determination is very much about internal democracy. Quebec is neither a colony nor a foreign-occupied land. Western Sahara) See the UN Friendly Relations Declaration on p. In this case. occupy prominent positions within the government of Canada. . if done this way though. External self-determination has also been bestowed upon peoples totally frustrated in their efforts to exercise internally their rights to self-determination. it cannot be said that the new state was won under color of legal right/according to int’l law Corral 17 Fall ‘05 .Cornerstone of General Assembly’s decolonization efforts.Holding: the international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states.It was not a clearly established part of IL until the UN Charter where SD is made a clear international principle. . . sees this as a rebellion.

2) Principle of effectivity (p. 280): an illegal act may eventually acquire legal status if, as a matter of
empirical fact, it is recognized on the international plane. This does fly sometimes but this is no reason
to pre-approve such acts

Cession: when one state gives away land
Secession: when an area breaks away from one state
Uti possedetis: we preserve the existing colonial orders, self-determination does not allow secession

On Recognition of Statehood -

Recognition from the U.S. (p. 292): Dan Webster puts our nation’s position as one of acceptance/cooperation with
all kinds of governments; the way it’s really been though is:
1) recognition of gov’ts was not a matter of int’l obligation but could be granted or withheld at will to
further national policy
2) other times, policy has been to recognize the gov’t in power despite distaste for the way it acceded to
power, or for its ideology, policies, or personnel
3) in recent years, practice has been to de-emphasize and avoid the use of recognition in cases of changes
of gov’ts and to concern ourselves with the question of whether we wish to have diplomatic relations
with the gov’t

Difference b/w diplomatic relations and recognition:
1) recognition = often effected by sending and receiving diplomatic reps, but one gov’t may recognize
another yet refrain from assuming diplo relations with it
2) breaking off of diplo relations does not mean de-recognition
3) a state may be recognized but not engaged diplo because
a. state A has no interests there to warrant it
b. to express disapproval of state B
c. state A may lack sufficient personnel to do so
d. it is unsafe to have dips in state B
4) should establish diplo if possible, you’re just giving up opportunity to influence state B

Criteria of Recognition of Governments:
1. Whether the new regime is in fact in control of the government
2. Constitutional legitimacy
3. Must be able and willing to carry out the obligations of membership
4. Must be able to employ the resources and direct the people of the state in fulfillment of the obligations of
membership.
5. Whether the new government exercises effective authority within the territory of the State and is
habitually obeyed by the bulk of the population.

The Two Governments of China (p. 295): the first case in which two rival gov’ts existed in
the same state; Issue: what test should be used to determine recognition? Held: a principle of
numerical preponderance is inappropriate and legally incorrect; does the new government
exercise effective authority within the territory of the state and is their authority habitually
obeyed by the bulk of the population (assessed on a case by case basis)

Notes: this leaves the door for value judgments open; value judgments based on the
national interest of the proposed recognizer, human rights interests, etc.

The Estrada Doctrine (p. 297): adopted by Mexico; generally understood to mean that recognition of gov’ts is
unnecessary once the state has been recognized by another state.
Corral 18 Fall ‘05

The U.K. (and many others have followed suit): ‘we have concluded that there are practical advantages in
following the policy in not according recognition to gov’ts. We shall continue to decide the nature of our
dealings with regimes, which come to power unconstitutionally in the light of our assessment of whether
they are able themselves to exercise effective control of the territory of the state concerned and seem likely
to do so.

Acquisition of Territorial Sovereignty: Legal Claims to TS in IL
Must have defined territory to be a state; sovereignty over a territory; many disputes regarding sovereignty over a
territory still exist today

1. Prescription - The process of acquiring title to property by reason of uninterrupted possession of
specified duration. (Continual peaceful possession/occupation/prescription – also a pre-req of
statehood); The acquisition of an easement in or on another’s property as a result of continuous use for
the statutory period: TEST =

1. The possession of the state must be exercised in the name of the sovereign (a titre de
souverain)
2. The possession must be peaceful and uninterrupted
3. The possession must be public (for all to know about it)
4. The possession must endure for a certain length of time

2. Force/Conquest (not legit anymore) – we don’t go back to invalidate ones that were attained this way
previously but this rule is applied prospectively

Stimson Doctrine of 1932 & U.N. Charter via the Friendly Relations Declaration of 1970: a
policy not to recognize the validity of territorial acquisitions brought about by force

3. Treaty/Cession – one country gives the territory to another
4. Discovery (doesn’t work anymore)
5. Contiguity/Accretion/Avulsion: geographically based method of acquiring sovereignty (was close
proximity; no longer valid)

Island of Palmas Case (United States v. The Netherlands): 316
- Arbitration of territorial dispute
- The US claimed that the Island of Palmas was part of the Philippines but the Netherlands claimed title as well.
- Contiguity of land does not work to show acquiring territory.
• Facts: the US claimed the island of Palmas was part of the Philippines and had been ceded by Spain by the Treaty
of Paris in 1898. the US as successor to the rights of Spain over the Phillipines, based its claim of title in the first
place on discovery. The Netherlands claimed that it had possessed and exercised rights of sovereignty over the
island from 1677 or earlier to the present.
• Issue: can an inchoate title prevail over a definite title founded on continuous and peaceful display of
sovereignty?
• Holding: No. An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of
sovereignty. The continuous and peaceful display of territorial sovereignty is as good as title. Discovery alone,
without any subsequent act, cannot suffice to establish sovereignty over the island. There is no positive rule of
international law that islands situated outside territorial waters should belong to a state whose territory forms the
nearest continent or large island. No one contested the exercise of territorial rights by the Netherlands from 1700
to 1906. The title of discovery, at best an inchoate title, does not prevail over the Netherlands claim of sovereignty.

Corral 19 Fall ‘05

Dutch presence was continuous and on notice. The title of discovery exists only as an inchoate title, as a claim to
establish sovereignty by effective occupation.
Inchoate: Impartial or incomplete.
- Territorial sovereignty involves the exclusive right to display the activities of a State.
- In cession, you can’t cede more than you have.
- Spanish claim to title: discovery
- Intertemporal Law: looking at law in force at the relevant time: promotes stability and fairness.
- Judge the Spanish according to the early 16th century laws. Did the Spanish have a claim under the 16th century
law.
- To claim prescriptive sovereignty, you have to show peaceful and continuous presence.
- res nullius: empty territory: terra nullius: territory belonging to no one. Cannot be found to exist where there is
local people with social/political organization.
Q: can we say that the distinction is a myth?
- other interested states could not have protested and objected with their own claim. That’s not peaceful display.

Legal Status of Eastern Greenland Case (Denmark v. Norway): 323
• Proceeding before the PCIJ
• Denmark claimed that Norwegian occupation of Greenland was invalid.
• Rule: To state a claim to sovereignty based on continued display of authority, two elements must be shown to
exist: 1. the intention and will to act as sovereign, and 2. some actual exercise or display of such authority.
• Fact: Norway issued a proclamation in 1931 purporting to place portions of Eastern Greenland under Norwegian
sovereignty on the theory that the territory was terra nullius. Denmark instituted proceedings in the Permanent
Court of International Justice against Norway. Denmark claimed that it had acquired sovereign rights over
Greenland based on continued display of authority (occupation).
• In view of the numerous treaties, legislation, and the absence of all claim to sovereignty over Greenland by any
other power from 1814 to 1915 and later, Denmark has displayed sufficient authority over the uncolonized portion
of Greenland to confer a valid title to the sovereignty. The Norwegian government’s occupation of July 10th 1931
was illegal and invalid.
• The court also mentioned that many third states had recognized Denmark’s sovereignty. Norway had also been a
party to various agreements describing Greenland as Danish. Norway also unsuccessfully claimed that in the 18th
century Greenland only referred to the colonized areas of western Greenland.
- Norway was held to have recognized Danish sovereignty.

Case Concerning Kasikili/Sedudu Island (Botswana/Namibia): ICJ 1999: Prescription: 327
• Petition to determine the legal status of an island.
• Namibia claimed title to an island based on an Anglo-German Treaty and the doctrine of prescription.
• Rule: The conditions cited by Namibia regarding acquisitive prescription are not satisfied here, thus its claim is
rejected.
• Facts: Botswana and Namibia petitioned the ICJ to determine boundaries between the two countries and the legal
status of an island under an Anglo-German Agreement of 1890. Namibia claimed title to the island based on the
treaty, or in the alternative the doctrine of prescription, since Germany exercised peaceful possession of the island
in full view and full knowledge of Britain, which was continued without interruption until Namibia’s accession of
the territory.
• Issue: Are the conditions cited by Namibia regarding acquisitive prescription satisfied here?
• Holding: No, Namibia has not established with the necessary degree of precision and certainty that acts of State
authority capable of providing alternative justification for prescriptive title, in accordance with the conditions set
out by Namibia, were carried out by its predecessors or by itself with regard to Kasikili/Sedudu Island.
• There is no evidence that either Namibia or its predecessors exercised state authority over Kasikili/Sedudu.
• Both people making use of the island.
• a titre de souverain: in the name of the sovereign.
Corral 20 Fall ‘05

Uti Possidetis • Petition to resolve a border dispute • Burkina Faso and Mali submitted a question to the ICJ regarding a border dispute. and much of Africa apparently sanctifying the former internal administrative lines as interstate frontiers. and new states would fall prey to irredentist neighbors or internal secessionist claimants 2) because a cosmopolitan democratic state can function within any borders is as sensible as any other approach and far simpler 3) (and buttressing the other two) uti possidetis is asserted as a default rule of int’l law mandating the conversion of all administrative boundaries into int’l borders Cons for Uti Possidetis: 1) creates s significant hazard in the name of simplicity – namely the temptation of ethnic separatists to divide the world further along administrative lines 2) the extension of uti possidetis to modern breakups leads to genuine injustices and instability by leaving significant populations both unsatisfied with their status in new states and uncertain of political participation there. Yugoslavia.Chapter III (p. and Czechoslovakia. so may you possess”. by hiding behind inflated notions of uti possidetis. 301 Supp: soft law but very influential Breach of Int’l Obligation . was essential during the post-Cold War breakups. many populations are inherently unsatisfied with the boundaries upheld by the principle during these breakups. • Rule: There exists an obligation to respect pre-existing international frontiers in the event of a State succession whether or not the rule is expressed in the form of uti possidetis. 331) – “as you possess.Frontier Dispute Case (Burrkina Faso/Mali): ICJ 1986: 331 .Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power. Thus. all borders would be open to disputes. THIS IS A BLACK LETTER LAW RULE IN INTERNATIONAL LAW Justifications for Uti Possidetis: 1) reduces the prospects of armed conflict by providing the only clear outcome in such situations. absent such a policy. State Responsibility & Diplomatic Protection ILC Draft Articles on State Responsibility – p. as well as former European Africa and Southeast Asia beginning in the 1950’s. . Corral 21 Fall ‘05 . provides that states emerging from decolonization shall presumptively inherit the colonial administrative borders that they held at the time of independence. The fact that it’s legal under national law is irrelevant.. is profoundly at odds with current trends in int’l law and politics 2. the numerous declarations of the intangibility of the frontiers at the time of the declaration of independence of the African states are declaratory. The fact that the principle did not exist when the states declared such independence in 1960 does not foreclose its present application. state leaders avoid engaging the issue of territorial adjustments – even minor ones – which is central to the process of self-determination 3) it ignores critical distinictions between internal lines and int’l boundaries and.. 303): when responsibility arises • Only international law is relevant to making the determination as to what constitutes internationally wrongful act. more important. The relevance of this doctrine today is evidenced by the practice of states during the dissolution of the former Soviet Union. Uti Possidetis Juris (p. it largely governed the determination of the size and shape of the states of former Spanish Latin America beginning in the early 1800’s.

everyone has an interest in holding that violating state accountable. Answer is mixed. and war crimes. what matters is whether you’re complying with IL. Such crimes might include: piracy. The term falls within the International Law Principle of Universality.Conduct of private persons: Article 8 – p. obligations of that state. Corfu case) Opinion is divided but strict liability is more common. Goes to action by state agents but the realm of possibility doesn’t end there because there are other actors whose acts can be attributed to the state . regardless of whether they are covert. slave trade. •Erga omnes: a legal obligation toward all.e. a state will be held liable because we need clarity and security in IL. peace. Necessity: Article 33 essential to state’s interests.range of governmental agencies.302. 3) No defenses for the conduct. Takes state responsibility and translates into a particular situation. genocide. can be imputed to state if it’s established they were acting on behalf of the state. 2nd Phase ICJ 1970: 694 1) You have to have conduct that you can attribute to the state. Negative formulation. and organs which are not part of the formal structure of the State. Fairness to other states. States are responsible for the acts of their secret service. Degree of intention /negligence v. negligence. . Case Concerning the Barcelona Traction. (i. 302. private individuals. All states can be held to have a legal interest in their protection. (Belgium v.e. All states have an obligation to enforce the Geneva Conventions. Youmans Case) Policy motivation is to promote clarity in IL. just the fact of noncompliance (violation) aka strict liability v. A state is responsible to all states for these even if those states cannot show injury. Ltd. and police. legislative. Also any territorial government can act for the state (i. operating a "stateless vessel". • Basis of Responsibility: level of fault we have to find state responsibility. • Concept of erga omnes is embraced in this case. cannot have contributed to the threat. Federal system) and de facto state acts. Only means of safeguarding state’s ability to function. Spain).) Defenses that can shield a State from liability? Chapter V – p. Union bridge company. Non-violating/victim state doesn’t care about degree and intent of negligence. a grave and imminent threat. fundamental life & death issues.e. committed by other actors imputable to state for the purposes of state responsibility law Article 9. 306 Supp 1. judicial. cannot harm essential interests of another state – survival. But strict liability for states is common in international tribunal approach (i. (i. Can be imputable to the state if: a) it is established that such person or group of persons was in fact acting on behalf of that state. that is the idea that certain activities are so reprehensible that the rules of jurisdiction are waived so that any state may apprehend an alleged perpetrator and try them under their own jurisdiction. even under this condition.e. Corral 22 Fall ‘05 . At the end of the day. By nature of the obligation. and Power Co. Erga omnes is just for states. Lights. • Element of Imputability: Article 7 – p. 2) It must be a violation of intl. usally used in reference to human rights or environmental issues. This approach begets clarity and uniform standard. executive. or b) such person(s) was in fact exercising elements of the gov’tal authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority • Ultra Vires Actions: Articles 10 & 11 unauthorized/beyond the scope of power allowed or granted by the law of the state – can be individuals or ‘organs’. whose actions can constitute state action that can be attributable to a state. cannot use when it violates peremptory norms.

(i. fairness towards injured state is the greatest consideration here. 4. Non- performance can’t be something you can’t take back (legal) 3) Retorsion – generally permissible in int’l law irrespective of prior breach (i. Gabcikovos . court rule the measure was out of proportion with the breach. due to equipment failure. Para. the tribunal does not buy the defense of distress in regards to the woman because there was no good faith. Force Majeure: Article 31 unintentional breach caused by an unforeseen event that makes it materially impossible to conform to the obligations. but state B can if B did not give consent. among the most controversial of the Draft Articles as they embody a series of compromises b/w arguably irreconcilable positions. (Rainbow Warrior Case) 5. • Essential interest of state is subjective. the other because she was pregnant and her father had cancer. Exception: you can’t contribute to the occurrence of the situation of material impossibility. Remedies Counter Measures and Self-Help: Chapter II – p. encroaches on a state’s air space. EXCEPT if the state contributes to the occurrence that has caused the extreme distress. the other problem was that the agents remained in France and weren’t not sent back. a plane. but court decided that necessity was not available because the nature of the threat was not imminent. 2. 2 d 3. thus it must be limited by the court. if the breaching party had a defense then “the wrongfulness would be preclude and there can be no countermeasure” State responsibility: important aspect of IL. Rainbow Warrior (New Zealand v. 3. must be necessary to stop the harm and must be proportional to the violation and injury and necessary.e. Gabcikovos . 713. external event beyond the control of a state.e. Distress: Article 32 extreme distress may cause the actor to carry out action to save his own life or the lives of those entrusted to them. consent can preclude wrongfulness but it cannot preclude obligations of peremptory norms. Emergency threat. must be taken in conformity with the Charter of the U. sometimes involve use of force (illegal but allowed) 2) Reciprocal Measures – non-performance in fulfilling obligations towards the offending state so long as those obligations correspond to or are directly connected with the original breach. must be something that is reversible. Consent: Article 29 if consent is validly given by state A it cannot seek action. one of the spies was transported for abdominal pain. Distress is available for a limited time to save lives. it was unilateral action. France should’ve waited for New Zealand’s approval. ultimately reparations were made to New Zealand. diplomatic severance) (legal but rude) Corral 23 Fall ‘05 . Conduct otherwise unlawful is rendered excusable because of consent.Nagymaros 1997: 715 Slovakia claimed countermeasure.Nagymaros 1997: 709 They were claiming necessity because of the environmental threat. Not available if the state acts to create as much or greater distress. NOT the same as self-defense 3 Types of Countermeasures: 1) Reprisal – would be illegal but for the prior illegal act. Self-Defense: Article 34 see use of force. Must be expressly stated. France claimed Force Majeure and Distress • Failure to return defendant once distress was no longer an issue. France) Arbitration Tribunal 1990: 704 2 spies arrested for bombing a Greenpeace ship.N. Hungary could’ve taken other steps. 309 Supp/p.

which contributed to the damage. the land is bombed. damages reflecting the gravity of the infringement. The threat or use of force as prohibited by the UN Charter 2. Extreme economic or political coercion designed to endanger the territorial integrity or political independence of the state which has committed the injury 3. the injuring state may not invoke its municipal law as justification for the failure to provide full reparation. If the other side bombs your city. someone is dead. and c) would not burden the injuring state out of all proportion to the benefit which the injured state would gain 3.e. etc. in no case shall reparation resulting depriving the population of a state of its own means of subsistence. b) that doing so would not violate a peremptory norm . premises. cannot be the kind that impairs the reputation of the injuring state though. they may be punished 5. best use is for strong states against a weak state. non-adjudicatory d) Inquiry – 3rd party investigates the disputed facts and gives a report of what actually occurred and sometimes adds a recommendation. the re-establishment of the situation. if done by agents of the offending state. provided: a) that it is possible. 310 Supp Prohibited Countermeasures: Article 50 1. and/or c) in cases of gross infringement of the rights of the injures stat. Forms/Methods of Countermeasures: 1. Compensation – Article 44 specifically includes interest now. you can’t do the same. is much more common than the above. non-adjudicatory c) Negotiation – Article 54 the two sides site down face to face and try to compromise their way out of it. Reparation – Article 42 the injuring state must make full reparation to the state it injures.Article 55 same as an inquiry but under the auspices of the UN Secretary General or some other int’l big shot. non-adjudicatory b) Mediation – Article 55 some as conciliation but less pro-active 3rd party. Satisfaction – Article 45 much more important than it seems. covers any economically assessable damage sustain ed by the injured state 4. account shall be taken of the negligence or the willful act or omission of: a) the injured state. same for summary execution. Any other conduct in contravention of a peremptory norm of general int’l law Dispute Settlement: a) Conciliation – Article 56 a 3rd party comes in and tries to resolve the issue. essentially involved in all of these methods as agreement will have to be reached for all of them. available if and to the extent that the damage is not made good by restitution in kind. goes. Restitution in Kind – Article 43 this is the priority int’l law although its rare in reality because its usually not possible (i. Assurances and Guarantees of Non-Repetition – Article 46 Conditions Relating to Resort to Countermeasures: Article 48 p. Any conduct which derogates from basic human rights 5. or b) a nat’l of that state on who behalf the claim is brought. which existed before the wrongful act was committed. may take the form of one or more of the following: a) am apology. more pro- active than mediation.). • Limitation on all of the above. in particular to moral damage caused by the injuring act. b) nominal damages. non-adjudicatory e) Good Offices . 2. non-adjudicatory Corral 24 Fall ‘05 . Any conduct which infringes the inviolability of diplomatic or consular agents. archives and documents 4.

“doctrine of effectiveness” • The UN has certain interests that the rights of the UN itself are not violated. the UN was intended to exercise and enjoy (and that’s what it’s doing) functions and rights which can only be explained on the basis of possession of a large measure of intl. • General Assembly: highest democratic body in the world. organizations have exercised their legal capacity in many ways: treaties. Not supranational organization like the EU. air. But they have different rights and duties. if the UN did not have this ability than it would have no power anywhere. Children’s Fund • Security Council: principal organ dealing with issues of peace and security. Supervises a range of important bodies (i. and constitutional initiatives and supervises various sub organs. semi- adjudicatory g) Judicial Settlement – the most preeminent institution is the Int’l Court of Justice (ICJ). • ICJ: Judicial wing of the UN. obligation.e. telegraphic. these are the most accepted international persons as they are seen as having the necessary capacity. sear. expensive in terms of money and expertise. the UN must have legal capacities and personality. Organizations (International (IGO) & Non-Governmental (NGO)) International Legal Personality and Powers of IGOs: • Intl. enumerates what measures the Security Council can take. f) Arbitration – Article 58 a form of mediation but the holdings are binding. Bernadette. sailing the seas flying their own flag. • How can the UN send people out into world if they cannot legally protect them? Can the UN bring such a claim against a state? No doubt because it is bringing a claim against one of its members for breach of intl. etc. the question at issue in this case is whether or not the UN can bring action itself. plane. does the UN have a legal personality? The ICJ looked at the UN charter to determine whether or not the UN had the right to bring such a claim and the ICJ found that it did. Under their umbrella also: FAO – the Food and Agriculture Organization WHO – the World Health Organization ICAO – the Int’l Civil Aviation Organization WB/IMF – World Bank and the Int’l Monetary Fund WTO – the World Trade Organization (relatively new 1994) UNICEF – U. radio. may include complete or partial interruption of economic relations and of rail. different from resorting to court because the parties can choose the applicable law and the arbitrators. convened conferences. relationships between NGOs and UN). Effectiveness Doctrine: this treaty cannot function unless you derive certain powers from it Corral 25 Fall ‘05 . Members are state representatives. funding. Deals with humanitarian. 10 Supp. • Secretariat: Bureaucrats. adjudicatory B. postal. personality and the capacity to operate upon an intl. Civil Servants. • After states.N. legal. and the severance of diplomatic relations Reparation for Injuries suffered in the service of the UN ICJ 1949: 361 The UN was seeking reparations for the death of its chief negotiator. UN Charter Article 41 p. Preeminent IGO = The United Nations whose primary goal is to prevent war/promote human rights and social welfare according to its charter. It doesn’t have automatic judicial review. • Economic and Social Council: political body. best use is for small states with a strong case. and other means of communication.

Implied Powers Doctrine: UN has the capacity and legal personality to bring legal claims. a kind of ‘int’l constitutional law’. not ultra vires for Security Council to set it up. Particularly when organs of an int’l org are authorized by its constitutive agreement to make decisions. the ACLU. Effectiveness means that under IL the organization must be deemed to have those powers which are conferred. States have been unable to accomplishment as much in this area • NGO’s don’t always direct their efforts at specific states. the org. they are not elected and not necessarily accountable (unless they are a membership organization or fundraising) • Example of the great things NGOs can do: Convention Concerning Landmines and Humanitarian Treaty in Arms Control. can be said to have a law of its own. it is a decentralized legal system. law. and indeed the attitudes and conduct of diverse actors Restatement 3rd Part II. religious bodies. Chapter II on NGO’s: Int’l orgs are created by int’l agreements and are governed by the law pertaining to such agreements. • Security Council has a wide margin of discretion in choosing the course of action. they seemed to be acting on behalf of the US against the 4 developing nations in the case). • Rule: Once the Security Counsil determines that a particular situation poses a threat to the peace. admit and expel members and interpret or even amend the constitutive agreement. they did nothing wrong because they played the role they were supposed to but perception might Corral 26 Fall ‘05 .There is no clear sense of judicial review or hierarchy between various tribunals and ICJ. Instead.Slippery slope argument. The law of int’l orgs has become a separate subdivision of int’l law. the Security Council has to report to the General Assembly within the parameters of the assembly. and environmental matters. the UN is an evolutionary organization though • Tadic claimed that the Security Council was not authorized to establish an international criminal tribunal. law scene. much as in national legal systems the law of corporations developed independently of the law of contracts even while retaining links to it. health. NRA. allocate funds. Council. because NGO’s do not have to answer to anyone. Tadic was challenging the legality and appropriateness of the measures chosen by the Security Council. the UN security council must maintain and restore peace and sometimes the methods necessary for that were not foreseen when the UN charter was written. professional and scientific associations. they called for an uncompromising absolute ban on the use of land mines. but is essentially to a determination of the parties’ legal rights. sometimes they lobby the “global civil society” • Sometimes these NGO’s appear to be acting on behalf of a state (like in the shrimp case. should we be concerned about this? Maybe. federations and international unions made up of national associations representing labor or employers. • Greenpeace and other such grass-roots organizations. • Here. • Interlocutory Appeal: the appeal of an issue that does not resolve the disposition of the case. such organizations can be present during the UN General Assembly. how far can the discretion go? .. they provide vehicles through which transnational ‘civil society’ can influence the decisions and actions of states and of int’l organizations. Prosecutor v. Non-Governmental Organizations (NGO’s): not the creations of states but rather are formed by individuals or private groups sharing a common objective. scientific academies. such organizations are becoming more involved in the intl. . they include worldwide organizations involved in humanitarian. etc. they raised the bar of intl. it enjoys a wide margin of discretion (exceptional powers under Chapter VI and VII of the UN Charter) in choosing the course of action. • The charter of the UN provides that the Security Council shall determine the existence of any threat to the peace and decide what measures shall be taken to restore international peace and security. they can do anything the delegates can do except vote. human rights. Tadic International Criminal Tribunal for the Former Yugoslavia 1995: 372 Did the UN have the authority to establish this criminal tribunal? It was established as a measure of the UN Sec. NGO’s do not exist in a vacuum.

The Economic and Social Council (ECOSOC)). Quasi access and quasi status. individuals were not subject to IL. instrument of rights inuring to the benefit of the individual and the enforceability of these rights at his instance. if you focus too much on individual complicity. (i. allowed to take the floor. However. There have been many instances of forceful intervention by a state to protect its own nationals from mistreatment in another state. law has often been obscured by the failure to observe the distinction between the recognition in an intl. •There is nothing in IL prohibiting individuals from acquiring rights under IL as long as that was the intention of the parties that devised the treaty such that individuals can have rights and direct recourse in international forum. that ignores the vast bureaucratic complicity of a state and can lead to scapegoating. regional. • NGOs may submit information to a panel and it’s up to the panel to decide whether to accept. Individual has legally protected interests. Corral 27 Fall ‘05 . Drafting certain texts. Under this regime if an alien individual is injured by a wrongful act or omission by or attributable to a state and if the individual is unable to obtain redress under the legal system of that state the state of which the injured individual is a national may intercede and assert a claim against the offending state. and a member has status: he is not an object. GB) Intl. • NGOs have an increasing claim toward being international person. • International Criminal Law: obligations of IL binding individuals directly regardless of superior domestic law. Provide information on a range of issues. take notes. and by subject • They are not international legal persons: so no powers and duties that IGOs have but they do play an increasingly important role in IL. growing number of NGOs dilute the process. agreements often create rights in individuals and juridical entities against foreign states. Wide range of NGOs work. (Governing transnational transactions) • Problem often is though that: The position of the individual as a subject of intl. Also. • Individuals may use IL in domestic courts to claim their civil rights as IL endows individuals with fundamental rights and freedoms. law for which individuals can be tried and punished by national courts.e. There are crimes under customary international law for which individuals could be tried and punished by national courts. But individuals have more of a role both as subject and object of IL with both duties and rights. commerce. • IL doesn’t abide by collective punishment. Individuals & Corporations Individuals and Private Corporations: • There are crimes under customary intl. be different (the dispute at trial was whether or not the unsolicited briefs given to the DSU are admissible. C. this is a formalist argument used by the opposing nations because they don’t like what the briefs say) • Different levels of NGOs: International. • Some NGOs given consultant role with the UN. but can’t fight for them without my state? That’s no good) • The individual as the end of community is a member of the community. Offering expertise. Individuals may have standing re: asserting a claim before some tribunals and committees. in other words. national.) Intl. (Treaties of friendship. They don’t however have access to ICJ. (Mavromattis v. law must be applicable to the mutual relations of states. Lack of accountability. present draft text. Allows access to the UN. navigations and rights under these agreements can be enforced. • Tribunals set up to prosecute individuals directly before IL: “natural persons” • Individuals can be argued to have emerging international personality but not on the same level as states. such as human rights but not security and disarmament. Imbalance in NGO access. as well as the relations between individuals and states. • Classically. I have rights. Individuals have long been implicated under the customary international law of state responsibility. • Criticism: who elects these NGOs? Non representatives. But they don’t vote. • NGOs do lobbying work and standard setting work. Further suggests that NGOs have a role to play in IL. to meetings.

Law (TNCs): p. sovereignty (some governments are less powerful than the company in that country and may get overrun by the corporation . political or any other grounds) are punishable.For most purposes. 421 • Private Corps that are incorporated in (and often have their headquarters in) one state and carry out operations in many countries around the world -Have become the subject of controversy lately due to their economic and. in order to give regulatory competition a downward push. a broader national and int’l regulatory system is necessary. like individuals. thus. whether the state of incorporation.Trial of Individuals before the Nuremberg Military Tribunals under Control Council Law 1951: 406 An International Tribunal formed to punish violators of war crimes. must in most instances rely on the protection of the gov’t of which t hey are nationals and do not have access to int’l legal proceedings to protect their rights . The Nuremberg Tribunal enforced law as declared by the International military tribunal charter and CC Law 10. the state where the corp’s mind and management are located.Such corporations are most often private.. tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall.An ‘int’l companies law’ seems unlikely anytime soon but. pursuant to which it enforced international law as superior to any Germany law. nongovernmental entities. or of the state where the TNC maintains its headquarters or registered office (siege social).TNCs operate mostly on a modus vivendi (a compromise between adversaries that allows cooperation temporarily) basis now . the effort to develop a ‘code’ in the form of binding rules or guidelines for TNCs is likely to continue . child labor. law that the civilized world condemns and for the commission of which principals and accomplices (whether private individuals. Vietnam).Only the sub-commission on human rights has been able to implement its principles upon transnational corporations thus far • Right now corporations have the least formal personality on the intl. racial. they are subject to applicable national laws. and the difficulties they create for national states – both ‘home’ and ‘host’ states – which seek to exercise legal authority over them . Corral 28 Fall ‘05 . or statesman. crimes against peace. Nuremberg Trials are not enforcing German law but rather world law • Rule: As to the punishment of persons guilty of violating the laws and customs of war. and whether the crime is committed on religious.The worst abuses often take place outside the formal corporate sector. but that participation in the enforcement and enactment of such laws constituted war crimes and crimes against humanity in itself and amounted to complicity in the crime. • Holding: Defendants contend they should not be found guilty because they acted within the authority and command of German laws and decrees. public officials. . scene but actually may be the most powerful.Nike v. TNCs are treated in int’l law as the nationals of a particular state. • Weissbrodt Principle: International responsibilities of TNC in human rights area. rights of workers.TNCs might be accredited as non-voting participants in int’l conferences or they might be involved in expert groups. Such law did not excuse persons on the basis that they were acting in accordance with law prevailing at the time of the crime. in some cases. development of emerging nations. which could participate in int’l conferences . conspiracy.Much depends on whether they take advantage of inconsistencies and loopholes in int’l arrangements.Issues implicated by TNCs: environment. or whether accountability mechanisms can be devised to unsure that they adopt and act as a transmission-belt for high business standards . the mobility and complexity of their operation. etc. and they are not international legal person in the technical sense . TNCs. to ensure that improved standards are generally disseminated . the General Assembly is not a legislature but it is the most authoritative organ of world opinion. more than states. penal law of Germany not sufficient enough. Transnational Corporations under Intl. crimes against humanity. political power. the General Assembly affirms that genocide is a crime under intl.

when this transaction is subject ot the municpal law of one or the parties or to that of a 3rd state d) A loan or a guarantee agreement between the World Bank and a state .Drawbacks to Treaties: 1) They are used in wide range of purposes. (but they look for consensus primarily) Treaties of Codification: taking agreements/understandings/customs that already exists and turning them into treaties and codify them = international treaty. Closest to legislation/black letter law.How to know when governed by int’l law: a) The agreement’s subject matter entails high politics between states b) The intention of the parties to be bound by int’l law c) The agreement goes to principles of customary int’l law • Does NOT cover: a) Agreements between a state and a private company. . this is more “progressive development”. Is this suitable?? 2) Treaties can have multiple parties following at a time.DOES cover agreements between states and NGOs and UN Charters . etc. But have one body of rules that govern these disparate instruments. even a multinational one. D. Is it possible to have one set of rule applicable to different treaties. 451 Role of Treaties as Sources of Int’l Law: Two views 1) not an independent source of law. limiting child soldiers. there are merely a specific legal obligation that bind the parties to the agreement 2) a kind of source of international law in the classical sense and an important one has become this over time (tried and true) Multilateral treaties like International Treaties on the Treatment of Children adopted by all but Somalia = international law Treaties of Progressive Development: where there is no custom/relevant practice. commitments . Vastly diff numbers of states yet one body of treaty law. radically different instruments involving different number of parties. treaties regulating commerce. even if it is half-owned by the gov’t b) Purchase by a state of one thousand tons of chilled beef from another state govt c) Purchase of a building or a piece of land for a legation. preparing draft conventions on topics where there hasn’t been state practice/custom before. conference takes place by the vote of 2/3 of the states present and voting unless by the same majority they shall decide to apply a different rule. writing down in treaty from previously existing custom/custom that was very close to wide acceptance Three potential relationships between treaty law and international custom law (from book): 1) Treaties can expound upon custom that is pre-existing 2) Treaties can crystallize pre-existing custom and expand its reach 3) Treaties can create new law that can eventually create custom Treaty Law: • Treaties are a principal source of obligation in international law and must be registered with the UN via Article 102 • The term covers the binding agreements between subjects of international law that are governed by international law. Corral 29 Fall ‘05 . “Adoption of the text of a treaty at an intl. Best medium to imposing binding laws of precision. The Law of Treaties p.Gentlemen’s Agreements: treaties that intend to create only political or moral. You can have as much as 194 state parties a part of a universal convention. as opposed to legal.

Adopting a text is different from agreeing to undertake the agreement. Exchange of Instruments – Article 13 so long as parties agreed that’s how consent would be derived Corral 30 Fall ‘05 . general principles of law to treaties. Entered into force in 1980. 453): applies only to d) applies only to treaties concluded between states (Article 1) e) applies only to agreements in written form – must be a single text. 135 Supp) Article 7 – p. . law: been invoked and applied by tribunals. is one legal framework suitable for so many countries. No consideration is required to find the existence of treaty. with advise and consent of Senate. Executive makes treaty.In US. affirms that rules of customary int’l law will continue to govern questions not regulated by the Convention Note: Oral agreements do have force but not under Vienna Convention Vienna Convention Part II. ministers of foreign affairs d) Heads of diplomatic missions e) Designated state reps Article 8 – p. The convention is regarded in large part as declaratory of existing law. many examples of when the laws codified inthe convention were applied before it was put into force in 1980 (p. No provisions for war between Contracting Parties (today war is called Armed Conflict) The Scope of the Vienna Convention (p. Now it’s put before Parliament. defines who may represent a state for the purpose of adopting a treaty for that state a) Those producing appropriate full powers b) Those who it appears the state intends to have such powers via their action & other circumstance c) Heads of State. 136 Supp. 453). is taken as a statement of customary intl. Section I: Conclusion of Treaties (p. 135 Supp. whether covered or not by the Convention. the formal act whereby the form and content of the proposed treaty are settled. Parties must agree that a particular written formulation will constitute a treaty. • The Vienna Convention on the Law of Treaties: (p. . It means that that adoption is the outcome of negotiation. treaty-making capacity is in the Crown: formal matter. Signature in some states may be subject to ratification and others might not 2. Upside is its democratic/downside is that the process can be lengthy. Means by which to express consent and get into a treaty: 1. 134 Supp) THE principal authoritative source on the law of treaties.Article 12 or signature followed by ratification to make it complete (this is just an intention to be bound). where relevant. It can take the form of an exchange of notes/papers (Article 3) f) is non-retroactive g) acknowledges the continued application of customary law and. 3) The question becomes. 136 Supp.In UK. if a treaty is concluded by someone who turns out to be unauthorized. Signature . but does not have to be on one piece of paper. Heads of Gov’t. adopted in 1969. • Protocol: treaty that’s appended to another underlying treaty: elaboration • Declaration: not a treaty • Charter: might be used to refer to a treaty but not always • Contract: does not apply. the treaty is without legal effect unless afterwards confirmed by the state Article 9 – p.

3. it’s difficult to object to reservation. • Implied acceptance is also possible: art 20. 137 Supp 4. or Approval . when a state signs a treaty subject to ratification. undertaking the responsibility of the treaty. US cannot accede.Responses to reservations: If expressly permitted. formulate a reservation unless: (a) the reservation is prohibited by the treaty. It just can’t take affirmative acts to defeat the treaty. Acceptance. which do not include the reservation in question. 2. obligation not to defeat object of a treaty. Obligation is more than not signing a treaty but less than if you ratified it. Just as a treaty has to be written. Doesn’t meant that the state has to fully implement that treaty(doesn’t have to change its legislation). A State may. 3. you cannot take steps to defeat the scope and purpose of a pending agreement Vienna Convention Part II. If a state doesn’t object within a year. A state makes a reservation and if another state explicitly accepts it. no reaction is needed for it to be in force. total application. ratifying. then reservation must be accepted by the competent organ of that org. Article 20. they can say at that time that they do not accept that the treaty is in force between the states. Accession happens by the deposit of an instrument of accession: official communication of accession. Paragraph 4 1. This interim last until the state made its intention clear not to become party to the treaty. accepting. the reservation is incompatible with the object and purpose of the treaty. Article 20 .Article 14 p. 138 Supp. • Politically. or (c) in cases not falling under sub-paragraphs (a) and (b). Section II: Conclusion of Treaties p. Ratification. (b) the treaty provides that only specified reservations. States rarely affirmatively accept a reservation. State party. para 5. If the treaty is the formitive/constituent document of an international organization. Misuse of rights prior to ratification may amount to a violation of its treaty obligations. the treaty is in force between those two states with reservation. 138 Supp Article 19 . then reservation requires the approval of all the parties. if a state objects and can still say that it doesn’t preclude obligations between the two parties. If the nature of the treaty requires holistic approach. Note: All these are equal and state binds itself. On the other hand. then that state is considered to have accepted the reservation and the treaty is in force with reservation. a reservation has to written. approving or acceding to a treaty. as does any objection to that reservation. especially for the Death treaty. Corral 31 Fall ‘05 . this obligation begins when a state enters in negotiations for conclusion of a treaty.Formulation of reservations. Article 18 – p. Accession . Reciprocity is at play. may be made. when signing. If States object to a reservation. doesn’t object force without reservation.Article 15 don’t have to sign but can become a party to a treaty if the country doesn’t require ratification and/or if all parties agree that it can be done this way. The reserving party and objecting party can become parties to the underlying treaty but the treaty is not enforced between those two states. the state is obliged to live up to the treaty (unless it rises to meat the level of customary international law).

that state cannot be regarded as being a party to the convention. 490: 490 Human rights committee faced problem that its treaties are Swiss cheese due to too many reservations. Secondary issue of whether a party chooses to accept the reservation or object. discusses the legal effect of a reservation. Is the reservation permissible? Article 19. and the relationship of other states to that reserving State. Race Convention: reservation is incompatible if 2/3 of the parties object to it.Can’t make a reservation to a treaty that would be a violation of jus cogen. • Human rights treaties are different. other parties find the reservation acceptable (p. • Comment on reservations. . Permissability: key issue is objectively whether the reservation meets the criteria of object and purpose of the treaty. they are not made for mutual benefit of states but for individuals in a state and those people have to part in the process. . you can’t do that’. 2 Basic Schools of Thought on Handling Reservations: 1. if the reservation is compatible with the object and purpose of the convention. Rights that can never be suspended even in times of emergency. when a reservation is accepted it DOES NOT change the treaty. some reservations nullify the entire treaty and the HRC says ‘no.e. Problem is that the whole point of human rights treaty is to change domestic practices. if the reservation is objected to by one or more of the parties to the convention but not by others? H: that a state which has made and maintained a reservation which has been objected to by one or more of the parties to the convention but not by others. otherwise.Can’t make a reservation that says the covenant is the same as the national law.Reservations must refer to a particular provision of the covenant and indicate in precise terms its scope. Article 21 – p. . not just states parties. it merely changes the legal obligations undertaken by the reserving State from the treaty. General comment # 24: set out broad object and purpose covenant. .Can’t reserve non-derogable rights: like the right to be free to be from torture. the Human Rights Committee steps in and says that it will decide what reservations impair the treaty. States can withdraw reservation in writing. Libyan diplomatic bag reservation- Libya could open anyone’s diplomatic bags. since the Genocide Convention codified rules of IL from which no state may derogate. no party can unilaterally frustrate or impair the convention • Held that all states were bound to observe the law respecting genocide. 2. it does not change the relationship between the other states that are a part of the treaty (i.There was a problem during CEDAW. and to provide an efficacious supervisory machinery for the obligations undertaken. . no reservation effective against any state without its agreement. • Object and purpose of ICCPR is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those states which ratify. General Comment #24: p. Reservations to the Convention on Genocide: ICJ 1951: 479 I: whether the reserving state can be regarded as being a party to the convention while still maintaining its reservation. States would ratify treaties and then vitiate certain obligations through reservations. Does it violate Art. It does not modify the treaty itself. the key rule is reciprocity. etc. • We have reservation to encourage states to participate: tension between the objectives of preservation of the integrity of the text of the treaty and desire for universal participation. • No state can be bound without its consent. 485) 3. no states took it upon Corral 32 Fall ‘05 . can be regarded as being a party to the convention. 3? Preliminary issue of whether as a matter of policy. Reciprocity doesn’t apply. BUT France cannot open up Britain’s diplomatic bags). 139 Supp. Opposability: Article 20 and 21. and anyone could open up Libya’s. Concerned with whether other states are objecting to reservations: focus on states.

the US asks “who is this HRC to come in and make up rules like this?” . even if these situations have been created previously Article 29 – A treaty obligation applies to the entire territory of a state. Exclusion of reservations: can a convention of ‘legislative’ nature not allow any reservations at all? I. c) any rule which relates to an actual situation shall apply to situation existing while the rule is in force. . 493: Committee gave itself a greater role than states parties themselves in determining the meaning of the covenant and of their own reservations. the point was to secure the widest possible adherence. UN Convention of the Law of the Sea 1982: no reservations or exceptions may be made to this convention unless expressly permitted by other articles of this convention Vienna Convention Part III. with the clear understanding that a relatively liberal regime on the permissibility of reservations should therefore be required. domestic law should be construed insofar as possible to avoid violating a state’s international obligation . Entire federal system is bound by treaty obligations undertaken by the central government Article 30 – Application of successive treaties/ Inconsistent treaties. treaty. Section I: Observance of Treaties p. unless otherwise stipulated. b) any rule which relates to the repetition or succession of identical facts shall apply even though only one or some of the such facts should occur after the entry into force of the rule. 3 elements 1. Section II: Application of Treaties p. Attaches legal meaning and obligations. it believes it can rely on others to do the same. that other treaty will prevail. must be observed.. so the HRC decided to do it. aren’t open to territory compromise. 494. 2. the earlier treaty will apply only where its provisions are not incompatible with the later treaty. however. Principle of good faith compliance with the real meaning of the law. 140 Supp Article 26 – Pacta Sunt Servanda: (“agreements must be kept”) The rule that agreements and stipulations. a treaty is not retroactive a) any rule which relates to a single fact shall apply to facts that occur while the rule is in force.International Law Commission: p.e. The US has problems with the HRC intervention. As between parties to a treaty who become parties to a later. esp. 141 Supp Article 28 – Non-retroactivity and the Inter-temporal Problem: without a specific provision to bind the parties to acts prior to the treaty. If the treaty is silent then the monitoring body can comment. Corral 33 Fall ‘05 .US criticizes the committee: pg. In national legal systems. ie human rights treaties. Legal force can’t go beyond what’s been given. If a treaty says that it is subject to. Some treaties.themselves to object to reservations. Article 27 – A state cannot invoke its internal law as a justification for its failure to perform a treaty.“Charming Betsy” Vienna Convention Part III. another treaty. those contained in treaties. Every treaty in force is binding and must be performed in good faith. inconsistent. or is not to be considered as incompatible with. Purpose and intention should prevail over its literal application. If one state complies.

Less emphasis on intentions. English and French carry weight. 2. together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (c) any relevant rules of international law applicable in the relations between the parties. 3. As between a party to both treaties and a party to only one of them. Corral 34 Fall ‘05 . Article 32 – (p. the treaty to which both are parties will govern the mutual rights and obligations of the states concerned. Article 31 – (p. beyond the intention of the drafters the treaties aims/goals are most important. preparatory work. 4. • Most international treaties are in multiple languages: Plurilingual Texts. What the treaty was trying to do. they should interpret not revise treaties Treaty Interpretation: 3 schools of thought re: how treaties should be interpreted: 1. Humanitarian purposes may be an example Rule of effectiveness: giving effect to treaty letting it achieve its purpose. negotiations occur informally that aren’t recorded Different from the treaty itself. drafting. Different judges may find the same word differently . A special meaning shall be given to a term if it is established that the parties so intended. All have equal weight as a formal matter. 141 Supp) interpret with the ordinary meaning of the text but in their context and in light of the object and purpose of the treaty. . Travaux Preparatoires: in order to confirm the meaning but can only be used if Article 31 reading a) leaves the meaning ambiguous or obscure b) leads to a result which is manifestly absurd or unreasonable. Apparent significance of words regardless of intentions of the drafters. Interpretations of Treaties You want to interpret the treaty so as to give force to its goal. There shall be taken into account. subsequent practice. Textual: ordinary meaning of the word school. Look at the place the treaty has come to occupy in IL. 3. 3. Aims and Objects School: general purpose of treaty is what matters. 142 Supp). • Courts use a range of methods to interpret treaties.Drawback is subjectivity. Helpful because it gives a sense of what the drafters were thinking. Realistically.Interpretation is governed by good faith. You can also look at agreements about the treaty. (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.Primary school but it is supplemented: Vienna Convention – Articles 31 (p. General Rule of Interpretation 1. Drawback is that it leads to subjectivity in the interpretation 2. Judicial legislation is something that should be avoided. On the other hand. look at relevant rules of IL: these are secondary docs that play a role in interpretation. including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. in addition to the text. Supplementary Means of Interpretation. . Intentions of the drafters: only legitimate object is to ascertain the intentions or presumed intentions of parties. 141 Supp). The context for the purpose of the interpretation of a treaty shall comprise. to meet the ends of the treaty.

The state can claim that the treaty never came into effect.” Vienna Convention Part V: Invalidity. that doesn’t mean that you are absolved from other areas of international law. but this was shot down. for exceptions see Article 44 (3) p. Adams) Claim (US v. . 1910. denounce. Article 33 – all the language versions have equal weight. entered and was seized by Canadian authorities. but it is looked at. . If the third party is benefiting. If a state doesn’t agree. The rule has to be manifestly clear. Has to be of fundamental importance. Even if you can get out. the subjection of one State to an interpretation of a Treaty asserted by another state . or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties agree otherwise. Travaux Preparatoire. If one offers more limited interpreted than others. The fact that this interpretation is given by . but they could enter Canadian bays for specific reasons. Organs of Interpretation and Interpretation by the Parties . The way that a state entered into a treaty. You can’t bind a state that hasn’t agreed to a treaty. Not in accordance with the procedure of that state. Section 2: Invalidity of Treaties p. “ The fundamental principle of the juridical equality of States is opposed to . Consent to bound was made in such a way that is in violation of rule of fundamental importance (ie constitutional rule). Termination. . . 142 Supp. it has to conform to the treaty. . 145 Supp Ultra Vires Treaties: treaty not complying with municipal law requirements. Fishing schooner David J. Adams. a right of a party to withdraw from. This is considered supplemental. 144 Supp Vienna Convention Part V. 144 Supp Article 42 – you can only invalidate a treaty through a provision of VC on treaty.every major treaty has this that gives background of the treaty and the intentions of the drafters. 143 Supp Article 41 – Usually treaty says how you can amend and modify a treaty.(not discussed in class) Jesse Lewis (The David J. The US renounced the right to fish in Canadian waters. except in jus cogen area. Article 36 – (p. and Suspension of Treaties p. . You can’t get out of your international obligations. . There has to be an intention to bind the third party and express acceptance by the third party.) Third State Entries: state that is not a party to the treaty in question. Corral 35 Fall ‘05 . unless there is egregious error. then the limited one will relied upon because all states have at least agreed to it. Article 41 Amendment only binds those states who agree to the amendment. it is only bound by the underlying treaty. Article 43 – the invalidation of the treaty can’t impair the duty of any state to fulfill any obligation embodied in the treaty to which it would be subject under int’l law independently of the treaty Article 44 – separability of treaty provisions. Vienna Convention Part IV: Amendment and Modification of Treaties p. UK) Claims arbitration under the special agreement of Aug. It doesn’t affect the treaty as a whole. one of the Parties does not make that interpretation binding upon the other Party. United States looks to this and proposed that it be looked at as a primary source of interpretation.

economic coercion is excluded. article 79 then applies. 149 Supp) Article 54 – Termination of or withdrawal from a treaty under consent/provision of the treaty. Article 51 – Coercion of a State Rep. the State may invoke such corruption as invalidating its consent to be bound by the treaty.(Article 75 contains an exception for coercion. Article 49 – Fraud. If the expression of a State's consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State. Consequences are more serious because of the gravity of situation. the treaty is also void. 2. If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State. Article 52 – Coercion of a State. Also. a state has to give 12 month notice period. Article 50 – Corruption. 1. Article 64 (p. and met with force from the intl. the peace treaty signed is not void). A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. it conflicts with a jus cogens or if a new norm comes about that reaches the status of Jus Cogens thereafter. The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty drafters may have entered a provision for withdrawal (argument against this is sovereignty). Gravely viewed. you can’t use the error in wording of the treaty to get out of a treaty. Implied withdrawal can be for example: if parties intended to withdraw. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. community. Article 53 – Jus Cogens. the State may invoke the fraud as invalidating its consent to be bound by the treaty. or (b) at any time by consent of all the parties after consultation with the other contracting States. If at the time of the conclusion of a treaty. Fraud destroys the whole basis of mutual confidence between the parties in a way that error does not. Fraud implicates good faith. if a state uses force. if the right to withdrawal is implied. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 4. An error relating only to the wording of the text of a treaty does not affect its validity. Article 56 – Termination of or withdrawal from a treaty with no provisions for it. Article 48 – Error. 3. Jus Cogens trumps persistent objectors. The expression of a State's consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. Any consent to be bound is automatically invalidated. only way to trump preemptory norm is through new preemptory norm. Or such a right can Corral 36 Fall ‘05 .

e. etc. (favored approach because these may have been part of the inducement). Material. Paragraph 2. or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. Paragraph 4 The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.only violation of a provision essential to the central purpose of treaty (not favored by the convention). consists in: (a) a repudiation of the treaty not provided for by the present Convention(unlawful repudiation). A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State.  Example would be disarmament What is considered a Material Breach?: Paragraph 3 fundamental. (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State. be implied from the nature of the treaty (i. (unqualified)  Other jurist view this as a way of just getting out of the treaty and limit abrogation to material breaches.” If it is material. or (ii) as between all the parties. Material Breach: heart of what the parties were trying to accomplish: object and purpose. non-breacher has a right to terminate in whole or in part or suspend and can seek damages.k. “invoke as ground” as used in the International Law Commission Report implies that a breach is not conclusive of treaty.violation of steps necessary to accomplish treaty. Parties may disagree that a component is “material. Paragraph 1.) Examples of perpetual implied relations = Territorial session or settlement Article 60 – Breach of a Treaty and the Consequence. A material breach of a treaty. Alliance at war. Corral 37 Fall ‘05 . but grounds for termination. Conflicting arguments to abolish from treaty because of breach  Some jurist argue that it is o. to abrogate (abolish) treaty for breach. Commerce. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. for the purposes of this article.

it can invoke the breach as a ground for suspending the treaty only against the defaulting party. asserting that the treaties had been suspended by India (P) on grounds of a breach by Pakistan (D) when it hijacked an Indian (P) plane. the point of jurisdictional clause is to adjudicate a claim of material breach. 2 Exceptions: 1. Pakistan (D) objected to the I. Jurisdictional action rules prevail in the face of claim of material breach Article 62 – Fundamental Change of Circumstances (Rebus Sic Stantibus = things standing Corral 38 Fall ‘05 . Right to make a claim. Advisory Opinion on Namibia ICJ 1971: 548 Concerning the legal consequences for States of the continued presence of South Africa in Namibia (South West Africa). These treaties should not be dependent on the reciprocation of other states. • No right to just dissolve but you have a claim to be able to do it.e. notwithstanding Security Council resolution 276. A mere unilateral suspension does not per se render jurisdictional clauses inoperative. Treating the mandate as a treaty. India (P) appealed to the I. Further. ISSUE: Does a merely unilateral suspension per se render jurisdictional clauses inoperative? HOLDING AND DECISION: No. b) if one country feels it is particularly aggrieved. Example is seen in Secretary General’s report to Security Council regarding the Armistice agreements between Israel and other Arab States in 1949. not unilateral action. disarmament treaties) then any party can get out of the treaty on its own without first obtaining the agreement of the other parties to suspend the operation of the treaty with respect to itself generally in its relations with all the other parties (Pg. If you allow the clause to suspend the clause then the whole thing becomes a dead letter. In a nutshell. If that happens then the treaty is nullifies by a single act. FACTS: Pakistan (D) brought a complaint against India (P) before the Council of the International Civil Aviation Organization (ICAO) for violation of treaty provisions after India (P) unilaterally suspended flights of Pakistan (D) aircraft over Indian (P) territory... Purpose of this paragraph was to make it clear that lawful termination should not preclude abrogation of humanitarian treaties like Geneva Conventions for Protection of Prisoners of War. Paragraph 5 Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character. if the treaty has its own rule. treaties of humanitarian character. the other states can: a) by unanimous agreement suspend or terminate the agreement between all the parties or between itself and the defaulting party. claiming India's (P) unilateral suspension had made the jurisdictional clauses inoperative. or c) material breach by one party changes the position of everyone (i. Mandate is silent on terminating the mandate. Apartheid was a material breach that gives them ground terminate the agreement Appeal Relating to the Jurisdiction of the ICAO Council (India v. VC applies even when the mandate is silent (Article 60).just because one breaches that doesn’t mean that everyone else should breach. 2. 546). Article 60: Bilateral treaty: A commits violation.. If a mere allegation that a treaty was no longer operative could be used to defeat its jurisdictional clauses. all such clauses would become potentially a dead letter. then you follow those.C. B can invoke the breach as a ground for terminating or suspending the treaty: multilateral treaty: If one commits a material breach.C. relating to the interpretation or application' of the Chicago Convention and Transit Agreement alleged irregularities in the procedure of the Council-Relevance of this question to the task of the Court in the present case. Pakistan) ICJ 1972: 551 Jurisdiction of the Council to entertain the dispute between India and Pakistan-Question of whether this dispute involved a 'disagreement . in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. Rule: A merely unilateral suspension does not per se render jurisdictional clauses inoperative. The Court has jurisdiction.J.J.'s jurisdiction.

may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty. Look at the language that’s in the negative. a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. Hungary argues the purpose of the treaty was a joint economic venture and now that the two legal regimes no longer existed.b has not been violated Paragraph 3 If. Obligations in question are still to be performed under the treaty. Circumstances which have changed. 2. is this treaty still valid?. the treaty is still valid because the fundamental change was not unforeseen. fundamental change is only applied in exceptional changes according to article 62. or (b) the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. Court shot this down saying that the regime did not cease to exist. Hungary also Corral 39 Fall ‘05 . then rule 62 2. must have been an essential basis of the consent to be bound by the treaty. 5. because Czechoslovakia no longer exists. Example from the book state converting from agriculture to industrial and abandoning agricultural treaties cannot invoke fundamental change if the conversion was itself a breach. in other words the change has to actually affect obligations under the treaty in a major way in order to get out of the treaty. there is no fundamental change. under the foregoing paragraphs. thus) Paragraph 1 A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty. 4. and which was not foreseen by the parties. No state has won by claiming change of circumstances. and (b) the effect of the change is to radically transform the extent of obligations still to be performed under the treaty. Effect of the change must be to transform radically the extent of the obligations of the party invoking the change as a ground of termination. Paragraph 2 A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty if : (a) the treaty establishes a boundary. Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) ICJ 1997: 557 Goal of the treaty: Treaty of 16 September 1977 concerning the construction and operation of the Gabcikovo- Nagymaros System of Locks on the Danube River. **Stringent criteria. Change must have been of a fundamental character. the fundamental object was gone. 3. Change must have been unforeseen. Grounds on which one can invoke fundamental change of circumstances: 1. Paragraph 1 was not proven Hungary tried to invoke fundamental change as a reason for not continuing the completion of the dam. If the conversion is not a breach.

Council) E. 2. human rights are: a right to basic human dignities and are deserved by everyone HR has come to cover a broad spectrum of areas. New developments in the state of environmental knowledge can’t be said to have been completely unforeseen. impact on 1st generation right to life). a healthy environment) • #1 and #2 above are about individual rights. Others say they are considered because the West sees these as the most important. non- discrimination. Iceland can’t get off. just right to call for termination and for ICJ to adjudicate it. right to not be detained. self-determination. Iceland is seeking to expand its fishing territory permit. Treaty allows or stipulates as much. US deny that these are rights. can you participate politically? If no food. Human Rights Intro: Historically the treatment of nationals by a state was an internal issue. peace. daughter previously was married to citizen of Austria-Hungary and lost her citizenship because she was married to Hungarian. treaties which it is reasonably practicable to execute after the outbreak of hostilities must be observed as in the past. health. self-determination. it’s only grounds are to implement proceedings according to dispute resolution. 3rd: Collective/group rights. Since 1970s. healthy environment.). NY 1920: 562 An American citizen died in NY. 2nd: the economic. Apartheid. The prevalent political conditions were thus not so closely linked to the object and purpose of the treaty that they constituted an essential basis of the consent of the parties. human rights issue. WWII. rights (development. Toughest to make sense of legally. human rights law stage. peace. seen as championed by developing countries. unless they are connected to the nature of the obligation. Even what appear to be massive changes.S was at war with Hungary. Bosnia. These concepts developed first stemming from natural law (Rousseau. The Fisheries Jurisdiction Case (UK v. After the conflict. right to assembly. right to life. (Holocaust. the treatment of aliens was always an intl. Treaties During Time of Conflict/War: they remain operative unless: 1. a “generation” of rights.Textually. There was a treaty that allowed people in foreign lands to inherit real property. how can you exercise one without another? Or why would you want to exercise one without another? No clear separation of these rights (i. the treaties spring back into effect. social and cultural rights (housing. • Every right listed above is interdependent and indivisible with the others. the sister claimed the whole property stating that the daughter was “alien enemy” at the time the U. food. 2 says that if the impossibility is a result of your own breach (failure to complete building dam) then it cannot be invoked. you can’t invalidate a treaty. Hughes Court of App. if no education. education. Iceland says the ICJ should not hear the case because it’s happening off the Iceland coast. • Sources include: UN charter re: human rights seen as non-binding and non-self-executing. decent standard of living. Techt v. Incompatible to self-defense (as determined by Sec. Locke). one of the most innovative areas of IL. the International Covenant on Economic. the right to development. A state found to be the aggressor can’t benefit/end treaty obligations. the International Bill of Rights: the Universal Declaration of Human Rights. etc). the ICJ says there is no relevance to jurisdiction. Iceland) ICJ 1973: 559 Because the technology regarding fishing has changed. the fundamental change does not automatically terminate the treaty. etc. to political participation. the ICJ should not have jurisdiction because the treaty is terminated.invoked Article 61 – necessity (impossibility) which was shot down because 61 para. today how a state treats its own nationals has been brought upon the intl. 1st: Civil and Political rights (fair trial. Social and Cultural Rights and the International Covenant on Civil and Political Rights. Corral 40 Fall ‘05 .e. Associated with socialism and welfare state.

freedom from torture. + reservations) • Takes the elements out of Universal Declaration and crystallizes them: right to privacy. there is disagreement on the legal status of this (Not ratified by the U. etc. equality before the law. States can choose to ratify or not. Human rights are universal. includes economic. it’s a declaration and is not legally binding. The only obligations non-derogable are those of basic human rights which cannot be derogated (jus cogens like: right to life. sex. can’t Corral 41 Fall ‘05 . provided that such measures are not inconsistent with their other obligations under IL and do not involve discrimination solely on the ground of race. no on within the jurisdiction of a state party to this protocol shall be executed. 168 Supp) Requires affirmative steps. 184 Supp) Creates complaints mechanism. and Cultural Rights (ICESCR) §8. religion or social origin.S. Aiming at the Abolition of the Death Penalty §8. Radical notion.600. but really both require restraint and affirmative steps to an extent. and political rights. slavery/servitude. not immediate like CCPR. Set out that all human beings. Second Optional Protocol to the Int’l Covenant on Civil and Political Rights. it must be public. no reservations may be made except in time of war. Declaration is bifurcated into two different covenants: International Covenant on Economic. natural law). parties must report the measures they are and plan to take Article 4 (p.5 – (p.S. This means that EVERYONE has these rights. social. created legal obligations unlike the UDHR (ratified but non-self executing in the U. • Threshold for use is very high: event must jeopardizes national security. 174 Supp) Derogation: suspension of human rights in a particular situations is allowed by a treaty itself. Must notify the Secretary General. 173 Supp) requires the states to refrain from conduct.The Int’l Bill of Rights/Universal Declaration of Human Rights: (p. wherever they live and go. weaker. multi-lateral soft law/something to be strived for. They review reports re: how they are implementing the treaty at home. . language. have certain rights. They also issue general comments: quasi jurisprudence. 165 Sup) not a treaty. Charter.2 Optional Protocols: 1. statement of collective values of international community. Social. human rights instruments on p. It also gives accountability for the state’s actions. All given hard law.2 – (p. Optional Protocol to the Int’l Covenant on Civil and Political Rights §8. 2. it must be for a limited time. In times of emergency which threatens the life of the nation and the existence of which is officially proclaimed. • Working on draft to allow complaints like CCPR. Elevating individuals as international person. any individual in a country that has ratified the protocol can complain directly to HRC violations within his country. • Why notify? Because they do not want to look like they are just disobeying. Level of obligation is different. 186 Supp). • Takes provision from the universal declaration and transforms them into hard law. Human Rights Committee (consisting of experts who serve in expert capacity rather than their country created to monitor compliance.3 – (p. Wealthy countries helping poor countries. Adopted by GA.4 – (p. Public reporting on human rights and the committee releases a public document. US ratified it with reservations. color. • Emphasis on international cooperation. states must take measure to abolish the death penalty. talks about the rights of individuals unlike the ICESCR which talks about the rights of states. the states parties to the covenant may take measures derogating from their obligations. by virtue of being human. • The obligation is to take steps toward implementing these rights.) • Argument that it’s different and needs separate enforcement mechanisms. 599 . There is an entire table of intl. International Covenant on Civil and Political Rights (ICCPR) §8.

• To find customary law. so too must the derogation • Two most frequently derogated rights: Article 9 arbitrary detention (see Lawless Case). etc). Derogation in this case is properly tailored to the national security issue. the US has not ratified many protocols (CEDAW. what could they have done instead? Sealed the border. Trade off between state and individual autonomy. said organization was threatening the govt. validated the derogation for the Convention. Mr. gender discrimination. just those necessary to remedy the emergency. on matters that have been for the US to decide. they were creating violence resulting in destruction of property and loss of human rights. it has been difficult to get the US to adhere to human rights treaties.S. systematic racial discrimination. The European convention prohibits such activity. slavery. cannot be perpetual • When the emergency ends. derogate all rights. it championed certain rights in particular. did play an important role in the development of international human rights law & was the champion of treaty against torture though. • Customary IL is important for states that haven’t ratified. it’s a limited exceptional situation. However. Resistance to accepting international standards and international scrutiny. against Children’s Rights. coupled with the grave peril the IRA presented to Ireland. although the Supreme Court has recently made 21 years the cut off age. prolonged arbitrary detention. Racial discrimination and not the ESCR (although it has signed). sealing the border stops everyone whereas detention only violated one person’s rights.) Corral 42 Fall ‘05 . Reservation on capital punishment for people who are internationally considered as children at the level of (jus cogens). Derogation is not a reservation. • A state may hold an individual without trial in a time of national emergency if doing so is necessary to meet the emergency. Lawless was detained without trial or being charged w/specific crime Arbitrary detention of suspect individuals. Us has ratified the ICCPR. and the derogation is necessary to meet the emergency. Lawless Case European Ct. There is only systematic racial discrimination and no others are mentioned. women’s convention and children’s convention (only one of the other states has not ratified this) and has extensive reservations understandings and declarations ( i. torture. murder or causing the disappearance of individuals. the US’s reputation has changed in recent years. either could be derogated. Ireland was experiencing widespread violence which normal police procedures had proven unable to handle. the US is arbitrarily detaining people w/o notice and has not filed many required reports to the UN. Human Rights in the United States: Right after WWII.e. Most Charters and Conventions of an intern’l character provide for appropriate derogations. that gives up freedom of movement. Ireland derogated one of its obligations. Here. States also have to have officially accepted. we have to find opinio juris. This is an instance when the human rights framework tries to be flexible in such instances of terrorism. U. it is now seen as isolationist. in this case there is judicial supervision of the detention (not just the executive branch). of Human Rights. Article 14 right to a fair trial Customary international law and Human Rights: (p. the US was only taking on certain obligations to the extent that they were already included in the US Constitution. European Convention on Human Rights: 608 Irish govt.No mentions of economic and social except for the (f) discrimination. the US has its own understanding of human rights = to fix other countries not within itself. 602) • Whether a state has ratified or not. States can’t persistently object. It appears that gathering evidence necessary to gain a conviction in regular courts was nearly impossible against IRA members. the US was very active in the human rights scene. the European Court of Human Rights said detention was ok to be derogated. This. the convention provides for derogation from such prohibitions if a national emergency exists. a state can’t encourage and can’t perform the following: genocide. .

3 – (p. prevent. national or social origin. The committee can only look at practices of member parties. IL generally is largely observed because violations directly affect the interests of state. Committees do have to submit reports. However. birth or other status. Article 2 – (p. 1. Violations of the IL of human rights. Commission refers to state representatives Regional - 1. 2. UN General assembly. Treaty monitoring bodies (elected by states but speak on only their respective area of treaty (i. less mechanisms available. But some states claim that ESC rights aren’t judiciable (judicial remedy isn’t available: minority position). International Covenant on Economic. Two types of legal accountability: hold a person responsible or the entire state. without distinction of any kind. International systems at national level 2. or prompt states to respond to violations. Committee refers to expert areas. Human rights committee overlook the ICCPR and reports to Economic and Social Council who the reports to the GA. The front line of human rights law is at the domestic level. Where not already provided for by existing legislative or other measures. political or other opinion. property.2 – (p. you still have state participation. each State Party to the present Covenant undertakes to take the necessary steps. obligations. However. to truly enforce and make the treaties. and covenants of human rights laws effective. ordinarily. disputes shall be submitted to ICJ. States refer actions through the Security Council.everyone reports to the general assembly 2. religion. to adopt such laws Corral 43 Fall ‘05 . International Covenant on Civil and Political Rights (ICCPR) §8. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant. in accordance with its constitutional processes and with the provisions of the present Covenant. and Cultural Rights (ICESCR) §8. a nation must have them within its own law human rights laws. Any contracting party may call upon organs of the UN to take action under the Charter to prevent and suppress genocide (from sanctions to war). Social. Local enforcement Convention on the Prevention and Punishment of the Crime of Genocide §8. Commission on human rights is a political body where political concerns generally prevail. otherwise their obligations are meaningless.6 – (p.e. sex. language. 168 Supp) weaker than ICCPR.Implementation and Enforcement of Human Rights: • International human rights law and agreements have the same status and the same binding character as other international law and agreements. such as race. 174 Supp) Most important Article towards enforcement of the Covenant. 187 Supp/625) Article VIII – (p. Different layers of Enforcement: Universal - 1. other states are not directly affected by such violations and their concern for human rights in other states has been uneven. on the other hand. 173 Supp) relatively weak Part II. generally injure the inhabitants of the violating state. no procedure for hearing complaints (they are in the process of drafting an optional protocol on enforcement now). which often deter. no state has ever actually used this Article to bring an action against genocide Article IX – Dispute Settlement. 189 Supp) Enforcement by UN. colour.

the individual has these int’l legal rights even though they are enforceable only by interstate remedies. can go with just three if they don’t meet the 3 month deadline though). consists of 18 members. by gov’ts or int’l bodies acting on her behalf 3) Middle Ground: the states parties. When this is not done. the committee considers the reports submitted by states parties per Article 40 Article 40 – (p. acting with other states (the state as legislator). committee appointed to work out problems when a matter referred to a committee remains unresolved. or other measures as may be necessary to give effect to the rights recognized in the present Covenant. notwithstanding that the violation has been committed by persons acting in an official capacity. with the prior consent of the states parties concerned. or by any other competent authority provided for by the legal system of the State. have legislated ‘human right’ into int’l law giving them status as affirmative independent values. nationals of states parties.Obligations of each state party (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy. International Rights & Remedies Under Int’l Agreements: 3 different perspectives 1) State to State: int’l human rights agreements are undaringly viewed as undertakings between state parties. Optional Protocol. • Recourse to ICJ re: genocide. the Committee may. 184 Supp) Conciliation Commissions. 182 Supp) Enforcement & Reports.. these agreements also give the individual rights against her society under int’l law. this is the Covenant’s principal organ of implementation. each Corral 44 Fall ‘05 . administrative or legislative authorities. appoint an ad hoc conciliation commission. (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial. Any party can bring violation to the attention of the security council. who serve in their personal capacities. and to develop the possibilities of judicial remedy. (c) To ensure that the competent authorities shall enforce such remedies when granted. Upside: resolution Downside: time involved & people already killed. human rights committee can hear complaints from individuals but only if the state has ratified the convention and protocol. States enforcing rules against each other. States must submit a report to the Secretary General. Horizontal Enforcement: formally sovereign equals. 180 Supp) Human Rights Committee. the UN has threatened to review their records based on NGO’s or news reports. Communications have been accepted from organizations. Each State Party to the present Covenant undertakes: . Secretary General submits to the respective committees who issue general comments to the economic and social council Article 42 – (p. if a matter referred to the Committee in accordance with Article 41 is not resolved to the satisfaction of the states parties concerned. as legislators. creating rights and obligations between them 2) Individual to State: While creating rights and duties for the states parties. which shall consist of 5 members acceptable to all states parties (parties have 3 months to pick the 5. Article 28 – (p. 3. putting pressure on states largely via public shaming/public exposure of violations • Largely insufficient system but there are mechanisms to deal with it.

to achieve these ends through a trial that would uphold the rule of law by protecting the rights of the defendants to due process.. Principle VII: Complicity in the commission of a crime against peace.p. racial or religious grounds. deportation and other inhuman acts done against any civilian population. killing of hostages. they should have known their actions were wrong/illegal 3 Principal Objectives of the Tribunal: 1. Govern how a states uses force . (b) War crimes: Violations of the laws or customs of war which include. but are not limited to. Article 7 – p. via resolutions of Security Council. or devastation not justified by military necessity. when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. murder. plunder of public or private property. Nuremberg Military Tribunals. came of age during the Nuremberg Tribunals. initiation or waging of a war of aggression or a war in violation of international treaties. state agrees to recognize and give legal status in the int’l system to ‘human rights’ as claims that every individual has – or should have upon her own society. • jus ad bellum: when states can use force (hen do they have just cause? • jus in bello: how states can use force. 1325): largely refuted because even though that stuff wasn’t against German law. International Criminal Law (ICL) • Branch of law that holds individuals directly responsible for their violations of international law. extermination. a war crime. Ex Post Facto Argument (p. (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). it was against general int’l law so. ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory. towns. (c) Crimes against humanity: Murder. wanton destruction of cities. G. 619 Supp Principle VI: The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning. Not until the end of Cold War/1990’s that Int’l Criminal Law undergoes a heyday. to treat wars of aggression as crimes under international law 2. Charter of the UN Chapter III. 1951: p. and perhaps in individuals Ultimately. each state (the state as obligor) undertakes to respect and ensure these values for its own citizens. in addition. or villages. or a crime against humanity as set forth in Principle VI is a crime under international law. of persons on the Seas. • International crime is a crime committed by an individual defined by IL. 3 Supp Corral 45 Fall ‘05 . to treat atrocities against civilians as crimes against humanity 3. agreements or assurances. preparation. enslavement.Cold war completely paralyzed ICL. murder or ill-treatment of prisoners of war. Series of ad hoc tribunals. thereby also creating rights in other states. 1325 . it comes down to NGOs and concerned individuals to translate international human rights obligations into reality. or persecutions on political.

7 Supp) The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. may affect international peace and security. an Economic and Social Council. 7 sovereignty loophole basically says that even though UN Charter shouldn’t encroach domestic jurisdiction the UN shall still have enforcement powers. Criminal Tribunal for Yugoslavia) – created thru the Security Council via Article 7. discretion is very broad so the court will defer to Sec. Council. genocide 3. though domestic in nature. grave breaches of the Geneva Conventions of 1949 • Sec. ordered the systematic rapes of other women. a Trusteeship Council. Such subsidiary organs as may be found necessary may be established in accordance with the present Charter. Council has power when it’s a threat to peace. There are established as the principal organs of the United Nations: a General Assembly. the security council is empowered and mandated. an International Court of Justice. what is important is that it be set up by a competent organ in keeping with the relevant legal procedures.-p. Tadic 1995: 1342 Tadic personally beat prisoners to death and raped at least one woman. it’s a sham trial (or shielding it). tribunal . It would be a travesty of law and a betrayal of the universal need for justice. violations of customs of war – war crimes 2. stakes. Article 41: (p. the security council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security. Article 25 – (p. The Security Council was endowed with the power to create this international tribunal as a measure under Chapter 7 in the light of its determination that there exists a threat to the peace. Unlawful establishment of intl. crimes against humanity 4. Ch. ordered the torturing and humiliation of other prisoners in the concentration camp. it must be endowed with primacy over national courts. when an international tribunal such as the present one is created. 2. Indeed. the issues were: 1. to deal with trans- boundary matters or matters which. UN Tribunal for the Former Yugoslavia: 1332 . and that it observes the requirements of procedural fairness. 10 Supp) Security Council may employ any means to obtain peace and security.the Sec. 2. that principle of sovereignty shall not prejudice the application of enforcement measures under Chapter 7. and if legal issues are closely related to and implicate investigation before the ICTY . • Relationship between national courts and the ICTY – primacy – the ICTY asks for jurisdiction if the crime is prosecuted only as an ordinary crime. NGO’s allowed to participate Prosecutor v.Tribunal consisted of several trial chambers and an appellate chamber. member states are obligated to accept and carry out decisions of the security council. Unjustified primacy over competent domestic court – the nature of the crime is so heinous that there are intl. Charter of the UN Chapter V. charges were for: 1. but treaties take forever. and a Secretariat. Council was able to create the ICTY because they claimed violations threatened world peace and security. 620 Supp ICTY (Intl. They are really Corral 46 Fall ‘05 . kind of illegitimate since this kind of stuff is supposed to be done via drafting and ratifying a treaty. The crimes at bar are not crimes of a purely domestic nature. by definition. In determining whether a tribunal has been established by law is not whether it was pre-established or established for a specific purpose or situation. should the concept of state sovereignty be allowed to be raised successfully against human rights. 1. 3. a Security Council.

139 signatories and 93 parties ratified. well recognized in international law as serious breaches of international humanitarian law. Nuremberg concentrated on only one side and Yugoslavia and Rwanda were limited in its geography. He is considering Uganda and Congo. Of 18. national courts are unable to deal with these cases. 1355): Akayesu was up on charges of Genocide. 26 adjudicated cases. • Universal. Comes into effect upon ratification by 30 states. Entered into force in 2002. Public opinion in US is divided. • The Statute remained open for signature until December 31. 1998 by a vote of 120 states in favor and seven opposed. a great step forward for int’l law here was the inclusion of rape/sex crimes in the definition of genocide. Furthermore. to date: 72 arrests.The tribunal was set up to deal with threat to peace and security. whereas the conflict in the former Yugoslavia was in part international. and transcending the interest of any one state. of Defense mounted a vigorous campaign in opposition which was based primarily on the concern that US military personnel serving abroad might be subjected to politicized prosecution for alleged war crimes over the objection of the US. the sovereign rights of states cannot and should not take precedence over the right of the international community to act appropriately as they affect the whole of mankind and shock the conscience of all nations of the world. Here. 19 still on trial. • US opposed: the Dept. Bush gave notice saying it has no intention of ratifying. and Sierra Leone. permanent approach to international criminal justice: same process and standards to potential perpetrators whose actions come within ICC jurisdiction.-p. only goes to events for the calendar year of 1994. intent component of genocide can be inferred from the totality of the circumstances. only states can make claims of sovereignty not Tadic UN Tribunal for Rwanda: 1352 . furthermore rape was not given a male- centric definition focusing solely on penetration. • Long process to get to this court. only goes to Rwandans who committed crimes in Rwanda and/or neighboring states and crimes by non-Rwandans inside Rwanda. 7 are women. • Judges have been elected. includes several trial chambers of three judges and a 5 judge appeals chamber. 2000. China or Russia didn’t sign or ratified. Product of difficult negotiations. These came from relevant heads of state. • Schafer: opposed US participation. notion of a ‘plurality of offenses’: one particular act may constitute both genocide and a crime against humanity. Jean-Paul Akayesu (p.RSICC– p. In such circumstances. US signed but did not ratified. goal is to be done by 2010. • Focus on rogue perpetrators: Bad perpetrators. Only the UK and France have ratified the statute. • The permanency is very different from other tribunals. Political prosecutions of US service members serving abroad in states that have ratified the Statute. 637 Supp/1367 Introduction: • Cutting edge/big step forward in terms of enforcement of IL. global. One prosecutor from Argentina: 2003 appointment. both the ICTR and the ICTY are served by a single prosecutor Prosecutor v. 629 Supp ICTR created thru the Security Council via Article 7. “Borders should not be considered as a shield against the reach of the law and as a protection for those who trample under foot the most elementary rights of humanity. also the principle of Corral 47 Fall ‘05 . Assented to jurisdiction of ICC. East Timor. crimes which are universal in nature. • RSICC was approved on July 17. Referral is a basis of jurisdiction. differences with the ICTY stem from the fact that the conflict in Rwanda was essentially internal. Tribunals have since been proposed for: Cambodia. Rebuttal: ICC will have qualified judges and prosecutor.” Rome Statute of the Int’l Criminal Cour .

Both in international armed conflict and internal conflict. in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. Criminal Court: • The Statute empowers the Court to intervene in cases where a State is unwilling or unable to exercise its ational jurisdiction. (h) Persecution against any identifiable group or collectivity on political. sexual slavery. (j) The crime of apartheid. (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. War Crimes Article 8– The court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes. Structure and Jurisdiction of the Intl. or serious injury to body or to mental or physical health. or take advantage of a general breakdown of law and order. also provides that the court shall be complementary to national criminal jurisdiction Artcile 5: the jurisdiction of the Court is limited to the most serious crimes of concern to the international community as a whole. Can happen in peacetime. or any other form of sexual violence of comparable gravity. (c) Enslavement. In relation to international humanitarian law. a national. (i) Enforced disappearance of persons. with knowledge of the attack: during war time or not. forced pregnancy. enforced prostitution. 2. gender as defined in paragraph 3. Not isolated events. national. (f) Torture. enforced sterilization. May be separate from armed conflict. as such: (a) Killing members of the group. 638 Supp) the ICC will be a permanent institution vested with competence to try individuals indicted for the most serious crimes of international concern specified in Article 5. Patterns of war crimes. Artcile1: (p. (b) Extermination. complementary means that if the state tried or investigated the ICC will defer its jurisdiction. Crimes against Humanity (1371) Article 7 – any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population. Not all war crimes can be prosecuted here. (d) Deportation or forcible transfer of population. Genocide – Article 6 (definition lifted from the Genocide Convention): genocide means any of the following acts committed with intent to destroy. cultural religious. (d) Imposing measures intended to prevent births within the group. or other grounds that are universally recognized as impermissible under international law. It has jurisdiction to the following crimes: 1. 3. racial. ethnic. (e) Forcibly transferring children of the group to another group. ethnical. Knowledge requirement may be difficult for Prosecutor: high threshold and mens rea. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. (b) Causing serious bodily or mental harm to member of the group. (k) Other inhumane acts of a similar character intentionally causing great suffering. in whole or in part. Orchestrated and planned atrocity. Corral 48 Fall ‘05 . Relationship between court and national court is very different from ad hoc tribunals. The purpose of that clause in the Statute is to ensure that mass murderers and other arch-criminals cannot shelter behind a State run by themselves or their cronies. (a) Murder. racial or religious group. (g) Rape. Fairness argument: aggravated offense and not ordinary murder. Broader attack.

Article 14: (p. Article 15: (p. 645 Supp) Exercise of Jurisdiction. including biological experiments. not passive and universality. 645 Supp) Referral of a Situation by a State Party. not justified by military necessity and carried out unlawfully and wantonly. (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict. may initiate investigations proprio motu (self-initiating prosecutor) on the basis of information on crimes within the jurisdiction of the Court with the consent of two judges. 645 Supp) Prosecutor & Investigation. war crimes means: (a) grave breaches of the Geneva Conventions. The Court may exercise jurisdiction over anyone (even non-nationals of a party) anywhere in the world if either the state in which the crime was committed or the state of the accused’s nationality consents. If the acceptance of a state which is not a party to the statute is required that state may by declaration accept the exercise of jurisdiction by the Court. he shall submit to the Pre-Trial Chamber a request for authorization of an Corral 49 Fall ‘05 . (c) Civil war provision 4. Prosecutor can seek information from States. (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power. Compromise: 2 basis of jurisdiction: territoriality and nationality. Focus on nationality prong. A state. there are specific procedures for the prosecutor to follow. within the established framework of international law. 644 Supp) A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred in article 5. by referring to the Prosecutor. (vii) Unlawful deportation or transfer or unlawful confinement. any of the following acts against persons or property protected: (i) Willful killing. If the Prosecutor deems that there is a reasonable basis to proceed with an investigation. (iv) Extensive destruction and appropriation of property. Article 12: (p. A State which becomes a Party to this Statute may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. a referral shall specify the relevant circumstances and be accompanied by supporting documentation. Can investigate on the basis of information within the jurisdiction of the court. GA’s definition has been deemed as insufficient in criminal law. or serious injury to body or health. or other reliable sources and can receive oral or written testimony. can bring the claim. • For the purpose of the Statute. Security Council acting under Chapter 7 of the Charter can bring the claim. (iii) Willfully causing great suffering. IGOs or NGOs. (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial. The State where the crime took place must’ve ratified the statute and/or the accused individual must be national of a state that has ratified the statute. namely. Aggression – the ICC will have jurisdiction to try individuals for the crime of aggression only if the state parties are able to agree on a definition of the crime and on the conditions that would have to be fulfilled before the ICC could exercise jurisdiction over it and then to adopt such a provision under the articles on amendment of the Statute. The prosecutor can initiate and bring the claim. organs of the UN. (ii) Torture or inhuman treatment. Article 13: (p.

Upon ruling re: commencement of investigation. 2. If the Pre-Trial Chamber agrees. 646 Supp) Issues of Admissibility 1. (b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice. and a trial by the Court is not permitted. 4. (d) the case is not of sufficient gravity to justify further action by the Court.” the Court shall consider whether. Article 16: (p. At the request of that state. Here. Council can ask for a deferral of hearings up to 12 months. may declare that for a period of seven years after the entry into force of this Statute for the State concerned. due to a total or substantial collapse of unavailability of its national judicial system. The state concerned or the prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber. 2. a state may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to crimes related to the information provided in the notification to States. Article 124: (p. 672 Supp) Transitional Provision. is inconsistent with an intent to bring the person concerned to justice. A case is inadmissible where: (a) the case is being investigated or prosecuted by a state which has jurisdiction over it. SC has to pass a resolution to suspend investigation. on becoming a party to this Statute. A state. Article 18: (p. it does not accept the jurisdiction of the Court with respect to the category of crimes Corral 50 Fall ‘05 . In determining “inability. 646 Supp) Preliminary Rulings Regarding Admissibility 1. The prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation. 646 Supp) Deferral of Investigation or Prosecution. Within one month of the notice. investigation. Article 17: (p. (Sec. 3. the prosecutor shall defer to the state’s investigation unless the Pre-Trial decides to authorize the investigation. the court shall consider whether one or more of the following exist: (a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred in article 5. (c) The person concerned has already been tried for conduct which is the subject of the complaint. in the circumstances. then it can authorize the commencement of the investigation. Sec. the prosecutor shall notify all States Parties and those States which would normally exercise jurisdiction over the crimes concerned. Council can also ask to stop a case if by unanimous vote). and they were or are being conducted in a manner which. unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute. In determining “unwillingness”. 3. the State is unable to obtain the accused or the necessary evidence and testimony or otherwise to carry out its proceedings. (c) the proceedings were not or are not being conducted independently or impartially. unless the state is unwilling or unable genuinely to carry out the investigation or prosecution (b) the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned.

you need a declaration of war. peace and security. 929) condemnation of war. international law did not ban war. crime. not amenable to the established criteria and definitions of aggression. IL was to confine and regulate the effects of war.. was not applicable when the debtor state refused or neglects to reply to an offer of arbitration. referred to in Article 8 (war crimes) when a crime is alleged to have been committed by its nationals or on its territory. disarmament. goals was to promote intl. United Nations Charter: (p. War & Peace Intro: • Traditionally. 1 Supp). STRONGER STILL AS IT IS A MORE ABSOLUTE BAN. war against Poland. nations are unwilling to entrust full authority over war and peace to the UN because: 1) the continuing struggle between the conflicting demands of national sovereignty and intl. or peronal intercourse between the nationals of the covenant-breaking state and the nationals of any other state. it is ipso facto declaring war against all other members. utopian vision. Pre-UN Efforts to Discourage or Outlaw War: (p. UN charter doesn’t distinguish war and declared war. For war. Article XVI provided for ‘immediate severance of all trade or financial relations. order expressed in claims and limitations of the national right of self-defense 2) the development of means of destruction so swift and devastating that the traditional time lag between the development of an armed attack and the organization of defense has become largely obsolete 3) the enormously increased importance of political and ideological warfare. WEAK 2. seizure of Austria and Czechoslovakia unlawful. regardless of cause. 394 Supp) Intl. peaceful dispute resolution. III. The League of Nations (1919) – (p. it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. notable failures because no one stepped up to enforce it. if a member of the league results to war. outlaw war. war is evil. or after the arbitration. and for the suppression of acts of aggression or other breaches of Corral 51 Fall ‘05 . is still in force with more than 70 state parties Judgment of the Intl. and the prevention of all financial. after accepting the offer. it is the ultimate intl. Military Tribunal Nuremberg. Response to WWI. Hague Convention II (1907) – Narrow exception but begins the process that recourse to aggression is limited. 1946: 930 Defendants charged with planning and waging aggressive wars. • War is a particular legal category: state of war is a legal state IL has focused on use of force. cooperation and achieve intl. sought to ban war in its entirety. To initiate a war of aggression is not only an international crime. independence of all members. Assumed that states can use force. prevented any compromise from being agreed on. which has created new forms of “indirect” aggression. Discussion on how to limit the suffering caused. Article 1: (p. 1 Supp) The principal purpose of the United Nations is “to maintain international peace and security. whether a member of the league or not for members who committed acts of war against other members 3. Condemns war as an instrument of national policy. or. These two mean different things. commercial. STRONGER BUT STILL WEAK. and to that end: to take effective collective measures for the prevention and removal of threats to the peace. 926) 1. sanctions. ‘war’ used rather than ‘use of force’. aggression of NAZI govt. the prohibition of all intercourse between the ir nationals and the nationals of the covenant-breaking state. failed to submit to the award. Collective control on the use of force. General Treaty for the Ban of War/ Kellogg-Briand Pact of 1928 – (p. Peace Conference of Paris in 1919.

territorial integrity or political independence of another State. the peace. • The Charter prescribes international norms outlawing the threat or use of force. . if not. and to bring about by peaceful means. and in conformity with the principles of justice and international law. 2 Supp) All members shall settle their int’l disputes by peaceful means in such a manner that int’l peace and security. Armed Attack: Aggression is at the higher level of culpability. they are essentially of a political and ideological. 410 Supp) Definition: Aggression is the use of armed force by a State against the sovereignty. end of the Cold War has revitalized the Security Council’s role. adopted in 1974 by consensus (so no vote req’d) Article I: (p.Difference are primarily one of objectives. in the first instance the Security Council.U. character Resolution on the Definition of Aggression– p. 2 Supp) The Organization shall ensure that states which are not members of the UN act in accordance with these principles so far as may be necessary for the maintenance of peace and security. Article 2 (4): Prohibition on the Use of Force (p. says: Any definition of aggression is a trap for the innocent and an invitation to the guilty. 409 Supp/943. or in any other manner inconsistent with the purposes of the UN. Article 2: First Use of Force: The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may. unlike the League’s charter binding only members. not of a logical. or in any other manner inconsistent with the Charter of the United Nations. would determine on a case-by case basis whether aggression has taken place. ie use of armed force by A against B. or C defending B.”: • Different concepts embrace a wide range of possible meanings and their application to diverse circumstances. • Threat of force doesn’t prohibit economic or political pressure. and not universally recognized as jus cogens. conclude that a determination that an act of aggression has been Corral 52 Fall ‘05 . • Aggression v. Defining Aggression – . and the charter adopted a system whereby the appropriate UN organ. are not endangered. adjustment or settlement of international disputes or situations which might lead to the breach of the peace . Explanatory note: In this Definition the term "State": (a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations. the principal norms on which the new world order stands. the UN’s charter is binding to all universally Article 2 (3): Peaceful Dispute Settlement (p. “or in any other manner…. then breach of Art. 2 Supp) All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. and has acquired the character of jus cogens. 4. Article 2 (6): Effect on Non-Members (p. and justice. in conformity with the Charter. as set out in this Definition.This position prevailed at the San Francisco Conference. one of whom was USSR.During the Cold War it was ineffective cause of the veto power of the 5 head members. . (b) Includes the concept of a "group of States" where appropriate. It is commonly accepted that in substance Article 2(4) has become a principle of customary law binding on all states. Confined to military force or threat.S.

particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support. No consideration of whatever nature. including its provisions concerning cases in which the use of force is lawful. in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration. however temporary. military or otherwise. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful. could in any way prejudice the right to self-determination. Article 8: All of the above interrelated: In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions Corral 53 Fall ‘05 . Article 5: What it all Means: 1. including the fact that the acts concerned or their consequences are not of sufficient gravity. or marine and air fleets of another State. (g) The sending by or on behalf of a State of armed bands. regardless of a declaration of war. (f) The action of a State in allowing its territory. shall. (d) An attack by the armed forces of a State on the land. which it has placed at the disposal of another State. 2. which carry out acts of armed force against another State of such gravity as to amount to the acts listed above. of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. Aggression gives rise to international responsibility. may serve as a justification for aggression. freedom and independence. another states military (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State. A war of aggression is a crime against international peace. groups. or any military occupation. to be used by that other State for perpetrating an act of aggression against a third State. whether political. qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State. as derived from the Charter. committed would not be justified in the light of other relevant circumstances. Article 7: Doesn’t Limit Self-Determination: Nothing in this Definition. economic. Article 3: Acts of Aggression: Any of the following acts. or its substantial involvement therein. 3. Article 4: Above list is not exhaustive: The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter. (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State. subject to and in accordance with the provisions of article 2. (c) The blockade of the ports or coasts of a State by the armed forces of another State. resulting from such invasion or attack. irregulars or mercenaries. in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement. or any annexation by the use of force of the territory of another State or part thereof. Article 6: Scope of Charter Unaffected by the Above: Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter. sea or air forces. and in particular article 3.

Waiver/Invitation. Does not give rise to use self defense in response to intervention. 51. but what is an armed attack? Sending troops. • Broad ban on unilateral use of force today. Reporting requirement is there to keep the UN in the loop and involved to formulate resolution. a “collective self-defense”. others will say it’s ok as long as it does not threaten the minimum level of order Notion of Expanding Self-Defense: Anticipatory Self-Defense Corral 54 Fall ‘05 . To warrant self-defense. can only respond with self-defense if the state is a victim of an armed attack. .Customary Limitations: Even if you meet all the requirements. Costa Rica. • Armed attack is the trigger for using force in self-defense • Armed attack must be on a big enough scale. Underlying right but only if armed attack occurs and until the Security Council has taken measures to try to restore international peace and security. some will say it’s ok in furtherance of democracy. irregulars. Providing weapons itself isn’t good enough • Armed attack is different from aggression. or b) of a state abusing someone else’s nationals 3. Military and Paramilitary Activities in and against Nicaragua (US v. anticipatory (Caroline Case – Brits invade NY). is aiding a military force in another country an armed attack? No but it is a violation and thus unlawful but it’s less than the direct armed attack. the victim state itself has to perceive itself as attacked & must request assistance. the force must be necessary and proportional. the only thing Nicaragua did was funnel arms into El Salvador and the US’s response was certainly not proportional • If you’re using force in collective self-defense. 11 Supp) Self Defense Exception: Takes preexisting customary international law and codifies it. and El Salvador all neighbored Nicaragua and over many years it had troops in those nations. Justifications for the use of force despite 2(4) and Article 51: all must be necessary/imminent & proportional 1. not frontier incident. See Nicaragua Case. • Dual concepts of individual and collective self-defense. Lower level of concern than aggression.) 1986: 955 US was claiming it was acting in self-defense on behalf of El Salvador. To try to constrain and limit force and to limit escalation. groups. Can’t be ongoing. you have to report it first. use of force has to rise to the level of armed attack. Must report it the UN. Limited and circumscribed. mercenaries. collective. Self Defense as recognized by Article 51 (if armed attack (military). armed bands. especially in civil wars 2. must be facing big danger) Article 51: (p. Honduras. etc. with 2 exceptions (black letter law) •The problem is there is no bright-line rule. the argument for “collective self-defense” is utterly rejected by the court. Right to use force in self defense predates any statutory language. individual v. Does not preclude UN role. the issue of use of force beyond that permitted in Article 51 is controversial and complicated. Not a war of choice. • To invoke Art.Intervention: a state can intervene illegally but lower culpability than aggression. Humanitarian intervention of either: a) a state abusing it’s own nationals. Nica. is the action of self-defense both necessary and proportional? In this case the court says the US’s action is not necessary because it came after the main offensive occurred and any further action would be useless. Caroline Case: classic case re: self- defense: Need is instant and overwhelming. the US acting under a notion of “collective self-defense” aided the contras in resisting this military force.

Should be supported by those for whom it is carried out 4. 976). should we just stand by and watch the atrocity or should we violate intl. There is however emerging arguments to allow for certain humanitarian violations. few accept this principle though (p. but Sec. Council finds a situation constitutes a threat to the peace. norms. the war was illegal because it didn’t get authorization. 971) • Interceptive Self-Defense . use of force in 1999 to stop it after all other means exhausted. 971) • Middle position: Imminent attack. • Protection of nationals and rescue of hostages. 2. 973) Use of Force for Benign Purposes: As a matter of IL law. renunciation of armed force could never have been meant to prevent it for humanitarian reasons when all other remedies have been exhausted. No legally accepted exception here. unless it’s within the 2 exceptions. it’s not acceptable practice. Council did not confer authorization in advance. law to stop it? Must have a bright-line rule that can withstand abuse and not be used for the personal agendas of a state. Humanitarian Intervention: Strongest claim to allow an exception to the prohibition of armed force is use of force to save lives of innocent human beings threatened by massacres. This ‘unlawful but legitimate’ argument also put forth for Iraq. • European attitude: self defense is justifiable only if attacked. 1. Might pose a threat. as a matter of IL. No other means to rectify 3. stick to Article 51 with a possible exception for an immediate definite impending attack. etc. highly controversial. the range of measures the Council can take to deal with that situation: Corral 55 Fall ‘05 . a decade of efforts to stop it. claim of humanitarian intent was used to justify Vietnam’s entrance into Cambodia. widespread brutality. when such rules are being used by the Western States the rules must also apply to the intl. community as a whole. but this has not been accepted (p. multinational participation. Humanitarian intervention authorized by UN is legal. 1006) If the Sec. it’s a way to promote customary intl. None of this argument is accepted (p. Should cause less harm than that already being committed 6. (or any other state) to intervene by force to defend. Grave violation of human rights 2. Criterion for Humanitarian Intervention: on top of UN authorization 1.S. Intervention For Democracy: still a tough debate (p. destruction. Just scholars talking a) The Reagan Doctrine – asserting the right of the U. Full compliance with the laws of war 5. Should withdraw when the objective of terminating the violations is achieved Kosovo Intervention: 997 Bloody ethnic conflicts in former Yugoslavia. Collective Use of Force: (p.Attack isn’t even imminent but you see it coming. • Anticipatory Self-Defense – invading another country when armed attack is imminent. maintain. restore or impose democratic gov’t b) The Brezhnev Doctrine – the Reagan doctrine’s counterpart from the Soviet Union •The black letter int’l law = use of force in humanitarian law that is neither in self defense nor unauthorized by UN is illegal. Kofi Annan asks many questions regarding the use of force in Kosovo and Rwanda. atrocities.

Extends protection to war for self-determination and liberation. 439 Supp) "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949. radio. Corral 56 Fall ‘05 . and the severance of diplomatic relations The UN can also call upon the parties to apply provisional measures as deemed necessary. 426 Supp) "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864. Council claims that the authorization of use of force must be explicit. 441 Supp) Protocol Additional to the Geneva Conventions of 12 August 1949. making them among the most widely ratified of int’l treaties. much stronger protection afforded to international war rather than internal war. Africa with Apartheid) The Law of War: International Humanitarian Law or Law of War (IHL) (p. As of 2000. and relating to the Protection of Victims of International Armed Conflicts. and relating to the Protection of Victims of Non-International Armed ConflictsU. they are still bound. and other means of communication. telegraphic. Civilians and objects are never to be made a target of attack. 429 Supp) "for the Amelioration of the Condition of Wounded. sear. last revision in 1949) Fourth Geneva Convention (p. UN Charter Article 41 p. extends greater protection to civilians and combatants in internal fighting but only where the government is fighting against a well- organized group who controls a part of territory. may include complete or partial interruption of economic relations and of rail. Some of the measures are designed to be less harsh/severe as force. successor of the 1907 Hague Convention X) Third Geneva Convention (p. These treaties have all received widespread multilateral adherence. Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949. there are two additional protocols to the Geneva Convention: Protocol I (1977): (p. (One of the only 2 instances when the UN could take action during the Cold War was in S. or political opinion. elaborates on the conduct of war. religioin.then strengthened after the World Wars – notably through the four Geneva Conventions (GCs)of 1949 – an in 1977 with two additional protocols to the 1949 GCs. all 189 members of the UN as well as non-member Switzerland were parties to the 4 GCs. postal. 1054/421 Supp) •Much of the law of war was codified at the Hague Peace Conferences of 1899 and 1907. If the measures are inadequate then what can the UN do? Sec. last revision in 1949) Second Geneva Convention (p. enumerates what measures the Security Council can take. Protocol II (1977): (p. prohibits violence to life and person and allows no distiction based on race. 10 Supp. Prohibits reprisals. older than human rights law Geneva Conventions (p. Prohibits indiscriminate attacks. 426 Supp) First Geneva Convention (p. and in most aspects – with some notable qualifications – they reflect contemporary customary int’l law. comesinto play during armed conflict when civilians are in the hands of a party of which they are not a ntation. applies even if states aren’t parties to a treaty. In addition. air. 434 Supp)"relative to the Treatment of Prisoners of War" (first adopted in 1929. 455 Supp) Protocol Additional to the Geneva Conventions of 12 August 1949. based on parts of the 1907 Hague Convention IV) : most important. You have to distinguish civilian and military targets and only military targets are lawfully subject to attack. Broader protection available.

forced enrollment into brothels in Korea and Japan in WWII 4th Convention. Unnecessary losses are prohibited. treatment of enemy nationals and their property. • Collateral Damage is lawful where civilians are killed accidentally after targeting military targets. 3rd Geneva Convention is the authoritative statement concerning POWs. enforced prostitution. Sexual slavery. Must protect civilian population. • US has ratified the four conventions of 1949 but not the 2 protocols. Regulation of Weapons: • Regulation of weapons come under conduct of war (as does treatment of prisoners. exp. • Protecting women in armed conflict: Rape is a war crime and crime against humanity and genocide. the prisoner must be permitted contact with his family and have correspondence privileges. in particular against rape. in relation to each other and to protected persons. 513 Supp/1058 Intl. calls for the destruction of all mines. prostitution. ban on the use. Civilians also have protection. and protection of nonmilitary ships). Provide for basic needs to provide with relief. and injured participants.jus ad bellum: are a set of criteria that are consulted before engaging in war. usually meaning civilians. from mustard gas to dum-dum bullets to nuclear weapons. 1064 Emphasized in the 2nd half of 19th century. Article 27 – women shall be especially protected against any attack on their honor. there are new demands on the laws of war. Note: #1-#3 only apply to international war and occupation. gases. in order to determine whether entering into war is justifiable. poisons. or any form of indecent assault Corral 57 Fall ‘05 . and use Treatment of POWs and the sick and wounded on Land and Sea p. As a matter of targeting you can’t target civilian persons or objects. stockpiling and sale of mines. Any collateral damage isn’t allowed. law. parties must inform UN of their measures to follow this. there has been a great decline in landmine production. 1069 Rape of women by occupying forces is a perennial atrocity. • Applies to all parties whether the underlying cause is just or unjust. Sexual based crimes. . or directly connected with the operations of the war. attempted to eliminate weapons that cause unnecessary suffering • Bullets. Cluster bomb. no coercion. • Captured combatants have protection: no torture. there are penal and disciplinary sanction prescribed in the Convention Sexual Violence in Wartime p. neutral nations and individuals while engaged in warfare. prisoners are not required to give a lot of info. there are codified treaties in addition to the customary intl. humiliating. Protocol I is a modern version of Martens Clause = civilians and combatants remain protected under intl. law Landmines Convention – p. • Key theme of HL: choice of weapons/means and methods of warfare is limited in achieving military objective. not to be tortured and must be able to retain his personal effect. which define the conduct and responsibilities of belligerent nations. with the emergence of lethal and non-lethal technology rules have had to change. sales. No indiscriminate targeting. US has not yet signed or ratified this ban. production. just minimum information. deviations from the laws of war the jus in bello were violations of intl. the work that the prisoner does cannot be inherently dangerous. and aerial bombardment was what was being limited in the past two centuries. Can be tried but same procedure you would use against your soldier. but Common Article does afford protection to internal war. law. • jus in bello: The laws of war. there must be a system for registering complaints and it must be used.

only medical and humanitarian needs. (if Article 40 doesn’t work) Article 42 . or position of the parties concerned.The Security Council shall determine the existence of any threat to the peace. ie Korean. Peacekeeping: completely different category. Protocol II. it has 2 levels of action . the Security Council may. and other means of communication. Iran-Iraq. Iraq invasion of Kuwait. or act of aggression and shall make recommendations. Article 39 . enforced prostitution and any form of indecent assault are prohibited at any time and in any place whatsoever Charter of the UN. they are meant to be a collective way to stand up to aggression. this resolution gave Iraq and ultimatum stating that if it did not withdraw from Kuwait then the UN member states are authorized to use whatever means to restore Corral 58 Fall ‘05 . it may take such action by air. and the severance of diplomatic relations. to maintain or restore international peace and security. • Once SC determines that it’s in a Chapter 7 situation. No specific provision for peacekeeping forces. Article 40 . and verify their cargoes and destinations and to ensure compliance of 661. The Security Council shall determine the existence of any threat to the peace. before making the recommendations or deciding upon the measures provided for in Article 39. rape. sea.The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions. 678 – Iraq refused to comply with Resolution 660.In order to prevent an aggravation of the situation. telegraphic. it has to be a threat to international peace. to maintain or restore international peace and security. air. postal. breach of the peace. sea.Non force and force. breach of the peace. or act of aggression and shall make recommendations. (if Article 41 doesn’t work) • Taken together. Security Council Resolutions: 661 – sanctions by all states (even non-members) upon Iraq. or land forces as may be necessary to maintain or restore international peace and security. claims. Article 4(2)(e) – outrages upon personal dignity. Chapter VII – p. 666: to ensure that permissible food shipments went to those in need. IRAQ 660: calls for immediate withdrawal. or land forces of Members of the United Nations. or decide what measures shall be taken in accordance with Articles 41 and 42. in particular humiliating and degrading treatment. blockade. These may include complete or partial interruption of economic relations and of rail. and it may call upon the Members of the United Nations to apply such measures. SC and GA can be involved in the authorization of peacekeeping forces. 9 Supp • Threat to the peace to trigger Chapter 7. Article 41 . Theoretically different from Chapter 7. The Security Council shall duly take account of failure to comply with such provisional measures.Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate. Peacekeepers can only use arms in self defense. Falklands. Such action may include demonstrations. or decide what measures shall be taken in accordance with Articles 41 and 42. and other operations by air. radio. • Breach of peace: found in only few instance. call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights. sea.

UN Charter Article 2. He doesn’t agree with Taft. Corral 59 Fall ‘05 . However the terms of the cease fire do not expressly state that a breach of the terms invalidates the cease fire and allows for further use of force. (even genocide of the Kurds). SC must make explicit and express authorization. the Sec.Argument in Favor of Iraq War: Iraq was in breach of its obligations under the cease fire from the first war and thus invalidated the cease fire. but the lawlessness of one kind should not be met by lawlessness of another kind.” Meaning of Dispute – has particular meaning. Authorization for action under art. • Iraq did not withdraw and air strikes began. community have violated the Charter by committing this aggression. 42 after the deadline. Concern that the whole system that governs the use of force will be weakened. • Did Resolution 1441 give authorization for the War in Iraq? No. Gen. 687: comprehensive settlement. Legal disagreement. Such a war is the gravest of violations of intl. . • This seems more like a war of aggression. Taft Article: Justifying us War in Iraq. proliferation of tribunals. Aggression is the use of armed force by a state against the sovereignty of another state or in any other manner against the Charter of the UN. Frank Article: his view of Taft’s argument re: past resolutions. humanitarian law. Double edge of sovereignty: erosion of sovereignty is not necessarily always good for human rights. committed gross violations of intl. and justice. done in a way not to jeopardize peace and security and do justice. • US/UK action in April of 2003 is illegal because it does not fit in under self-defense exception or under humanitarian justification and the UN Sec. • ICJ definition: disagreement on a point of law or fact. Paragraph 3: Dispute settlement: “All members shall settle their international disputes by peaceful means in such a manner that international peace and security. Too much time has passed. Basis for the war not legally justifiable. Iraq sanctions. but erosion of S also hurt Iraqi citizens. Dispute Settlement • Fundamental Obligation by states to settle disputes by Peaceful Means. the US wanted language incorporated into 1441 that would authorize use of force but it was not put in. intl. exp. 678: all necessary means to uphold. a conflict of legal views or interests between two persons. stated that an attack of such kind is a violation of the UN charter. Self-Determination. Implied authorization derived from previous resolutions. No clear hierarchical relations between these courts. Council in this case actually did what it was designed to do and did it well. are not endangered. Regional and subjects courts. Taft put forward a de minimis argument. law. Deadline imposed. Two of the leading members of the intl. • The former Iraqi govt. this resolution also calls for all states to provide support. not just any difference in views of states • Requires a degree of specificity and contestation. peace and security. His policy concern is implication of Article 2(4). Now. • It’s not a dispute if the resolution does not effect relations between the states. law. The matter has to be ripe for adjudication. Paradox: S shielded Iraq from human rights abuses. Bennoune’s View on the Legality of the War on Iraq: Sovereignty v. • Judicial Settlement: many international courts and of wide range of subjects these days. Overwhelming emphasis on peaceful resolution of disputes.

on a given case. more pro- active than mediation. US in the Nicaragua case. conciliators or other third-party facilitators may be individuals. non-adjudicatory c) Negotiation – Article 54 the two sides site down face to face and try to compromise their way out of it. • Opportunities for the court. .Judicial practice in global setting. 2 Latin America . but there are challenges. best use is for strong states against a weak state. Conciliation – all entail 3rd party involvement in seeking a resolution of the dispute. • The Court’s judgment must have some practical consequences in the sense that it can affect existing legal rights or obligations thus removing uncertainty from their legal relations.. but are not bound by the decision of the 3rd party. or institutional bodies. 27 Supp • A state can designate an ad hoc judge in order to prevent bias against that state • ICJ: the most important international law court. Judges are selected by complex process. These are experts and by and large they function as such. different from resorting to court because the parties can choose the applicable law and the arbitrators. It faces a range of problems: perennial non appearing defendant.Article 55 same as an inquiry but under the auspices of the UN Secretary General or some other int’l big shot. best use is for small states with a strong case. semi- adjudicatory g) Judicial Settlement – the most preeminent institution is the Int’l Court of Justice (ICJ). expensive in terms of money and expertise. problem of ICJ is getting states to comply. to develop expertise.Court issues single judgments but may append concurrences and dissents . Judges aren’t supposed to represent their country of origin. Mediation. (Famous noncompliance: Iran in hostage case. Inquiry. to the int’l community as a whole Corral 60 Fall ‘05 . Netherlands. Preeminent body. 3 African and 3 Asians. similar in structure. Almost all complied in ICJ’s predecessors. located in the Hague. Logistics of the Court: successor to PCIJ. Has a full docket. Practice of recusal: they can participate even with same nationality defendant.English and French are predominant languages . non-adjudicatory b) Mediation – Article 55 some as conciliation but less pro-active 3rd party. it accepts ICJ Statute. committees. non-adjudicatory e) Good Offices .Has held that the principles of int’l law outlawing acts of aggression are obligations erga omnes. . 5 westerner. 15 judges. the SC has the power to enforce the decisions of the ICJ. • In theory. adjudicatory Good Offices. the two disputing parties agree to have a 3rd party hear it. The International Court of Justice (ICJ) – Charter of the UN . when a state ratifies UN Charter.p. non-adjudicatory f) Arbitration – Article 58 a form of mediation but the holdings are binding. 2 Eastern European. They are nominated by a complicated process and elected by SC and general assembly. Mediators. non-adjudicatory d) Inquiry – 3rd party investigates the disputed facts and gives a report of what actually occurred and sometimes adds a recommendation. A lot of political in-fighting.Small chambers: 3 justices. ICJ created by the UN charter to be the principal judicial organ. Dispute Settlement: a) Conciliation – Article 56 a 3rd party comes in and tries to resolve the issue. Iceland) • Traditional default rules can’t apply. essentially involved in all of these methods as agreement will have to be reached for all of them. especially for developing countries.

2 kinds of jurisdiction: either contentious cases or issue advisory opinions.68) Chapter V: Amendment (Articles 69 & 70) Article 36: (p. the interpretation of a treaty. only states can be parties to cases. • If jurisdictional issue is raised.33) Chapter II: Competence of the Court (Articles 34 .e. They can be brought into ICJ without any particular agreement. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed. the existence of any fact which.if no notice is identified.Not expressly provided for in the Statute but allowed. . to be acceptances of the compulsory Corral 61 Fall ‘05 . Organization of the Statute: Article 1 Chapter I: Organization of the Court (Articles 2 .some declarations are made terminable after notice and some are open-ended. 36(5): permanent court of international justice jurisdiction. . a reasonable time is enforced: Nicaragua Reservations: to a declaration . (examples of compulsory jurisdiction) Usually broad language. 2. would constitute a breach of an international obligation. . . 33 Supp) Basis of Jurisdiction 36(1): allows for treaty or agreement. Other conventions have jurisdictional clauses that allow any party to bring the dispute to the Court. A state has to make a declaration (optional clause declaration) to recognize the competence of the court. the nature or extent of the reparation to be made for the breach of an international obligation. • Some general multilateral conventions provide for compulsory jurisdiction through optional protocols. 36(2): compulsory jurisdiction. Parties have agreed to jurisdiction on a specific matter.States have to be careful about making reservations because they are reciprocal and other state can use it against them (i. France and Norway: self-judging reservation which basically nullifies the court’s jurisdiction. any question of international law. consent and reciprocity are the bedrock principles of contentious jurisdiction.Court has been flexible because it wants wide participation . • Many bilateral treaties include provisions for compulsory jurisdiction of disputes relating to the interpretation and application of the Treaty.some states withdraw if the court decides unfavorably to them. • A few treaties give the Court appellate jurisdiction that provides for appeals to the Court. if established. Under Article 36(2) states can declare that they recognize as ipso facto and w/o special agreement the jurisdiction to the Court in all legal disputes. Domestic jurisdiction). the court will hold a meeting. Exempting certain kinds of disputes. jurisdiction is based on the consent of the parties. Jurisdiction concerning: 1.64) Chapter IV: Advisory Opinions (Articles 65 . 3.38) Chapter III: Procedure (Articles 39 . but only if a state is brought in by another state who agreed to the same obligations= reciprocity. 4. not international organizations or private persons. • A case brought under a treaty clause does not require a special agreement. it is begun by a unilateral application. as between the parties to the present Statute.

a State may create an international legal obligation as a purely unilateral matter. The non-appearance of one state concerned cannot by itself constitute an obstacle to the indication of provisional measures. Forum Prorogatum: takes place if the parties to a dispute. and take no action prejudicially against the US. Nuclear Tests Cases (Australia v. based on “inherent jurisdiction. Iran says what happened should remain within the sovereignty of Iran because of the then occurring revolution and the hostage taking is just one event in a long chain of other events. release the hostages. an American judge voted in Corral 62 Fall ‘05 . the court cannot hear this case because there is no declaration made but Nicaragua makes an argument that they fit under Article 36(5) that the US made compulsory the jurisdiction. Case concerning US Diplomatic Consular Staff in Tehran (USA v. No question of damages arises since the objective of the applicants was to seek protection against such further testing. Australia made no attempt to claim damages and totally should have. France has agreed prior to this case to stop the testing above ground and is now testing below ground = P lacks standing. (This was central to Nicaragua Case).Exceptional situation in 36(1).” to authorize it to decide that France is now under an obligation to terminate atmospheric nuclear tests in the South Pacific Ocean. • The court also ruled that neither party should take any action to aggravate the tension between the two countries. (P) nationality held in the Embassy or elsewhere. In this case. the Court overwhelmingly voted against the US arguments. protect the Americans there. if the D loses on the merits. • The court’s action. unilateral statement made to the international community as a whole to terminate nuclear testing constitutes an undertaking possessing legal effect. The Secretary-General of the United Nations has referred to these events as a "grave situation" posing a "serious threat to international peace and security. The court held that it could not decline to take cognizance of one aspect of a dispute merely because that dispute had other aspects. the ICJ says there is nothing that would lead them to such a conclusion and that it falls within the function of the ICJ to hear this case. RULE:A dispute which concerns diplomatic and consular premises and personnel and involves the interpretation or application of multilateral conventions codifying the international law governing diplomatic and consular relations is one which by its very nature falls within international jurisdiction. a judgment from this court might be of use but no further judicial action required. US unquestionably has IL on its side. clear the premises. even though France already stated intent to stop testing." Iran (D) cannot fail to recognize the imperative obligations concerning the privileges and immunities of consular officers and employees. what about reciprocity? It did not apply to this unilateral undertaking by the US. the US felt the ICJ was not the proper mediator and that the Sec. US 1984: 880 Nicaragua filed application against US for military and paramilitary activities in and against Nicaragua. RULE: A clear. after the initiation of proceedings consent to the jurisdiction of the ICJ. dispute arises between France and the two nations. without this consent. France) ICJ 1974: 865 France holds atmospheric nuclear tests in the South Pacific. legal obligations by allowing this hostage taking and says that Iran must secure their release immediately and pay the US reparations and prosecute the perpetrators. this court cannot opine upon the facts. the court will exercise jurisdiction. the US argues against this because it says Nicaragua did not accept the same obligation as accorded by Article 36(2). jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. Australia disputes it. France says effect is negligible. • Thus. A state can also invoke by pleading to the merits of a claim without raising any objections to jurisdiction.S. Court was willing to grant Provisional Measure due to irreparable harm and was pretty sure who would prevail.S. Iran) ICJ 1979: 868 Hostages taken at US embassy in Iran. France and New Zealand v. The government of Iran (D) should immediately restore the premises of the United States Embassy to U. US also says Iran not only allowed the hostage taking but supported it. that the ICJ is a 3rd party. US also tries this “Schultz notification” saying that rather than wait for the ICJ to hear the case in 6 months. (P) authorities and ensure the immediate release of all persons of U. Nicaragua v. and the inviolability of consular premises and archives which have been codified in the Vienna Conventions of 1961 and 1963. Council should have heard the case. the Court would not be in the position to exercise jurisdiction. ICJ rules in favor of US and orders release and security of all attached to the embassy. to which it is a party. the US was funding the Contras in Nicaragua. US says the ICJ has jurisdiction. US Says Iran violated its intl. the US will pull out now . this court for such reasons finds Australia’s claim to have no object. not try any American.

Article 53: (p. . Article 53: (p. . No application for revision may be made after the lapse of ten years from the date of the judgment. intent and conduct. 2. that the claim of the applicant is well founded in fact and law. the International Court may consider the case as well. even though ratification was never received. A state’s non- appearance before the court is in itself no obstacle to the exercise by the Court of its functions under Article 41 of the statute. Non-Appearance • The US appeared against Nicaragua to contest jurisdiction and admissibility but withdrew after the court found jurisdiction. In the event that a party fails to appear or does not defend. 5. Article 62: p.Evidence in favor of Nicaragua acceptance: UN list of consenting states. Both proceedings can be pursued pari passu (equally. Non-Appearnce. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact. • Resolution adopted by the institute de Droit International: Notwithstanding the non-appearance of a state before the court in proceedings to which it is a party. Intervention and other 3rd Party Issues Right to intervene if the state is a party to the treaty. Article 61: p.S. recognizing that it has such a character as to lay the case open to revision. 38 Supp 1. All five were rejected by the court. which fact was. In the event that a party fails to appear or does not defend. The application for revision must be made at latest within six months of the discovery of the new fact. telegram sent as well. The court also found there was no indispensable parties rule in international law requiring the presence of any other third parties. can also petition the ICJ to intervene in the case if it doesn’t already have a right. RULE: Where a matter is before the Security Council.A lot of procedural problems with this case. such a small country taking action against the US why was it not put down? This was during the Cold War . that state is. always provided that such ignorance was not due to negligence. and declaring the application admissible on this ground. 37 Supp 1. 3. The statute of the court does not provide for default judgment.favor of the US often alone. 36 Supp). Merit was on Nicaragua’s side. Article 62 and 63 of the Statute. admissibility. by virtue of the statute. the Statute requires the Court to satisfy itself that it has jurisdiction and. • The U. whether on jurisdiction. 36 Supp). Non-Appearnce. bound by any decision of the court in that case. The fact that a matter is before the Security Council should not prevent it from being dealt with by the Court. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. the Statute requires the Court to satisfy itself that it has jurisdiction and. or the merits. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor. The court finds it has jurisdiction over this matter. Nicaragua’s basis of jurisdiction was 36(5) PCIJ jurisdiction. unknown to the Court and also to the party claiming revision. the ICJ was attempting to bolster it’s legitimacy. if so. raised five grounds of inadmissibility. when the judgment was given. without preferential treatment). if so. 4. that the claim of the applicant is well founded in fact and law.Shultz’s letter wanted immediate termination but the declaration stipulated 6 month notice. Should a state consider that it has an interest of a legal nature which may be Corral 63 Fall ‘05 .

notice of the measures suggested shall forthwith be given to the parties and to the Security Council • Two criteria for provisional relief are urgency and irreparable injury. Council at the same time. Morocco and Mauritania are the two disputing states. the court says it’s not impairing legal rights and it’s not binding thus it should have jurisdiction to issue an opinion Corral 64 Fall ‘05 . no matter how urgent the matter or how serious the allegation of likely irreparable harm to applicant. the dispute resolution in the case didn’t work. provides for the filing of counter-claims. 2. other organs of the UN may be so authorized by the General Assembly. It shall be for the Court to decide upon this request. Western Sahara Case ICJ Advisory Opinion 1975: 905 What is the legal status of the Western Sahara Dessert? The important factor is whether or not the ICJ had the jurisdiction to issue such an advisory opinion. • The Court’s provisional measures jurisprudence requires applicant to show a prima facie basis for jurisdiction. some international agreements provide that disputes relating to the interpretation and application of the agreement shall be submitted to the Court for an opinion that will be accepted as binding by the parties to the dispute.N. • General Assembly or the Security Council may request advisory opinions. 2. it may ask an authorized IGO to request one for them • Although an advisory opinion has no binding effect in itself. In addition. which requires that a counter-claim be “directly connected with the subject-matter of the claim of the other party and that it comes within the jurisdiction of the Court. Pending the final decision. The Court shall have the power to indicate. provisional measures will be denied. Charter. Advisory Opinions: Article 65: (p. the court held that Turkey was only doing a survey thus not irreparable Counter-claims: Article 80: of the rules of the court NOT THE STATUTE. affected by the decision in the case. Morocco occupies the entire Western Sahara. Where jurisdiction cannot be established even prima facie. it may submit a request to the Court to be permitted to intervene. if it considers that circumstances so require.” • Applicant states will have to weigh the possibility of serious counter-claims entailing potentially heavy liabilities as part of the risk of initiating litigation. It may. however. Turkey) ICJ 1976 (Provisional Measure): 897 Greece protested Turkey exploring for oil. 38 Supp) The court may give an advisory opinion on “any legal question” requested by a body authorized by or in accordance with the U. any provisional measures which ought to be taken to preserve the respective rights of either party. Aegean Sea Continental Shelf Case (Greece v. Provisional Measures: now binding Article 41: p. 35 Supp 1. strong objection by many of the states party to the discussion. brought the case to the ICJ and Sec. • A state may not request an advisory opinion.

A lot of this is defined in national arena. The opinion requested must be on a legal question. it’s lawful • The court declined to issue an advisory opinion at the request of WHO because WHO did not satisfy all 3 criteria needed in order to request an advisory opinion: 3 criteria: 1. under the Charter. 2. The Lotus Principle: At the International Court of Justice (ICJ) hearings in 1996 the UK argued that in international law. includes conduct that was abroad that affects in substantial part upon that territory where a particular crime/action takes place. • Under international law. the ICJ must limit who can appear before it. This question must be one arising with the scope and mandate of the activities of the requesting agency. Bases of Jurisdiction – Criteria for determining Jurisdiction. legislative/proscriptive – 2. executive/enforcement – . if something is not actually forbidden. Should there be two bodies: One for advisory opinions and the other a strict court? No. may reasonably have in exercising the particular jurisdiction asserted and on the need to reconcile that interest with the interests of other states in exercising jurisdiction. now the interests of states must be balanced with the interests of other states. Territorial Principle – wholly or in substantial part takes place within its territory. Note: Jurisdiction and immunities are rights of states. there should be consistency IV.Legality of the Threat or Use of Nuclear Weapons ICJ Advisory Opinion. from the perspective of national courts asserting jurisdiction. The agency requesting the opinion must be duly authorized. Comity: politeness between states. the jurisdiction of a state depends on the interest that the state. the General Assembly says is it permitted to use nuclear weapons (a diff.: 909 General Assembly and WHO asked the ICJ to issue an advisory opinion on this matter. respecting the interests of other states. 3.International law of jurisdiction limits states and other international legal persons may not exceed in exercising jurisdiction. Sovereignty is always in the background of jurisdictional discussions. question from is it prohibited: Lotus principle). Corral 65 Fall ‘05 . Jurisdiction Jurisdiction: Authority to affect legal interest in a particular situation over a particular person. to request opinions from the Court. then it is permitted. such questions have legal and political motivations. some states contested the advisory opinion because of imputed political motives. . but political motives don’t matter because as long as an authorized UN body brings the claim. 1996: 3 Criteria re: request for advisory opinion. States now have to affirmatively to show a basis in jurisdiction before acting in a certain way. • Classically understood it was the Lotus Principle. Three types: 1. in view of its nature and purposes. 1. the Permanent Court of International Justice. judicial/adjudication – 3. so called because in the 1920’s a ship of that name featured in a decision made by the ICJ's predecessor.

Based on the idea that individuals owe allegiance to states to which they are nationals. Obligation ergo omnes. Argentina could have asserted jurisdiction based on universality principle. then Russia cause of nationality.Comity is compromised even in the presence of lawful basis. it was clandestine and the transfer was a violation of territorial sovereignty. it’s important because no other state may have any interest in prosecuting. universal principle Corral 66 Fall ‘05 . the transfer was unlawful. Pinochet. Yunis was assumed the leader and lured into a trap and once in intl. would set a dangerous precedent.1932 (1111) . Blackmer. torture.. Universality Principle – offenses that are crimes against the intl. who can take jurisdiction? Strongest claim is Uruguay because of the territorial principle. (i.) 4. 5. .e. 1135 where embassies as important interests of the US were harmed. Adolf Eickmann (1136) was caught in Argentina and brought to Israel to face holocaust charges. etc. Asserting jurisdiction by nationality of the victim. newer and increasingly accepted but still supplemental. Fawaz Yunis DC Circuit 1991: 1118 . Suriname wouldn’t want to prosecute Russian secret service man because of comity. Passive Personality Principle – newer. No.Jurisdiction Based on Nationality of Natural Persons Blackmer was held in contempt for ignoring subpoenas. Second strongest basis. Asserting jurisdiction by nationality of the perpetrator. illegal arrest. UK nationals enjoy sex trade in Thailand. No a Russian national tortures James Bond. and violations of the Posse Comitatus Act were all denied thus he appealed. Strongly asserted re: terrorism. Council ordered reparations. some controversy. while interrogating Bond in Uruguay about his work to prevent the smuggling of briefcase sized nuclear weapons into the US. his motions challenging jurisdiction. Bin Laden Case p. and hostage-taking that stem from the hijacking of a Jordanian passenger plane in Lebanon. Other countries could have based on passive. • Multiple jurisdictional bases may be used to get Jurisdiction and prosecute. Russia won’t want to take it. who decides it though? Middle of the pack. a UK national. Nationality Principle – jurisdiction over its national even if the activity and the person is abroad. its jurisdiction in personam US v. US US Sup.e. Argentina had jurisdiction. No pursues him and winds up in custody in Suriname. waters was arrested by the FBI. Controversial because it can be exerted by powerful countries who will have the ability to apprehend non-nationals. You have to either try or extradite. That these crimes are so heinous that all states have a duty to prosecute. court may go after British nationals on the basis of their nationality) Dual citizenship: dual allegiance. On the other hand. UK or US would both take but remember double jeopardy. Any of these countries can use universality if they have Dr. weakest basis. Germany could have asserted jurisdiction based on nationality and territorial. Sec. in actuality Uruguay wouldn’t assert jurisdiction because they have/would get no money. (i. following Bond’s escape Dr. Primary basis of jurisdiction that a state exercise jurisdiction on its own territory. (i. Middle of the pack. ie Poland. Blackmer v. Hungary.e. etc.e.. the jurisdiction here arises out of domestic law.Jurisdiction Based on Nationality of the Victim (Passive Personality Principle) Yunis appeals to challenge his convictions of conspiracy. Yunis and 4 others hijacked a plane. Eichman Case) Hypo: Dr. Israel had jurisdiction under universality and passive personality but the latter is problematic because Israel didn’t exist during the holocaust. hijacking. Requires that crime is committed within the territory. aircraft piracy. 2. last is Suriname because of universal jurisdiction because of custody (torture).(i. people lying to US consular officers. Eichman Case. Piracy) Understood to apply to war crimes. community. Most accepted basis of jurisdiction. he’s a US citizen living in Paris. Protective Principle – conduct that threatens existence or injures national interests. Who’s going to decide whose national interests are being undermined. fourth is US  protective principle claim because of the territory/national interests. third is UK because of passive personality principle (victim is a national). 3. Concern re: bias in judicial system. Ct.

such immunities may be granted by municipal law. Bow St. the torture convention didn’t establish a new rule of intl. This is a question of immunity from jurisdiction to enforce. McFaddon (US Supreme Court. or other Interests Pinochet is indicted for acts he committed in Chile. Pesaro (p. its denial by municipal law may create a claim for violation of IL. The international law prohibiting torture has the character of jus cogens or a peremptory norm.. Rule & Reasoning: Sovereign immunity. when an immunity exists under IL. 523 Supp) Convention on offences and certain other acts committed on board aircraft Convention for the Suppression of Unlawful Seizure of Aircraft – (p. In addition. 1812) . states and other international persons enjoy certain immunities from the exercise of jurisdiction. • Problems of jurisdictional immunities arise when an action is brought in the tribunals of one state against another state or its instrumentalities or property. he had foreigners accused of crimes tortured. for failure to deliver artificial silk from Italy to New York. Court dismisses due to sovereign immunity.The Classical View a. it’s a jus cogens rule. 2. lead the notion that one state is not subject to suit in courts of another. Facts: US citizen attempts to claim title to armed national vessel of foreign country within US territorial waters. Co. the first question that arises is whether the local tribunal has judicial jurisdiction over the foreign state. Ex Parte Pinochet UK House of Lords. Sovereign Immunity: Jurisdictional Defense 1. a state cannot say that part of it’s official policy is torturing criminals and expect immunities. 3. b.Jurisdiction Based on Protection of Certain State. hijacking etc even if there is no connection. Immunity From Jurisdiction: 1197 • Under IL. The third question that arises is when a foreign state or its property is immune from enforcement measures. Stipendiary Magistrate and Commission of Police. Civil Aviation – (p. This raises a question of immunity from legislative jurisdiction. Schooner Exchange v. and general international law requirement that state consent to any rule or application of law to its conduct. hostage taking must be prosecuted no matter what Convention on Intl. “Pinochet Syndrome”: using universal jurisdiction to go after offending criminals.. Rooted in the perfect equality and absolute independence of sovereigns. the passive personal principle. Bartle. • The main trend from the 19th century through the 20th and 21st centuries has been the gradual displacement of the absolute theory of sovereign immunity with a restrictive view. primary consideration has been given to immunity from judicial and enforcement jurisdiction.vs. states may prosecute offenders of certain crimes like terrorism. which is owned and operated by Italian government. v. • When such an action is brought. Of course. Universal. (Pinochet syndrome): general jurisdiction so that the torturer was not safe wherever he went. 608): Berizzi brings action against the steamship Persaro. Continuation of Absolute Theory of Sovereign Immunity a. The second question that arises is whether the forum has the authority to evaluate the foreign actor’s conduct under the rules of law applicable to such conduct. law. 1999: 1139 . Immunity of state from jurisdiction of courts from another state is an undisputed principle of customary international law. Spain requests the extradition of this former Chilean leader (who had himself appointed as a Senator For Life just before stepping down as Prez). This question is one of immunity from judicial jurisdiction. Berizzi Bros. Sovereign states are equal actors in international arena. “there is no escape for torturers”. Rise of Restrictive Theory of Sovereign Immunity Corral 67 Fall ‘05 . • Traditionally. 537 Supp) hijacking Regina v.

are the acts the type of actions by which a private party engages in ‘trade and traffic or commerce’? 4) Not a Perfect Remedy: Many courts have complained about the confusing structure of the Act using such epithets as “statutory labyrinth”.S.S.S. Tate Letter (Department of State. providing for national security. 1605(a)(2)): Exceptions to sovereign immunity.. Under this new restrictive theory.” b. commercial acts) (immunity no longer recognized here) to protect private traders.. directly conflicts with another soveriegn’s “full and absolute territorial jurisdiction. FSIA Does Not Apply If:  § 1605 .e. o Arbitration agreement could be executed in the U. However. based upon the absolute independence of sovereigns. Very often came down to the nature of the activity (i. and “bizarre structure”. i) Jure Imperii: public acts of a state (i. Alleviates some of the problems of absolute sovereign immunity. 2) FSIA § 1604 – General Rule: Foreign state is immune from jurisdiction. the restrictive theory allows states to be brought before a court like any other private actor Foreign Sovereign Immunities Act (FSIA) 1976 to fix problems left by Tate Letter 1) FSIA § 1602 .S.. hostage taking or assisting such acts if engaged in by an official of the state within the scope of his or her employment  §1606 . o If cause of action is immovable property within the U. extra-judicial killing. “twisted exercise in statutory draftsmanship”. and/or that property was taken by an agency or instrumentality of the foreign sovereign and that representative is engaged in commercial activity in the U. etc.S. o Tort committed by foreign state within the U. states are not immune from jurisdiction of foreign courts insofar as their commercial activities are concerned. in particular by entering into commercial transactions.General exceptions o It waives immunity explicitly or implicitly o Commercial activity carried on in the U.” This is especially true since nations have begun to “enter the marketplace. etc. with exceptions.S. provides deprived private parties that have dealt with foreign countries with legal recourse and prevents foreign states from utilizing unfair advantage in competition with private enterprises. 3) FSIA § 1605-1607 (Esp.Extent of Liablity o If not entitled to immunity per 1605 or 1607. aircraft sabotage.Counterclaims Corral 68 Fall ‘05 . the Tate Letter did not and could not really succeed in establishing a workable and effective law governing claims against foreign states . the most common of which is the commercial activity exception..Findings and Declaration of Purpose: Under international law.  §1607 . and their commercial property may be levied upon for satisfaction of judgments rendered against them in connection with their commercial activities.) (immunity still recognized here) ii) Jure Gestonis: private acts of a state (i. foreign policy. the foreign state is liable in the same manner and to the same extent as a private individual including punitive damages if liable for state sponsored torture.e. corporation issuing bonds v. or with a direct effect on the U. Problem: Sovereign immunity.S. o Personal injury or death cause by torture. parties were not immunized when they acted like private parties. they are amenable to suit in countries in which they act or where their acts have effect.didn’t define the distinction between private and public state acts nor who should define them.e. (1605(a)(7) or in violation of the Trading With the Enemy Act. a. 1952): Acknowledged international trend from the absolute or classic theory of sovereign immunity to restrictive theory of sovereign immunity. o Property taken in violation of international law and that property is in the U. government bonds).

detention. 1990: 1270 . Potentially difficult issues to think about. Chuidian’s suit against Daza for acts committed in his official capacity must be analyzed under the framework of the Act. not even in cases of emergency (i. For more info. But the legal contradiction is the definition of torture. Regina v. torture is an official act. No exceptions to the inviolability of the mission. Counterclaim is arising out of the same subject matter/claim and does not exceed the value of the sovereign’s claim.. Limitations – diplos are not immune from the jurisdiction of their home state. Political protest outside missions: diplomatic immunity v. name on the list doesn’t necessarily mean that the Executive has endowed you with diplo immunity The White List: lists all employees of diplomatic missions. 1 “inflicted by public official. • There is little practical difference between a suit against a state and a suit against an individual acting in his official capacity. taxation. Diplomatic Immunity: Diplos are immune from search. then. see Articles 22 – 41 p. they and their home residences in the hosting state are inviolable – they can’t be infiltrated without explicit permission from the diplo mission leader. So. attempted to strip Pinochet of his immunity but was not allowed for his health. we need this immunity so that state actors can be free to function. 202 art. no demonstrations allowed within 100 feet of diplo buildings/residences. Downside: state immunity has problems but there for a reason. torture is not an official act. you run the risk of politicizing the issue. adjudication of the counterclaim can not be avoided via FSIA Chuidian v. also maintained by the Department of State Theoretical Bases for Diplomatic Immunity: 1. official act). arrest. Host needs consent of the head of the mission. Philippine National Bank 9th Circ. but there are different types of immunities. (the Chilean govt. ratione materiae is immunity to certain kinds of act on behalf of the state in his official capacity (like an ambassador after resignation. • Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state? Thus. attacks on their person and dignity. if a diplomat is subject to arrest every time they leave their country then they will be unable to do their job.Heads and Former Heads of State Ambassadors are immune while ambassador and after they resign as well. By definition. the question has to be answered is whether the alleged organization of state torture by Pinochet would constitute an act committed by Pinochet as part of his official functions as head of state. broad immunity. official? Is suing Daza the equivalent of suing the Philippines? • Only way to find a basis for jurisdiction is by the Act.. Receiving states must protect diplo missions within their territory. their home state can choose to waive their immunity in the hosting state (they must do so explicitly). but he continues to give rallying speeches to the military 1. If diplo breaches. embassies are also inviolable. Bartle (Pinochet case) 1999: 1276 . only during office (like an ambassador during office). they can be deemed a persona non grata and escorted out of the country. is Daza immune from suit as a govt. in the Philippines denied a letter of credit for Chuidian who sued.e. Pinochet is found not to have immunity. 2. (REJECTED). Corral 69 Fall ‘05 . 577 Supp The Blue List: the diplo list maintained by the Department of State. as a function of state. ratione personae is immunity of all acts. Iran Hostage Case). Pinochet as former head of state enjoys immunity ratione materiae in relation to acts done by him as head of state as part of his official functions as head of state. freedom of speech = diplo wins.Immunities of Representatives Daza a member of the Presidential Commission on Good Govt. Extraterritorial Theory – says the premise of a mission is actually part of the sending state’s territory and inviolable. customs duty. diplos must observe the law where they are stationed and may not interfere with the function of their host governments. supplement: p. If you go too far.

third States shall not hinder the passage of members of the administrative and technical or service staff of a mission. Functional necessity theory – (DOMINANT) what justifies DI. basic text on diplomatic immunity. 4. while proceeding to take up or to return to his post. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent. Vienna Convention on Diplomatic Relations – p. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. or traveling separately to join him or to return to their country. and of members of their families. including messages in code or cipher. 2. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment. and to official communications and diplomatic bags. is that they are necessary for them to do their job. in regards to pursuing peaceful resolution of disputes. the same freedom and protection as is accorded by the receiving State. through their territories. and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord. If a diplomatic agent passes through or is in the territory of a third State. whose presence in the territory of the third State is due to force majeure. Article 40: 1. 2. They shall accord to diplomatic couriers. which has granted him a passport visa if such visa was necessary. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter- claim directly connected with the principal claim. 3. 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs. for which a separate waiver shall be necessary. 2. who have been granted a passport visa if such visa was necessary. Representative character – not their territory but it personifies/is a metaphor for the sending state 3. The obligations of third States under paragraphs 1. Corral 70 Fall ‘05 . or when returning to his own country. drafted by the ILJ Article 32: 1. the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. 3. Waiver must always be express. Third States shall accord to official correspondence and other official communications in transit. 574 Supp. Policy motive is strong. her home country should waive her immunity • DI: facilitates the work of diplomats. 4. If the diplo gets crazy. In circumstances similar to those specified in paragraph 1 of this Article.