International Law Outline

Fall 2022

Part 1: Structure and Overview of International Law

Introduction:
What is International Law?
● Brierly 1963: Body of rules governing relationships among states (traditional definition)
o Modern definition more expansive than this
● Max Planck Encyclopedia → intl law is the legal order which is meant to structure the
interaction between entities participating in and shaping international relations
Nature of Int’l law
● Public intl law 🡪 the set of rules that govern the activities of governments in relation to
other governments
● Private intl law 🡪 rules that regulate the activities of individuals, corporations, and other
private entities when they cross the national borders. Often applies in arbitration
● Intl law (Restatement Sx 101) 🡪 Intl law as used in this Restatement consists of rules
and principles of general application dealing with the conduct of states and of intl
organization and with their relations inter se, as well as with some of their relations with
persons, whether national or judicial.
Sources of Int’l law:
● Treaties 🡪 bilateral and unilateral treaties or conventions or agreements between states
regulating behavior in some way
● Customs (CIL) 🡪 results from a general and consistent practice of states followed by
them from sense of legal obligation
● General Principles 🡪 GPs of law common to the major legal systems of the world.
o used as a gap filling mechanisms’, if unsure in a case, then look to municipal
systems and practices
● Judicial opinions and scholarship 🡪 subsidiary sources of intl law, does not have much
weight.

Key Foundational Principles

● Sovereignty
○ A state is sovereign because there is no authority superior to it, it is legitimate
because other states recognize it
● Consent
○ States consent to principle of sovereignty, inherent in statehood
○ Tension with CIL because states may not consent to certain customary laws but
that does not make them any less bound to them
○ Derives from positivism 🡪 Idea that states have to consent to a rule before it can
be binding on that state (not entirely accurate today)
■ Tension between positivism and CIL
 ○ Lotus Case → Court says only if there is prohibition will we find that there is a
rule of intl law that governs this case
■ This will become a bad/law and example later; this is how positivist
frame the argument but not good las because scholars believe there are
inherent sources of law
● Horizontal Structure of intl law

Is IL law? What is law?

● Henkin: “almost all nations observe almost all principles of IL, almost all of their
obligations, almost all of the time”
● How are sovereignty and obligation reconciled?
● If there is no enforcement mechanism can IL still be law?
● Is IL prescriptive, descriptive, or merely hortatory (what you should do)
● Just because people may break it doesn’t always mean its any less law (no one drives the
speed limit)
○ Informal ways of enforcing law
■ Self-enforcing (people drive on the right side of the street)
■ Law can be internalized (stopping at a stoplight at midnight with no
traffic)
■ Law can be social practice (super informal but people waiting in lines)

Natural Law v. Positivism

● Natural law 🡪 fundamental rules of the universe to content of intl law in religious and
moral principles. Law of nature is based on the dictates of reason, on the rational nature
of men as social beings, inherent rights of man. (Grotius)
○ Self-preservation, non- intervention,
○ Pacta sunt servanda → acted upon in good faith, legal binding treaties (come
back and look at this)
● Legal positivists 🡪 attach a primary weight to customary and treaty rules, relegating an
insignificant place to the law of nature. Principle measure of emphasis on the ideas of
consent as the basis of binding obligations. (Dominant from 1900s to now)
○ SS lotus case 🡪 rules of law binding on state emanate from their own free will (no
longer good law really)
● Today → questioning positivism, perhaps shifting back to natural law. Natural law
underlies humanitarian, human rights law, jus cogens fairness, justice etc. Positivism
does not leave a space for human rights.

Source of International Law

Overview:
● Traditional sources → Treaties, customs, general principles
● Modern sources → decision of intl organizations, judicial opinions, soft law
● Key principle → VCLT Art 26 Pacta Sund Servanda: Every treaty in force is binding
upon the parties to it and must be performed by them in good faith
 o Treaties are express consent to be bound

Treaties
Vienna Convention on the Law of Treaties (VCLT): Sets forth comprehensive set of rules
governing the formation, interpretation, and termination of treaties. (114 states parties_
● US signed but did not ratify so not legally bound, US recognizes most of the provisions
as CIL and US courts frequently rely on its terms.
● ICJ and Intl courts/tribunals recognize VCLT as CIL
Treaty definition
● VCLT Article 2: 1) an intl agreement; 2) concluded among States, 3) in writing; 4)
governed by international law. (whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation)

Qatar v. Bahrain
Key takeaway → ICJ found parties has concluded a legally binding agreement accepting ICJ
jurisdiction despite Bahrain’s assertion that they had not intended to create an agreement. Court
looked to “terms of the instrument itself and the circumstances of its conclusion, not from what
the parties say after”
● Issue: Did the signing of the meeting minutes create a legally binding commitment
between two states?
● Held: the court said that the meeting minute signature did in fact constitute and
international agreement that created rights and obligations for the parties → it was legally
binding
● Note: intent matters here, Bahrain did not “intend” to be bound and did not consent and
yet the court still held that they were bound
○ Full powers - power for a state actor to bind a state to an agreement - treaty sets
out which actors these include (heads of states or foreign minister is an example) -
it is their job to represent their states → everyone else must have a document
called full powers to authorize them to enter into agreements
Hollis modern interpretation of a treaty
● 1) an intl agreement; 2) concluded among states; 3) recorded in a way that evidences; 4) a
shared and manifest intent that the agreement be governed by intl law

Treaty Alternatives
● Unilateral declarations
○ ILC guiding principles: “declarations publicly made and manifesting the will to
be bound may have the effect of creating legal obligations.”
● Political Commitments
○ Agreements made by states intending to establish non-legal commitments of an
exclusively pollical or moral nature
○ Do not have legal force
● Contracts
○ Contract law governed by domestic state law
VLCT Recognition of Jus Cogens
● VCLT article 53 and 64 first recognized jus cogens norms
● Norms that are purportedly so fundamentally normative that they bind all states, and no
state can derogate from them or agree to contravene them.
● Article 53: A norm accepted and recognized by the intl community of states as a whole as
a norm from which no derogation is permitted and which can be modified only by
subsequent norm of general intl law having the same character
● Difficult to discern Jus Cogens, very high threshold (slavery, genocide, torture)

Role of CIL in treaty making

● Treaties can reflect, shape, and develop new binding norms that not only bind states party
to them but can develop binding CIL as well
○ This is crystallization – don’t have CIL quite yet but there is a development
towards a norm. A treaty can help crystalize the terms of a new norm

Reservations (RUDs)
● Reservations is a unilateral statement, made by a state when signing, ratifying,
accepting, approving, or acceding to a treaty, whereby it purports to exclude or modify
the legal effect of certain provisions of the treaty in their application to that state. (VCLT
Art 2(1)(d))
○ Why reservations? 🡪 we want as much state participation in treaties as possible, so
reservations allow states to re-interpret provisions that they want to change
instead of refusing to sign onto the treaty as a whole.
○ We want to accommodate the many relationships that can occur in a multilateral
treaty
○ Reservations must be compatible with the object and purpose of the treaty and not
expressly prohibited. (Article 19 of VCLT)
● Legal effects of impermissible reservation
○ Option 1: state remains bound to the treaty expect for provisions which the
reservation related
○ Option 2: the invalidity of a reservation nullifies the instrument of ratification as a
whole and thus the state is no longer a party to the agreement
○ Option 3: An invalid reservation can be served from the instrument of ratification
such that the state remains bound to the treaty including the provisions to which
the reservation is related
● Understandings → Interpretive statements that seek to detail or clarify the meaning or
reach of one or more of the treaty provisions
○ Does not change or modify the treaty obligations – affords the state an
opportunity to explain to other parties what obligations it believes it is assuming
● Declarations → Unilateral statements of political opinion or intention about the treaty
that are neither reservations nor understandings
● VCLT
 ○ VCLT Art. 19: Formulation of Reservations
○ VCLT Art 20: Acceptance of and Objections to Reservations
○ VCLT Art 21. Legal Effects of Reservations and Objection to Reservations

Interpretation of treaties
VCLT Article 31: General Rule of Interpretation
● A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given the terms of the treaty in their context and in the light of its object and purpose.
● The context for the purpose of the interpretation of a treaty shall comprise in addition to
the text including its preamble and annexes
○ Any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty
○ 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
● Take into account relevant rule of intl law applicable in relations between the parties
VCLT Article 32: Supplementary Means of Interpretation
● Permits supplementary means of interpretation, including the prep work of the treaty and
circumstances of its conclusions in order to confirm the meaning from the application of
article 31, especially if article 31 leaves an interpretation: absurd, unreasonable or
ambiguous.

Termination and Suspension of Operations of Treaties

If material breach, VCLT affords two remedies: termination and suspension
VCLT 60
● 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
● 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, or
■ (ii) as between all the parties;
○ (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;
○ (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.
● A material breach of a treaty, for the purposes of this article, consists in:
○ A repudiation of the treaty not sanctioned by the present convention or
○ The violation of provision essential to the accomplishment of the object or
purpose of the treaty
Hungary v. Slovakia

Customary International Law

Elements of CIL:
● State practice (objective element)
● Opinio juris (subjective element)
Definitions 🡪 Restatement Section 102: CIL results from a general and consistent practice of
states followed from a sense of legal obligation
● State Practice
○ Statements of policy, rules, diplomatic acts – general and consistent
○ General and consistent 🡪 does not have to be universal but it must reflect
widespread acceptance by the states involved in the relevant activity
■ Principle is not binding on states that dissented during the principles
development (persistent objectors)
○ Specially affected states 🡪 something can become CIL if there is sufficient state
practice and opinion juris only around the specially affected states
■ Same goes for regional customs (all states in a certain region adhering to
customs that amount to CIL)
● Opinio Juris
○ A state’s belief that a state must follow a custom out of a legal or moral obligation
○ Habit turns into law when states generally believe they are under legal obligation
to comply with the norm
Traditional vs. Modern Approaches
● Traditional 🡪 you emphasize practice and determine a custom inductively. State practice
is required first (UNGA resolutions would not count if there is not sufficient state
practice)
● Modern approach 🡪 deductive approach – start with hypothesis that you believe there is
enough evidence to support the prohibition of genocide – then you go look for evidence
to support this (statements speeches, existence of treaties, UNGA resolutions etc.
○ Focus is on general statements (opinion juris) and deductive reasoning
○ Recognizes that CIL can develop quickly based on treaties and declarations
● Commentary
○ Modern approach is a more flexible approach to CIL, creating customs will
become easier and law will evolve more rapidly. It will pull law rather than be
determined ex-post.
○ Problem is that courts might acknowledge CIL less if the process becomes too
fraught and we cannot precisely define custom
○ Benefits are that the world is changing rapidly and intl law needs to be more
flexible to accommodate changes. Human rights considerations imply that opinion
juris rather than state practice may be more important
Treaties and CIL
● A treaty may codify existing CIL rules
● A treaty may crystalize customary practice that is in the process of forming
● A treaty may announce new rules or create. A new norm that generates state practice,
even among nonparties, that produces a rule of CIL

EXAM Q: Do UN Resolutions and Statements constitute opinion juris

 ● The UNGA makes statements – although the UN charter states that they do not jab eth
power to make binding law, many lawyers suggest that their resolutions, especially if
unanimous, are legally binding because they reflect opinion juris and fall under the
modern CIL theory.
● Likely not, many states do not see UNGA as legally binding and merely understanding of
perhaps even a normative view of what state ought to do but are not considered CIL

International Legal Personality

*International law primarily regulates the conduct of States*
● Intl legal personality applies to states but may be applying to intl organizations
International legal personality generally
● Have rights and responsibilities
● Capacity to engage in intl relations
● Some law-making authority or ability to impose obligations on other institutions

Rights and Responsibilities of States

Rights
● Sovereignty → every state has sovereignty over its terrorist and nationals; ability to
exercise jurisdiction by regulating conduct and relationship of various people, places and
things that relate to its territory, its nationals or the state itself. Generally immune from
the jurisdiction of other states
● Right to make treaties
● Contribute to CIL through general and consistent practice
● Create and join IOs
● Right to be from the use of threat of force or coercive intervention
● Entitled to bring claims for relief to intl courts and tribunals
● Engage in self-defense when facing armed attack
● Engage in countermeasures
Responsibilities
● Prohibited from the use or threat of force against each other
● Settle disputes peacefully
● Must avoid denying justice to foreign nationals
● Respect human rights of all the people under its jurisdiction

What is a state?
● Montevideo Convention 🡪 defines 4 major factors for identifying a state
○ Permanent population
○ Defined territory
○ Government
○ Capacity to conduct intl relations (most important aspect)
● Third restatement expansion on criteria
○ Defined territory 🡪 may satisfy requirement even if boundaries are not fully
settles, are disputed or some territory is claimed by another state. Does not cease
to be a state if all territory occupied by foreign power or it has lost temporary
control. However, must have effective control over the territory (cmt b)
○ Permanent population 🡪 population must be significant and permanent. Antarctica
does not count because not sufficient population or permanent (cmt c)
○ Government 🡪 not particular type of gov is required but must have some authority
exercising gov functions and able to represent the entity in intl relations (cmt d)
 ○ Capacity to conduct intl relations 🡪 must have competence within own system to
conduct intl relations with other states as well as pollical, finical capability to do
so. Does not cease if agreed not to engage in some intl activities or have delegated
some authority to supranational entity (EU) (cmt e).

Recognition of a state by other states

Recognition
● The act by which a state acknowledges another entity as a state, demonstrating
willingness to accept that entity as its sovereign equal and accord it rights and privileges
● How to recognize a state?
○ Diplomatic credentials
■ Can have diplomatic relations but not a state (Taiwan) or vice versa (Iran)
○ Unilateral statements and declarations
○ Entering into a treaty
Theories of state recognition
● Declaratory theory → under the declaratory theory, an entity that satisfies the
requirements of section 201 (tracks for Montevideo criteria) is a state will all the
corresponding capacities, rights and duties and other states have the duty to treat it as
such
○ Recognition by other states is merely declaratory, confirming that the entity is a
state, and expressing the intent to treat it as a state
● Constitutive theory → that recognition by other states is “constitutive” i.e. that an entity
is not a state in intl law unless it is generally recognized as such by other states.
○ Less common theory
○ Persists because some key states like China persistently object to the declaratory
theory
○ States will apply this theory to cases where a state is created by unlawful means
(Russia annexing Crimea)
● Alternative approach → Lauterpacht in 3DR argues that recognition does constitute a
state, but other states have a “duty to recognize” when the factual criteria for statehood
exists
○ a state it not required to accord formal recognition to any other state but is
required to treat as a state an entity meeting the objective criteria for statehood.
State Succession
● Succession occurs when one state replaces another state with respect to the territory,
capacities, rights and duties of the predecessor state. Occurs when a state:
○ Is totally absorbed by another state (conquest, annexation, merger)
○ Becomes independent of another state (former colonies)
○ Takes only part of the territory of another state (Secession and movement of
boundaries)
○ Dissolves into two or more states (Yugoslavia)
● Succession of debts and burdens
○ Universal succession
○ Clean slate succession
○ Partial succession
● Succession in international organizations
○ A new state can sometimes success its predecessors’ seat in the UN without
applying for readmission (ex: USSR to Russia)
 ○ New states do not always succeed predecessor UN seat though (the FRY denied
succession to former Yugoslavia)
● Reasons for succession in intl organizations
○ A successor state is more likely to succeed to the UN seat if other states acquiesce
or consent to succession
○ Successor state more likely to inherent UN seat if successor was “dominant” part
of predecessor state in size or population or both (Russia dominant).

Treaties and State Succession

*NOTE – hard to codify because normally happens on case by case or ad-hoc basis, where
practical considerations outweigh theoretical ones

1987 Vienna Convention on State Succession in Respect of Treaties

● Codification of CIL
● Art 6: Applies only to state succession occurring in conformity with IL, particularly UN
charter. Will not bestow legitimacy on territory gained by conquest or unlawful use of
force
● In favor of continuity
○ Art 11: Succession does not affect boundary treaties
○ Art 12: Succession does not affect certain rights and obligation pertaining to use
of territory
○ Art 31: When 2 states unite, successor state bound by all treaties with respect to
the territory formally covered by those treaties and potentially w/respect to entire
territory of new state
○ Art 34: if state splits apart, new states are presumptively bound by the treaties of
the predecessor state
● Against continuity
○ Envisions a clean slate for newly independent states
○ Art 16: newly independent states are not bound to maintain in force any treaty
■ However some provisions reject continuity and envision a clean slate for a
newly independent state . 🡪 A “newly independent state” is defined as “a
successor State the territory of which immediately before the date of the
succession of States was a dependent territory for the international
relations of which the predecessor State was responsible.”
○ Rationale: former colonies may not have consented to the predecessor treaty in
any meaningful sense. However can make it clear that they want to remain bound
by all predecessor treaties
■ Not much support for the clean slate theory in CIL

International Organizations
The International Law Commission:
● Defined an international organization as: an organization established by a treaty or other
instrument governed by international law and possessing its own international legal
personality. International organizations may include as members, in addition to States,
other entities.
Characteristics that define international organization
● Created between states
 ○ Involvement of at least two or more member states
○ Can involve other actors other than states though
● On the basis of a treaty
○ Many IOs are established by some means of treaty, creation is an intentional act
○ Generally not brought by domestic legislation
○ UNGA has created IOs through resolutions
● An organ with a distinct will
○ Organization must possess at least one organ which has a will distinct from the
will of its member states
○ Functionalism 🡪 IO’s exist so as to exercise functions delegated by their member
states
ICJ Advisory Opinion in reparations case
Issue: The General Assembly sought an advisory opinion from the Court on whether the United
Nations had the capacity to bring an international claim against the State responsible (Israel) in
order to obtain reparations from it for damages caused to the Organization and to the victims.
Court conclusions:
● States certainly have capacity to bring an intl claim
● Must look to underlying treaty provision to determine if intl orgs have the capacity
o Can look to implied provisions – charter did not expressly provide intl
organizations with this power
● UN is indeed an international person
o Equipped with various organs, legal capacity with binding decisions, political
body that covers intl peace and security – all require the party to possess an intl
personality
● Organization should not have to rely on states to assert its own interests 🡪 it can bring intl
claims
○ “to ensure independence of the agent, and the independent action of the
organization it is essential that the agent need not rely on other protection than
from the Organization, he should not have to rely on the state because then
independence would be compromised.”

Dispute Resolution
Rational behind dispute resolution
● How states resolve a question when they fundamentally disagree about the interpretation
of intl law
○ Lawyers role is to provide answers before escalation
○ Advising client on interpretation of the law, what it requires and how it affects
various policy decisions
■ Want to advise before we get to court
Similarities/Differences w/ Municipal Law
● Similarities
○ Shift toward regional courts, specialized court and arbitral bodies
● Differences
 ○ IL is not organized and comprehensive
○ No stare decisis
○ IL is horizontal while municipal law is mainly vertical institutions
Negotiations, Mediation, Conciliation
● Negotiation
○ Most common form of dispute resolution, always tried first, usually most
successful and preferred - highly flexible
○ Why do states rely on negotiation as the principal method of dispute resolution
■ Least costly method
■ Highest level of autonomy - parties retain the ability to have the most
control
■ Can lead to win-win
■ Can be conducted in private rather than publicly discussed
■ High level of success - that's part of the reason it is principle
○ Conducted: through “normal diplomatic channels” (respective foreign offices or
diplomatic representatives)
● Mediation
○ After unsuccessful negotiation intervention of neutral third-party to break the
impasse. Role is to help facilitate an agreement, not decide the outcome
○ Mediator can be active participant to informally advance and interpret proposals
based on party’s information (not investigation)
○ Characteristics
■ Facilitates dialogue, provides information and suggestions, identifies aims
and possible solutions
■ Can either be sought by parties or offered by outsiders
■ No prior agreement to abide by proposed terms - allies parties to retain
control of the dispute
■ Can be confidential; politically palatable to agree to third-party terms
○ Limitations
■ Only as effective as parties want it to be
● Conciliation
○ Puts third-party intervention on formal legal footing and institutionalized it. Not
arbitration but similar
○ Definition: includes a Commision set up by the parties, either on permanent or ad
hoc basis to deal with the dispute, proceeds to impartial examination of the
dispute, and attempt to define the terms of an acceptable settlement
■ Usually multiple member body that does independent legal research/fact-
finding to present a solution, presents results in a proposal
■ Not binding on the pirates
■ adaptable; structured involvement of outsiders

International Court of Justice

Overview:
 ● Created by the UN Charter in 1945 - designed to be principal judicial organ of the UN
○ Governed by the Statue of the ICJ (UN Charter Arts 92-96)
● Main Function: To decide legal disputes between states. Render advisory opinions to
questions submitted by designated organs or specialized agencies of the UN
Structure:
● Article 2 of the ICJ Statute sets forth the required qualifications for ICJ judges;
○ they must be “independent” and “persons of high moral character, who possess
the qualifications required in their respective countries for appointment to the
highest judicial offices, or are jurisconsults of recognized competence in
international law.”
● Art 9: Composition of the court should be representative of main civilizations and legal
systems
● Art 26: allows smaller chamber to hear a case - rarely used
● Art 31: Judges are independent and do no necessarily represent the views of the country
they are appointed from
● Art 94: Each Un member state undertakes to comply with a judgment to which it is a
party
● Art 59: judgements are binding only on the parties to a case
○ If a country fails to comply with a judgment the other party may refer the matter
to the Security Council, which “may, if it deems it necessary,” take measures to
enforce the agreement.
Jurisdiction of the ICJ
● ICJ Statute Art 34 - only state may be parties in cass before the court
○ Art 35- the court is open to the parties of the ICJ statute, meaning the 193
members of the UN
○ Jurisdiction relies on CONSENT of the parties
○ ICJ Statute Art 36: Need to demonstrate that both parties have consented
● Jurisdiction of the Court comprises all cases which the parties refer to it and all matters
specifically provided for in the charter of the UN or in treaties and conventions in force
● State parties to the present Statute may at any time declare that they recognized as
compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
○ Interpretation if a treaty
○ Questions of intl law
○ The existence of any fact, which if established would constitute a breach of an
international obligation
○ Nature or extent of the reparation to be made for the breach of an international
obligation
● Declaration referred to above may be made unconditionally or on condition of reciprocity
on the part of several or certain states, for a certain time.

Jurisdiction by special agreement

● Compromis: once a dispute arises, the state may conclude a special agreement to submit
the matter to the ICJ. The agreement defines the question or dispute the parties which
the court to resolve
○ Bahrain v Qatar case → the agreement was sufficient enough for a compromis -
usually it defines the question that the parties agree want the court to rule on
 ■ Consent via meeting minutes dispute: not just minutes by treaty,
compromis agreement to submit to ICJ

Jurisdiction Under a Dispute Settlement Clause in a Treaty

● Dispute resolution Clause (Compromissory Clause): When states negotiate a treaty they
may agree in advance that any party may submit a dispute re: the interpretation or
application of that treaty to the ICJ
○ Over 300 bilateral and multilateral treaties contain dispute resolution clauses
● Oil Platforms Case (Iran v. US)
○ Iran claims that the US violated the treaty of Amity by blowing up oil platforms.
ICJ had to answer a preliminary question of whether it had jurisdiction based on
whether the dispute was the interpretation or application of the Treaty.
○ ICJ - YEs because the treaty included “freedom of commerce.” Destruction of oil
platforms capable of hindering commerce, therefore treaty applies and jurisdiction
is appropriate. However, whether commerce was actually impeded is another
matter
○ Takeaways
■ In terms of understanding compromissory clauses - court has jurisdiction
to interpret treaty to figure out if the dispute is within the scope of the
compromissory clause
● Court does that by using ordinary tools to interpret treaty under
vienna convention principles → ordinary application of general
principles of intl law
● DRC v. Rwanda - ICJ did not have jurisdiction over Rwanda re: Genocide Convention
because Rwanda made a procedural reservation opting out of the ICJ jurisdiction. Not
incompatible with the purpose of the OCnetion b/c ICJ is just one method of
accountability

Jurisdiction Under the Optional Clause

● ICJ Statute Art 36(2) (Optional Clause): Provides that countries may consent in advance
to compulsory ICJ jurisdiction over any claim concerning an international legal dispute
● Ex ante consent only applies to dispute with other states who have accepted compulsory
jurisdiction under 36(2)

3D Restatement 903 cmt b: Explaining Compulsory Jurisdiction

● A state maay declare that its recognizes as compulsory jurisdiction of the COurt with
respect to all legal disputes concerning the interpretation of a treaty, any question of intl
law, the existence of any fact constituting a breach of an international obligation, o rht
enature or extent of the reparation for such a breach
● Declarations apply on in relation to another state that has made a similar declaration
● A declaration may accept the jurisdiction of the court for all legal disputes, or may
exclude certain categories of disputes
● A declaration is subject to reciprocity and a defendant state may invoke an exclusion or
other reservation not stipulated in its own declaration but included in the deceleration of
the plaintiff state
● Common Reservations
○ Disputes committed by parties to other tribunals or which the parties agreed to
settle by other means of settlement
 ○ Disputes relating to matters that are “exclusively” or “essentially” within the
domestic jurisdiction of the declarant state. Some states clarify that determine
whether its a domestic matter is up to the state itself
○ Disputes arising out of multilateral treaties unless all parties or all affected pirates
are also parties to the case
France v. Norway
● French nationals owned Norwegian bank bonds during WWII, Norway wanted to pay in
paper rather than gold, France brough claim to ICJ. Norway said it could be settled by
Norwegian law
● France had conditional reservation to compulsory jx about claims within other country’s
domestic jurisdiction → Norway had the right to rely on the reservation
● “The Norwegian Government did not insert any such reservation in its own Declaration.
But it has the right to rely upon the restrictions placed by France upon her own
undertakings”

Jurisdiction Under the Optional Clause Applied: The Nicaragua Litigation

● The Court faced a contentious dispute regarding its Optional Clause jurisdiction when
Nicaragua sued the United States in 1984 over U.S. support of the “contras,” an insurgent
group seeking to overthrow the Soviet-supported Sandinista Nicaraguan government.
● Nicaragua claimed that the ICJ had jurisdiction under Article 36(2) of the ICJ Statute. At
the time the case was brought, the following Optional Clause declarations had been
executed by the United States and Nicaragua:
○ US accepts jurisdiction in matters of:
■ the interpretation of a treaty;
■ any question of international law;
■ the existence of any fact which, if established, would constitute a breach
of an international obligation;
■ the nature or extent of the reparation to be made for the breach of an
international obligation;
○ US exceptions to compulsory jurisdiction
■ disputes the solution of which the parties shall entrust to other tribunals by
virtue of agreements already in existence or which may be concluded in
the future; or
■ disputes with regard to matters which are essentially within the domestic
jurisdiction of the United States of America as determined by the United
States of America; or disputes arising under a multilateral treaty, unless
(1) all parties to the treaty affected by the decision are also parties to the
case before the Court, or (2) the United States of America specially agrees
to jurisdiction
● In order to be able to rely upon the United States Declaration of 1946 to find jurisdiction
in the present case, Nicaragua has to show that it is a “State accepting the same
obligation” within the meaning of Article 36, paragraph 2, of the Statute.
● US then terminated compulsory jurisdiction

Procedure of the ICJ

● Highly formal and slow moving
○ the case may be decided in phases, with a phase for (1) “preliminary objections”
concerning the Court’s jurisdiction or the “admissibility” of the case, discussed
below; (2) the merits of the case; and (3) reparation (or damages).
● Provisional measures
 ○ ICJ Statute Article 41 → The ICJ may issue preliminary orders to grant
intermittent relief since the cases take so long to litigate
○ Legally binding?
■ LaGrand Case (Germany v. US) → ICJ issues a provisional measure
ordering the US to stay LaGrand’s execution pending the ICJ
proceeding. The US claimed provisional measures were not legally
binding. ICJ looked to plain language which was unclear, looked to
object and purpose and found that the provisional measures was legally
binding because if not it would go against the object and purpose of
ICJ Art 41.
● Admissibility
○ Along with challenges to jx, respondeat states may claims that the issue is
inadmissible because:
■ Failure to exhaust local remedies
■ Failure to attempt to reach diplomatic agreement as called for by treaty or
general intl law
■ Dispute is political not legal (Nicaragua [Link])
● Request for interpretation
○ Although ICJ judgments are not appealable, parties may, if they disagree about
the meaning of a judgment, request an interpretation from the court
● Advisory opinions
○ Under UN Charter and ICJ statute, ICJ is empowered to render advisory opinions
on legal questions arising within the scope of their activities
○ Scope of ICJ advisory jurisdiction
■ Re: advisory opinions on the legality of the use of nuclear weapons.
UNGA can request bc can request on “any legal question”, WHO cannot
bc their ability to perform function not reliant on legal effects of nuclear
weapon
○ Discretionary grounds for declining to give an opinion
■ the ICJ has reiterated that it retains “a discretionary power to decline to
give an advisory opinion even if the conditions of jurisdiction are met.”
■ In practice, however, the current ICJ has never declined to answer a
request for an advisory opinion over which it concluded it had jurisdiction

PART III: International Law in U.S. Law

1) Municipal law and Int’l law

Monism and Dualism

● Monism
○ Views IL and domestic law as part of single,s shred system of law
○ Monist states accept that treaties and other intl law commitments are
automatically part of their domestic legal orders
● Dualism
○ Views IL and domestic law as different and separate legal systems
○ Dualist states look to domestic law to determine what measures must be adopted
to give domestic effect to intl legal rights and obligations
 ○ When conflict, dualists accept primacy of IL in intl forums but domestic law takes
primacy in domestic forums
● Harmonization perspective → endorses presumptions for legislatures that assumes
they do not intent to violate a state’s intl legal obligations na engage in interpretive
acts to confirm presumptions

Mortensen v. Peters (1906)

● Mortensen accused of violating Scottish/UK law prohibiting trawling in the Moray Firth
● Question - Can the UK regulate beyond the 3nm from shore as per North Seas Fisheries
COnvention
● Held: Strong opinion in favor of dualism, UK meant to regulate the entire Firth so IL is
not relevant here. Claim that British municipal law is supreme
● Dunedin “No such thing as a statenand of intl law extraneous to the domestic law of a
kingdom”
● Kyllachy → literal reading of the state, presumption against the legislature going
beyond intl law; intl law may put constraints on thelegisatures ability to givren. Not
for UK court to apply intl law decisions

Incorporation
● Doctrine of incorporation says the rules of intl law are automatically incorporated into
English law and considered to be part of English law unless they are in conflict with an
act of parliament
○ When the rules of intl law change, English law changes with them
● Doctrine of transformation says that the rules of intl law are not considered part of
English law except insofar as they have been adopted and made part of outlaw by
decision of judges, acts of parliament, or long-established custom
○ When intl law changes, English law does not change, it is bound by precedent
○ Scholars said that automatic incorporation usurps the power of the legislature

Trendtex case:
Court holding here:
● “I now believe that the doctrine of incorporation is correct”
○ Otherwise, there would not be a recognized change of intl law
○ Int’l law does change, and the courts have applied the changes without aid of any
act of parliament
○ Extent of territorial waters varies from time to time according to the rule of intl
law current and the time and the courts should apply it accordingly
● The bounds of sovereign immunity have changed greatly in the last 30 years are have
been recognized by many countries, including ours and has given effect to them
without any legislation for the purpose.

Practice of States other than UK and US: Four Key Propositions

● (automatically incorporated) in a large number of states, customary rules of intl law are
applied as part of the internal law by municipal courts without the necessity for any act of
incorporation if there is no conflict with existing municipal law
● (automatically incorporated even if conflict with domestic law) Minority of states
without the necessity for any specific act of incorporation, their municipal courts apply
customary rules of international law to the extent of allowing intl to prevail in case of
conflict with a municipal statute or municipal judge-made law
 ● (treaty execution varies significantly) No uniform practice with application of treaties
within domestic law, each states has its own process of treaty implementation
○ For example the German Federal Republic, will, like American courts, give effect
to self-executing treaties, those capable of application without the necessity of
legislative implementation. In other countries, for example, Belgium, legislative
enactment or legislative approval is necessary for almost all treaties, particularly
those which affect the status of private citizens.
○ As to conflicts between the provisions of treaties and statutes, it is only in
relatively few countries that the superiority of the treaty in this regard is
established. France is a case in point, for if a treaty has been duly ratified in
accordance with law, French tribunals, both judicial and administrative, will give
effect to it, notwithstanding a conflict with internal legislation. But in most
countries, for example, Norway, treaties do not per se operate to supersede state
legislation or judge-made law.
● (municipal law trumps) State practice often requires that in a municipal court, primary
regard be paid to municipal law, despite the applicability of international law and thus
gives questions of breach of intl law to the diplomatic domain

2) Article II Treaties
US Definition of Treaty
● Treaty → Any intl agreement approved by a ⅔ advice and consent of the senate and
ratification by the president
○ US has treaty making power as a sovereign, as an intl legal personality, not by the
constitution
○ Article VI of the Constitution states that federal statutes must be “made in
Pursuance” of the Constitution, whereas it states that treaties must be made
“under the Authority of the United States.”
Missouri v. Holland
*main takeaway is that the case endorse Congress’s ability to enact legislation “necessary and
proper” to an Article II treaty’s implementation (Article 1 power)
● Treaty with UK provide protection for migratory birds
○ Authorized fed gov to prohibit birds included in the treaty
● Article II is necessary and proper for executing the treaty
● Treaty changes everything, treaty gives Congress power it would not otherwise have
○ Derives from this different language in article 6
● Court says: The treaty in question does not contravene any prohibitory words to be
found in the Constitution. (the treaty does not go against any explicit prohibitions in
the constitution)
● Treaties have a broader scope of potential subject matter than just article 1 sec 8 congress
power
● Power to enter into treaties comes also from powers on the itnl stage not just from the
constitutional powers

Reid v. Covert (non-binding plurality opinion)

● The protections of the Bill of Rights apply to civilian U.S. citizens who are criminally
prosecuted by the United States military abroad. The United States's power and authority
derive from the Constitution, and the government can act only pursuant to the
Constitution's limits.
 ● A treaty or executive agreement between the United States and a foreign nation allowing
military prosecutions of civilians abroad violates the protections of the Bill of Rights.
● It would be contrary to the objectives of those who created the Constitution and Bill
of Rights to construe Article VI as permitting the United States to exercise power
under an international agreement without observing constitutional prohibitions.
 . . .  The prohibitions of the Constitution were designed to apply to all branches of the
National Government and they cannot be nullified by the Executive or by the Executive
and the Senate combined.

Self Executing v Non-Self-executing

● Self executing → treaties which become domestically enforceable in federal courts
upon ratification or accession
● Non self-executing → treaties which become domestically enforceable federal law
though implementing legislation passed by congress
○ Distinction is a matter of domestic law alone and does not affect obligations under
IL
● Factors to determine type of treaty
○ Fourth Restatement - Courts will evaluate whether the text and context of the
provision, along with other treaty materials, are consistent with an understanding
by the U.S. treaty makers that the provision would be directly enforceable in U.S.
Courts.
○ Relevant considerations for if treaty is SE or not include
○ (a) whether the treaty provision is sufficiently precise or obligatory to be suitable
for direct application by the judiciary;
○ (b) whether the provision was designed to have immediate effect, as opposed to
contemplating additional measures by the political branches.
■ Look to understanding of treaty makers, international obligations and
subject matter of the treaty
○ If the Senate’s resolution of advice and consent specifies that a treaty provision is
self-executing or non-self-executing, courts will defer to this specification
○ Courts will regard treaty provisions as NSE to the extent that implementing
legislation is constitutionally required
Medellin
● Medellin argument → that the ICJ’s judgment in Avena constitutes a “binding”
obligation on the state and federal courts of the United States. He argues that “by virtue
of the Supremacy Clause, the treaties requiring compliance with the Avena judgment are
already the ‘Law of the Land’ by which all state and federal courts in this country are
‘bound.’
○ Court response → not all intl obligations are automatically binding federal
laws that are enforceable in the US
● Threshold question → whether Avena judgment has automatic domestic legal effects
such that the judgment of its own force applies in state and federal courts
● the [Vienna Convention] Optional Protocol, United Nations Charter, and ICJ Statute do
not create automica binding federal law so the Avena judgment it not self-executing
either
● (Response to ICJ decision. Optional protocol)The optional protocol only offers a bare
grant of jurisdiction it does not saying about the effects of the ICJ decisions and is silent
on an enforcement mechanism
RUDs
● Process
○ POTUS offers reservations to Senate to consider
■ Sentate can ignore, add, edit, delete RUDS
○ POTUS is bound by Senate RUDs if he decides to ratify or can decline to ratify if
disagrees
● Reservations → qualifications to particular treaty terms. Affects obligations and
responsibilities to other treaty partners (unlike U/Ds)
● Understandings → are interpretive statements that clarify or elaborate on the provisions
of a treaty.
● Declarations → are statements of policy relating to the treaty that do not alter or limit
its substantive provisions
● For/Against RUDS
○ For - Tool to overcome domestic political division. USe of RUDs garnered
bipartisan support that ended deadlock re:human rights [Link] US still binds
itself internationally
○ Against - Emasculates the obligations treaty makers purport to undertake
● Last in time rule
○ The Supreme Court has long held that self-executing treaties and federal statutes
have essentially equal status under U.S. law, such that the later in time will
prevail under U.S. law in the event of a conflict.
○ It is good law today, most recent provision will be given preference in courts
■ But courts will try to interpret a statute that does not conflict with a treaty
so they do not need to use the last time rule very often
● Charming Betsy Canon: If statute is ambiguous. Presumption allows courts to interpret
statute to avoid breach of IL obligations

Presidential Power and other Int’l Agreements

POTUS has three sources of Constitutional authority to conclude international agreements
● Authority based on a prior article II treaty
● Authority from congress
● Independent authority conferred directly by the constitution
○ President has express constitutional authority and implied constitutional authority
Executive Agreements
● Treaty under intl law but not under domestic law because they do not go through official
treaty process
o See this is in the context of free trade agreements
o All the agreements at the end of the day will be treated the same in court
o All self-executing

Department of State Circular 175

● Three constitutional bases for intl agreements other than treaties
○ Agreements pursuant to treaty
■ President may conclude an dintl agreement pursuant to a treaty brought
into force with advice and consent of senate, whose provisions cosnite
authorization for the agreement by the exe tuve without action by
congress.
○ Agreement pursuant to legislation
 ■ President may conclude an intl agreement on the basis of existing
legislation or subject to legislation to be enacted by Congress.
○ Agreements pursuant to the Constitutional authority of the president
■ President may conclude an intl agreement on any subject within his
constitutional authority so long as the agreement is not inconsistent with
legislation enacted by Congress
■ Constitutional authority includes:
● President's authority as chief executive to represent the nation in
foreign affairs
● President's authority to receive ambassadors and public ministers
● President’s commander in chief authority
● President’s authority to take care that the laws be faithfully executed

Considerations for Selecting Among Constitutionally Authorized Procedures

● In determining which procedure should be followed the following factors should be
considered
○ Extent wo which the agreement involved commitments or risk affecting the
nations as a whole
○ Whether the agreement to intended to affect State laws
○ Whether the agreement can be given effect without enactment by legislation
○ Past US practice with respect to similar agreements
○ Preference of Congress with respect to a particular type of agreement
○ Degree of formality desired for an agreement
○ Proposed duration of agreement, need for prompt conclusion of an agreement
○ General intl practice with respect to similar agreements

Customary International Law and Our Law

“Part of our Law”
Customary intl law and municipal law
● CIL is pretty absent from the constitution and completely absent from article 6
● No constitutional hook for CIL in municipal law
Paquete Habana
● There was currently no law, treaty, or proclamation that fishing vessel were or were not
exempt from seizure during wartime
○ where there is no treaty, and no controlling executive or legislative act or judicial
decision, we should resort to customs and usages of civilized nations.
● “Intl law is part of our law”
○ “International law is part of our law and must be ascertained and administered by
the courts of justice of appropriate jurisdiction, as often as questions of right
depending upon it are duly presented for their determination.”
Filartiga v. Pena-Irala
● ATS - “The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the United
States.”
● Court looked for a customary int'l norm
○ HELD: “CIL is part of the federal common law”
Limiting the scope of the ATS
● Sosa v. Alvarez-Machain (Widespread and definite/specific)
 ○ Sosa limited federal courts to recognizing causes of action only for alleged
violations of international law norms that are “‘specific, universal, and
obligatory.’”
○ repeatedly stressed the need for judicial caution in considering which claims
could be brought under the ATS, in light of foreign policy concerns.
○ “Federal courts should not recognize private claims under federal common law
for violations of any international law norm with less definite content and
acceptance among civilized nations that the historical paradigms familiar when
the ATS was enacted (offenses against ambassadors, violations of safe conduct
and piracy)
● Kiobel v. Royal Dutch Petroleum (touch and concern)
○ For ATS claim to be permissible, must touch and concern the territory of the US
and must do so with sufficient force to displace the presumption against
extraterritorial application
○ Here: conduct was outside of the US, with a foreing plaintiff and foregin
defendant
○ Key takeaway: Presumption against extraterritorial application of US laws applies
to the ATS
● Jesner
○ no ATS claims can be brought against foreign corporate defendants

Jurisdiction
Jurisdiction → Allocation of legal authority among states

Public vs private intl law

● Public international law
○ is concerned with whether a state has authority to apply its drug laws, tax laws, or
antitrust laws to conduct by persons in another state
○ (e.g., a U.S. criminal prosecution of French and German companies that agree in
the Bahamas to fix the prices of goods to be exported to the United States).
● Private international law (or conflict of laws),
○ is concerned with whether a state may apply its tort, contract, or property rules to
events or transactions that have significant connections with it and another state
○ (e.g., a California court deciding which jurisdiction’s law applies to determine the
validity of a contract between Mitsubishi in Japan and Ford in the United States to
sell cars manufactured in Korea for delivery in Hong Kong).
Three types of jurisdiction
● Prescriptive jurisdiction
○ States right to prescribe or apply law to certain persons/activities
○ Exercised when there is a genuine connection between the subject of the
regulation and the state
● Enforcement jurisdiction
○ A state’s right to enforce that law by applying sanctions to a violator
○ Under CIL may be exercised to enforce a state’s laws in its one territory but may
not exercise in another state’s territory without consent
● Adjudicatory jurisdiction
 ○ State’s right to adjudicate the legality of the conduct

Jurisdiction to prescribe
● CIL recognizes 5 bases for perspective jurisdiction
○ Territory → exercise of jx by a state over property, persons, acts or events
occurring within state’s territory
■ Essential attribute of sovereignty
■ Subjective territorial principle - prosecute and punish crimes committed in
territory but completed elsewhere (initiated in territory of state)
■ Objective territorial principle - conduct was finished or effects felt in the
state
● Someone in belgium shoots someone across the border in france
○ Belgium has subjective territorial jurisdiction
○ France has objective territorial jurisdiction
○ Nationality - Involves the nationality of the perpetrator of the crime of the victim
of the crime
■ Active nationality principle → jurisdiction is assumed by the state of
which the person, against perpetrator of the crime
■ Passive nationality principle → Jurisdiction is assumed by the state of
which the person suffering injury is a national.
○ Protective - state may exercise jx over crimes against its security, vital economic
interests; each state as judge of what endangers its security, financial credit etc.
(vague, narrow, historical basis for this jx)
■ Uniquely harmful to the government - gov is principle victim of this
conduct
○ Passive personality - A state may exercise prescriptive jurisdiction with respect
to certain conduct committed outside its territory by a person who is not its
national if the victim of the conduct was its national.
■ Hostages and terrorism fall here - reason of a persons nationality is why
they are targeted so now you have passive personality jurisdiction
● Only those were the reason for being targeted is because of
nationality - it is more narrow
● There is not robust state practice/opinio juris but this is basic
principle
○ Universal - A state may exercise prescriptive jurisdiction with respect to offenses
widely recognized by states as being of universal concern. A state may exercise
universal jurisdiction based on a general interest in suppressing certain violations
of international law, even if it has no specific connection to the perpetrator, the
victim, or the place where the offense occurred
■ Ex: piracy
● Principle of comity → Not quite IL because not a matter of absolute obligation (law).
Just a courtesy/goodwill - concept of avoiding conflict and tension between states
 but is discretionary decision to withhold action that might otherwise be permissible
intl law

Morrison v. National Australian Bank

● Key takeaway: Presumption against extraterritoriality (Securities and Exchange Act
does not apply extraterritorially)
○ There is a well-established presumption that, absent clear congressional intent,
legislation is only intended to apply domesticall
● Concurrence - discusses incentives this creates and problematic interpretation encourages
misstatements in the US that result in fraudulent securities abroad, cannot be intent of
congress
○ Congress agrees with this and amended the securities and exchange act

Nationality
● The right of a state to regulate all conduct of its citizens or nationals is, like territorial
jurisdiction, usually noncontroversial. Congress can thus legislate with respect to the
conduct of a U.S. national anywhere in the world.
● “corporate nationality,” however, presents particularly difficult problems. Under U.S.
practice, a corporation normally has the nationality or citizenship of the state where it is
incorporated. Nevertheless, the Internal Revenue Code taxes foreign source income of
certain foreign corporations when they are “owned or controlled” by U.S. citizens,
○ This would include a French subsidiary of a U.S. corporation. The claimed basis
for the authority is the nationality principle.
○ one major statute authorizing international economic sanctions is the International
Emergency Economic Powers Act (IEEPA)
Protective Jurisdiction
● States may exercise jurisdiction over crimes against its security and integrity or its vital
economic interests
● Fourth Restatement
○ General principle. A state may exercise prescriptive jurisdiction with respect to
conduct abroad that constitutes a threat to the state’s internal or external security
or to a limited class of other fundamental state interests( EX: espionage, certain
acts of terrorism, murder of government officials, counterfeiting of the state’s seal
or currency)
● Rationale
○ Consequence of the offense are of the utmost gravity and concern to the state;
○ Without exercise of jurisdiction, offense would escape punishment altogether
○ Objection → if each state judges what is “vital” application is arbitrary
● US v. Romero-Galue
○ Under protective principle, US authorized to prosecute foregin nationals on a
foregin vessel caught w/ 4.5 tons of marijuana in “customs waters” even though
350 miles from territory
 ○ Furthermore, even if a treaty did not exist between the United States and
Panama, the protective principle of international law would allow the United
States to assert jurisdiction over foreign nationals whose acts occur outside
United States territories but nonetheless threaten the United States.
Passive Personality
● 4th restatement → a state may exercise perspective jurisdiction for certain conduct
committed outside of its territory by a person who is not its national if the victims of
the conduct was its national
○ jurisdiction assumed by the state of which the person suffering injury or civil
damage is a national
○ Usually only applied if the other state is unable or unwilling to punish the
perpetrator
● US v. Columba-Colella
○ No jx here - criminal act by foreigner on foreign soil, no objective effects in US.
○ Criminal conduct that takes place wholly within a country, and whose character
must therefore be determined by the law of the place where the act was done
○ Under the protective territorial theory, a country’s legislature may extend
jurisdiction over criminal acts that threaten the country’s security or directly
interfere with its governmental operations.
○ Under the objective territorial theory, a country may extend jurisdiction over an
extraterritorial criminal act that was intended to have an effect on the country.
Universal Jurisdiction
● International law recognizes a state’s jurisdiction to prescribe law with respect to certain
offenses of universal concern, such as genocide, crimes against humanity, war crimes,
certain acts of terrorism, piracy, slave trade, and torture, even if no specific connection
exists between the state and the persons or conduct being regulated.
● Rationale: to ensure that no such offense goes unpunished
● Although universal jx is well accepted in theory, prosecutions are rare and attract
controversy
○ Limited by considerations of international comity

Jurisdiction to enforce and adjudicate public law

Jurisdiction to enforce:
● Just because a state’s statute is legitimately applicable to a particular person or act, it does
not follow that the state may take any action it wants to enforce that law.
● Fourth Restatement
○ Under CIL
■ a state may exercise jurisdiction to enforce in its own territory
■ Cannot exercise jurisdiction to enforce in another state without consent
○ Jurisdiction to enforce concerns the authority of a state to exercise its power to
compel compliance with law. This Restatement distinguishes it from jurisdiction
to prescribe, which concerns the authority of a state to make laws applicable to
persons
 ○ A state may not send its agents to arrest an alleged offender in the territory of
another state without the latter state’s consent. Ordinarily, the state seeking to
prosecute the individual will have to make an extradition request to the state in
whose territory the alleged offender is located.
● US v. Alvarez-Machain
○ US seized an alleged offender from territory of Mexico w/o consent
○ Violation of Mexico sovereignty
○ However still held → The United States district court had jurisdiction over
Alvarez under the Extradition Treaty even though it obtained jurisdiction
over him through forcible abduction—a jurisdictional basis not prescribed by
the treaty.
Jurisdiction to Adjudicate
● Key takeaway → intl law does not have a lot to say about this, does not impose
constraints or specifics to exercise judicial power to enforce
● Jurisdiction to adjudicate is jurisdiction to subject persons or things to the process of a
country’s courts or administrative tribunals.
● With the significant exception of sovereign immunity, modern customary international
law generally does not impose limits on jurisdiction to adjudicate.
● Look to see if there is a link between the state and the person/thing at time of
jurisdictional determination
○ Whether the person or thing is present in the territory of the state
○ Whether person is national of or domicile in the state
○ Person has consented to the exercise of the jurisdiction or regularly carried out
business in the state

Exhaustion of domestic remedies

● Exhaustion of domestic remedies. In the Interhandel Case (Switzerland v. United States),
[1959], I.C.J. the ICJnoted that “[t]he rule that local remedies must be exhausted before
international proceedings may be instituted is a well-established rule of customary
international law.”  . . .  The Court added that “[b]efore resort may be had to an
international court in such a situation, it has been considered necessary that the State
where the violation occurred should have an opportunity to redress it by its own means,
within the framework of its own domestic legal system.”

Foregin Sovereign Immunity

MAIN takeaway → CIL compel all states to recognize and grant FSI which is immunity of a
state from the jurisdiction of the domestic courts of another state
● Principles of sovereignty drives the concept of FSI
○ Independence of states - idea that no state is subordinate to another is essential in
this analysis

Theories of Immunity
Absolute Immunity
● Under this doctrine - almost no claim can proceed against a foreign sovereign
○ Narrow exceptions → (claims to land) real property, disposition of estates,
these types of things were viewed as carve outs from the beginning.
○ Consent exception/waiver - sometimes in a state’s best interest to waive immunity
● In the first half of the 20th century → shift in state practice away from absolute
immunity, states are questioning whether it is automatically compelled.
○ What is underlying this →
■ increased globalization, transnational commercial activity, states not have
an interest in ensuring economic growth and protections
■ Growing state owned enterprises, communist block, world wars, frictions
of the cold war
■ Changes in the nature of the state, no longer a “sovereign” with absolutist
power, now states are run very differently, doctrinal and theoretical basis
for changing what sovereign absolute immunity means
Restrictive Immunity
● The restrictive approach of FSI is that states would be granted immunity with respect to
their [Link] acts, but not when acting as private actors (ex: signing commercial
contract), since they are not acting in sovereign capacity here.
○ This is judicially developed doctrine
● How does restrictive theory promote trade?
○ Citizens of other countries have an incentive to trade with foreign governments if
they know that gov cannot fallback on FSI for defaulting
● Tate Letter → announced that the State dept would now follow the restrictive
theory, giving immunity to public, sovereign acts, and not to private. Commercial
acts
○ Did not specify what acts would be subject for immunity, nor did it give criteria
for what would be deemed public vs. private acts.

Immunity under FSIA

● Two Steps
○ Is this a foreign state?
○ Does an exception apply?
■ Analysis turns on whether there is an exception to immunity as there is a
presumption of immunity
■ If immunity - court lacks personal and subject-matter jx
● Exceptions
○ Waiver
■ Express or implied waiver
■ Jus cogens violations are not sufficient
■ Waiver needs to be specific to immunity not to the nature of the conduct
○ Counterclaim exception
 ■ I don't owe you a remedy because you violated my rights in the same
action
■ Claim that arises out of same transaction or occurrence, must be litigated
in the same action so any claim that arises is subject to counterclaim
exception
○ Commercial activity exception
■ Most widely invoked exception to immunity
■ Text → (i) “based upon a commercial activity carried on in the United
States by the foreign state”; (ii) based upon “an act performed in the
United States in connection with a commercial activity of the foreign state
elsewhere”; or (iii) based upon “an act outside the territory of the United
States in connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United States.”
■ How do courts sort through the above text
● Commercial activity are not too hard to discern, generally just
business transactions
● If activity happens in the US then subject to US litgation (i)
● Commercial activity does not take place in US but conduct in
relation to activity occurs in the US, if act in US is basis for the
claim then exception applied (ii)
● Direct effect in the US, has to be linked to commercial activity (iii)
● Nature not purpose matters
○ The character matters not whether the purpose is public or
not
Saudi Arabia v. Nelson
● Running a hospital in Saudi arabia, they actively recruited doctors in the US, contact with
the US
● What is dispute in Nelson that makes it difficult for the court to apply it here
○ Whether or not the claims nelson brings must be based upon some commercial
activity
● Court says this must be based upon commercial activity that has substantial contact with
the US
○ Court says the basis was not the commercial activity but the torture and unlawful
detention, those things are not commercial, and were inherently public actions
● The legal basis for claim is not breach of contract, instead the legal basis derived from
torture and unlawful dention and was not commercial activity → exception does not
apply

○ Non-commercial tort exception

■ Foreign state shall not be immune in which money damages are sought
against a foreign state for personal injury or death, or damage to or loss of
property, occurring in the United States and caused by the tortious act or
 omission of that foreign state or of any official or employee of that foreign
state while acting within the scope of his office or employment.”
■ exception does not apply, however, to
● A) any claim based upon the exercise or performance or the failure
to exercise or perform a discretionary function regardless of
whether the discretion be abused, or
● B) any claim arising out of malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with
contract rights.’
■ Both conduct and injury must take place in the US - this is what most of
the courts have held, expect the 9th circuit believes only the injury need
occur in the US
■ Exception to exception - discretionary function exception
● Similar to federal torts claim act, same discretionary act language,
wants the same standards to apply, already existing case law
Congress wanted the courts to use
● However there is no discretion to break law, act contrary to precept
of humanity

Letelier v. Republic of Chile

Held: states have no “discretion” to perpetrate conduct designed to result in the assassination of
an individual, this is contrary to humanity as recognized in both national and international law.
● Accordingly there would be no “discretion” within the meaning of section 1605(a)(5)(A)
to order or to aid in an assassination and were it to be demonstrated that a foreign state
has undertaken any such act in this country, that foreign state could not be accorded
sovereign immunity under subsection (A) for any tort claims resulting from its conduct.
As a consequence, the Republic of Chile cannot claim sovereign immunity under the
Foreign Sovereign Immunities Act

Risk v. Halvorsen
Key takeaway:
● While the Letelier court considered “action that is clearly contrary to the precepts of
humanity” outside the scope of the discretionary function exception, the nature of the act
in that case obviously influenced the court. In this case, the most that can be said is that
Norwegian officials issued travel documents to a Norwegian citizen and her children,
also citizens of Norway; that they provided funds for her travel; and that they protected
her from contact by her former husband. Although these acts may constitute a crime
under California law, it cannot be said that every conceivably illegal act is outside the
scope of the discretionary function exception.
○ Not all criminal conduct is going to be beyond the bounds of discretion, hard to
reconcile Risk and Leteiler

○ Expropriation of property in violation of intl law

■ Very rarely litigated - likely because exception applies only where
property that was taken is present in the US in connection with
commercial activity or owned and operated in commercial activity in the
US
■ Too narrow to use it in practice
○ Enforcement of Arbitral Agreements
■ There are enforceable arbitration agreements
 ○ Terrorists Acts
■ Strong argument that they are in violation of CIL
■ However extremely controversial - prohibited by CIL norm that requires
states to afford immunity for public acts - but then are terrorist acts public
acts?
● Who does it cover?
○ Covers suits against
■ Foregin states proper
■ Their political subdivisions
■ Agencies and instrumentalities

Jus Cogens Violations as an Exception to Sovereign Immunity

● Overview - U.S. courts have largely rejected reading such an exception into the FSIA.
The issue has arisen in other foreign courts with mixed results.
● Intl crimes discussion
○ In 2004,, the Italian Court of Cassation held that Italian courts did have
jurisdiction over claims for compensation brought against Germany by Mr.
Ferrini on the ground that sovereign immunity did not apply in cases where the
acts complained of constituted international crimes.
ICJ opinion - Jurisdictional Immunities of the State (Germany v. Italy)
● The Court concludes that, under customary international law as it presently stands, a
State is not deprived of immunity by reason of the fact that it is accused of serious
violations of international human rights law or the international law of armed conflict.
● Court concludes that there is no conflict between rule of jus cogens and CIL with respect
to immunity
○ The rules of State immunity are procedural in character and are confined to
determining whether or not the courts of one State may exercise jurisdiction in
respect of another State. They do not bear upon the question whether or not the
conduct in respect of which the proceedings are brought was lawful or unlawful.

Other Immunities; Act of State; Private International Law

Choice of Law in Private Disputes

● US courts have normally applied the same rules regarding choice of law among different
countries as the choice of law rule among the 50 states
● One way to look at alternative methods of choosing the applicable law is to distinguish
between jurisdiction-selecting systems on the one hand, and content or policy selecting
systems on the other.
○ Jurisdiction-selecting systems choose a state whose law will be applied,
regardless of its content or motivating policy.
○ By contrast, content-selecting systems focus on the policy behind competing
substantive laws in making the choice-of-law decision.
Pancotto v. Safrique (Mozambique case)
● Background → Pancotto (plaintiff) went to Mozambique with her husband and sons
for a hunting safari led by Sociedade de Safaris de Mocambique, S.A.R.L. (Safrique)
(defendant). While on the safari, Pancotto suffered an injury when a Safrique
 employee ran into her with a swamp buggy. Pancotto filed a lawsuit under federal
diversity jurisdiction in the district court in Illinois seeking damages. Safrique filed a
motion asking the court to apply the law of Mozambique to the substantive issues in
the lawsuit
● Issue → choice of law - what law should apply?
● Analysis → Ingersoll references the Restatement (Second) of Conflicts of Laws for
contacts to determine which jurisdiction is more significantly concerned with the liability
of the alleged tortfeasor, including where the injury occurred, where the conduct that
caused the injury occurred, where the parties are domiciled, and where the parties’
relationship is centered. The contacts are all centered in Mozambique, the place where
the injury occurred and the place where the parties interacted. Therefore, the law of
Mozambique should apply to the standard of care
○ Exception → public policy except where principles of fundamental fairness are
being violated or there are alternative policy considerations that need to be
taken into account

Head of State Immunity

Mohamed Ali Samantar v. Bashe Abdi Yousuf el al.
Rule: The Foreign Sovereign Immunities Act applies only to foreign states and does not govern a
foreign official’s claim of immunity

Legal Status of Embassies and Consulates

● These premises are generally immune under international and US law from attachment or
execution
○ Often enjoy special status in the US and other states
● Relevant rules are draw from the Vienna Convention on Diplomatic Relations and
Vienna Convention on Consular Relations
● The Conventions’ concept of “inviolability” imposes two separate obligations on the
receiving, or host, state.
○ The first is to refrain from acting within the diplomatic premise. Diplomatic
missions are immune from searches, seizures, attachment, execution, or any other
form of enforcement jurisdiction that might interfere with the premise’s official
use. In practical terms, the receiving state can rarely exercise enforcement
jurisdiction within a diplomatic premise.
○ The second duty is protecting diplomatic premises from private interference. In
the United States, the federal government has enacted statutes for this purpose,
curtailing permissible activity within 500 feet of diplomatic premises. The statutes
are aimed at preventing private group interference with diplomatic property.
Violation of any of the statutes can result in a fine or imprisonment.
Principle of inviolability
● Obligation of receiving state not to interfere with sending state affairs
 ○ Immune from searches/seizures, attachment, execution or any form of
enforcement jurisdiction that interfere with premises/ambassador
● Requirement to respect and protect the premises
● Justifications
○ Most common: functional necessity, diplomats and consuls carry out highly
confidential, sensitive work. Unpopular functions. Subject to enforcement
jurisdiction would make many of the tasks difficult
○ Other theories: respect for equal sovereign, reciprocity, ancient custom, CIL

Personal Immunity for Diplomats and Consuls

● the Vienna Convention on Diplomatic Relations, which went into force in 1964 and
which the United States ratified in 1972.
○ Article 29 provides: “The person of a diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or detention. The receiving State shall
treat him with due respect and shall take all appropriate steps to prevent any
attack on his person, freedom or dignity.
○ Article 31 then provides, in part, that “[a] diplomatic agent shall enjoy immunity
from [the receiving State’s] criminal[,]  . . .  civil[,] and administrative
jurisdiction, except in the case of  . . .  an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving State
outside his official functions
■ Courts have interpreted the commercial activity exception in this article
narrowly to cover only trade or business engaged in for personal profit,
not business relationships that are incidental to the daily life of a diplomat.
● Official functions is pretty much everything though so the
exception is rarely used
● Sometimes states can waive their ambassador immunity and they
can be prosecuted within the receiving state
● Consular immunity
● Not as broad or robust as ambassador immunity
● Historically they were given high esteem but not legal protection because
they were not serving an official function of the state - they were usually
promoting comical interests from merchant class from different states → this is
where the distinction is coming from

Head of State Immunity

Bottom line - while in office the three have absolute immunity, once they leave office conduct
based immunity subject to distinction between official and non-official actions (public v private)
Who does it apply to?
● Head of state, head of government, minister of foreign affairs
Authority?
● As a matter of international law, the question is governed by customary international law
rather than treaty.
 ● In terms of domestic U.S. law, the question is one of common law and is not specifically
addressed in either the FSIA or in statutes governing diplomatic immunity
When does it apply?
● Acts while in office/official capacity
For What?
● Status-based immunity
● Conduct based immunity (ends after office)
Why?
● Integral for foregin affairs that a head of state have broad discretion to act while in
power. Ideas of sovereignty drive this justification. These offices have power to act for
the state itself

United States v. Noriega

(in this case the US Court of Appeals does not grant Norega head of state immunity from his
charges for drug trafficking - he was never constitutional head of state of Panama, and the
executive showed clear intent not to grant foreign official immunity)
● Noriega first argues that the district court should have dismissed the indictment against
him based on head-of-state immunity. He insists that he was entitled to such immunity
because he served as the de facto, if not the de jure, leader of Panama. The district court
rejected Noriega’s head-of-state immunity claim because the United States government
never recognized Noriega as Panama’s legitimate, constitutional ruler.
● Generally, the Executive Branch’s position on head-of-state immunity falls into one of
three categories: the Executive Branch (1) explicitly suggests immunity; (2) expressly
declines to suggest immunity; or (3) offers no guidance. (Doe)
○ Some courts have held that absent a formal suggestion of immunity, a putative
head of state should receive no immunity
● Where the Executive Branch either expressly grants or denies a request to suggest
immunity, courts must follow that direction, but that courts should make an independent
determination regarding immunity when the Executive Branch neglects to convey clearly
its position on a particular immunity request. (See Spacil v. Crowe)
● Important note:
○ Where does jurisdiction stem from in this case? - protective principle - preventing
drugs from being trafficked into the US - danger to US national security
Other Immunities:
● international organizations and their officials are often entitled to immunities in
accordance with the terms of the constituent instrument that created them.
○ General Convention on the Privileges and Immunities of the UN
■ Reps of UN members and UN officials shall enjoy such privileges and
immunities as are necessary for the independent exercise of their functions
in connection with the UN
■ US: intl organizations immunities act

Act of State Doctrine

 ● The basic idea is that certain acts of a foreign state are presumed to be valid, and U.S.
courts will not sit in judgment on them. Unlike foreign sovereign immunity, the act of
state doctrine is essentially a judicial doctrine
● The U.S. Supreme Court first invoked the doctrine in Underhill v. Hernandez, a case that
arose out of the events of the 1892 Venezuelan revolution. Underhill, an American
citizen, sued a leader of the revolutionary forces, General Hernandez, for, among other
things, preventing him from leaving the country during the revolution. The Supreme
Court refused to review the legality of Underhill’s detention
○ “Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the acts
of the government of another, done within its own territory. Redress of grievances
by reason of such acts must be obtained through the means open to be availed of
by sovereign powers as between themselves”
● This is a municipal law in the US, not driven by principles of intl law - does derive
from comity though
○ This is mostly a judicial doctrine
○ Not from IL, other nations do not follow as rigidly, no intl tribunals require
enforcement of it, it is a matter of policy in the US
Act of State Doctrine Scope
● Kirkpatrick v. Environmental Tectonics Corp.
○ Issue - does the state act doctrine prohibit a US court from adjudicating a case that
would attribute unlawful acts to foreign officials acting in their official capacity?
(NO)
○ Background → Harry Carpenter (defendant), as the chairman and chief
executive officer of W.S. Kirkpatrick & Co., Inc. (Kirkpatrick) (defendant),
bid on a project in Nigeria. Carpenter arranged with a third party to provide
bribes to Nigerian officials in order to secure the contract. The bribes were
accepted, and the contract was awarded to Kirkpatrick. The making and
receipt of such bribes violated Nigerian law. One of the other project bidders,
Environmental Tectonics Corp., International (Environmental Tectonics)
(plaintiff), learned of the bribes and informed the United States government.
○ Held - the act-of-state doctrine does not prevent a court from considering the
motivation behind the award of the Nigerian contract. The act-of-state doctrine is
invoked only when a court is called upon to assess the validity of an act of a
foreign sovereign within the sovereign’s territory. No such act is implicated in
this case because the validity of the Nigerian contract is not at issue.

Private International Law - A Dynamic and Developing Field (Stewart Article)

● Private vs. Public intl law
○ Private - Governs relationships between states
■ Encompasses choice of law rules or conflicts of law
■ How state domestic law applies to transactions between states
 ○ Public - IL deals with the activities of individuals, corporations and other parties
as they cross national borders
■ Treaties are now part of both public and private, can govern the conduct of
private actors
● 3 characteristics that differentiate from treaties/conventions of public intl law
○ Aim to regulate relationships arising from those relationships
○ Provide rules for dispute resolution, often at domestic courts
○ Function to harmonize and unify diverse national law/practice to facilitate
movement of goods, services, people
● Importance of codification
○ Legal certainty in an increasingly globalized world- contribute to economic
progress, prosperity in developing countries

State Responsibility: International Human Rights

State Responsibility for Injuries to Aliens
1) Law of diplomatic protection
● Under traditional int’l law when a state injured an alien, that injury was viewed as an
injury to the state whose national was harmed
○ Claim was made by the injured national’s state - known as “diplomatic
protection”
● Standard for treatment
○ Whether aliens are treated in accordance with “standards of civilization” - a
standard of the “reasonable state”
○ Aliens are not entitled to equal treatment with state’s citizens
● Severity of abuse for delinquency
○ US Mexican Claims Commission: Neers case → “the treatment of an alien, in
order to constitute an international delinquency, should amount to an
outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of
governmental action so far short of international standards that every reasonable
and impartial man would readily recognize its insufficiency”
○ Denial of justice
■ The term “denial of justice” is loosely used to denote any international
delinquency towards an alien for which a state is liable to make
reparation.
■ It will be observed that [for a “denial of justice” to occur], the
misconduct must be extremely gross
● Justification is that the independence of courts is a cornerstone of
government and it would be inappropriate to question it without
serious evidence
● Exhaustion of local remedies
 ○ The alien must exhaust remedies available under local law- the principle is based
on the belief that a state is entitled to have an opportunity of providing justice
itself before intl justice is demanded by another state
■ However exception to not exhaust local remedies where they would be
insufficient or ineffective to redress injury (ex corrupt courts)
● Bond of Nationality
○ Nationality between claimant state and injured person must exist at the date of the
original injury and continue until judgment is awarded
■ (see 3rd restatement below)
● Responsibility of diplomatic protection
○ Under 3DR 711 - a state is responsabile under IL for injury to a national of
another state caused by an official act or omission that violates…
■ A human right that a state is obligated to respect for all persons subject to
its authority;
■ A personal right that under IL, a state is obligated to respect for
individuals for foreign nationality;
■ A right to property or another economic interest, that under IL a state is
obligated to respect for persons, natural or juridical of foreign nationality
● Human rights violations
○ Before contemporary human rights standards, states were held responsible for
injuries to aliens that violated customary int'l law norms
■ Responsibility for such injuries was largely developed by claims practice,
negotiation, and agreement concerning liability and compensation and by
arbitration tribunals and claims commissions pursuant to intl agreement
○ States were held responsible for injury due to various actions that have since been
accepted as violations of human rights in the UDHR and ICCPR
■ (denial of due process in criminal proceedings) Arbitrary arrest, unlawful
detention, prolonged arbitrary imprisonment, excessive bail, delayed or
unfair trial, tried twice for the same offense, failure to render decision, etc.
■ (arbritray use of force by officials) arbitrary or excessive force by state
official, inhuman treatment of arbitrary molestation of persons; torture to
elicit confession
■ (other violations) freedom of speech, freedom of religion, to travel within
country, injury due to denial of benefits enjoyed by national (some were
permitted)
● Other injuries
○ State practice and arbitral decisions have supported state responsibility for several
kinds of injuries to aliens that have not been recognized as violations of human
rights:
■ Failure to protect foreign nationals (state was responsible for injuries
inflicted upon aliens by private individuals only if the state failed, by
intention or neglect, to provide adequate police protection for those aliens)
■ Failure to punish offenses against aliens
 ■ Failure to provide aliens a legal remedy (It is a wrong under international
law for a state to deny a foreign national access to domestic courts. That is
the central meaning of “denial of justice.”)

2) Attribution of Conduct to the State

Overview:
● Starting premise for intl law is the “separation of conduct of the state from that of private
or non state persons”
● Three principles: (Christineson)
○ 1) State acts through people exercising its machinery of power and authority
■ acts/omissions of official organs agents or political subdivisions including
those of successful revolutionary regimes are those of the state
○ 2) intl law does not attribute conduct of non-state actors (acts of private persons,
mobs, associations, corporations etc) to a state
○ 3) int'l law imposes responsibility on state to control the behavior of non state
actors
■ Question is whose conduct/which persons implicated responsibility of the
state
Draft articles
● Draft (ASR) - Articles on Responsibility of State for Internationally Wrongful Acts was a
relation of the UN’s international law commission (ILC) - provides a non binding list of
when acts are attributable to a state
○ Article 8: the conduct of a person or group of persons shall be considered an act
of a state under IL if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of that state in carrying out the
conduct.
○ Key principles: continuity of the state and action
Case law
● Nicaragua case (adopted effective control test)
○ The Court held that the US had provided substantial assistance to the contras in
the form of financing, training, equipping, and organizing them, and that this
assistance violated international law (regarding intervention in another state).
Nevertheless, the Court concluded that the United States was not responsible for
the specific acts committed by the contras in the course of their military
operations, such as their alleged killing, wounding, and kidnapping of Nicaraguan
citizens.
■ “[D]despite the support provided to them by the United States, there is no
clear evidence of the United States having actually exercised such a
degree of control in all fields as to justify treating the contras as acting on
its behalf.”
○ Such acts could be committed by members of the contras without the control of
the United States. For this conduct to give rise to legal responsibility of the
United States, it would in principle have to be proved that that State had
 effective control of the military or paramilitary operations in the course of
which the alleged violations were committed.
● Prosecutor v. Tadić, (adopted overall control test)
○ adopted a less exacting standard for determining when a state exercises enough
control over non state actors to be held responsible for their actions. In that case,
the Appeals Chamber had to decide whether the actions of the defendant, who
was linked to Bosnian Serb forces, had occurred in the context of an international
armed conflict. That question turned on whether the Federal Republic of
Yugoslavia was responsible for the actions of the Bosnian Serb forces.
○ In assessing the issue of state control over the actions of organized groups, the
Chamber concluded that it is sufficient for attribution “that the Group as a
whole be under the overall control of the State.”
■ If the group is under the overall control of the state, the Chamber
reasoned, “it must enforce the responsibility of that State for its activities,
whether or not each of them was specifically imposed, requested or
directed by the State.”
■ [I]t must be proved that the State wields overall control over the
group, not only by equipping and financing the group, but also by
coordinating or helping in the general planning of its military activity
■ However, it is not necessary that, the State should also issue instructions
for the commission of specific acts contrary to international law.  . . . 
Under international law it is not necessary that the controlling authorities
should plan all the operations of the units dependent on them, choose their
targets, or give specific instructions concerning the conduct of military
operations and any alleged violations of international humanitarian law
● ICJ
○ Maintained the effective control test
○ “The “overall control” test is unsuitable, for it stretches too far, almost to breaking
point, the connection which must exist between the conduct of a State’s organs
and its international responsibility.”

3) Nationality of Individuals
3d Restatement - Section 211 Nationality of Individuals
● An individual has the nationality of a state that confers it, but other states need not accept
that nationality when it is not based on a genuine link between the state and the
individual.
● Genuine link
○ The precise contours of this concept, however, are not clear. Laws that confer
nationality on grounds of birth in a state’s territory (ius soli) or of birth to parents
who are nationals (ius sanguinis) are universally accepted as based on genuine
links.
 ○ Voluntary naturalization is generally recognized by other states but may be
questioned where there are no other ties to the state
○ The Nottebohm Case (Liechtenstein v. Guatemala)
■ The ICJ ruled that because there was no genuine link between Nottebohm
and Liechtenstein, Guatemala did not have to recognize his Liechtenstein
nationality and Liechtenstein could not bring proceedings before the
International Court of Justice on his behalf against Guatemala.
■ Nottebohm, originally of German nationality, was a longtime resident of
Guatemala. He had taken a brief trip to Liechtenstein during which he
complied with its requirements for naturalization and then returned to
Guatemala. Although Liechtenstein’s naturalization law required a
showing of loss of prior nationality, and German law provided for loss of
German nationality upon acquisition of another nationality, Guatemala, at
war with Germany, treated Nottebohm as an alien enemy. Liechtenstein
objected and brought a proceeding before the International Court of
Justice. (lichtenstein was not prevented from claiming nationality, the only
thing we know is that guatemalan did not have to accept it)
● “Dominant and Effective”
○ Jurisprudence of the Iran-United States Claims Tribunal 54 (1996)
■ Iran: claimed that tribunal did not have jurisdiction over claims by dual
nationals
■ Tribunal: adopted the dominant and effective test claiming jurisdiction
over claims by people whose dominant and effective nationality was
American
● Factors include: habitual residence, center of interests, family ties,
participation public life and other evidence of attachment
Nationality of Corporations - 3DR 213
● A corporation has the nationality of the state under the laws of which the corporation is
organized. (state can reject nationality if no genuine link)
Comment
● Relevance of corporate nationality under intl law
○ State is responsible for injury to an alien corporation and state of corp’s
nationality may make claim for injury
○ State may exercise jurisdiction to prescribe laws for acts of its corporate nationals
committed outside of its territory
○ Corp nationality is relevant when states claim treaty rights for their nationals
● Significant connections other than nationality
○ connections other than nationality may be significant
○ In some circumstances, other states may treat as analogous to nationality the fact
(i) that the shares of a corporation are substantially owned by nationals of that
state; (ii) that the corporation is managed from an office within the state, or (iii)
that the corporation has a principal place of business in that state.
 ■ For example, in time of war, a state may treat a corporation having such
ties to the enemy state as an enemy national even though it was
incorporated in a non-belligerent state
● Barcelona Traction Case (Belgium v. Spain), the ICJ held that Belgium could not bring
proceedings against Spain for injury to a corporation incorporated and having its
headquarters in Canada, although most of the company’s shares were owned by Belgian
nationals, at least where Canada had in the past extended diplomatic protection to the
corporation and retained the legal capacity to do so
○ Barcelona Traction  . . .  gave preference to the state of incorporation over a state
with other significant links, in representing a company against a third state. The
decision does not preclude representation of the company by a state with
significant links against the state of incorporation itself. A state cannot, by
requiring a foreign enterprise to incorporate locally, compel the enterprise to
surrender in advance its right to protection by the state of its parent corporation or
of the parent’s shareholders.

International Human Rights

Historical Background
● Treatment of state’s own citizens historically was not a concern for IL
● Treatment of foreign nationals was important for evolution of customary rules and
standards for nationals treatment
○ Considerations for protections were politically based, not based on notions of
human rights standards
● Some movements towards human rights standards are as follows…
○ Russian riots against Jews
○ Armenian genocide
○ Movement for abolition of slavery
○ Formation of ILO
■ Could be seen as Cold War tool from socialism
Beginning of Human Rights
● UN Charter
○ Set out purposes of the UN
○ lists human rights protections in Arts 1, 55, 56
○ HR is principle purpose of UN Charter, linked to foals of promoting international
peace and security
○ Art 1: “... promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, langauge, or
religion”
○ Art 55: “respect for the principle of equal rights and self-determination of
peoples” and further the UN shall promote “higher standards of living, full
employment, and conditions of economic and social progress,” “solutions of
international economic, social, health and related problems, and universal respect
for and observance of human rights and fundamental freedoms.”
 ○ Art 56: All members of the UN “pledge themselves to take joint and separate
action in cooperation with the Organization for the achievement of the purposes
set forth in Article 55.”
● Universal Declaration of Human Rights (UDHR)
○ The Declaration thus is now considered to be an authoritative interpretation of the
U.N. Charter, spelling out in considerable detail the meaning of the phrase
“human rights and fundamental freedoms,” which Member States agreed in the
Charter to promote and observe.
○ Some state emphasize that is it not a binding treaty but it does serve a gap-filling
function from the UN Charter
■ Most of the principles have been codified in other treaties
○ “Western” values discussion
■ Professor Makau Mutua
● The foundational document of the human rights movement —
sought to give universal legitimacy to a doctrine that is
fundamentally Eurocentric in its construction. The Universal
Declaration underscored its arrogance by proclaiming itself the
“common standard of achievement for all peoples and nations.”
● The fact that half a century later human rights have become a
central norm of global civilization does not vindicate their
universality. (I disagree with this claim). It is rather a telling
testament to the conceptual, cultural, economic, military, and
philosophical domination of the European West over non-
European peoples and traditions
● The basic human rights texts drew heavily from the American Bill
of Rights and the French Declaration of the Rights of Man. There
is virtually no evidence to suggest that they drew inspiration from
Asian, Islamic, Buddhist, Hindu, African, or any other non-
European traditions
■ Mary Ann Geldnon (reflects western and nonwestern ideas)
● The Declaration was far more influenced by the modern
dignitarian rights tradition of continental Europe and Latin
America than by the more individualistic documents of Anglo-
American lineage
● Dignitarian rights instruments, with their emphasis on the family
and their greater attention to duties, are more compatible with
Asian and African traditions [than Anglo-American conceptions of
rights].
● The Declaration begins with an exhortation to act in a “spirit of
brotherhood” and ends with community, order, and society.
■ Professor Jack Donnelly (although few civilizations recognized
inalienable human rights prior to 17th century it does not undermine the
legitimacy of the contempt application of intl human rights norms)
 ● Whatever their past practice, nothing in indigenous African, Asian,
or American cultures prevents them from endorsing human rights
now.
● The moral equality of all human beings is strongly endorsed by
most leading comprehensive doctrines in all regions of the world.
● [T]he Universal Declaration presents a reasonable first
approximation of the list they would come up with, largely
irrespective of culture, after considerable reflection.
Human Rights Treaties
● ICCPR
○ includes a wide array of civil and political rights, including a right of self-
determination; protection against discrimination; a right to life; prohibitions on
torture and slavery; procedural rights concerning arrest, trial, and detention; a
right of privacy; and rights of association and assembly.
○ A Human Rights Committee was established to monitor state compliance with the
treaty.
○ Parties to the ICCPR are obligated to submit periodic reports to the Committee
describing the measures they have taken to give effect to the rights recognized in
the treaties
■ The Committee studies these reports and is authorized to issue “such
general comments as it may consider appropriate.” The Committee
typically issues “concluding observations” about the country reports,
including suggestions of ways in which the country can improve its human
rights practices.
○ Under Article 41 of the ICCPR → allows parties to declare recognition of
ICCPR broader role - can submit reports on non compliance, states can
encourage compliance in other ways too
● ICESCR
○ broad list of rights, including rights to work, to join trade unions, to obtain social
security, to have an adequate standard of living, and to education
○ is phrased in less categorical, more gradual terms than the ICCPR. It provides, for
example, that each party “undertakes to take steps  . . .  to the maximum of its
available resources, with a view to achieving progressively the full realization of
the rights recognized in the present Covenant by all appropriate means.
○ A monitoring committee also was established (in the late 1980s) to administer the
ICESCR. This Committee on Economic, Social and Cultural Rights has issued a
number of general comments, as well as reports, known as “concluding
observations,” about the practices of specific countries.

Customary International Human Rights Law

In addition to human rights treaties, states are obligated to comply with CIL with respect to
protection of human rights
● 3DR Section 702 - Customary intl law of Human Rights
 ○ A state violated intl law as a matter of state policy, it practices, encourages, or
condones…
■ Genocide
■ Slavery or slave trade
■ Murder or causing the disappearance of individuals (extrajudical killings)
■ Torture or CIDT
■ Prolonged arbitrary detention
■ Systematic racial discmrination
■ Consistent pattern of gross violations of internationally recognized human
rights
○ Only includes those that are generally accepted as of 1987 but the list is not
necessarily complete nor closed.
● Argument in favor of focus on opinio juris (Prof. Tomuschat)
○ Some human rights violations are not easily observed, harder to analyze state
practice
○ We should look to official acts and statements that reference human rights
language
○ Deductive reasoning approach → if human life and physical integrity are not
protected the entire legal order would collapse or break down
○ Basic human rights are fundamental to human dignity and the legal order
○ Natural law justification - inherent in nature of the legal system, cannot have a
functioning legal system without protecting basic rights
■ Compliance and state practice should matter less and are harder to assess
when it is so varied and scattered (more of a normative approach)
● Argument in favor of focus on state practice (Profs Simma and Alston)
○ CIL is more attractive than treaty law for human rights
■ Problem with treaties → treaties are subject to interpretation in
domestic courts, you can have treaty reservations and some domestic
institutions are incapable of fully realizing the treaty principles
○ However - much of what commentators characterize as custom does not
resemble customary intl law → does updating custom do violence to the actual
concept.
■ In contrast to traditional state practice emphasis, modern CIL is a product
grown in diplomacy and sold as CIL before actually having stood the test
of time
○ New approach is deductive - rules or principles proclaimed by the GA and the
surrounding ritual are taken as starting point for the possible development of CIL
and if state practice reflects the principles it can lock onto these proclamations but
it is still not complete CIL
○ Professors Simma and Alston do argue in favor of the recognition of human rights
under international law, but they believe they are better characterized as general
principles of international law than as customary international law
Enforcement of Human Rights
● Issue with enforcement is that it does not involve a reciprocal exchange of concessions
and benefits between states.
○ Beneficiaries of state’s promise to fulfill HR are the states own population (less
incentive to respect)
○ States do not have an immediate interest in responding to another state’s violation
of its HR obligations
● Who are states responsible to
○ IL characterizes human rights obligations as owed to the intl community as a
whole (erga omnes)
● ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts
○ Art 42: A state is entitled as an injured state to invoke the responsibility of
another state if the obligation breached is owed to:
■ A) that state individually or;
■ B) a group of States including that state or the intl community as a whole
and the breach of the obligation
● Specifically affects that state or;
● Is of such a character as radically to change the position of all the
other states to which the obligation is owed with respect to further
performance of the obligation
■ Comment: An injured state may file a claim, through diplomatic channels
or before an international dispute resolution mechanism w/ jurisdiction
over the dispute, to demand cessation of the wrongful act and reparation.
● Forms of reparation: Restitution, compensation, satisfaction
○ Art 49: Countermeasures → An injured State may only take countermeasures
against a State which is responsible for an internationally wrongful act in
order to induce that State to comply with its obligations.
■ Must be proportionate to wrongful act
○ Article 50: Counter measures shall not affect:
■ Obligation to refrain from the threat or use of force embodied in the
Charter of the UN
■ Obligations to protect fundamental human rights
■ Obligations of a humanitarian character prohibiting reprisal
■ Other obligations under peremptory norms of general intl law

The United States and International Human Rights Law

US has played a key role in developing IHRL but it has had an uneasy relationship with HR
treaties and institutions
● Ratification of HR treaties
○ Intense debate in the 1950s about whether and to what extent the US should
participate in intl human rights treaties
○ Concerns that:
 ■ UN Charter’s human rights provisions would give Congress the power to
enact civil rights legislation beyond its constitutional powers
■ UN Charter would preempt state laws via the Supremacy Clause
■ Vagueness of definitions may be inconsistent with US sovereignty or
Constitution
○ Bricker amendment
■ Aimed to preclude treaties from being self-executing and to make clear
that treaties would not override power reserved to the state
○ Modern day
■ US consensus has been desirability of ratifying HR treaties, but need to
attach RUDs
■ Foreign policy justifications
● Allows US to participate in treaty-related institutions that shape
IHRL
● Avoids diplomatic difficulty for advocating for HR norms abroad
while refusing to recognize them domestically
● Reservations, Declarations, and Understandings
○ Substantive reservations: (rare) - US declines to consent to entire treaty provision
○ Interpretative conditions - Some RUDs set forth the United States’s interpretation
of vague treaty terms, thereby clarifying the scope of United States consent.
■ For example, Articles 2(1) and 26 of the ICCPR prohibit discrimination
not only on the basis of “race, colour, sex, language, religion, political or
other opinion, national or social origin, property, [and] birth,” but also on
the basis of any “other status.” The United States attached an
understanding stating that this open-ended prohibition on discrimination
did not preclude legal distinctions between persons “when such
distinctions are, at minimum, rationally related to a legitimate
governmental objective.”
○ Non-self executing declarations - Treaty makers include declarations stating that
the substantive provisions of the treaties are not self-executing.
■ (ex) U.S. domestic laws and remedies are sufficient to meet U.S.
obligations under human rights treaties. there is thus no additional need, in
their view, for domestic implementation.
○ Federalism understandings - treaty will be implemented by the fed govt to the
extent that it exercises jurisdiction, and otherwise by the state and local
governments
○ ICJ reservations - U.S. RUDs, typically decline to consent to “ICJ Clauses” in the
human rights treaties, pursuant to which claims under the treaties could be
brought against the United States in the ICJ. The US attached a reservation to its
ratification of the Genocide Convention
 Law of the Sea
Historical Background
● Robust treaty regime starting in 20th century - prior to 20th century robust CIL that was
almost universally complied with
● Until 20th century almost all LOS consisted of CIL that was premised on freedom of the
sea
● Early 20th century saw a growing movement to codify LOS - why?
○ Depletion of fishery stock
○ Greater technological exploitation of oceans
○ Exploitation of offshore mineral wealth and oil
● UN Conference on law of sea (UNCLOS) I - produced 4 treaties
○ Convention on the Territorial Sea and Contiguous Zone
○ Convention on the Continental Shelf
○ Convention on the High Seas
○ Convention on Fishing and Conservation of Living Resources of the High Sea
● UNCLOS III
○ UN resolution established important principle that the deep seabed and its
resources were the “common heritage of all mankind”
○ Wanted to avoid exploitation of deep seabed and develop it for all mankind
● LOS Convention (1994)
○ As of 2017 - 168 parties to the agreement
○ US not a party, never actually ratified but closely follows
■ Selectively embraced many of the provisions and incorporated them into
US law
○ Much of what is in LOS convention is CIL (can be argued)

Nationality of Vessels
Customary intl law
● Lauritzen v. Laren (effort by the US to interest the Jones Act)
○ Background - Danish sailor injured on Danish ship in Cuba sued in US court b/c
vessel owner had significant contacts in NY - SCOTUS ruled no jx
■ SCOTUS relies on traditional principles of public intl law and maritime
law
■ What is interesting about this case is that is shows that SCOTUS
sometimes will look to intl law principles in context that we did not expect
in order to reconcile municipal law with the role our legal system play in a
multinational world
○ Law of the flag - A principle of maritime and intl law: that the sailors and vessel
will be subject to the laws of the state corresponding to the flag flown by the
vessel (the flag is the nationality of the ship, where it is registered)
● The problem is determining the nationality - what do we look to
to decide what the nationality of the ship is → adopted this rule
that it's an administrative assignment, ships owners sign up with
one.
● Flags of convenience
○ Ship that bears the flag of countries other than the beneficial owners
 ■ Most common FOC countries are referred to having “open” registries b/c
registry requirements are so minimal
■ Want to escape costs and regulations
○ Genuine link
■ LOS Convention → Article 91: Every State shall fix the conditions for
the grant of its nationality to ships, for the registration of ships in its
territory, and for the right to fly its flag. Ships have the nationality of the
State whose flag they are entitled to fly. There must exist a genuine link
between the State and the ship (Convention does not define genuine link,
convention on conditions for registration of ship attempt to offer clarity
for genuine link )
■ Only remedy →Article 94 A State which has clear grounds to believe
that proper jurisdiction and control with respect to a ship have not
been exercised may report the facts to the flag State. Upon receiving
such a report, the flag State shall investigate the matter and, if
appropriate, take any action necessary to remedy the situation
● In practice a genuine link is not necessary

Internal and Territorial Waters

Overview:
● Internal waters
○ Include not only lakes and rivers but also parts of sea including certain bays and
the belt of the sea adjacent to a state’s coast that is within its baselines
○ Considered part of the territory of the state and generally recognizes that states
can exercise same sovereignty over these waters as land area
● Territorial sea
○ From baselines outwards to 12 nautical miles
○ Coastal state exercises sovereignty over these waters but foreign ships have the
right of innocent passage
● Contiguous and EEZ
○ Measures from baseline
● Baselines
○ General provision in LOS (articles 5-14)
○ Art 5: the normal baseline for measuring the breadth of the territorial sea is the
low water line along the coast as marked on large scale charts officially
recognized by the coastal state
○ Fisheries case (UK v. Norway) - example of baseline standards and CIL as it
existed before the LOS
■ How does the court resolve the case? → Says nation can set its own baseline
subject to applicable rules of intl law
■ What does court say about straight lines → Norway can use straight line
method
■ What does court say about baselines → Must follow general direction of the
coast, does not have unfettered latitude
● Coastal state must observe a link to the land in which sovereignty
● Islands
○ LOS Art 121 - Regime of Islands
 ○ An island is a naturally formed area of land, surrounded by water, which is above
water at high tide
○ Expect as provided for in para 3, the territorial sea, contiguous zone, EEZ, and
continental shelf of an island are determined in accordance with the provisions of
this Convention applicable to other land territory
● Archipelagic States
○ This was convention made, there was no law previously about it
○ Such as Indonesia and Philippines, LOS created a special regime for measuring
baselines for AS
● Foreign Vessels in Internal Waters
○ Under LOS Art 2- states may exercise same sovereignty over internal waters as it
exercises over land within its borders
○ Foreign vessels may only enter inland waters with state’s consent
■ Consent freely given and assumed barring express prohibition for most
ships
■ A state can require notification for foreign warships
○ French Modification
■ Host states based on comity and reciprocity decline to exercise their
jurisdiction over foreing vessels unless activities threaten the “peace of the
port” or “public peace”
● This was adopted by the US in the Wildenhus’s case
● Breadth of territorial sea
○ LOS provided that territorial sea shall have a breadth of not more than 12 nautical
miles from the baseline
● Rules for passage in territorial sea
○ Right of innocent passage → Article 19 defines “innocent passage” as passage
that “is not prejudicial to the peace, good order, or security of the coastal
state.” That Article goes on to list a number of activities that are not
considered innocent, ranging from “any exercise or practice with weapons of
any kind” to “any fishing activities.”
○ Corfu Channel (UK v. Albania)
■ In the Corfu Channel (United Kingdom v. Albania), the International
Court of Justice carefully addressed, among other issues, the question of
what passage is “innocent.”
● Key takeaway → decisive test the “manner” of passage is relevant
● The ICJ defined the right of innocent passage by considering the
“manner” of passage as a decisive test. Looking at the facts, the
Court held that the actual British passage in October was “carried
out in a manner consistent with the requirements of international
law” and did not present a threat to the coastal state. The U.K. was
entitled to compensation for the damaged warships.
● War ships can engage in innocent passage as long as they do not do
prohibited things
○ The LOS Convention 1982
■ Article 17 provides that: “Subject to this Convention, ships of all states
 . . .  enjoy the right of innocent passage through the territorial sea.”
■ Article 18 defines passage as “navigation through the territorial sea” for
the purpose of traversing that sea without entering internal waters or at a
 port outside internal waters, or proceeding to or from a port in internal
waters.
■ Article 19 then defines “innocent passage” as passage that “is not
prejudicial to the peace, good order, or security of the coastal state.”
● EX: activities that are not considered innocent, ranging from “any
exercise or practice with weapons of any kind” to “any fishing
activities.”
○ Passage through intl straits and sea lanes
■ Transit passage - applies to straits which are use for intl navigation
between one part of the high seas or EEZ
■ No criteria for “innocence” but ships and aircraft are bound to refrain from
the threat or use of force against states bordering the straits
■ Submarines → transiting straits while submerged is recognized in the
requirement that passing vessels engage only in activities incident to
their normal mode of continuous and expeditious transit
● Contiguous Zones and Hot Pursuit
○ Contiguous zone → zone adjacent to the territorial sea where the coastal state is
allowed to enforce certain laws, such as customs and immigration
○ LOS art 33 → Contiguous zone may not extend more than 24 nautical miles
from the baselines.
○ States may exercise the control necessary to:
■ Prevent infringement of its customs, fiscal, immigration or sanitary laws
and regulations within its territory/territorial sea;
■ Punish infringement of the above laws and regulations committed within
its territory or territorial sea
○ Hot pursuit: allows a coastal state to pursue into the high seas a foreign ship that
the coastal state has reason to believe has violated its laws within the internal
waters, territorial sea, or contiguous zone.
● Exclusive Economic Zone and Continental Shelf
○ EEZ → an area beyond and adjacent to the territorial sea, with a breadth of up
to 200 miles from the baseline, in which the coastal state may exercise certain
sovereign rights over living and nonliving resources. (can be up to 188
nautical miles wide)
○ Truman proclamations → first positive law on the subject - first unilateral claims
by a major maritime power
■ Regard natural resources of the subsoil and sea bed beneath the high seas
but contiguous to the coasts of the US under its jurisdiction and control
■ Maintains freedom of navigation above continental shelf
■ Creates conservation zones for fishing regulations by US
■ Concedes ability of other states to establish conservation zones providing
respect for US fishing rights
● Suggests some level of opinio juris
■ Further codified by 43 USC § 1332
○ Convention on the Continental Shelf: Recognizes “sovereign rights” of coastal
states over the natural resources of the continental shelf
● Disputed Island Claims under the LOS Convention
○ Senkaku/Diaoyu Islands and Okinotori
■ Taiwan, Japan, China all make territorial claim on the islands
 ○ Spratly Islands
■ Claimed in whole or in part by China, Taiwan, Philippines, Brunei,
Malaysia and Vietnam
■ South China Sea Arbitration
● Permanent court of arbitration (PCA) - the Tribunal addressed
whether the Law of the Sea Convention provided the sole basis for
determining the scope of maritime rights, or whether China could
base its maritime entitlements on “historic rights” in the waters
enclosed by the “nine-dash line.” The Tribunal also addressed
whether China’s claim to these waters was consistent with the
provisions of the LOS Convention regarding the determination of
maritime zones; this question turned largely on whether certain
objects in the South China Sea claimed by China to be part of its
territory constituted islands that could give rise to maritime zone
claims
○ Ruled against these claim
● US Policy on the EEZ and Continental Shelf
○ Regan US Ocean Policy (1983)
■ The US will act in accordance with the balance of interests relating to
traditional uses of the ocean - such as navigation and overflight. US will
recognize the rights of other states in the waters off their coasts, so long as
the rights of the US are recognized
■ US will exercise and asserts its navigation and overflight rights and
freedoms but will not acquiesce in unilateral acts of other states designed
to restrict the rights of navigation and overflight
■ US declares EEZ within 200 nm of its coast
● Opposite and Adjacent states
○ What happens when the outer boundary overlaps with another state or drawing the
outer boundary of the continental shelf is unclear?
■ North Sea continental shelf cases (Germany v. Denmark; Germany v.
Netherlands) → it must be the object of agreement between the states
concerned and that such agreement must be arrived at in accordance
with equitable principles
● Parties are under obligation to enter into negotiations with a view to
arriving at an agreement and not merely to go through formal
process
● Factors: General configuration of coasts, special or unusual features,
physical/geological structure and natural resources of the
continental shelf areas involved; a reasonable degree of
proportionality, taking into account effects, actual or prospective of
any other continental shelf delimitations in the same region
○ Judgments of the ICS and awards of ad hoc arbitration tribunals carry special
weight in intl maritime boundary law b/c:
■ Existence of unique line of jurisprudence
■ Absence of clearer guidance from codification efforts, opinio juris, or state
practice
● State practice varies significantly
● Regime of the High Seas
 ○ High Seas → all parts of the sea that are not included in the EEZ, territorial sea,
or in the internal waters of a state
○ Freedom of the high seas
■ High seas are open and free to all states whether coastal or land-locked
■ Freedoms include: navigation, overflight, fishing, submarines cables and
pipelines, construct artificial islands, installations, structures, scientific
research
○ Freedom must be exercised by all states with reasonable regard to the interests of
other states in their exercise of the freedom of the high seas
● Enforcement jurisdiction
○ Under LOS vessels on the high seas are subject to the exclusive jurisdiction of
their flag state and ordinarily may not be boarded by anyone from foreing ship.
An exception exists if boarded ship is without nationality
○ Warships enjoy complete immunity on the high seas from interference by other
states
○ Ships are not subject to interference on the high seas unless there is reason to
suspsect that the ship is enaged in - piracy, slave trade, unauthrized braodcasting,
is without nationality

Use of Force

Jus ad bellum → the laws governing when it is legal to use force governed by the UN
Charter
Jus in bello → International humanitarian law - the laws governing the conduct of armed
conflict

Historically
● The battlefield was recognized as a legitimate mechanisms of resolving issues if intl law
○ Was used as a way to resolve legal disputes, states could undertake warfare to
resolve issues
○ Force was an appropriate tool for an ordered society
● There were efforts to identify legal rules that would be relevant to questions about the use
of force, there were terms that were used but not viewed as only permissible justification
for use of force - reprisal, self-defense, conquest
● Caroline incident
○ Concepts of necessity and proportionality are developed
○ Daniel Webster quote “an act of self defense (anticipatory) instant,
overwhelming, no choice of means, no moment for deliberation”
■ Using it in a moral context but had legal aspects - some legal significance
of this standard

Developments from WWI to WWII

● League of nations
○ Initial attempt to create an institution to stop the recurrence of the horrors of WWI
 ○ The League system did not, it should be noted, prohibit war or the use of force,
but it did set up a procedure designed to restrict it to tolerable levels.
○ The depression helped to bring to power expansionist, authoritative regimes in
Germany, Italy, and Japan. These regimes challenged the peace-keeping
capabilities of the League, and the League proved unequal to the challenge.
● Kellogg-Briand Pact
○ The Kellogg-Briand Pact, one of the most publicized international initiatives of
the inter-War period, generated considerable hope about the prospects of
maintaining international peace.
○ Article 1: The High Contracting Parties solemnly declare in the names of their
respective peoples that they condemn recourse to war for the solution of
international controversies, and renounce it as an instrument of national policy in
their relations with one another.
○ Article 2: The High Contracting Parties agree that the settlement or solution of all
disputes or conflicts of whatever nature or of whatever origin they may be, which
may arise among them, shall never be sought except by pacific means
■ Does not include an enforcement mechanism - how effective can it be
without one
Use of force after WWII
Two of the most important developments for limiting the use of force that emerged from the
cataclysm of World War II were (1) the Nuremberg trials of Nazi leaders as war criminals; and
(2) the adoption of the United Nations Charter.
● Nuremberg Trials
○ International military tribunals established
○ The charter and trials of Nazis charged was war criminal and established
important precedents for limiting the use of force and for the responsibility of
individuals
○ Prosecuted crimes related to the conduct of war/mistreatment of noncombatants,
also criminalized the waging of an aggressive war
■ Byron: This is a striking development. Instance of international lawmaking
that says war of aggression was a violation of IL. CIL does not usually
apply retroactively but here it does
● UN Charter Use of Force Regime
○ Article 2(4) use of force - 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, or in any other manner inconsistent with the Purposes
of the United Nations
■ Threat or use of force - captures situations beyond war, include armed
attacks
■ Against 1) territorial integrity, 2) political independence or 3) any other
manner inconsistent with purposes of the UN
■ Charter refers armed conflicts as “acts of aggression: (Art 1) -
consequences have to be of sufficient gravity
○ Article 51 - Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member
of the United Nations, until the Security Council has taken the measures
necessary to maintain international peace and security.
■ Inherent - not just granted by the UN but inherent in the legal order and
sovereignty
○ Article 42 - provides in part that the Security Council “may take such action by
 air, sea, or land forces as may be necessary to maintain or restore international
peace and security.”
■ UNSC can authorize the use of force

Prohibition on the use of force

● Article 2(4) is a categorical, comprehensive ban in the use of force
● Exceptions
○ Article 51 (self-defense)
○ UNSC resolution
○ (consent)
● Article 51
○ Unilateral right - state does not require approval to exercise this right
○ Collectivity - allows state to join others to collectively repel an armed attack of
another state, but attacked state must request the aid
○ Armed attack - limited to situations in which an armed attack has actually
occurred, contrast with frontier incident
■ According to the International Court of Justice (ICJ) in the Nicaragua
case, not all measures that “involve a use of force” are sufficiently “grave”
to qualify as an armed attack.
● ICJ emphasizes scale and objective measure
● There needs to be something significant
○ Can non-state actors commit an “armed attack”
■ Yes - Text of art 51 refers to “an attack against a member of the UN” not
limited to armed attacks launched by other states
● Principles of self-defense articulated by the Caroline resulted from
use of force by non-state actors
● UNSC recognized right if self desnes under art 51 against non-state
actors after 9/11 - aquiesnece by other states to AUMF agaisnt
terrorism
■ No - ICJ advisory opinion re: Israel/Palestine interpreted Art 51 as
between states, reiterated in DrC v. Uganda
● Threaten the sovereignty of a state when you attack in self-defense
so inherently a state issue
Dealing with terrorists
Issue is the absence of an agreed-upon definition of terrorism. “One person’s terrorist is another
person’s freedom fighter.”
● Effective control standard is relevant here - discern state responsibility question
○ Very difficult to discern though and often cannot be done
● Taliban seemed to be allowing Al-aqueda to be there but was not in effective control so
how do we reconcile with article 51
○ Harboring is a justification for use of force (Taliban violated this) → why
would it not justify US response - still need some sort of control over the
terrorist org → doesnt work here
○ State responsibility - doesn't work here
○ Unwilling and unable test → If the territorial state is unwilling or unable to
take those steps, however, it is lawful for the victim state to use that level of
force that is necessary (and proportional) to suppress the threat that the
nonstate group poses.
 ● Allen Weiner - Uses of force by terrorist actors may not necessarily constitute “armed
attacks” that justify the use of self-defense under Article 51.
○ According to the International Court of Justice (ICJ) in the Nicaragua case, not all
measures that “involve a use of force” are sufficiently “grave” to qualify as an
armed attack.
■ KEY factor → whether the action because of its scale and effects would
be classified as an armed attack rather than a mere frontier incident if it
had been carried out by regular armed forces
○ Role of state responsibility - In some cases, the difficulty of using force against a
state that has not itself launched an armed attack may be surmounted if the acts of
terrorists are attributable to the state itself. The conduct of a nonstate actor “shall
be considered an act of a State under international law” if the actor “is in fact
acting on the instructions of, or under the direction or control of, that State.”
■ Effective control test here
○ Harboring terrorists - Even where terrorist acts are not attributable to a state, the
use of force against terrorist actors in other states could be defended on alternative
legal theories, particularly where the state is harboring or supporting the terrorists.
● Ashley Deeks - unwilling and unable test
○ When a victim state suffers an armed attack from a non-state groups operating
outside its territory and concludes that it is necessary to use force in self-defense
to respond to a continuing threat. The question is whether the state in which the
group is operating will agree to address the threat or if the state is unable or
unwilling
○ If the territorial state is willing and able, the victim state may not use force in the
territorial state, and the territorial state is expected to take the appropriate steps
against the nonstate group. If the territorial state is unwilling or unable to take
those steps, however, it is lawful for the victim state to use that level of force that
is necessary (and proportional) to suppress the threat that the nonstate group
poses.
● Aiding and abetting
○ Modern practice points towards a special standard of imputability in relations
between terrorist groups and host states, arguably more closely resembling int’l
rules against aiding and abetting illegal conduct

Humanitarian Intervention
● Under UN Charter article 2(4) and 51 - expressly prohibited
● However state practice may reflect a range of interpretations of article 2(4)
○ Slippery slope however - Putin justified invasion of Crimea and Ukraine on
humanitarian intervention
● Jane Stromseth - Rethinking Humanitarian Intervention
○ Four distinct attitudes or approaches to humanitarian intervention in the absence
of Security Council authorization can be identified.
○ First is the status quo approach. This view categorically affirms that military
intervention in response to atrocities is lawful only if authorized by the UN
Security Council or if it qualifies as an exercise of the right of self-defense.
Proponents of this view regard NATO’s intervention in Kosovo as a clear
violation of Article 2(4) that should not be repeated in the future.
○ Second - excusable breach → humanitarian intervention without a UN
mandate is technically illegal under the rules of the UN Charter but may be
 morally and politically justified in certain exceptional cases. In short, it is a
violation of the Charter for which states are unlikely to be condemned or
punished
○ Third - customary law evolution of a legal justification for humanitarian
intervention in rare cases → This approach looks to both Security Council
and broader international responses to instances of non-authorized
humanitarian intervention to ascertain patterns, consistency of rationales, and
degrees of acceptance, reflected in practice, if certain conditions are met. This
approach asks whether an emerging norm of customary international law can
be identified under which humanitarian intervention should be understood
not simply as ethically and politically justified but also as legal under the
normative framework governing the use of force.
○ Fourth - right of humanitarian intervention - Advocates of this fourth approach
favor codification of a clear legal doctrine or “right” of humanitarian intervention.
Proponents argue that such a “right” or “doctrine” should be established through
some formal or codified means such as a UN Charter amendment or a UN
General Assembly declaration. The idea is that humanitarian intervention should
be a distinct legal basis for using force on a par with the right of self-defense, with
fixed criteria or principles spelled out in advance governing legitimate appeal to
the right.

International Humanitarian Law (Regulation of the Conduct of War) (Jus in bello)

● Development of IHL
○ International Committee on the Red Cross supervises compliance with Geneva
conventions
○ Geneva conventions represent major codifications of CIL,
○ Distinguish between IAC and NIAC (non-international armed conflict)
■ GC I & II: Protection of wounded and sick soldiers
■ GC III: Status and treatment of POWs
■ GC IV: Treatment of civilians
○ Soldiers in wartime have what is known as the “combatant’s privilege,” which
means they may lawfully kill enemy soldiers and destroy enemy military
property. In addition, states may detain enemy soldiers without trial simply by
virtue of their membership in the opposing force.
● Scope of Application
○ Common article 2L GCs apply to all cases of declared war or of any other armed
conflict which may arise between two or more contracting pirates even if the state
of war is not recognized between them
■ Level of hostilities is not clearly defined but must involve some level of
armed forces and use of force
■ Does not include hostilities between state and non-state actors
● NIAC and Common Article 3
○ CA 3: For NIACs each party is bound to adhere to the following
■ For persons taking not part in active hostilities, including members of
armed forces who have laid down arms shall be treated humanely
■ Following acts are prohibited
■ Violence to life and person, CIDT, torture
■ Taking of hostages
 ■ Outrages upon human dignity
■ Sentencing and execution without trial
○ CA 3 represents CIL that provides a min yardstick of protections and treatment
for both IACs and NIACs
○ Hamdan v. Rumsfeld: CA3 applies to US v. Al-Qaeda
■ Although the official commentaries accompanying Common Article 3
indicate that an important purpose of the provision was to furnish minimal
protection to rebels involved in one kind of “conflict not of an
international character,” i.e., a civil war, the commentaries also make clear
“that the scope of the Article must be as wide as possible.”

Wars of national liberation

● Additional Protocol I of GC - also extends its coverage to “armed conflicts in which
peoples are fighting against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination.”
● Article 44(3) of Protocol I provides:
○ In order to promote the protection of the civilian population from the effects of
hostilities, combatants are obliged to distinguish themselves from the civilian
population while they are engaged in an attack or in a military operation
preparatory to an attack. Recognizing, however, that there are situations in armed
conflicts where, owing to the nature of the hostilities an armed combatant cannot
so distinguish himself, he shall retain his status as a combatant, provided that, in
such situations, he carries his arms openly - during military engagement and
during such time as he is visible to the adversary while he is engaged in military
deployment preceding the launching of an attack in which he is to participate

Substantive IHL Rules/Principles

● Humane Treatment
○ protected persons must be respected and protected in all circumstances and must
be treated humanely, without any distinction founded on sex, race, nationality,
religion, political opinions, or any other similar criteria
● Permissible methods/means of war
○ Article 35: Basic rules
■ Right of warfare methods is not unlimited
■ Cannot employ weapons that cause unnecessary suffering or superfluous
injury
■ Prohibited to employ methods or means of warfare which are intended or
can be expected to cause widespread, long-term damage to the natural
environment
● Distinction and proportionality
○ Distinction → must distinguish between civilian and combatants
■ Should only target military objectives
■ Military objectives: those objects which by their nature, location, purpose,
etc make an effective contribution to military action and whose destruction
offers a military advantage
○ Proportionality → prohibited to launch an attack where civilian loss is excessive
compared to gained military advantage
○ Precaution → take all feasible precautions to spare civilians lives and objects
● Responsibilities of occupying powers
 ○ Article 43 of the Regulations emphasizes the duty of the occupying power to
“take all the measures in [its] power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country.” The lives and property of persons in occupied territory must
be respected.

Problems with application: LOAC and Terrorists

● Combatants fall into two categories: members of the armed forces of a party to a conflict
and others who take a direct part in hostilities.
○ Combatants have privilege to take direct part in hostilities
● What about common Article 3 non-international conflicts? The traditional view is that,
just as there are no POWs in non-international armed conflicts, there are no
“combatants,” lawful or otherwise, in common Article 3 conflicts.
● As for civilians, under the law of armed conflict, they may not be made the object of
military attacks] “unless and for such time as they take direct part in hostilities.”
○ Direct participation in hostilities is a concept that applies only to civilians. The
hostilities may be either international or non-international.
○ The term “continuous combat function” arose in 2008 from the ICRC
■ a civilian’s unorganized or occasional hostile act does not constitute
membership in an organized armed group or represent a continuous
combat function
IHL and IHRL
● In situations of armed conflict IHRL and IHL would apply concurrently
● Some human rights laws can be derogated in time of emergency but unclear boundaries
○ Cannot apply all peacetime rules to time of war - ongoing struggle with this
● How do they work together - 2 views
○ Complementary: IHRL should be complementary to IHL, allowing the norms of
IHRL to fill gaps in IHL, to apply both would increase protection (treatment of
detainees; protection of economic, social, cultural rights) - would plug gaps
○ They don't work together: impossible to assimilate because of fundamentally
different circumstances. IHL balances military necessity v. suffering hardships;
IHRL balances state security vs. individual interests in life, liberty, property, IHL
permits and requires violence and lack of fundamental interests in life, liberty and
property

International Environmental Law

Background and CIL
● Historical background
○ Started to develop in late 1960s - 1970s → was not a topic for intl law prior to
this (few exceptions)
○ Relationship between CIL of environmental law and treaties
■ Very little in the way of customary norms, vast bulk of legal obligations
come from treaties
 ■ Effort to develop new legal frameworks through treaty law are going to be
incomplete because there are no treaties with universal conscription, yet
all states are impacted by environmental issues
○ Some developing countries have regarded environmental concerns as problems
for the developed world and have resisted environmental regulation as an
impediment to their economic development
● Trail Smelter Case
○ Key takeaway → key source and early CIL of environmental law (EL)
○ Issue: 1) whether the Trail smelter plant had caused damage in Washington and
what indemnity should be paid for any such damages; and (2) whether, if the plant
had caused damage, “the Trail Smelter should be required to refrain from causing
damage in the State of Washington in the future, and if so, to what extent.”
○ Analysis: tribunal looked to analogous US case law to determine that no state had
the right to use or permit use of its territory in such a way that caused injury and
damage in the territory of another.
● Stockholm Conference (1972)
○ Foundation of int’l environmental law
○ Significant contribution: UN Environmental Programme (UNEP) →
instrumental in establishment of global and regional treaties addressing ozone
depletion, hazardous waste etc.
○ Stockholm conference was opportunity to sign on to commitments, commonly
held beliefs and some existing norms
■ Declarations are not legally binding, likely not binding customary intl law
norm
● 1992 Rio Earth Summit
○ Launched new period of development of intl EL - merged with IL created a field
of sustainable development
● Guiding Principles of EL (Evolution of CIL)
○ Stockholm Declaration Principle 21: States have the right to exploit their own
resources pursuant to their own environmental and developmental policies and the
responsibility to ensure those actions do not cause damage
○ Stockholm Declaration Principle 22: States shall cooperate to develop further IL
regarding liability and compensation for victims of pollution, etc. caused by
activities in a state to areas beyond its jurisdiction
○ Third Restatement 601: Section 601. State Obligations with Respect to
Environment of Other States and the Common Environment
■ (1) A state is obligated to take such measures as may be necessary, to the
extent practicable under the circumstances, to ensure that activities within
its jurisdiction or control
● (a) conform to generally accepted international rules and standards
for the prevention, reduction, and control of injury to the
environment of another state or of areas beyond the limits of
national jurisdiction; and
● (b) are conducted so as not to cause significant injury to the
environment of another state or of areas beyond the limits of
national jurisdiction.
■ (2) A state is responsible to all other state
● (a) for any violation of its obligations under Subsection (1)(a), and
● (b) for any significant injury, resulting from such violation, to the
 environment of areas beyond the limits of national jurisdiction.
■ (3) A state is responsible for any significant injury, resulting from a
violation of its obligations under Subsection (1), to the environment of
another state or to its property, or to persons or property within that state’s
territory or under its jurisdiction or control.
● Current Guiding Principles for Intl EL
○ Sovereignty and Responsibility for the Environment
■ Sovereignty → States have sovereign rights over their natural resources
■ Respect for environment → limits state sovereignty through
responsibility to prevent damage to the environment
■ These concepts are in tension - impacts policy development
○ Good Neighborliness and International Cooperation
■ UNC Article 74 → Obligation of environmental cooperation including
information sharing, notification, collaboration where appropriate
■ Applies particularly to activities carried out in one state that might have
adverse effects on the environment of another state
○ Sustainable development
■ the “need to reconcile economic development with protection of the
environment.” (4 objectives)
■ Intergenerational equity → commitments to preserve natural resources
for the benefit of future generations
■ Sustainable use → standards for exploitation of resources based upon
sustainable harvest
■ Equitable use of natural resources, considering the needs of states and
people
■ Integration → environmental considerations should be integrated into
development plans and policies for environmental objectives
○ Common but differentiated responsibility
■ First, states have a common responsibility to protect certain environmental
resources.
■ Second, it is necessary to take account of differing circumstances,
particularly in relation to each state’s contribution to causing a particular
environmental problem and its ability to respond to the threat.
○ Precautionary Principle
■ The precautionary principle aims to provide guidance to states and the
international community in the development of international
environmental law and policy in the face of scientific uncertainty.
■ It continues to generate disagreement as to its meaning and effect. Some
invoke it to justify early international legal action to address highly
threatening environmental issues such as climate change. Opponents,
however, have decried the principle, arguing that it promotes
overregulation of a range of human activities
○ Polluter Pays principle
■ states that the costs of pollution should be borne by those responsible for
 causing the pollution. The precise meaning, international legal status, and
effect of the principle remain open to question because international
practice based upon the principle is limited.
○ Pulp Mills on the River Uruguay (Argentina v. Uruguay) → According to the
Court’s interpretation, the treaty regulating utilization of the river required
the parties “to strike a balance between the use of the waters and the
protection of the river consistent with the objective of sustainable
development.” The Court also indicated that a provision in the treaty
requiring the parties to adopt measures to prevent pollution of the river “has
to be interpreted in accordance with a practice, which in recent years has
gained so much acceptance among States that it may now be considered a
requirement under general international law to undertake an environmental
impact assessment where there is a risk that the proposed industrial activity
may have a significant adverse impact in a transboundary context, in
particular, on a shared resource.”

Treaty Law: Global Approaches

Key Challenges in developing intl EL to confront transnational problems
● International environmental problems are caused primarily by private conduct.
○ International law primarily addresses questions of governmental conduct:
claiming territory, using force against other states, suppressing human rights,
exercising jurisdiction, and so forth. Most pollution and natural resource depletion
result from private activities.
○ The challenge for international environmental law is to develop effective ways of
regulating these private activities. Traditionally, international law has governed
the conduct of states, not individuals.
● International environmental problems involve significant scientific uncertainties.
○ Many modern environmental problems have effects that are widely dispersed and
long term, with long latency periods. Given the complexity of the physical,
economic, and social pressures involved, we often do not know for sure how
serious a problem is, what its causes are, how expensive it will be to address,
whether it is even a problem at all, and, if it is, whether it is still possible to
address.
● Value Differences
○ Developing countries have argued that they cannot devote significant resources to
environmental problems, given the multitude of other problems that they face —
poverty, infant mortality, and starvation, to name a few. Development, they argue,
must take priority over the environment
● Interest Differences
○ Like individuals, states have no incentive to stop polluting or to protect natural
resources, to the extent that the costs and benefits affect other states
○ Public choice theory - policies tend to lose when their costs are concentrated and
benefits are diffused

Multilateral Environmental Agreements (MEAs)

 ● Nature of obligations
○ General obligations, specific implementation left to the states
○ Non-reciprocal: for common interest of all of humanity
○ Regulates behavior of non-state actors
○ Common but differentiated responsibility
○ To prevent free rider problem must incentivize non-party states to comply
○ Prohibits reservations
● Compliance Concerns
○ Shift from enforcement to managerial approach to compliance → instead of
courting condemnation and sanctions, states are incentivized to self-report
shortcomings to come up w/ regional solutions (aid and resources)
○ Reporting and informations
■ Likelihood of compliance depends on informational issues - accurate
information increases adoption of treaty and compliance, - systems of
monitoring and reporting information increases transparency of
implementation
○ Towards comprehensive noncompliance system
■ Treaties are adopting comprehensive non-compliance systems as part of
shift toward managerial approach
■ Comprehensive = noncompliance procedures + sanctions

International Criminal Law

Transnational Crime
● According to Professor Mueller, the concept of “transnational crime” refers to “certain
criminal phenomena transcending international borders, transgressing the laws of several
states or having an impact on another country.”
○ Examples of categories of transnational crime include money laundering, illicit
drug trafficking, terrorist activities, trafficking in persons, and illicit traffic in
arms, among others.

Cooperative Responses
● Mutual Legal Assistance
○ Mutual legal aid treaties MLATs → which create procedures through which
states “regularize and improve the effectiveness of cooperation” between their
domestic law enforcement agencies → Both parties are obligated to assist in
the investigation, prosecution, and suppression of offenses in all forms of
proceedings
○ US standard: obligation to assist in investigation, prosecution, suppression of
offenses, can affect ability to summon witnesses, compel document production
○ Interpol: 192 member countries, 1) operate global police communications system;
2) maintain criminal databases; 3) provide emergency support to domestic law
enforcement agencies
 ● Extradition
○ Only treaties create obligation under IL to extradite, but some nations will
voluntarily extradite as a matter of comity, state practice or CIL
○ Try vs. extradite rule → A lot of states have limited authority to prosecute crimes
that occurred outside of their territory, with victims or perpetrators that are not
their nationals so they would have to extradite because they cannot try those
crimes
○ Dual criminality → common requirement for extradition that the offense be a
crime in both the requesting and requested state
○ Exception → political offenses, extion has contuined to narrow as definition of
political offenses shrinks - murder and use of explosvies no lnger politcal
offenses
● Irregular rendition
○ Transboundary transfer of suspects outside the formal extradition process
(seeking nation kidnaps suspect from another country)
○ US v. Alvarez (kidnapping case)
○ Often used in terrorism cases
○ However → a state may not extradite a person where there is substantial
grounds for believing the person would be subject to torture (CAT art 3)

Substantive Intl Criminal Law

● Nuremberg and Individual Criminal Responsibility
○ Charter for the intl Military tribunal (IMT) defined crimes for which indivs may
be held responsible
■ Before nuremberg tribunal there weren't examples of individuals being
charged outside of municipal law
■ New concept of holding individuals responsible for conduct under
wartime
○ Defs should have known they were acting in defiance of IL. “IL is not a body of
authoritative codes and statutes, it is the gradual expression, case by case, of the
moral judgment of civilized nation”
○ Essence of IMT charter → individuals have intl duties which transcend national
obligations of obedience imposed by individual state
○ Nullum Crimen lege nulla → no punishments for a crime without existing law;
but here Kellogg-Briand Pact was on the books and condemns war and
expressly renounces war as illegal
● Following orders
○ Judgment of IMT → soldier was ordered to kill or torture in violation of IL is
not a defense but may mitgate punishment
● Immunity
○ The ICJ concluded that, under customary international law, foreign ministers,
while in office, generally enjoy full immunity from criminal jurisdiction and
inviolability. The Court then addressed Belgium’s argument that such immunity
 did not apply with respect to the commission of war crimes or crimes against
humanity under international law (DRC v. Belgium)
■ Accordingly, the immunities enjoyed under international law by an
incumbent or former Minister for Foreign Affairs do not represent a bar to
criminal prosecution in certain circumstances.
■ First, such persons enjoy no criminal immunity under international law in
their own countries, and may thus be tried by those countries’ courts in
accordance with the relevant rules of domestic law.
■ Secondly, they will cease to enjoy immunity from foreign jurisdiction if
the State which they represent or have represented decides to waive that
immunity.
■ Thirdly, after a person ceases to hold the office of Minister for Foreign
Affairs, he or she will no longer enjoy all of the immunities accorded by
international law in other States. Provided that it has jurisdiction under
international law, a court of one State may try a former Minister for
Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office, as well as in respect of acts
committed during that period of office in a private capacity.
■ Fourthly, an incumbent or former Minister for Foreign Affairs may be
subject to criminal proceedings before certain international criminal
courts, where they have jurisdiction.
International Crimes
Professor Cassese → International crimes result from the cumulative presence of the
following elements.
● Elements
○ Violations of both CIL and treaty provisions
○ Binds all states and individuals b/c protect values of the whole intl community
○ universal interest in repressing these crimes. Subject to certain conditions, under
international law their alleged authors may in principle be prosecuted and
punished by any state, regardless of any territorial or nationality link with the
perpetrator or the victim.
○ Under this definition international crimes include war crimes, crimes against
humanity, genocide, torture, aggression, and international terrorism
● Genocide
○ Authority: 1948 Genocide Convention (treaty); CIL; jus cogens
○ Following acts are punishable: genocide, conspiry to commit genocide, direct and
public incitement to commit genocide, attempt to commit genocide, complicity in
genocide
○ Duty to prosecute: people can be punished regardless of official possession (art
4); parties must enact legislation to provide effective penalties (art 6)
○ Can bring parties to the ICJ under article 9
○ Prosecutor v. Krstic - intl criminal tribunal for former yugoslavia
■ Krstic guilty of aiding and abetting genocide
● Crimes Against Humanity
○ Unlike the crime of genocide, which is defined in a treaty, crimes against
humanity are a category of international crimes that arose initially under
customary international law.
○ Article 6(c) of the Charter of the IMT defined the offense as follows:
■ Crimes against humanity: namely, murder, extermination, enslavement,
deportation, and other inhuman acts committed against any civilian
population, before or during the war, or persecutions on political, racial or
religious grounds in execution of or in connection with any crime within
the jurisdiction of the Tribunal, whether or not in violation of the domestic
law of the country where perpetrated.
○ Prosecutor v. Jean Pierre Bemba Gombo - ICC
■ An “attack” within the meaning of Article 7 requires “a course of conduct
involving the multiple commission of acts.” The attack need not constitute
a “military” attack. Rather, an “attack” within the meaning of Article 7
refers to a “campaign or operation carried out against the civilian
population.” The requirement that the acts form part of a “course of
conduct” shows that the provision is not designed to capture single
isolated acts, but “describes a series or overall flow of events as opposed
to a mere aggregate of random acts.
■ The Chamber considers that the “policy” need not be formalized and may
be inferred from a variety of factors which, taken together, establish that a
policy existed. Such factors may include (i) that the attack was planned,
directed or organized; (ii) a recurrent pattern of violence; (iii) the use of
public or private resources to further the policy; (iv) the involvement of
the State or organizational forces in the commission of crimes; (v)
statements, instructions or documentation attributable to the State or the
organization condoning or encouraging the commission of crimes; and/or
(vi) an underlying motivation
● War Crimes
○ 1949 Geneva Conventions expanded protections for victims of war, specifically
provide for individual criminal responsibility
○ “Grave Breaches” of GC include willful killing, torture, or inhuman treatment,
biological experiments, willfully causing great suffering or serious injury
■ All parties are obligated to make grave breaches crimes under domestic
law
● Aggression
○ Crime of aggression is defined as planning, preparation, initiation, or execution by
a person in a position effectively to exercise control over or direct the political
and military action of the state, an act of aggression, which by its character,
gravity, and scale constitutes a manifest violation of the UNC. ICC Art 8.
● Torture
○ CAT (1984) makes torture a crimes under ICL
 ○ Art 4 requires parties to ensure that torture is an offense under domestic law
○ Article 7 obligates each party to try or extradite any person alleged to have
committed torture who is “found” in its territory; if the state does not extradite the
alleged offender, it must establish its jurisdiction over him or her even if the crime
did not occur on its territory and was not perpetrated by or against one of its
nationals

International Criminal Court

Background
● Established by Rome Statute which contains ICC statute and entered into force in 2002
● 123 parties to Rome treaty - does not include US
● Based on the success of ad hoc tribunals
Overview
● Subject Matter Jurisdiction
○ ICC has jurisdiction over only “the most serious crimes of concern to the
international community as a whole.
■ Genocide, crimes agasint humanity, war crimes, crimes of aggression
○ Note - confers jurisdiction over violations of law of was in NIACS as well - in
contrast to 1949 GC and APs which did not impose obligations on states to try or
extradite person who committed violations during NIACs
● Conditions for exercising jurisdiction
○ Art 12 - concerns territorial jurisdiction → crime occurred there or person
accuses id national and country fails to prosecute
○ Art 13 - concerns personal jurisdiction → upon state or UNSC referral,
prosecutor investigation
○ Art 14 → states have wide discretion in deciding to refer a situation to the ICC
● Factors to Determine Whether a Case is Admissible
○ Complementarity
■ Under this principle a case is not admissible before the ICC if the
domestic judicial system of a state has taken or is taking steps to
investigate or prosecute the perpetrator (art 17)
■ A state is unwilling if it attempt to shield perpetrator from prosecution
there is unjustified delay; non-independent proceedings (Art 17(2))
■ A state is unable if there is a total or substantial collapse or unavailability
of its national judicial system (Art 17(3))
○ Gravity
■ A case is inadmissible if it's not of sufficient gravity to justify further
action by the ICC (art 17(1)(d))
● Jurisdiction over non-parties
○ ICC can exercise jurisdiction over US national only if they commit a crime within
the Court’s jurisdiction on the territory of a state that is party to the Treaty
 ■ By joining other treaties the US has already accepted the principles that
US nationals who commit certain crimes may be prosecuted in any state
where they may be found
○ Professor Morris: Even though the state whose territory crimes occurred would
have jurisdiction, it does not necessarily follow that it would be permissible under
CIL of perspective jurisdiction to delegate that territorial jurisdiction to an intl
court
■ Diplomatic methods and compromise outcomes are preferable in interstate
disputes, which are unlikely to emerge from adjudicated rather than
negotiated resolutions
■ Special political impact of ICC decisions bears an authoritative weight
■ Oncers for the role of the intl court in shaping the law. States may prefer
to retain more direct control over shaping of IL in undeveloped fields