Systems of law

1) Transnational law
a. Public international law: statehood, state rights, treaty making, war and peace,
diplomatic and consular relations and maritime law. Laws between states.
b. Private international law: issues between private actors. Individuals and companies. Aks
i. Which state has jurisdiction?
ii. What law applies?
iii. Will one state recognize and enforce a jmt rendered on another state. Rules
come from treatises.
c. Supernational law: law that takes precedence over national law (e.g. EU)
d. Domestic law: national rules applicable to international activities or events (e.g.
immigration, alien tort statute, extradition agreements, taxes, citizenship, criminal law,
trade, foreign corrupt practices
e. Comparative law
i. Macro: civil law, common law etc
ii. Micro: procedures and concepts and rules. About understanding the legal rules
in various jurisdictions (e.g. tribal law, military law, religious law)
f. Questions to ask
i. Where is this case being heard?
ii. What rules apply?
1. Is there a transnational component?
2. Other legal orders or actors?
3. Are there transnational law rules that might apply?
4. What is the force of these rules?
5. How are the rules you find pertinent applied?
6. Can the international rules and decisions actually be enforced?
iii. 2 BIG QUESTIONS TO ASK ANY PROBLEM
1. What rule apples? (private?, public?, international laws? Principles?
Customs?)
2. Where can the case be resolved? (arbitration? Jurisdiction? Mediation?
Courts?
2) Civil Law
a. Evolution
i. Roman Civil Law
1. Initially developed 450 BC – and Justinian codified in Corpus Juris Civilis
2. Law of persons, family, inheritance, property, torts, UE, K, and remedies
3. Influenced common law in Europe and called jus commune
4. Royal Courts
ii. Canon Law
1. Developed out of Roman Catholic Church.
2. Influenced by jus commune in family law, succession and criminal law.
3. Ecclesiastical courts
iii. Commercial Law
1. Developed in Middle Ages (Crusades)
 2. Lex mercatoria: merchants sat as judges
iv. Middle Ages
1. First law school opened in Bologna 11th century
2. Medieval Italian glossators were not judges themselves, but provided
much needed advice to untrained lay judges, who relied on their
writings.
3. Glossators revived the Corpus Juris Civilis as a complete system of
private law brought intact from the final period of the Empire and
adapted the Roman system to the exigencies of medieval Italy. Rather
than create law as the Roman jurists did, the glossators interpreted
textual material from the Corpus Juris Civilis and disseminated those
interpretations to other scholars, law students, and lay judge
v. Revolutionary Period
1. Influenced the majority of public law in civil law tradition
2. Development of natural rights and representative government
3. DIVERGENCE FROM COMMON LAW:
a. Secular nature of law: end of aristocracy and placed trust in
legislature (France) as compared to common law tradition
which put trust in judges
b. Separation of power: seen in both traditions but minimal
judiciary review in France
vi. Era of legal sciences
1. Law now embodied in commercial code, code of civ pro, penal code,
and code of crim pro
b. Sources of law
i. Legal positivism: codification an expression of state sovereignty
ii. Some countries allow for judicial review of constitutional questions but not all
iii. Judges
1. Are civil servants that go through special training – don’t become
lawyers like in US and then get elected/appointed
2. No law making power
3. France: created Court of Cassation to interpret legislature
4. Germany: constitutional court is allowed to review lower court ruling
iv. Scholars: civil law is law of professors
c. Interpretation of statutes
i. Constitutions, statutes, regulations, and customs have power of law in that
order. Code must be crystal clear.
ii. Italy: plain meaning, legislative intent, natural law
iii. Problem of lacunae: when no statutory provision is precisely on point
d. Napoleonic Code
i. Developed 1804
ii. Handbook for citizens
iii. Fear of government and judges – strict separation of powers
e. German Civil Code of 1896
 i. Historical in nature – wanted to include Roman Law
ii. Not revolutionary – does nto abolish prior law
f. Legal professions: uniformly get their degrees, take entrance exams, wait for
appointments
i. Notaries: generally very prestigious.
1. Draft legal docs
2. Authenticate instruments
3. Act as public record office
ii. Professors
1. Low pay, meaningful title
iii. Prosecutors – seen as actors of the state
1. Prosecute criminal actions
2. Sometimes called to represent public interest in private matters
iv. Government lawyers – civil servant career
v. Advocates: closest thing to a common law lawyer
vi. Judges - Low position as it lacks creativity
g. Contracts and gifts
i. Contracts: less freedom to contract in civil law (more provisions)
ii. Gifts
1. Common law
a. Presumption of unenforceability due to lack of consideration
(Restatement 71)
b. Promissory estoppel is an option. Requires
i. Pre-existing K or legal obligation which is modified
ii. Unambiguous promise
iii. Change of position
iv. Must be inequitable to allow promisor to go back on
their promise
2. Germany
a. Gifts should be accepted and if no action taken, deemed to be
accepted
b. Section 518: K which promises donation is valid if notarized
3. France
a. Support of enforceable gifts if written and notarized but must
be formal acceptance and done must give notice of acceptance
h. Civil Procedure
i. Administrative procedure
1. Preliminary state pleadings
2. Evidence taking stage
a. Takes weeks or months
b. Judge prepares summary of evidence after several isolated
meetings with parties and witnesses
c. Inquisitorial not adversarial: Judge questions witnesses, not
counsel
 3. Decision making stage:
a. New judge reads records from previous judge, briefs from
counsels, hears oral argument, and renders decision
b. No jury
4. Differences with common law
a. Juries
b. Lower usually pays winner’s fees
c. No contingent fee arrangement in civil
d. Can introduce new evidence at appellate level
e. Appellate level decisions based only on law aren’t binding but
are influential
f. No dissenting or concurring opinions
g. Usually monetary damages only
ii. Criminal procedure
1. Investigative phase – judge can seek evidence
2. Examining phase – examining judge determines if it should go to trial
3. Trial
a. Longer process than common law
b. Ds have to testify under oath but don’t have to answer
questions
4. Guilty plea not allowed in many jurisdictions
5. Jury trials exist but don’t look like US jury
iii. French law tort example
1. Loser pays
2. No private discovery
3. Judicial fact-finding
4. Judge determines liability
5. 10 year SoL
3) Common law
a. Tradition: developed 1066 AD via Normans – seen in England, US etc
b. Codification existed as movement in 19th century (e.g. UCC) but no complete civilian
code
4) Hybrid systems/legal pluralism
a. Legal pluralism: existence of multiple legal systems in one geographic area
b. Colonialism & hybridity
i. In the overlay of civil or common law over local customary law
1. Judges often created rules in an attempt to codify the customary law
2. Apply unwritten customs and religious laws in a way analogous to
common law
3. Create informal or customary courts run by local leaders
ii. Repugnancy or Supremacy clauses were enacted to invalidate offensive local
laws
 iii. Reluctance to accept jurisdiction over subject people and most indigenous legal
institutions were mostly left alone unless they directly affected European
traders, missionaries, settlers or officials
c. Modern legal pluralism
i. States losing power as a result of giving up some of it to supernational
organizations
ii. Institutions or tribunals overlap and conflict
iii. Human rights norms provide actors with the ability to challenge authority of
state
iv. Self-creating private legal orders
v. Trans-governmental networks
vi. Dual nationals bound by law of more than one state

Sources and Methods of International Law

1) Origins
a. Treaty of Westphalia (1648)
i. International law needs states in order to grow and develop. States need
sovereignty to be independent and autonomous and to consent to international
laws
ii. Defining moments for international law have come through periods of intense
global conflict
b. Positivism: embraces state sovereignty.
c. Natural Law
i. Emphasizes moral imperatives between nations based on religious and
philosophical principles of good faith and good will
ii. Collided with positivism over slavery and via court cases positivism/state
sovereignty won out leaving slavery legal unless states explicity agreed that
their nationals could not engage in it
d. League of Nations
i. Set upon ambitious program of codifying international law
ii. A permanent international judicial tribunal was established
iii. Conference diplomacy more regular
iv. International institutions begin operating more predictably
v. Concerned with issues of significance to people, not just governments
vi. Ultimately failed in main goal to keep peace
e. Today
i. Era of globalization with shrinking nation states that are also more
interdependent
ii. Recognition of values separate and apart from state sovereignty
iii. International law is fragmenting – focused on Islamic extremism and global
terror
iv. Crime
1. International crime: larger in scope and involve all nations (e.g.
genocide/crimes against humanity/war crimes)
 2. Transnational crime: more local level where citizen of country A goes to
country B to commit crime but is still held criminally liable under laws of
country A in country A’s courts
2) General principles and Customary International Law – ICJ applies:
a. International conventions
b. International custom
i. Source of public international law based on what people do
ii. The custom
1. Has been followed as a general practice (objective standard: asks
whether international actors have followed the rule) AND
2. Has been accepted as law via the intent of the state (subjective
standard: whether the practice is observed out of legal obligation,
necessity, or is merely a courtesy, neighborliness, or expediency –
asking why the law is observed)
iii. There is no requirement of time in regards to custom
iv. Only need to prove a high degree of consistency and uniformity by most if not
all of the international community
v. For global customs, a state’s silence is deemed as acceptance
vi. For regional customs, a state’s silence is deemed an objection or protest to the
rule
vii. For local customs, if there was a course of dealing between two (or a few
parties) this is seen as acquiescence or acceptance
viii. How do you avoid a global custom?
1. Documented protest
2. Affirmative steps towards blocking it
ix. New states are deemed to be bound by global customs
x. Jus cogens norms: Some customs are so important that states cannot opt out or
protest e.g. genocide, war crimes etc.
1. State must persistently object to a custom to not be bound by it
2. Michael Domingues case: execution of prisoners under 18 at time of
their crime is prohibited since it has emerged as an international norm
(although the decision was non-binding)
xi. Paquete Habana (fishing custom case): international custom is that fishing
vessels are exempt from capture as prize of war
xii. Filartiga v Pena Irala:
1. Torture suit based on Alien Tort Statute allowed to stand since torture is
one of the customary areas that nearly all nations say violates
international human right and thus the law of nations
2. Jurisdiction: D came into US and have jurisdiction via the concept of a
transitory P over out-of-state torts.
c. General principle of law recognized by civilized nations
i. To be elevated to international law, the principle must be recognized in most
legal systems
 ii. Principles imposed include SoL, estoppel, good faith exercise of international
tribunals, due process, burden of proof and atty-client privilege
iii. Barcelona Traction: ICJ looks to general principles to determine nationality of a
company
d. Judicial decisions and teachings of most highly qualified publicists of various nations (as
subsidiary means for determination of the rules of law while first three have greatest
weight)
3) Treaties
a. Interpreting
i. Words conveying international agreements: treaties, pacts, protocols,
conventions, covenants and declarations – typically written but not always
ii. Bilateral treaties and multilateral treaties
iii. Vienna Convention on the Law of Treaties (1969) is treaty on treaties
1. Only governs treaties between states
2. All international agreements must be in writing to be covered by the
default rules of the VCLT (but oral agreements aren’t invalid)
3. Unilateral declarations made by states may be enforceable (even
without consideration) – did declaring state intend to create a legal
obligation or induce reliance on the part of other states?
4. Agreement must be governed by international law (unless specifically
agreed upon that something else will govern)
5. Jus tertii: treaties should not bind states that do not participate
iv. Treaties assumed only to have prospective effect.
v. Schools of interpretation
1. Textualism: examine the words of the text and how they are commonly
understood (ordinary meaning in light of prevailing international law at
the time it was drafted)
a. United States v Alvarez where Supreme Court held treaty did
not explicitly say that US couldn’t forcibly abduct the D.
2. Intentionalists: not as popular in international law. Uses secondary
sources including negotiating history to get at intent of drafters.
3. Teleological approach (purposivism aka functionalism): Seeks to identify
and apply the purpose of the treaty. Captured under VCLT’s rule that
treaties be construed in light of their object and purpose. Meaning
understood to evolve over time.
b. Relationship between treaties and custom
i. They are co-equal sources of international law
ii. Though a state may object/opt out of a treaty, if it fails to object as that same
norm is renewed in state practice, it will later become bound to it by custom
iii. Treaties that violate a jus cogens norm are void when made
c. Overall process of treaty making (in order)
i. Does the entity entering into the treaty have the capacity to do so?
ii. Those negotiating and signing for a state must have authority
1. High official are presumed to have authority
 2. Lesser officials need to have the authority expressly stated
iii. Treaty must be ratified: an act by which a state makes clear its intent to be
legally bound by the treaty
iv. Proclamation occurs: treaty at this point now deemed binding and ratified
d. Reservations
i. Definition: changes made unilaterally by a party that regrets some element of a
treaty and can be anything that change the legal effect of a treaty
ii. Only a problem for multilateral treaties since in a bilateral treaty it would be a
counter-offer
iii. Reservations prior to 1950 had to affirmatively accepted by all parties, now
nations may make reservations so long as they are not contrary to the object
and purpose of the convention
iv. Some treaties categorically bar reservations
v. International tribunals and institutions address whether the reservations inhibit
the treaty’s purpose and object
vi. CEDAW: The reservations to this human rights treaty seemed to contravene the
object and purpose of the treaty but were still considered enforceable
vii. ICJ advisory opinion on reservations
1. This ICJ case changed the rule regarding how reservations to a treaty are
addressed in international law.
2. Old rule: rule of unanimity
3. New model: web of bargains – reservations allowed with the purpose of
getting more states to sign on to treaties/conventions
4. Reservation is permitted UNLESS
a. Incompatible with object and purpose of treaty
b. Particular reservation is prohibited by the treaty
c. Treaty provides that only specified reservations (which do not
include the reservation in question) may be made
viii. Who decides whether a reservation is valid or not? Each state party to the treay
may decide for itself
ix. Objection to reservations
1. States have 12 months to object to a reservation
2. If a state does not object to a reservation made by another state it is
deemed to have tacitly accepted the reservation
x. May withdraw reservation at any time
e. Treaty amendment, invalidity and termination
i. Treaty can be amended through
1. Express approval of all parties AND/OR
2. Modification
a. When some but not all parties agree to a material change
b. Under VCLT, it can be done by giving notice, does not affect an
essential provision, and does not derogate the rights of other
parties.
 c. War: only suspends obligations that cannot be performed
because of combat.
ii. Treaty can be invalidated
1. If there is a defect in regards to formation (e.g. treaty entered contrary
to fundamental domestic constitutional limitation)
2. Error, fraud, or corruption
3. Invalid provisions can be severed to save the treaty
4. Acquiescence: when a state fails to claim invalidity for a sufficient
period of time, it can no do so no longer
iii. Termination can occur when
1. One state purports to unilaterally suspend or terminate all obligation in
an international agreement
2. Another party materially breaches (a breach which was essential to the
accomplishment of the object or purpose of a treaty)
3. Doctrine of fundamental change of circumstances (often for war): when
the conditions which led to the conclusion of a treaty change so
fundamentally, then one party or another can unilaterally terminate the
agreement. Change must be
a. Fundamental
b. Unforeseen by drafters
c. The assumption of current circumstances must have been an
essential basis of the consent to be bound by the treaty
d. The new circumstance must radically transform the obligation
for the party seeking termination
e. Obligations are not yet to be performed under the treaty
4) Other sources
a. Equity, humanity and other values
i. Natural law has a place in international law
ii. Principles, customs and treaties are all positivist in nature
iii. Equity
1. Abuse of right: allows international actor to have the freedom to engage
in certain conduct but is otherwise barred from pursuing a course of
action in certain circumstances or in a particular fashion
2. Unjust enrichement
3. Doctrine of clean hands: a party seeking equity must do equity
4. Caveats
a. Equity does not mean reching a result that is regarded as
balanced
b. Equity does not mean equality
iv. Notions of humanity such as the protection of human rights and war laws focus
on individual values and interest (instead of states) which sometimes binds
actors
b. UN Resolutions, Judicial Decisions and Publicists
 i. UN Resolutions: Under UN Charter, General Assembly resolutions are only
recommendations. Aren’t custom when passed but can become custom.
ii. Court decisions, legislative enactments and scholarly writings are only
“subsidiary” means of establishing evidence of the content of international
norms
iii. Teachings of the most highly qualified publicists of the various nations can be
used as evidence of rules of law
1. UN International Law Commission
2. International Law Association
3. Restatement Third of Foreign Relations Law

Interaction of US Law and International Law

1) Status of custom and treaties in US Law

a. Hierarchies differ
i. ICJ sees international law as supreme
ii. US Supreme Court sees our Constitution as supreme
b. State typically cannot assert national law as basis for refusing to perform international
legal obligation. Exceptions when a treaty is enacted in such a way that violates its
domestic constitutional law.
c. International tribunals are free to apply and interpret national law when it is relevant to
the international disputes that come before them
2) International law IS domestic law
a. Monism:
i. International law and domestic law are parts of the same legal system but
international law is higher in prescriptive value than national law
ii. Treaty monism: Netherlands since it allows international treaties to
automatically preempt domestic statutes but it does not allow direct
incorporation of customary international rules
iii. Custom monism: customs are automatically incorporated
b. Dualism:
i. International law and municipal law are separate and distinct legal systems
which operate on different levels and that international law can only be
enforced in national law if it is incorporated or transformed
ii. Ex: UK clearly dualist since any international agreement is not binding unless it is
implemented into domestic law by an Act of Parliament.
c. Self-execution
i. Self-executing treaty
1. A treaty that automatically becomes law upon ratification
2. Last in time rule: Supersedes statutes based on when it is ratified
ii. Non-self-executing:
1. Requires states to enact domestic legislation to support the treaty (not
mutually exclusive with monism)
2. Statute supersedes until Congress passes specific regulations to
implement the treaty.
3) US is dualist
a. International law does not prevail over the Constitution
b. Customary international law nor treaties can repeal a right under the Constitution
c. If a treaty is unconstitutional, US may not be relieved of international obligation
(persists until the custom is changed or treaty is terminated)
d. Treaties and custom are part of federal law
e. State laws are preempted to the extent they interfere with a foreign relations interest in
the US
f. Congress may be able to act beyond its Art I powers through treaties (e.g. migratory
birds)
g. Lawrence v Texas (2003) where Supreme Court considered a report from an advisory
committee of the British Parliament and a ruling from the European Court of Human
Rights before concluding the right petitioners sought in that case has been accepted as
an integral part of human freedom in many other countries
h. Medellin v Texas (2008): even if an international treaty may constitute an international
commitment, it is not binding domestic law unless Congress has enacted statutes
implementing it or unless the treaty itself is "self-executing
4) President’s Treaty Power
a. Art II Sec II provides P with the power to make treaties so long as two-thirds of the
Senate concurs
b. If that happens, President thenhas power to ratify and proclaim it
5) Missouri v Holland – migratory birds
a. Sometimes a treaty may legislate in a field reserved for the states (not 10th amendment
violation)
b. Holmes: If a treaty was
i. Motivated by exigency and great national interests AND
ii. Did not violate an express constitutional prohibition
iii. THEN it could grant Congress law-making authority it did not otherwise have
under Art I
6) How are treaties part of the Law of the Land? Must ask
a. Whether self-executing for non-self-executing
i. Only signing state can say if it is self-executing or not
ii. Does the treaty establish rule, right, and remedy?
iii. E.g. Warsaw Convention Luggage Rights
iv. Might be non-self-executing if it contemplates further legislative action
v. Look to whether the provisions seem specific enough to clearly manifest an
intent to be binding on US law without further legislation
b. Operation of the last in time rule when a statute contradicts a treaty
i. If a treaty conflicts with an earlier statute, the prevailer depends on whether the
treaty is self-executing. IF IT IS, the earlier rule is repealed to the extent it
conflicts
ii. What if a more recent statute contradicts a treaty? Congress can implement
statutes that contradict older treaties thereby only impacting their impact on
domestic law, not international law
 iii. Qualifications on last in time rule
1. A later statute that abrogates an earlier treaty cannot eliminate any
rights that had vested under that agreement
2. Notion that an act of Congress ought never to be construed to violate
the law of nations if any other possible construction is possible
c. Modalities of treaty interpretation by US courts and
i. Courts typically defer to the positions of the Executive
ii. Look to text, legislative history, expectations of treaty partners and Senate’s
understandings when it gave its advice and consent
d. Concerns arising from termination of treaties
i. Decision to terminate delegated to political branches
ii. Executive can decide whether an agreement is in force or if a aprty had
breached
7) Executive Agreements
a. Congressional-Executive Agreements: Acts of Congress following normal procedure
i. President negotiates treaty and submits to Senate for advice and consent of 2/3
of members
ii. Senate adds
1. Reservations
2. Understandings
3. Declarations
iii. Senate ratifies
iv. President proclaims
b. Sole Executive Agreements: concluded by single authority of the President
i. Congress can via legislation require Senate approval
8) Jurisdiction
a. Lotus presumption: States are free to assert their jurisdictional competences to the
absolute limit that international law allows. Softening this position:
i. Comity: nations may engage in a practice out of courtesy or respect for their
neighbors or partners in the international community. US Court may hold it has
jurisdiction over a matter but decide that it should instead be heard by a foreign
tribunal
ii. Interest-balancing test: When a tribunal in one jurisdiction has the choice to
apply its own law or the law of another jurisdiction, it usually balances different
considerations
iii. Reasonableness (Restatement 403)
1. (1) Even when one of the bases for jurisdiction under § 402 is present, a
state may not exercise jurisdiction to prescribe law with respect to a
person or activity having connections with another state when the
exercise of such jurisdiction is unreasonable.
2. (2) Whether the exercise of jurisdiction over a person or activity is
unreasonable is determined by evaluating all relevant factors, including,
where appropriate:
 3. (a) the link of the activity to the territory of the regulating state, i.e., the
extent to which the activity takes place within the territory, or has
substantial, direct, and foreseeable effect upon or in the territory;
4. (b) the connections, such as nationality, residence, or economic activity,
between the regulating state and the persons principally responsible for
the activity to be regulated, or between that state and those whom the
regulation is designed to protect;
5. (c) the character of the activity to be regulated, the importance of
regulation to the regulating state, the extent to which other states
regulate such activities, and the degree to which the desirability of such
regulation is generally accepted;
6. (d) the existence of justified expectations that might be protected or
hurt by the regulation;
7. (e) the importance of the regulation to the international political, legal
or economic system;
8. (f) the extent to which the regulation is consistent with the traditions of
the international system;
9. (g) the extent to which another state may have an interest in regulating
the activity; and
10. (h) the likelihood of conflict with regulation by another state.
b. Bases of jurisdiction (do this before a 403 balancing)
i. For criminal cases, you do not need jurisdiction requirements for civil cases
ii. Territoriality
1. When something actually occurs within state’s own territory
2. Effects principle: when a state wants to exercise jurisdiction over a
person or thing located outside its borders, but that person or thing
causes effects inside that state’s borders (e.g. Alcoa where principle was
applied to apply antitrust laws beyond US)
iii. Nationality: State is in large measure free to require compliance by its nationals,
even when they are living abroad
iv. Universality: any nation may prosecute otherwise assert jurisdiction over
persons suspected of having engaged in certain crimes or offenses (e.g.
Pinochet, terrorism, piracy)
v. Protective Principle: state may exercise jurisdiction over conduct that occurs
beyond its borders by non-nationals, but which nevertheless is prejudicial to the
state’s security. E.g. US v Yousef asserting US jurisdiction over conspirator to
bomb WTC.
vi. Passive Personality (weakest): asserts jurisdiction over a crime based on the
nationality of the victim. E.g. US v Yunis where D was charged with hijacking that
killed Americans)
c. Extradition and mutual assistance
i. Courts will refuse to enforce foreign jmts they believe violate their own public
policy
ii. Extradition and US law
 1. It is a request to the Executive
2. US Courts require double criminality meaning the crime is punishable in
sending and receiving states
iii. Doctrine of specialty: D may only be tried or punished in the requesting state for
those crimes for which he was extradited
iv. Political offense exception: indicates sending state is not obliged to extradite a
suspect charged with a political offense (US has largely eliminated this)

Statehood

1) States are the only entities capable of becoming full members of international orgs and only
parties that have right to engage in armed combat
2) Statehood
a. Elements of statehood (1933 Montevideo Convention)
i. A permanent population (that have a national consensus on the status of their
nation)
ii. Defined territory (borders must be consistent)
iii. Government
iv. Capacity to enter into relations with other states
b. Entities that are dependent on other nations (Puerto Rico) are not considered states
c. IUS has said it will not recognize states that are created in violation of legal norms
d. There are some political entities that so not want to be a state (Taiwan)
3) Recognition of states and governments
a. Being recognized by other states may be a requisite for statehood
b. Alternative declaratory theory is that statehood is purely objective (an entity has the
criterion of being a state or it does not so recognition is irrelevant)
c. De facto rule: a state will be held to a predecessor government’s acts unless that regime
was actually a puppet of a foreign occupier
d. If US President has not recognized a foreign state, their access to US courts is limited
and the validity of its acts may be questioned. Foreign state could not assert foreign
sovereign immunity when a D.
4) State succession
a. Occurs when there has been a fundamental transformation in the identity of the state
itself, not just the government.
b. Legal consequences of this depend on the nature of the change in state identity as well
as the type of issue involved.
c. A newly-independent state relieves state of liability for the tortious acts of a
predecessor regime.
d. Secession
i. To claim legal secession, it must be shown that “(A) the secessionists are a
people (in the ethnographic sense); (B) the state from which they are seceding
seriously violates their human rights; and (C) there are no other effective
remedies under either domestic law or international law
 ii. Baker, Sovereignty v. Self-Rule: Shows the debate between self-determination
(right of a people group to choose how and who will rule them) and territorial
integrity of nation-states. Discusses Crimea trying to break from Ukraine.
iii. Bilefsky, For Crimea, Secession is only as Good as Recognition March:
Constitutional constraints may not be sufficient to hold a country together.
What matters more is whether a country’s territorial integrity was guaranteed
by an international treaty of affirmed by an international body such as UN
Security Council.
5) State territory
a. In a sense, the ultimate object of international law
b. Discovery doctrine: Europe defined areas as res nullius (no-man’s land) so whoever
discovered it, owned it.
c. Effective occupation:
i. Now the dominant principle (not discovery doctrine)
ii. Requires states to exercise effective control of a land territory in order to
maintain claim of title
iii. Symbolic discovery, without more, is insufficient
d. Adverse possession: if a state fails to make an effective protest of another nation’s
assertion of sovereignty over disputed territory, title in that territory will vest and amy
not later be challenged
e. Uti possidetis: colonial legacy is accepted, resulting in the artificial boundaries made by
the colonizers dominant today. Justified by goals of stability and security.
f. Condominia: where more than one state exercises control over the same territory
g. Air space is part of state territory
6) International common space
a. Global commons: goal is manage the common resources effectively
b. International law relies on partition and management strategies (but tragedy of the
commons persists)
c. Cabotage: a state may limit commercial traffic between two points on the river located
within the same territory to the nationals of that state. Otherwise, international law
generally recognizes the rights of riparian state and non-riparian nations alike to use a
river for commerce.
d. Antarctic Treaty of 1959: No claims can be made to the continent
e. Outer space
i. Common area
ii. State’s air space ends at the lowest altitude where a satellite can continually
remain in orbit without disintegrating
iii. Geostationary orbit slots are governed by the International Telecommunications
Union
iv. Moon and celestial bodies are common heritage of mankind
v. Absolute liability is imposed on a state that launches an object in space. Any
damage to the earth is that state’s responsibility.
7) International organizations
a. Now seen as subjects of international law
 b. Types
i. International Public Organizations (only states can be members)
1. Can be created by treaties
2. International legal personality: UN’s power to sue was declared and
recognized as having international legal personality.
ii. Non-governmental Organizations (NGOs): some have international legal statute
like the Red Cross
iii. Multinational Public Enterprises (MPEs): Run by a combination of Governments,
like regional airlines
c. International institutions can
i. Conclude binding treaties with states and each other
ii. Have standing before international tribunals
iii. Have organic jurisdiction over internal matters that may not be interfered with
by states.

Human Rights

1) Rights of individuals
a. People do not have the same rights as states in international law (can’t make treaties,
acquire territory or wage war)
b. Diplomatic protection: Individuals can be given rights under treaties but their State must
raise a claim in an international tribunal
c. Individuals can also assert their rights through the international law of human rights
which has a vast body of standard and enforcement principles
d. The Refugee Convention – read Articles 1, 31-33, 35: Refugee: well founded fear of
being prosecuted for race, religion, nationality membership of a social or political group,
etc who is unable to avail himself of protection from his country of nationality. –Events
must have occurred prior to Jan 1. Of 1951. Refugee has access to international courts
just as a national would through the state harboring him/her. Article 31: States will not
impose penalties for illegal entry so long as they present themselves promptly to the
authorities. Article 32: No expelling a refugee who is lawfully in the territory unless
national security is at issue. Due process is required for such explusion. Article 33: No
expelling or returning (refouler) a refugee to the territory he or she fleed from. UNLESS
they committed a serious crime and national security is at risk. Article 35: States are to
proved the UN with the condition of the refugees, the implementation of the
Convention, and laws and regulations that are in force relating to refugees. Executive
branch is trying to “resettle” them by secretly moving them to host countries.
2) History
a. Treaty of Versailles was first authentic human rights regime developed
b. End of WWII
i. Marked the ultimate transition of international law from a system dedicated to
state sovereignty to one also devoted to the protection of human dignity
ii. UN Universal Declaration of Human Rights (1948) created but not binding
1. Almost all provisions concerning civil and political rights are now seen as
customary international law/jus cogens
 2. Later became binding through global treaties establishing universal
norms and through narrower regional regimes
c. International Covenant on Civil and Political Rights of 1967 (ICCPR)
i. US did not rule to self-executing
d. International Covenant on Economic, Social and Cultural Rights (ICESCR)
i. Derogation provisions: allow states to disregard certain types of obligations
when the nation is faced with a public emergency
e. Generations of rights
i. 1st: civil and political rights
ii. 2nd: economic and social rights
iii. 3rd: right to peace, development and environment
3) Regional standards
a. Complicates idea that human rights is a universal standard
b. Nations that adhere to a regional system are more likely to ratify universal instruments
4) Enforcement of human rights norm
a. Model 1: Slavery Conventions - gave universal jurisdiction allowing any state to
prosecute any individual engaging in that activity
b. Model 2: Genocide Convention
i. Multilateral human rights human rights treaty allowing referral of suspicions of
genocide to UN Security Council
ii. Allowed for ICJ to have jurisdiction over any cases brought which involve the
responsibility of a state for genocide
iii. Erga omnes violations are an insult to the entire international community
c. Model 3: ICCPR
i. Calls for regular reports from member nations on how they are complying with
the treaty and allow states to invoke an interstate complaint process which
would initiate an investigation
ii. Allows for individuals to directly file human rights complaints with UNHCR
d. Model 4: European Convention on Human Rights which allows certain institutions to
hear inter-state complaints brought by individuals and these decisions are seen as self-
executing
e. Model 5: Domestic legal institutions enforcing human rights norms
i. US is the leading venue for private human rights litigation
ii. Alien Tort Statute is an example which grants jurisdiction of any civil action by
an alien for a tort committed in violation of the laws of nations of a US treaty
f. Model 6: direct action by states
i. Humanitarian intervention
ii. When one or more nations invades another to alleviate or stop human rights
abuses

Law of the sea and environmental law

1) Ocean resources and law

a. Grotious’ (1600s) “freedom of the sea”
 b. Today: sea is governed by UNCLOS III (1982). From it was the production of the Law of
the Sea Treaty (LOST). US has signed but has not completely ratified the provisions.
2) Maritime Zones
a. Internal Waters (IW)
i. Bodies of water “so closely connected with a coastal state’s land territory that
they are assimilated to that nation’s full territorial sovereignty.”
ii. Anything landward of the established baselines are internal waters
iii. Treated like land territory except
1. For any servitudes created by treaty allowing a state to have
preferential rights of the internal waters of another
2. In times of peace, ports are left open pursuant to customary
international law
iv. Unless in time of murder or war, coastal nations, in their own ports, defer to
the flag of the state to exercise control over all aspects of life onboard the ship,
including enforcing law and order
b. Territorial Seas (TS)
i. Within 12 nautical miles of the coast
ii. Coastal state has sovereignty subject to the doctrine of transit passage which
applies to international straits or channels used for international passage. Under
the doctrine, the coastal state has no right to interfere with civilian or military
traffic.
c. Contiguous Zones (CZ):
i. Allows states to prevent infringement of certain kinds of laws within its territory
or territorial waters
ii. Can extend 12-24 nautical miles from shore.
iii. Coastal states can only exercise customs, fiscal, immigration or sanitary
regulations in these zones.
d. Continental Shelves (CS)
i. Deals with activities affecting the seabed and subsoil under the ocean
ii. Can extend 200 nautical miles from the shore. Same jurisdictional limits as
found under (EEZ).
e. Exclusive Economic Zones (EEZ)
i. Governs resources and activities in the water column and ocean surface
ii. Can extend 200 nautical miles from shore
iii. Coastal states have authority over
1. Sovereign rights over the natural resources and
2. Jurisdiction over activities affecting such resources
f. High Seas (HS)
i. All oceans beyond national jurisdiction but no longer freedom of the seas.
ii. Today we see
1. Requirements to register under your “flag state.” This state is charged
with regulating and overseeing all aspects of the ship’s construction,
design, equipment, and manning and ensuring compliance with
international standards.
 2. Right to visit: can be exercised by warships when it is believed that
others are engaging in prohibited activities such as piracy or slave
trading. Warship may stop and prosecute those engaged in such
activities. Can also stop a stateless vessel, a vessel engaged in
unauthorized broadcastings and sometimes narcotics trafficking.
3. Issues are arising on areas claimed by no one, but that have rich
international resources. Usually some element of profit sharing.
3) Islands
a. Article 121 of UN Convention on Law of the Sea states that an island is a naturally
formed area of land surrounded by water which above water at high tide
b. Rocks that cannot sustain human habitation or economic life do not have economic
zones or continental shelf rights.
c. Haberman, Japanese Fight Invading Sea: Japan is spending money to keep
Okinotorishima (in the Pacific Island) from becoming swallowed up. This is seen as the
southernmost point of Japan, and if it is swallowed up they will lose 163,000 square
miles of ocean as the exclusive economic zone would be pushed significantly back. Falls
under the jurisdiction of the Tokyo Metropolitan Government. They are putting steel
and concrete blocks surrounding the rocks.
d. Santos, UNCLOS explained 2014: Philippines’ enacted a suit against China for China’s
claim to almost the entire South China/ West Philippine Sea. Philippines claim that
China’s claim is invalid under the UNCLOS, which both have ratified. Under the UNCLOS,
there are three types of maritime features that allow waters to be claimed as part of its
territory:
i. Islands: Allows for a 12 nautical mile zone where the country has full
sovereignty. Also gives the country a 200 nm exclusive economic zone (EEZ)
giving the country sole rights to exploit the resources in the area.
ii. Rocks or Reefs: Mostly below water but have rocky protrusions. Cannot sustain
human habitation or economic life on its own. They get only a 12 nm territorial
sea and NO EEZ. Example: A shoal, which is a submerged coral reef with a rocky
protrusion.
iii. Low Tide Elevation: Submerged rocks and reefs that are not visible above water
and are not entitled to any territorial sea or EEZ.