I.

History of International Law

A. What is International Law?
1. if law is what judges, then you’ll be lost
2. if it is what the bad man can get away with, then you’ll be lost
3. if law is the command of the sovereign, then you’ll be lost because there is no
sovereign (lack of court with compulsory authority)
4. if it is what an organized state says it is, then it’s rampant positivism (and not
American)
5. used to be called “Natural Law” or “Law of Nations”
6. Lockean view of international relations....State of Nature and no higher authority.
7. Natural Law is what is above states
B. jus gentium
1. discussed throughout history (roman, medieval, and modern)
2. law that is common to all nations
3. Jeremy Bentham coined the term “International Law” (standardized relations
between states)
C. Is it substantive?
1. a lot of times it’s just happy talk (aka diplomacy)
D. one alternate view....Law of Jungle (aka Hobbesian view)
1. not quite so...world is filled of small countries (Belgium for example) who cannot
defend themselves
2. the international mail system seems to work pretty well despite the amount of
cooperation required (internet also)
E. another alternate view....world governance
1. no, mostly a vision of the future
2. the cooperation predates the UN and etc.
F. a whole network of understands between nations
G. McCann v. United Kingdom (Euro. Court of H.R.)= Wrongful killing suit by IRA members
against UK government.
1. Treaty at hand= Article 2 of European Eu. Comm. On HR
2. Suit against UK gov’t for actions of military
3. Standards include both unlawful killing, premeditation, and failure to engage in
reasonable actions/act on information
H. Filartiga v. Pena-Irala (2d Cir, US)
1. Refugee from Paraguay here on visitor visa accusing paraguayan head of police of
torture against her brother
2. Looked for jurisdiction from Alien Torts Statute and international customary law
3. made comparison to piracy as “enemy of all mankind”
I. Sources of international law
1. international convention
2. international custom
3. general principles of law
4. limited reliance on court decisions and respected jurists
J. Treaties
1. Treaty between Romans and Jews
a. established mutual defense responsibilities
b. Jews must perform
c. Romans could perform in good faith
 d. Why unequal? Rome was much more powerful
2. Peace of Westphalia
a. Peace between Holy Roman Empire and Protestant States
b. Declared end to hostilities
c. Placed conditions on treatment of priests and recognition
d. Allow for free exercise of Christians
e. and restablishment of ancient State rights
3. Treaty of Paris
a. resolved American Revolution disputes
b. declared US boundaries as understood by England
c. guaranteed access to certain fisheries
d. allowed for mutual resolution of debts
e. and tried to limit seizures and recriminations against participants
4. Cession of Alaska
a. declared what Russia had title to and was transferring to the United States
b. provided for transfer of publicly owned property
c. kept private property interests intact
d. finally, provided that effect was immediate upon signing
e. however, money would occur in ten months (basically condition upon Russian
troops leaving Alaska)
5. Kellogg-Briand Pact
a. end of World War I
b. Renouncing the use of war by nation states to settle disputes
c. pretty much D.C. was in charge
d. Why did Germany sign? Because they lost. Why France? To embarrass
Germany
e. Did not last long
II. The Sovereign State
A. Recognition
1. Montevideo Convention
a. Needs permanent population
b. defined territory
c. government
d. capacity to enter relations with other states
e. independent of recognition
f. all states are equal
g. not allowed to mess with internal governance or external decisions
i. this was signed by a bunch of small states, namely Latin America
B. Succession
1. Tinoco Arbitration (option of Taft as Justice acting in arbitrator)
a. between Great Britain and Costa Rica
b. Old government ran out by Tinoco, new constitution, but old government
restored after Tinoco retires
c. Old government passes acts to nullify the actions of Tinoco in regards to
several currency issues and petroleum leases
d. Britian interceded on behalf of banks harmed through the process in both UK
and Canada
e. Taft looked toward de facto and de jure status of the Government
 f. Tinoco had control, and engaged in government activities
g. The Tinoco regime was a continuation of the Costa Rican state.
2. Autocephalous v. Goldberg and Feldman (7 th Cir, U.S.)
a. Cyprus’s wartorn history, and insurgent government looted church mosaics
for sale
b. Insurgents held north Cyprus, but the Republic of Cyprus still functioned
c. Republic of Cyprus initiated action to recover art works taken and sold
d. title hinged on Insurgent status as a derivative nation
e. Held that could be determined either by diplomatic recognition, or would
have to exercise sovereignity derived from original nation
f. here, nation was still intact, and in fact was acting on church’s behalf
3. Kadic v. Karadzic (2nd Cir, U.S.)
a. Bosnia issues= Croat and Muslims suing for genocide/war crimes
b. Man sued was part of Bosnia-Herzegovina triumvirate, and former Yugoslav
c. Also decided to extend liability to those who violate law of nations under
color of law or as private individuals
d. Karadzic was one such person, and the state existed
e. main challenge was that he acted under Yugoslavian authority in Civil War
4. Croatia v. Girocredit (Supreme Court of Austria)
a. Soviet Federal Republic of Yugoslavia had been dismembered into successor
states.
b. issues as to which successor states could claim assets
c. One state made moves to claim or seize all assests
d. However, the court determined that dismemberment means that all
successor states are entitled to equal shares of original state assets.
C. In relation to other entities
1. Nottebohm (ICJ)
a. German by birth, leading up to WWII
b. moved to Guatemala for business, and travel extensively between the two,
but never became a citizen there
c. close WWII, traveled to Lichtenstein and took 2 weeks to become a citizen
d. very abbreviated procedure, returned to Guatemala
e. When Guatemala claimed penalties against him as a German, he claimed
Lichtenstein, and Lichtenstein claimed him.
f. Court was not amused….while the decision to protect citizens is within one’s
sovereignty, naturalization is more than we just said so
g. maybe part of it was that it was the barely state Lichtenstein
2. Barcelona Traction (ICJ)
a. Spanish Civil War, Spain appropriates assets of company
b. U.S. Stockholders, British Stockholders (namely Canadians), and Belgians
c. Belgium asserts protection over the company, but receivership in Canada
d. the Court looks to both who is exercising control, and who is recognized as
having control
e. In this case, Canadians are the active parties, so Canada gets a shot
f. However, Belgium does not
3. The Schooner Exchange (U.S. Courts, old times)
a. People lose their ship to French government (seized on seas under writ)
b. It gets turned into a French warship
 c. Sue in court while the ship in question is docked in Philly
d. Sovereignty is pretty strong
e. Also, don’t piss off friends
f. As long as the warship behaved itself, it was outside of U.S. Jurisdiction
4. The Helena (King’s Bench)
a. British ship taken by pirates near Algiers
b. transferred to the Dey of Algiers
c. bought by a Spaniard who sailed into Britian
d. Action to recover ship
e. Government not getting involved, as the seizure was a sovereign act of
Algierian government
5. United States (Hilson) v. Germany (US-German Claims Commission)
a. clean up after WWI
b. Hilson was UK citizen by birth, but planned on becoming a US citizen
c. Before then, ship was sunk, and he was held by Germans
d. Wants to recover under Treaty of Berlin between two nations
e. Commission says no as Hilson did not show permanent allegiance to the
United States, per requirement of Treaty, rather than statement of US
6. Rex v. Bottrill
a. German national living and working in UK
b. Leaves, then comes back during WWII
c. Held in internment camp
d. Letter from Crown recognizing the continued existence of German
government despite ongoing hostilities
e. therefore, he was only allowed the rights of a citizen of a hostile state
III. Claims to Jurisdictions and limits
A. Principles
1. Mexico (Garcia) v. U.S. (US-Mexico Claims commission)
a. Child shot by U.S. officer when illegally crossing the Rio Grande
b. Officer had already been reprimanded through court marshal
c. Basically, any duty of reparation to foreign national
d. Look to international standards regarding use of firearms in apprehension
e. found that it was delinquent, and awarded money
2. U.S. (Laura B. Janes) v. Mexico (US-Mexico Claims commission)
a. U.S. citizen murdered in Mexico
b. officials did nothing to catch murderer
c. Liability under international for real lack of enforcement and protection of
nation’s laws
d. Secondary, can an individual make a claim against a foreign state?
e. in this case yes, as the US allows the claim on her behalf
3. American Banana Co. v. United Fruit (Territorial Principle) (SCOTUS)
a. Banana company started buy-up of the trade
b. When a competitor got involved, company convinced government to seize
and interfere
c. brought charges under the Sherman Antitrust Act (both American Citizens)
d. In places of no jurisdiction, then it would apply to actions of citizens
e. However, this occurred in foreign territory, and thus their laws applied, not
US law
 4. Blackmer v. United States (Nationality Principle) (SCOTUS)
a. Blackmer was a US citizen residing in France
b. Summons for a lawsuit, which Blackmer ignored
c. He still maintain his citizenship and connections
d. Due process, along with obligations, are only between a nation and its citizen,
and does not impugn the rights of the foreign nation
e. it’s enough that it was delivered
5. US v. Alcoa (Effects Principle) (2nd Cir. US)
a. Alcoa formally separated from its overseas entity Limited
b. Also formed an Swedish Alliance (cartel) to control aluminum trade
c. Could the Sherman Act be applied to these foreign entities?
d. According to Learned Hand, extraterritorial jurisdiction is allowed if the
activity would have substantial effects on the US
e. cuts against presumption of no extraterritorial jurisdiction
B. Foreign Sovereign Immunity Act
1. Texas Trading v. Nigeria (2nd Cir. US)
a. Nigeria was developing and placed a large order for cement
b. Overbought, and after trying to slow/halt the deliveries, passed an Act and
then denied payment for cement
c. Question was whether these actions were covered by FISA
d. Answer is no, these activities fall clearly within “commercial” activity, and the
letters of credit were actually executed in the US
2. Argentina v. Amerada Hess (SCOTUS)
a. Argentina and the UK were fighting
b. A Libyan tanker got attacked during transport outside the war zone
c. The companies sued in US court
d. Question: Was Argentina immune to jurisdiction?
e. Answer is yes.
f. The exceptions are narrowly crafted, and as such require specific facts, such
certain international law violations or destruction of property in the United States
C. Acts of State Doctrine
1. Underhill v. Hernandez (SCOTUS)
a. Revolution in Venezuela led by General Hernandez
b. Underhill was under a construction contract with the former government
c. After revolution, Underhill applied for a passport to leave, was denied, and
now sues for detainment
d. The rule is that states must respect the sovereign acts of another state, and
will not inquire into their validity
e. So, was the revolutionary general an agent of the state?
f. Yep, as he engaged in legitimate government activity, and there was no
question who was in control
2. Banco Nationale v. Sabbatino (SCOTUS)
a. Some notes and proceeds from investment issued by Banco Nationale
b. Cuban government expropriated the money
c. sued in federal court
d. Long discussion of act of state doctrine as something more Constitutional
than international (Don’t want the courts deciding State matters)
 e. As repugnant as the situation is, the courts are not going to second guess
Cuban government
3. Kirkpatrick v. Environmental Tectonics (SCOTUS)
a. “Bidding” for a contract in Nigeria was decided by the giving the officials a
commission
b. Competitor sued for a variety of violations of American law, and bribery is a
violation in Nigeria
c. Claimed act of state doctrine
d. However, Court pointed out that they were looking at the motives of the
Nigerian government, but no one was actually challenging the act of the government
e. So doctrine did not apply here
3. Regina v. Bartle
a. Pinochet, after stepping down as head of Chile, goes to the UK for health
reasons
b. Detained there, and charged with torture and other acts
c. at least extradition to Spain if nothing else
d. Divided on whether or not a) liability for acts as head of state and b) whether
extradition is allowed
e. Most said liability existed a)because sovereign immunity is limited to
legitimate actions of government and b) torture is so beyond the pale that it is an exception to sovereign
immunity
f. As to extradition, there is the double criminality rule, which follows the same
lines as the liability debate
IV. Customary Law and Supplemental Sources
A. Customary
1. Paquete Habana (SCOTUS)
a. Blockade of Cuba, enforced against fishing vessels
b. Two were caught, sold as prizes
c. Generally speaking, a lot of jurisdictions have a long history of allowances for
fishing vessels as an exception to a naval blockade
d. This practice should generally be respected as an element of customary
international law
e. As such, the prize money was turned over to the owners
2. Asylum (ICJ)
a. Failed revolutionary coup in Peru (de la Torre)
b. Columbia refuses to turn him over to Peru, considers him a political asylee
c. ICJ looks towards customs that Colombia may rely on for granting asylum
against Peru
d. ICJ finds no such general custom
e. Even if such custom was to be found in the Montevideo Convention, then it
would not apply to Peru as they did not sign the Convetion
3. Lotus (PCIJ)
a. Collision between a Turkish and French Vessel resulting in 8 turks’ death
b. Lieutenant Demons was docked in Turkey, and later arrested and convicted
c. France objected to this exercise of jurisdiction
d. In general, the default is that a State may exercise jurisdiction unless
forbidden by a clear international custom
e. France failed to show a contrary international custom to Turkey’s exercise
 4. Texaco/ Libya Arbitration (ICJ appointed arbitrator)
a. Libya granted concessions to Texaco
b. Later, Libya decided to seize and nationalize the conceded properties without
compensation
c. Libya relied on UN resolutions to establish international customs allowing for
their decision not to compensate for nationalization
d. The court pointed to contrary writings
e. The main story is that the UN is not a rulemaking body, and thus not
dispositive of international customary law
B. General Principles
1. North Am. Dredging v. Mexico (General Claims Commission)
a. Mexico refused to pay on a contract to dredge out a harbor
b. The contract included a Calvo clause, which requires that the signee gives up
right of redress in home country and must pursue claims in contracting country
c. Mixed record on these clauses
d. Commission determines that a Calvo clause applies to the contract violation
and lawsuits, but does not extend to international law violations, especially in regards to delay or denial
of justice and process
e. thus the case was dismissed at this point
C. Natural Law
1. United States v. Smith (SCOTUS)
a. indictment for piracy
b. some question as to whether definition fit under customary law
c. Court looked not to the statute itself for clarity, but to international law
d. Internationally, piracy has a fixed definition of robbery and other violence
committed on the high seas
e. Enemy of all mankind and all of that
2. Prosecutor (Int’l Crime Tribunal for former Yugoslavia)
a. upholding a conviction for the Croatian rape of a Bosnian Muslim woman
b. question as to jurisdiction
c. Torture in this manner is one of those actions that offends against all, like
piracy
d. thus, prosecuting such crimes places an obligation on all States to combat
e. this allows universal jurisdiction for such acts
3. Michael D. (OLC comment and Comm. On HR comment)
a. Michael D convicted of two murders when he was 16
b. sentenced to death, and cert denied by SCOTUS
c. OLC determined that the US allows juveniles to be treated as adults in
proceedings, and that there was no jus cogens due to it not being treated like piracy or genocide.
d. Michael D appealed to Comm on HR
e. HR found that there was a jus cogens as the US stood alone among “civilized
nations” for executing juveniles, and it had been expressed through various Conventions and treaties.
V. Interpreting Treaties
1. Eastern Airlines v. Floyd (SCOTUS)
a. Airplane had engine failure and thus made an emergency landing
b. passengers brought suit under the Warsaw Convention on International travel
on the basis of psychic injury
 c. Court then had to look to the original French document to determine if such
injuries were included, especially as the concept was translated
d. additionally, the court also found several discussions were the French term
was considered too narrow, but other language was rejected
e. as such, the convention did not cover the psychic injuries
2. Gabickovo-Nagymaros (ICJ)
a. Treaty between Czechoslovakia and Hungary to redirect the Danube
b. Hungary pulls back, due to public backlash over environmental concerns
c. Czechs create alternate plan
d. Czechoslovakia breaks into Czech Rep. and Slovakia
e. Question 1: Could Hungary get out of the treaty
f. No, necessity only excuses performance for duration of the necessity, which
environmental concerns weren’t
g. Is Slovakia a party, and is its alternate plan a breach?
h. Yes, and yes
i. Thus, they should pay each other for the trouble, and get down to business
k. Unless they meet and mutual decide to vacate the bilateral treaty
3. Eastern Greenland Case (PCIJ)
a. In resolving another treaty, the Danes expressed interest in Greenland after
Denmark ceded territory to the US
b. Afterwards, Danes asked Norway if it was okay
c. The Foreign Minister said that Norway would not stand in the way
d. Sufficient provision was made for the rights of Norwegians currently in
Greenland
e. The PCIJ determined that the discussion and agreement of the Foreign
Minister constituted an unwritten treaty, and thus must be upheld
f. Insert coinflipping Rusk joke
4. Sales v. Haitian Centers Council (SCOTUS)
a. After political takeover, thousands of Haitians make for US as refugees
b. President orders them rounded up and held in Guantanamo in a “rights-free
zone”
c. The court determines that the acts of Congress providing for process are only
granted to refugees within the U.S. jurisdiction
d. The decision of the President to prevent entry is a proper exercise of
authority
e. Basically put, it is awkward to state that Congress can claim jurisdiction
outside of U.S. territory in general, but especially the high seas
VI. Conditions of International Arbitration
A. Arbitration
1. Dogger Bank (Naval officer commission)
a. Giant Russian Clusterfuck
b. Fired on trawlers in fog, thinking they were part of Japanese tactics
c. British not pleased about the Russian attack on their trawlers
d. The Arbitration issued a declaratory ruling that the Russians were not justified
in opening fire, and that the trawlers had not committed any hostile act
e. Damages of $300,000 paid (as opposed to $15,500,000 paid by Britain for
allowing the Alabama to utilize its ports)
2. Rainbow Warrior (tribunal)
 a. French secret service planted explosives to sink a Greenpeace ship, causing
the death of one person
b. two members were apprehended by New Zealand
c. Release condition on confinement to a French base in Hao
d. France transferred one due to medical injury, and the other due to wife’s
pregnancy and father’s death
e. New Zealand wanted to inspect both, but did not have the opportunity
f. Tribunal determined that France did bad in not returning either to the base
g. Punishment was $2 Million into a fund to further New Zealand and French
relations
B. International Court
1. Minquiers and Ecrehos (ICJ)
a. France and England arguing over rocks in the Channel
b. France claimed them, and so did England
c. However, the evidence shows that England transferred them in grants,
exercised criminal jurisdiction over acts conducted there, etc.
d. France’s only claim was that the Norman Conquest gave title
e. in the end, The UK won
f. once again, just rocks
2. Diplomatic Staff Case (ICJ)
a. Iran Hostage Crisis
b. Basically put, Iran was deficient for allowing the rioters to capture diplomats
c. Also failed to resolve the issue
d. further refusal to do anything
e. Obligations are owed to the United States by both treaty and obligations to
diplomats generally
f. why declaratory? Justification for further action, convince others
3. Western Sahara (ICJ)
a. Advisory opinion in regards to who had claim over the Western Sahara,
Morocco, Mauritania, or was it self-governed
b. Spain objected
c. ICJ allowed it to proceed on the basis that the request comes from the GA and
not a bilateral dispute. However, the lack of consent was noted.
d. ICJ determines that Spain contracted with local leaders to obtain a colony,
and that as such neither of the other two countries had any claim
e. Pissed Morocco off, who to this day invades and occupies
1. Island of Palmas (US v. Netherlands) (Perm. Crt. Arb.)
a. chunk of small rock in middle of nowhere
b. Netherlands had always exercised sparse control, but US thought it got it
from Spain as part of a treaty.
c. The Arbitrator held that Netherlands, although sparse, exercised suzerainity
and sovereignty over the island for a sufficiently long and peaceful time
d. Arbitrator rejected claim of discovery or finding
e. Why agree to this? The island didn’t matter that much, neither side was
particularly worried, and it rather easily put to rest any questions about title.
VII. Law of The Sea
A. Vessels
1. Muscat Dhows (France-Great Britain Arbitration)
 a. Arbitration to determine whether the Sultan of Muscat’s ships may fly the flag
of France.
b. Treaty requiring that signatories only grant flag to 1)subjects or protégés,
2)furnish proof of real estate/security in application district, and 3)be in good reputation and not slave
traders
c. Dhows prior to the treaty may still fly the flag, but any new grants must follow
treaty rules
d. However, Dhows were inviolable in territorial waters per French-Muscat
treaty
e. Basically, this is all about policing the slave trade
2. Saiga (Saint Vincent and Guinea ITLOS arbitration)
a. The Saiga was fueling boats out in Guinea territorial waters, flying the SV flag
b. Guinea claimed that this violated customs, and forcibly took the ship,
discharged its cargo, and imprisoned the crew
c. SV objected to this treatment of one their flag ships
d. Guinea countered that they refuse to recognize that flag because of a lack of
genuine connection
e. Tribunal determines that connection was rejected as required for recognition,
and was only to ensure responsibility for safety and upkeep
B. Continental Shelf and EEZ
1. Fisheries Jurisdiction case (ICJ)
a. Dispute between Iceland and UK arose over fishing rights
b. UK was cool with territorial waters and a 12 foot extension, but not the 50
feet Iceland tried later
c. Arbitration commenced
d. Ireland does get preference due to its reliance on fishing, but such rights are
not absolute and exclusive
e. In the end, Iceland can extend the zone, but they really need to negotiate it
out with the UK
2. La Bretagne
a. French and Canadian Arbitration in regards to Canadian EEZ
b. Canada had to license French vessels for fishing in the zone on par with
Canadian vessels
c. Canada doesn’t allow on-board processing, so denied a license to a specific
ship
d. French objected as that was a regulation of processing, not fishing
e. While Law of Sea Convention allows some limited regulation of landing and
processing, here it is controlled by the nature of the treaty between France and Canada, which
disallowed those standards
C. Territorial Sea
1. Regina v. Keyn (Exchequer)
a. Accident between a German Ship and a UK vessel less than three miles from
the British coast
b. German captain arrested and sentence in British Court
c. On appeal, does the jurisdiction and the laws of the UK extend to territorial
waters
d. Answer is no, it does not, otherwise would make no sense to differentiate
between the peace of the harbor and passage through waters
VIII. Status of Treaties
A. Treaties and the Constitution
1. Foster & Elam v. Nielson (SCOTUS)
a. Question of who had title to land in Lousiana
b. Spain originally owned, then transferred to France, then finally to US
c. Treaty with Spain declared that all title was promised and confirmed in those
who held it during Spanish possess
d. Marshall, however, felt that the treaty was not enough to overcome acts of
Congress
e. If it had used the language of grant or remained, then it would have applied
2. Asakura v. City of Seattle (SCOTUS)
a. Japanese guy runs pawnbroker business
b. City of Seattle passes a regulation requiring licensing, but only gives it to US
citizens
c. Treaty with Japan holds that Japanese enter business on footing equal to
native citizens
d. As such, the treaty supercedes the regulation on pawnbroking
3. Sei Fujii v. California (Cali.)
a. Japanese wishing to own land in the US
b. California bans such ownership
c. Plaintiff challenges under UN Charter and 14 th Amendment
d. UN Charter ruled not definite or mandatory enough to be self-executing
e. Plaintiff does win on 14th Amendment grounds
4. Missouri v. Holland (SCOTUS)
a. Challenge to the Migratory Bird Treaty Act by State licensers
b. States asserted that they have title to the birds, and that the treaty
th
contravened 10 Amendment protections
c. The Court thought this was silly
d. The Court ruled that the interstate/international travel of the birds is an
object for Congress, and they gave that discretion to the Executive
5. Whitney v. Robertson (SCOTUS)
a. guy imported sugar from the Dominican Republic, claimed that no duties
were due
b. Hawaiian sugar had no duties under its treaty of 1875
c. the importer claimed that a “no higher duties” would apply the Hawaiian
treaty to Dominican goods
d. The Court declared that it would try to give credence to both, but in conflict,
the most recent one is controlling
e. However, The Court said no as it was not getting involved with treaty
complaints by other nations.
6. U.S. v. Guy Capps (4th Cir. US)
a. State Dept made an agreement with Canada to only allow import of seed
potatoes
b. importer promises to use them for seed only, but then sells them for table
use
c. US sues for recovery of breach price
d. Court says that the agreement did not have effect of law
 e. No Congressional act, or act of President through means specified by
Congress
f. Congress gets to regulate commerce, not the President/Executive by
themselves
7. NRDC v. EPA (D.C. Cir. US)
a. NRDC attempts to use Kyoto Protocol to cause regulation
b. Court says that doesn’t count
c. here, it is either a delegation of legislative authority to an international body,
or additionally agreements neither presented to Congress nor signed by the President
8. Reid v. Covert
a. Women murdered their servicemen husbands overseas
b. U.S. used UCMJ to prosecute without right to trial, etc.
c. Court said no, U.S. citizens are entitled to the Bill of Rights (all of them)
d. Gov said it was necessary and proper to uphold the treaty with the UK that
the US government exercise sole jurisdiction over civilian dependents.
e. Court called bullshit and said that treaties are on par with legislation, and as
such, must also follow the Constitution.
IX. Executive Initiative
A. Book
1. US v. Belmont (SCOTUS)
a. Russian company deposits left with an American bankers
b. The banker died, and the executors refused to release the money to the
United States
c. The Soviet Government had dissolved the company, and was now transferring
the monetary rights in regards to an Executive Agreement with the President
d. The court held that there were no state law issues as this dealt with only the
Executive of the US and Russia
e. Such agreements, when they operate only on foreign issues, do not require
action by Congress to initiate
2. U.S. v. Curtis-Wright (SCOTUS)
a. Weapon sales to Bolivia
b. Executive declared embargo, after given discretion by Congress
c. The external Sovereign is given to the Executive in order to organize foreign
affairs
d. President has power to execute rulemaking in that area, especially with grant
by Congress
3. Dames & Moore v. Regan (SCOTUS)
a. More Iran Crisis
b. Carter used Executive Orders to unblock Iranian Assets and suspend claims
against the Iranian government
c. Although there was express authority under certain Acts, the President did
not derive the authority to suspend claims from them
d. However, it was a long established practice that the President can effect
settlements with foreign governments, so that established his power.
B. TWEN

1. Johnson v. Eisentrager
a. German was out of WWII
 b. German officers violate the law of war by continuing to help out Japan
c. US caught them and tried them, they filed for Habeus
d. Constitutional rights do not extend to foreign nationals who are not within US
territory, no promise of protection outside of that territory by US government
2. Hamdan v. Rumsfeld
a. The Al-queda driver case
b. Held that Congress can expand or limit the tribunal power, but that there
exist only a general power on the part of the President to establish tribunals
c. The statutes on hand lack the grant of authority, so therefore must rely on the
laws of war and the laws of nations to determine if the President may utilize tribunals
d. Conspiracy is not a recognized violation in that context, so no
3. Boumediene v. Bush
a. Another war on terror case
b. This time, the writ and habeus
c. Gov. argued that Cuba maintain sovereignty over Guantanamo
d. The Court reined this in by point to the exercise of de facto control over the
base
e. Limitations on Government Power do apply outside of the United States in
certain situations, not completely barred
X. U.S. Courts and U.S. Foreign Policy
A. Book
1. Respublica v. De Longchamps (Penn.)
a. Frenchman enters the house of a French diplomat to obtain some verification
of service
b. Calls him a couqin and smacks his cane
c. He is apprehended by US government
d. France wants him bad
e. Court says no, but he did violate the law of nations by insulting and attacking
a public minister
f. as such, he was punished in the United States
2. Amerada Hess v. Argentina (2 nd Cir.)
a. overturned by SCOTUS in re FSIA
b. But did hold that their actions violated the law of nations and could
potentially punish for that infraction (but for SCOTUS stepping in)
3. U.S. v. Alvarez-Machain (SCOTUS)
a. Doctor prolonged life of DEA agent during torture and extraction of
information
b. kidnapped and brought to the DEA by private actors
c. US had an extradition treaty with Mexico showing no duty to extradite, but
shall upon showing of reasonableness
d. Court held that this treaty did not apply to private kidnappings, so tough
4. Sosa v. Alvarez-Machain (SCOTUS)
a. civil suit against those who caused the above
b. Court turned down jurisdiction as the Alien Tort Act nor the Foreign Tort
Claims Act could be applied for a violation of the law of nations as it does not create a tort, and very few
are recognized by the ATS (piracy, denial of safe passage, and offenses against ambassadors
5. Crosby v. National Foreign Trade Council (SCOTUS)
 a. Massachusetts passes a law banning any gov’t suppliers from transacting with
Burma
b. There is a federal act on the books covering sanctions against Burma
c. The Mass. Law cannot stand as international relations is the sole province of
the federal government
d. even if characterized as a local law, it has substantially interfered with
diplomatic relations and as such cannot be upheld
6. Hartford Fire Insurance Co v. California (SCOTUS)
a. Domestic insurance company attempted to force change in contract terms
with the complicity of foreign reinsurers
b. Argued that Sherman Act was precluded in this case, by both the intrastate
nature of insurance, and the foreign status of the conspirators
c. SCOTUS called bullshit on part a
d. SCOTUS called bs on part b because of the substantial effects doctrine
e. The reinsurers then tried to argue conflict with UK laws, which SCOTUS said
there was no conflict where an entity could follow both laws
B. TWEN
1. Saudi Arabia v. Nelson
a. American citizen goes to Saudi Arabia to oversee hospital management
b. Saudis arrest and confine him for complaining about safety, etc.
c. US Court Jurisdiction exists only if Saudis were engaged in commercial activity
d. The use and abuse of police authority and detainment is part of the foreign
nation’s sovereignty, not a commercial act by that government.
2. Medellin v. Texas
a. ICJ decisions about criminal procedure
b. Presidential Memorandum to state courts in re procedures
c. Court says bite us, treaty is not self executing
d. Self-executing= no further act by Congress to make active, otherwise an
enabling act of Congress is necessary to execute the treaty
e. Presidential order not enough
XI. European Governance
A. Book
1. Sunday Times (EU Court of HR)
a. Ongoing litigation concerning a drug with dangerous side effects
b. Paper wanted to publish another article detailing what happened
c. UK AG got an injunction preventing publication
d. Suit over injunction as violation of Article 10 of Euro Conv.
e. Held that it was a violation of the Conv. Freedom of the press
2. Soering (ECHR)
a. Guy committed murder in Virginia
b. Captured in the UK
c. Extradition treaty between US and UK
d. UK sought assurances that he would not be sentenced to death
e. ECHR determined that death row would violate Article 3 of the Convention (a
weird analogy to our 8th Amendment)
f. As such, the UK extradited conditionally to maintain cohesion with EU
Convention.
B. Twen
 1. Van Gend en Loos
a. Some dispute over tariff rates and schedules
b. Can a national bring suit under Community law against a nation?
c. Yes, it can, even against its own nation
2. Costa v. Enel
a. Nationalization of Italian power company
b. Whether or not national acts are binding in contrast with Community Acts?
c. Community Acts are superior to national acts, and thus national acts must fall
in the conflict
3. Internationale v. Einfuhr
a. Whether transfer securities required by Community Law could be lost due to
administrative failures, and in process violate German Constitution?
b. Community Law beats national constitution
4. Queen v. Secretary of State
a. after classification of vessels as UK fishing vessels, some fishing vessels were
denied fishing licenses
b. There was a national rule that interim injunctions could not be issued against
the Crown
c. Community law gives authority to issue such injunctions as superior to
national law
5. Yassin v. Council and Commission
a. War on terror
b. Security council issues a regulation requiring freeze of assets held by terror
connected individuals
c. Community issues a law enacting said requirement
d. Council determines that freeze is against Community law in certain ways, but
will allow the Community to fix it in 3 months time before overturning it
XII. Alternative Approaches to International Trade: NAFTA and WTO
A. Shrimp-turtle
1. US passed a law requiring that shrimp bought from foreign nations must follow
a)catch requirements and b) use turtle exclusion devices
2. Malayasia complained about the new requirements
3. WTO found that such regulation was impermissible
4. While it followed the spirit of the natural resource exception, it was applied
discriminately and arbitrarily
5. The U.S. later fixed the statute
B. Metalclad v. Mexico
1. US company opts to build a hazardous waste facility in Mexcio
2. Government gives it a green light
3. However, locality begins protesting
4. protestors interfere with operation of the plant
5. Additionally, local government declares is a nature preserve
6. Court found that such actions amounted to expropriation, and thus were responsible
internationally under NAFTA
C. Lowen v. US
1. Canadian company buys a funeral home in Mississippi
2. Local competitor causes a ruckus and sues the company
3. Mississippi justice as usual, the foreigner gets railroaded
 4. Accused the Court of expropriation in violation of NAFTA due to 125% cost of
judgment requirement for appeal
5. Court says that they failed to exhaust their domestic options, and thus the
miscarriage did not amount to a violation of international law
6. Additionally, the corporation devolved to a US company through bankruptcy, and
thus failed to maintain constant nationality in addition to becoming a US company with a US court
decision
XIII. International Human Rights
A. Damian Thomas (UNHRC)
1. Petitioner is a minor convicted for murder and placed in general population prison
2. He claims that he petitioned for a move to a juvenile facility, and was told he would
be
3. He never got moved, and was regularly beaten and mistreated in the prison system
4. HRC held that such treatment violated the Covenant on Human rights, and that
Damian had standing as an individual
5. Jamaica got rid of the right of individual petition after that
XIV. International Environmental Protection
A. Trail Smelter (Rep. Int’l Arb. Awards- UN)
1. Canadian company operated a smelter near the State of Washington
2. The fumes from the smelter damaged the state
3. The two nations entered into an agreement to mitigate damages, but Canada failed
4. The Arbitrator could find no record of cases involving air or water pollution at an
international level, so they analogized to American law
5. Found that Canada had a duty to mitigate the nuisance
B. Nuclear Tests (New Zealand and French request for opinion)
1. Reconsideration of a previous nuclear testing case between the two parties
2. Law has developed rules governing the handling of hazardous waste
3. Environmental Impact analysis was used on a regular basis
4. Such considerations suggested that there is grounds for rehearing
5. As such, we should take care of our environment for our posterity
XV. Norms on Resort to Force
A. Nicaragua (ICJ)
1. Nicaragua complained that the US was supporting contras
2. Both an illegal intervention into internal politics and illegal use of force
3. US contended that it was engaging in collective self-defense with other South
American nations
4. US lost on jurisdictional issues, but did exclude multilateral treaties
5. The court went on to find the multilateral treaties through custom
6. Additionally, the court held that collective self-defense was only justified in
proportion to an armed attack
7. Consequently, the US did a bad thing
XVI. International Humanitarian Law
A. Hamdi (SCOTUS)
1. Basic Con Law decision- Afghanistan
2. May detain both lawful and unlawful combatants for the duration of the conflict
B. Tadic (Int’l Tribunal for Former Yugoslavia)
1. The Civil War and its attendant horrors
 2. Recognized that the line between international and internal armed conflicts are
becoming blurred
3. Additionally, found that an armed conflict exists when there is either a resort to force
by opposing States or a period of protracted armed violence between a government and organized
armed groups within a state.
4. Consequently, international humanitarian law during conflict applies to both, and also
until a state of peace is reached, as opposed to mere end of conflict