1 Introduction What Is International Law? 6

Public Int’l Law Blum Spring 2012

1 – INTRODUCTION – WHAT IS INTERNATIONAL LAW?...... 6 1. Definition of International Law...... 6 2. Sources of Norms or Rules of International Law...... 6 3. History of Public International Law...... 7 4. Creation and Evolution of International Institutions...... 8 5. Changes in International Law...... 8 A. Individual’s Role...... 8 B. Role of International, Regional, and National Tribunals...... 9 6. International Law Theory and Methodology...... 9 7. International Relations – Four Schools of Thought...... 11 2 – INTERNATIONAL LAW AND INTERNATIONAL POLITICS: UN AS A CASE STUDY...... 11 1. Perceptions of Shortcomings of International Law...... 11 2. United Nations: Structure, Purposes, and Future...... 12 Organization...... 12 Arguments Against Reforming Permanent Membership of Security Council...... 12 3 – SOURCES OF INTERNATIONAL LAW: TREATIES...... 12 1. Introduction...... 12 2. Formation of Treaties...... 13 What is a “Treaty”?...... 13 Treaty Making Process...... 14 3. RUDS (Reservations, Understandings, and Declarations)...... 14 Reservations...... 14 Understandings/ Declarations...... 15 4. Observance and Interpretation of Treaties...... 15 5. Third Party Obligations...... 16 6. Invalidity of Treaties...... 16 7. Jus Cogens...... 16 8. Withdrawal/Termination...... 16 Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ (1997)...... 17 4 – SOURCES OF INTERNATIONAL LAW: CUSTOM AND OTHER SOURCES...... 17 1. Doctrine of Sources...... 17 2. Customary International Law...... 17 A. General Practice...... 17 Paquette Habana, US (1900)...... 17 B. Practice Accepted as Law (Opinio Juris)...... 18 North Sea Continental Shelf Cases, ICJ (1969)...... 18 Persistent Objector...... 18 Where No Disagreement Exists...... 18 Nicaragua v. United States, ICJ (1986)...... 18 Jus Cogens...... 18 Filartiga v. Pena-Irala, 2nd Cir. (1980)...... 19 Voluntarism Revisited...... 19 Legality of the Threat or Use of Nuclear Weapons, ICJ (1996)...... 19 Evidence of Custom...... 19 Sosa v. Alvarez-Machain, US (2004)...... 19 3. Other Sources...... 19 “Soft Law”...... 19 General Principles of Law...... 19 5 – INTERNATIONAL LAW IN THE UNITED STATES...... 20 1. Introduction...... 20 Two Views on Relationship of Domestic and International Law...... 20 Scope of Executive Powers...... 20 States and Int’l Law...... 20 2. US Treaty Law...... 20 Separation of Powers...... 20 Supreme Law of the Land...... 21 Asakura v. City of Seattle, US (1924)...... 21 Scope of Treaty Power and Limits...... 21 Missouri v. Holland, US (1920)...... 21 Reid v. Covert, US (1957)...... 21 Self-Executing and Non-Self-Executing Treaties...... 21 US v. Noriega, S.D. Fla (1920)...... 22 Hamdi v. Rumsfeld, 4th Cir. (2003)...... 22 Charming Betsy Canon and Statutory and Constitutional Interpretation...... 23 Breard v. Greene, US (1998)...... 23 Medellin v. Texas, US (2008)...... 23 Treaty Termination...... 23 Kucinich v. Bush, D.D.C. (2002)...... 24 Treaty Reinterpretation...... 24 3. Executive Agreements...... 24 4. State Preemption...... 24 Crosby v. National Foreign Trade Council, US (2000)...... 25 5. Customary International Law...... 25 6. Summary of Supremacy of International Agreements...... 25 6 – SUBJECTS OF INTERNATIONAL LAW...... 25 1. UN Charter (1945)...... 25 Chapter I – Purposes and Principles...... 25 Chapter II – Membership...... 25 Chapter IV – General Assembly...... 26 2. Statehood...... 26 Conditions...... 26 Recognition...... 27 Independence of Kosovo (Kosovo v. Serbia), ICJ (2009)...... 27 Emerging Criteria...... 27 Duty to Recognize or Not Recognize...... 27 Cyprus and Turkish Republic of Northern Cyprus (TRNC)...... 28 3. State Secession...... 28 State Succession in Respect of Treaties...... 28 State Succession in Respect of State Property and Debt...... 29 State Succession in Respect of International Organizations...... 30 Other Matters of Succession...... 30 4. Recognition of Governments...... 30 Doctrines of Recognition...... 30 China/Taiwan...... 31 5. Self Determination...... 31 Reference Re Secession of Quebec, Can (1998)...... 31 6. Corporate Responsibility...... 32 7 – STATE RESPONSIBILITY AND REMEDIES...... 32 1. Basic Principles...... 32 2. Draft Articles on Responsibility of States for Internationally Wrongful Acts...... 32 3. Attribution...... 33 United States v. Iran (Tehran), ICJ (1980)...... 33 Control Tests for Attribution...... 34 Nicaragua v. US (Paramilitary Activities), ICJ (1986)...... 34 Prosecutor v.Tadic, ICTY (1999)...... 34 Bosnia & Herzegovina v. Serbia & Montenegro, ICJ (2007)...... 35 4. Existence of Breach...... 35 Fault...... 35 Injury and Legal Interest...... 35 Barcelona Traction (Belgium v. Spain), ICJ (1970)...... 36 5. Circumstances Precluding Wrongness...... 36 Consent...... 36

2 Self-Defense...... 36 Force Majeure...... 36 Distress...... 36 Rainbow Warrior (New Zealand v. France), UN Arbitration (1990)...... 37 Necessity...... 37 Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ (1997)...... 37 CMS v. Argentine Republic, Tribunal (2005)...... 37 Peremptory Norms and Circumstances Precluding Wrongfulness...... 38 6. Reparations...... 38 7. Countermeasures...... 38 Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ (1997)...... 39 Air Services (France v. US), Arbitration (1978)...... 39 Collective Sanctions...... 39 Private Right of Action for International Claims...... 40 8 – INTERNATIONAL DISPUTE RESOLUTION...... 40 1. Dispute Resolution...... 40 2. Non-adjudicative Measures...... 40 3. International Court of Justice (ICJ)...... 40 Contentious Cases...... 41 Oil Platforms (Iran v. US), ICJ (1996)...... 41 Certain Norwegian Loans (France v. Norway), ICJ (1957)...... 41 Paramilitary Activities (Nicaragua v. US), ICJ (1984)...... 42 Non-Appearance in Contentious Cases...... 42 Procedure in the ICJ...... 42 Paramilitary Activities (Nicaragua v. US), ICJ (1984)...... 43 Advisory Opinions...... 43 Assessment of Future of ICJ...... 43 9 – NATIONAL JURISDICTION...... 44 1. Principles of Jurisdiction...... 44 2. Prescriptive Jurisdiction...... 44 Territorial Jurisdiction...... 45 Nationality Jurisdiction (Actor)...... 45 Protective Jurisdiction...... 46 US v. Romero-Galue, 11th Cir. (1985)...... 46 Passive Nationality or Personality (Victim)...... 47 Universal Jurisdiction...... 47 3. Jurisdiction to Enforce and Adjudicate...... 48 10 – THE USE OF FORCE: JUS AD BELLUM...... 49 1. Principles...... 49 2. Historical Background...... 49 3. UN Charter’s Use of Force Regime...... 50 4. Simple Cases...... 51 Armed Attack...... 51 Collective Self-Defense...... 52 4. Hard Cases...... 52 Reprisals...... 53 Hostages...... 53 Insurgents/Civil Wars...... 53 Ideology...... 53 Terrorism...... 54 DRC v. Uganda, ICJ (2005)...... 54 Israel Wall, ICJ (2004)...... 54 Anticipatory Self-Defense...... 55 Humanitarian Intervention...... 55 Montenegro (FRY) v. Belgium et al., ICJ (2000)...... 56 5. Responsibility to Protect...... 56

3 6. Case Study: Iraq...... 56 First Gulf War (1991)...... 57 Second Gulf War (2003)...... 57 11 – THE LAWS OF WAR: JUS IN BELLO...... 57 1. Development of International Humanitarian Law...... 57 Law of Geneva...... 57 Law of Geneva...... 57 Additional Protocols...... 58 Reprisals...... 58 2. Scope of International Humanitarian Law...... 58 International Armed Conflict...... 58 Non-International Armed Conflict...... 58 Applicability...... 59 Absolute Rules/Prohibitions...... 59 Rules of Engagement (RoEs)...... 59 3. Four Principles...... 59 Military Necessity...... 59 Humanity...... 59 Distinction...... 59 Proportionality...... 59 4. Case Study: ICTY Report on NATO in Kosovo...... 60 Relationship Between Jus Ad Bellum and Jus in Bello...... 60 Damage to Environment...... 60 Permissible Weapons...... 60 Distinction...... 60 Military Objectives...... 60 Proportionality...... 61 5. Law of Belligerent Occupation...... 61 Occupation...... 61 Maintaining Law and Order...... 61 Crime and Punishment...... 61 Taking Care of Civilian Population...... 62 Labor and Private Property...... 62 Public Property and Future of the State...... 62 12 – HUMAN RIGHTS...... 63 1. Background...... 63 2. UN Charter and Universal Declaration...... 63 UN Charter...... 63 Universal Declaration of Human Rights...... 63 3. Implementation and Enforcement...... 63 The International Covenants...... 64 Other Global Human Rights Treaties...... 64 Type of Obligation Assumed...... 64 Interpretation & Limitation...... 65 Lustig-Prean v. UK, ECHR (1999)...... 65 Derogation...... 65 A and X v. Secretary of State for Home Dept., UK (2004)...... 66 Reservations and Obligations...... 66 US RUDs and IHRL...... 66 International Enforcement...... 67 Roper v. Simmons, UK (2004)...... 67 13 – WAR ON TERRORISM...... 67 1. Definition...... 67 2. War/Crime Distinction...... 68 3. Jus Ad Bellum...... 68 4. Jus In Bello...... 68 Classification of Conflict...... 68

4 Classification of Combatants...... 68 Detention...... 69 Hamdan v. Rumsfeld, US (2006)...... 70 Boumediene v. Bush, US (2008)...... 70 Targeted Killings...... 70 Comm. Against Torture in Israel v. Israel, Israel (2005)...... 71 14 – INTERNATIONAL CRIMINAL LAW...... 71 1. International Criminal Court (ICC)...... 71 Jurisdiction...... 71 2. Specific Crimes...... 72 Genocide...... 72 Prosecutor v. Krstic, ICTY (2004)...... 72 Crimes Against Humanity...... 73 Prosecutor v. Kunarac, ICTY (2002)...... 73 War Crimes...... 73 Aggression...... 73 Torture...... 73 15 – INTERNATIONAL TRADE LAW...... 73 1. World Trade Organization (WTO)...... 73 2. Balancing Trade and the Environment...... 74 Shrimp-Turtle, WTO (1995-96)...... 74 Tuna-Dolphin, WTO (1991)...... 74

5 Hashtags #exam – points to work into exam if possible/necessary #policy – policy arguments (besides explicit arguments) #Blum - Blumisms

General Tips/Info . Exam will contain more issues than you can possibly address in word limit – prioritize and address issues with meatiest issues/most tension . Organize exam by numbered paragraph provisions and wrap up at end with brief summary of any claims in ICJ, ICC, domestic prescriptive jurisdiction or other relevant judicial forums/ . Restatement = ALI’s Restatement of the Foreign Relations Law of the United States (Third) (1987) . All IHRL violations are erga omnes, but all are not peremptory or jus cogens norms . Self-defense analysis under UN Charter Use of Force Regime Always begin with discussion of Articles/provisions violated Start w/ general provision (Art. 2(4)) and then move to exceptions (such as Art. 51)

Blumisms . “Better to be healthy, rich, and smart than not” . “When planning a coup, DO NOT push out or alienate the national guard or other militia forces. Give them jobs. They have access to weapons and training.” . “One person’s terrorist is another person’s freedom fighter” . “Sleeping, playing soccer – whatever. If they are a soldier who has not expressed willingness to surrender, they can be lawfully killed.” . “Terrorism generally attracts more attention than it deserves”

Exam Review Questions 1) Differentiate between civilians performing essentially military functions and Direct Participants in Hostilities (DPHs) and unlawful combatants? (Jus in Bello/War on Terror) DPH: civilian performing essentially military functions; may be targeted only during activity, membership irrelevant Unlawful combatants: combatants not complying with laws of war (continuous combat function); may be targeted anytime Recall Israel vs. US distinction

1 – Introduction – What is International Law?

1. Definition of International Law

. International law: rules governing relations of nation-states Public: governed activities of governments in relation to other governments Private: activities of individuals, corporations, and other private entities when they crossed national borders . Domestic law: rules within state governing everything else, primarily conduct or status of individuals, corporations, domestic gov’t units . Restatement Section 101

6 Internatiional law: rules and principles dealing with conduct of states and international organizations and with their relations

2. Sources of Norms or Rules of International Law

. Statute of International Court of Justice (ICJ) – Article 38 (a) international conventions (b) international custom (c) general principles of law (d) judicial decisions . Restatement Section 102 (1) Rule of international law accepted by international community  (a) customary law  (b) international agreement  (c) derivation from general principles common to major world legal systems . Factors other than judicially imposed sanctions encouraging compliance with int’l law Adverse publicity Habitual following of rules and procedures Fear of administrative sanctions Adverse effects on career development

3. History of Public International Law

. Contemporary system of int’l law is built on: assumption of nation-state as primary actor European model developed over past four centuries (colonialism and imperialism, Western capitalist interests) . Early medieval era Two matters militated against evolution of system of international law:  Temporal and spiritual unity of Europe  Feudal structure of Western Europe prevented creation of sovereign states . 15th and 16th Centuries Discovery of New World, Renaissance, and Reformation disrupted façade of the political and spiritual unity of Europe Growth of a number of independent states . Hugo Grotius (1583-1645) “Father of the law of nations” Treatise De Jure ac Pacis (The Law of War and Peace) appeared in 1625 Acceptance of “law of nature” as independent source of rules of the law of nations, apart from custom and treaties “Law of nature” deduced by reference to religion Pacta sunt servanda: agreements should be respected: if you sign a treaty, you are bound to comply w/ it Translated jus gentium from “law of the people” to “law of the state” . Final evolution of modern state-system in Europe Treaty of Westphalia of 1648 marking end of Thirty Years’ War

7  Distinguishes privileges of domestic state from those that must be governed by int’l law Thomas Hobbes (1588-1679)  Voluntarism: state is bound only to degree it agrees to be bound . 18th Century Jurists seek rules of international law in customs and treaties, relegating “law of nature” to minor position “Law of nature” deduced by logic/reason Positivists: Writers who attached primary or major weight to customary and treaty rules . 19th Century Expansion of international law  Further rise of powerful new states within and beyond Europe  Expansion of European civilization overseas  Modernization of world transport  Greater destructiveness of modern warfare  Influence of new inventions Introduction of multilateral treaties and international organizations Jurists concentrate on existing practice, discarding concept of “law of nature” . 20th Century New institutions to preserve and secure peace (League of Nations succeeded in 1946 by the United Nations) Vast increase in number of international agreements and customs Strengthening of system of arbitration Development of international organizations

4. Creation and Evolution of International Institutions

. Organizations formed in wake of WWII include: United Nations – designed to avoid further wars and depressions International Court of Justice (ICJ) – formal judicial body to resolve legal disputes among nations International Monetary Fund (IMF) – promote international monetary cooperation and stability in foreign exchange International Bank for Reconstruction and Development (World Bank) – help provide funds for the reconstruction of war-ravaged nations and to promote economic development; now focused on economic development General Agreement on Trade and Tariffs (GATT) – regularization and encouaragement of international trade; subsumed into World Trade Organization (WTO) in 1995 . Later specialized international organizations include: International Atomic Energy Agency (IAEA) Group of Eight . Regional entities European Union North American Free Trade Agreement (NAFTA)

5. Changes in International Law

8 A. Individual’s Role . Individual has become recognized actor along with states and international organizations Origins in efforts by states to protect their nationals investing and engaged in business abroad from expropriation or other mistreatment by a host country . Part of larger trend where traditional barriers between public and private law have eroded States and their instrumentalities have entered the marketplace in a major way Business and foreign policy have become increasingly intertwined . Human rights has marked greatest expansion of individual rights and responsibilities under international law

B. Role of International, Regional, and National Tribunals . Traditional and still important international enforcement mechanism is reciprocity . ICJ as adjudicatory body for international law, but real growth in formal dispute resolution is occurring in international arbitration, other international and regional courts, and national courts . Arbitration Acceptance driven by rapid growth of cross-border trade and business after WWII Advantages of flexibility (e.g. judges, substantive rules), finality and enforceability Disadvantages are expense and lack of legal authority to order discovery against non- parties . International and Regional Courts International Tribunal for the Law of the Sea International Criminal Court European Court of Justice . Domestic Courts Increasing # of cases with international ramifications in domestic courts due to int’l trade, finance, investment, and travel International common law or transnational law Judgments are given considerable respect in other countries and are sometimes cited in other nations’ courts and regional courts

6. International Law Theory and Methodology

. Positivism Summarizes range of theories focusing upon describing law as it is, backed up by effective sanctions International law is no more or less than rules to which states have agreed through treaties, custom, and other forms of consent . New Haven School (policy-oriented jurisprudence) Policy-oriented perspective, viewing int’l law as process of decision making by which actors clarify and implement common interests in accordance with expectations of appropriate processes and of effectiveness in controlling behavior . International legal process (ILP) International law as role of law in constraining decision makers and affecting course of international affairs . Critical legal studies (CLS) Focus on contradictions, hypocrisies, and failings of international legal discourse

9 . International law and international relations (IL/IR) Interdisciplinary approach that seeks to incorporate insights of international relations theory regarding behavior of international actors States follow consequentialist reasoning Interest-based models  Roots in realist view of int’l cooperation, dominant in America in wake of WWII  States are rational, unitary actors in pursuit of self-interest  International agreements exist and are enforced only when they serve interests of most powerful sates Norm-based models  Roots in constructivist view of international cooperation  States also motivated by power of principled ideas  International law can change state action by changing their preferences  Assumes nations obey international law “almost all of the time”  Fairness theory  Fair legal obligations exert “compliance pull” that leads states to comply  Legal process theory  Horizontal: states obey int’l law because prior agreement creates “obligation of obedience”  Vertical: states comply when international norm is incorporated into domestic legal system Liberal institutionalist perspective  Finds common ground between interest and norm-based approaches  States pursue aims of “powerful domestic interest groups enfranchised by representative institutions and practices . Feminist jurisprudence Examines how legal norms and processes reflect domination of men and reexamine/reform norms and processes to take account of women Structural bias critique  Simple inclusion of women into int’l law is impossible as int’l law is inherently male and structurally biased against women  Implicit critique of liberal inclusionists Third world feminist critiques  Implicitly challenge liberal and structural bias feminism by suggesting effects of international law on women must be examined in light of class, culture, and race . Third world approaches to international law (TWAIL) Examine dependency of many states and societies on Western conceptions of international and seek to challenge them First generation (TWAIL I) indicted colonial int’l law for legitimizing the subjugation and oppression of Third World peoples TWAIL I adopted non-rejectionist stance towards modern int’l law and sought UN to bring about just world order . Law and economics Seeks to explain existing rules as reflecting most economically efficient outcome, normative component evaluates proposed changes in law and urges adoption of those that maximize wealth

10 Economic models  Assumes people prefer cheaper goods and services, as well as more efficient means of achieving nonconsumption goods  Transactions costs to engaging in transactions might prevent otherwise efficient transactions  Strategic position of states may prevent or add costs to otherwise efficient agreements States use and design international transactions or institutions to maximize net gain from exchange of power and jurisdiction

7. International Relations – Four Schools of Thought

. Realism (interest-based model) Most influential school of int’l relations thought Hobbesian view: assumes anarchic system (no world gov’t as arbitrator or police force) Treats states as principal actors in int’l politics “Security dilemma”: no monopoly power over use of force requires nations to arm Agreements without sanctions or other enforcement mechanisms are mere rhetoric . Institutionalism (interest-based model) Shares the same premise as realism, but does see cooperation and agreements and being fruitful because states care about more than just power Knowledge sharing institutions eliminate “security dilemma” and promote cooperation . Liberalism (norm-based model) Wrong to focus on states – state is not unitary actor but merely an aggregation of the people Preferences are not static and are informed by the interests/principles of people Liberal theory forces you to take account of the different systems of government. Assume that state agendas reflect will of public OR governing structure has sufficient power to ignore public . Constructivism (norm-based model) Moves away from material interests and towards power of ideas International law can change state action by changing preferences through ideas Rejects the notion that states or other actors have objectively determined interests that they can pursue by selecting appropriate strategies and designing effective institutions - actors operate within a social context of shared subjective understandings and norms that define identities/roles/conduct (all is subjective and “in play”) Not simply about agreement/treaty, but the role of int’l law as a vehicle to express, anchor and spread laws/norms 2 – International Law and International Politics: UN as a Case Study

1. Perceptions of Shortcomings of International Law

. Problem of Uncertainty Uncertainty about what constitutes authoritative legal norms No legislature Agreements made at high-level of abstraction

11 Judiciary with greater burden of uncertainty to resolve and less capacity to resolve it . Problem of Enforcement Lack of external enforcement mechanisms . Problem of Sovereignty Sovereignty promotes right to unrivaled authority within borders

2. United Nations: Structure, Purposes, and Future

Organization . General Assembly Main deliberative organ composed of reps from all member states, each with one vote . Security Council Maintenance of international peace and security 15 members Permanent 5 (China, France, Russia, UK, United States), each with veto power Acts in form of non-binding resolutions . Economic and Social Council Coordinates economic and social work of UN, UN funds and programs (e.g. UNICEF) and specialized agencies and institutions (e.g. WHO) . International Court of Justice Principal judicial organ of UN . Budget Main source of funds is contribution of Member States

Arguments Against Reforming Permanent Membership of Security Council . UK/France: desperate to hold onto seats . Brazil: no standing military . Germany: checked by everyone . Japan/India: checked by China . Nigeria: concerns about possible civil war and general instability . Sovereign equality . Non-intervention . Territorial integrity . Self-determination of people 3 – Sources of International Law: Treaties

1. Introduction

. Treaties are most important source of international law and means by which international organizations are created . Types of treaties (by participants) Bilateral: between two countries based on mutual exchange of rights and obligations  Advantages: relevant/flexible Multilateral: between multiple countries, typically coordinated by UN or other international organization (may be regional or global/universal)

12  Efficient . Types of treaties (by function) Coordination: (e.g. civil aviation) Collaboration: commitment to perform particular tasks with states having stake in particular outcomes . Naming conventions (all of the below are considered treaties) Treaty Convention (common for multilateral agreements) Agreement Covenant Charter Statute Protocol . In international parlance – all written international agreements are referred to as “treaties” . In US, only agreements concluded by President with advice and consent of Senate are referred to as “treaties” Others are referred to as executive agreements

2. Formation of Treaties

What is a “Treaty”? . Vienna Convention on the Law of Treaties (VCLT) sets forth comprehensive set of rules governing formation, interpretation, and termination of treaties . NOTE: US has signed but not ratified VCLT, so is not a party; however US officials consistently state most of VCLT provisions represent customary international law and US courts have relied on its terms . Scope of VCLT (VCLT Art. 1) Applies only to treaties between states . Definition of “treaty” (VCLT Art. 2) “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” . Definition of “party” (VCLT Art. 2) “a State which has consented to be bound by the treaty” . Distinguishing a treaty from other instruments #exam Subject matter: treaties involve classical issues of state sovereignty  Agreements between states and/or state-owned business entities that are essentially commercial in nature are contracts not treaties (e.g. loan agreements, building leases, sale of goods) Law-making: treaties are intended to be legally binding and to have legal consequences  Courts will look to intent of states to enter binding agreements when interpreting treaty disputes due to principle of voluntarism International law: parties must intend for agreement to be governed by international law (see VCLT Art.31)

13 VCLT applicable only to written agreements, but states may still conclude valid and legally binding oral agreements (VCLT Art. 3)  Denmark v. Norway: PCIJ relied on statement of Norwegian Foreign minister in meeting with Denmark to conclude oral declaration ceding ownership of Eastern Greenland was binding  Nuclear Tests: ICJ concluded unilateral declaration of French officials (including President) that they would cease nuclear tests, “given publicly and with intent to be bound, even though not made within context of international negotiations, is binding.”  But See Burkina Faso v. Mali: ICJ ruled press conference statements by Burkina Faso’s president regarding border dispute with Mali were not legally binding

Treaty Making Process 1) Initiation Can be top-down (from orgs such as UN) or bottom-up (from interest group) 2) Negotiation Typically occurs in Geneva, the Hague, Paris, with delegations from states Developed countires often have advantage over undeveloped counties due to cost and investment required 3) Drafting Important in interpretation as this generates travaux preparatories (“negotiation history”) 4) Signing (VCLT Arts. 6-10) Does not constitute acceptance, merely indicates finalization of text 5) Ratification Treaties generally require ratification (VCLT Art. 11) Ratification: indication of consent by original parties (VCLT Arts. 12-14) Accession: indication of consent by later-joining party (VCLT Art. 15) Why participate in treaty process if no intention to ratify? #policy  May still become binding if provisions become customary int’l law, so participate to influence text (no duty to negotiate in good faith) 6) Deposit Registration of treaty with appropriate organization (VCLT Art. 16) Required for recognition before ICJ according to UN Charter #exam 7) Entry into Force (VCLT Art. 24) Treaties generally require minimum # of state ratifications to enter into force States that have signed or expressed consent to be bound by treaty are under obligation to refrain from acts that would defeat object and purpose of treaty prior to entry into force (VCLT Art. 18)  Example: Strategic Arms Limitation Treaty (SALT)  Not reducing nuclear stockpiles? Does not defeat purpose  Testing existing stockpiles? Arguably defeats purpose

3. RUDS (Reservations, Understandings, and Declarations)

. RUDS qualify the meaning and effect of treaties

14 Reservations . Definition (VCLT Art. 2) “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” . Permissible/impermissible reservations (VCLT Art. 19) Reservations allowed unless: (1) prohibited by treaty (generally or specifically) or (2) reservation defeats object and purpose of treaty Reservations must be expressed at time party consents to be bound by treaty . Acceptance/objections to reservations Must be objected to within 12 months of notification (VCLT Art. 20) Impermissible reservations do not require objection Reservations/acceptances/objections must be in writing (VCLT Art. 23) . Withdrawal of reservations and objections (VCLT Art. 22) May be withdrawn at anytime unless treaty states otherwise . Effect of reservations Reservations are reciprocal and if not objected to can be relied upon by all states w/ respect to state making reservation (VCLT Art. 21) . Objections State objecting to specific reservation can (1) pretend reservation never existed (reciprocity) or (2) consider reserving state not a party at all to treaty . Reservations express (1) voluntarism and (2) reciprocity . Reasons for reservations: #policy Party to int’l agreement while not yielding on certain substantive points Party to int’l agreement while not binding itself to certain procedural obligations Assure treaty obligations are compatible with domestic law (See VCLT Art. 27) Federalism concerns . Arguments for and against reservations Why allow reservations?  Impossible to build universal consensus for large multilateral treaties otherwise  Reciprocity is great mechanism for ensuring compliance w/ treaties (w/ exception of human rights treaties) Why not allow reservations?  Symbolism and nature of treaty (e.g. genocide) may require unified expression  Coordination requires uniform, simple code to govern behavior (e.g. law of the seas) – reservations transform multilateral treaties to series of bilateral treaties

Understandings/ Declarations . Only seek to clarify, not change, provisions of treaties Understandings: interpretive statements clarify or elaborate on, rather than change, provisions of treaty Declarations: statements of policy relating to treaty that do not alter or limit its substantive provisions . Can be expressed at anytime (unlike reservations)

15 4. Observance and Interpretation of Treaties

. Pacta sunt servanda: every treaty in force is binding upon parties to it and must be performed by them in good faith (VCLT Art. 26) . Internal law: State may not invoke provisions of its internal law as justification for its failure to perform a treaty (VCLT Art. 27) . Non-retroactivity: presumption is that treaty is not retroactive (VCLT Art. 28) . Territorial scope: presumption is that treaty applies in all territories of parties to treaty (VCLT Art. 29) . Tools of interpretation (VCLT Arts. 31-32) Literal meaning of text Context (e.g. other provisions of treaty) Object/purpose of treaty (including travaux preparatories) Intent (implicit in VCLT) . When discrepancies arise in translations between languages, rule of thumb is to resolve in favor of narrower interpretation (VCLT Art. 33)

5. Third Party Obligations

. Externalities are not sufficient to create obligations or rights on third parties without their consent (VCLT Art. 34-37) . Customary international law codified in a treaty is be binding on third party without express consent (VCLT Art. 38)

6. Invalidity of Treaties

. Reasons for possible invalidity of treaty include: State incompetence to conclude a treaty (ultra vires) (VCLT Art. 46) Representative’s incompetence to conclude a treaty (VCLT Art. 47) Error (VCLT Art. 48) Fraud (VCLT Art. 49) Corruption (VCLT Art. 50) Coercion of representative (VCLT Art. 51) Duress (VCLT Art. 52)  Generally economic influence will not suffice  Not applicable where UN Sec Council has authorized use of force

7. Jus Cogens

. Jus cogens: “peremptory” norms that possess a different normative character from “ordinary” international law rules going beyond voluntarism and that cannot be contracted out of or around (VCLT Arts. 53 and 64) Generally accepted: unlawful use of force, slavery, genocide, torture, racial discrimination, war crimes Contested: juvenile death penalty

8. Withdrawal/Termination

16 . Party may withdraw from treaty consistent with provisions of treaty (VCLT Art. 54) . Where treaty contains no provision for withdrawal, party may withdraw only where (1) it is established parties intended to admit possibility of withdrawal or (2) right of withdrawal may be implied from treaty (VCLT Art. 56) 12 months notice required prior to withdrawal . In event of material breach of a treaty, affected party may unilaterally terminate treaty or suspend performance of its own obligations (VCLT Art. 60) . Party may invoke very narrow exception for impossibility to perform obligations as grounds for terminating or withdrawing from treaty in extraordinary circumstances (VCLT Art. 61) . Party may invoke unforeseen change of circumstances as grounds for terminating or withdrawing from treaty (VCLT Art. 62)

Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ (1997) . Facts: Hungary sought to terminate 1997 treaty with Slovakia for construction of system of locks on Danube River on grounds of impossibility, citing it would cause irreparable environmental damage . Rule: Fundamental change of circumstances (Art. 62) must have been unforeseen; existence of circumstances at time of Treaty’s conclusion must have constituted an essential basis of consent of parties to be bound by treaty . Rule: Impossibility of performance (Art. 61) may not be invoked for termination of treaty by a party when it results from that party’s own breach of an obligation flowing from the treaty 4 – Sources of International Law: Custom and other sources

1. Doctrine of Sources

. Definition of custom comprises two distinct elements: (1) general practice and (2) its acceptance as law . Statute of International Court of Justice (ICJ) – Article 38 (a) international conventions (b) international custom (c) general principles of law (d) judicial decisions . Restatement Section 102 (1) Rule of international law accepted by international community  (a) customary law  (b) international agreement  (c) derivation from general principles common to major world legal systems

2. Customary International Law

C. General Practice Paquette Habana, US (1900) . Facts: Fishing vessels seized by US blockade off coast of Cuba during Spanish-American war despite not having knowledge of war, no arms on board, and no attempt to escape the blockade or other resistance . Rule: Where there is no treaty or other controlling legislative act, must resort to customs of civilized nations and, as evidence of these, works of jurists and commentators

17 . Holding: Supreme Court rules that it is established rule of int’l law that fishing vessels are exempt from capture as prize of war . Evidence of customary law includes: treaties, executive decrees, acts of military commanders, judgments of national tribunals, international court decisions . Practice of non-state actors Traditional state-centered perspective: acts of individuals, corporations, and other non- governmental bodies can contribute to practice in “extended” sense (e.g. by encouraging adoption of certain behavior by governments), they do not constitute state practice

D. Practice Accepted as Law (Opinio Juris) North Sea Continental Shelf Cases, ICJ (1969) . Facts: Dispute over delimitation of continental shelf shared by Denmark, Netherlands, and Germany . Rule: Opinio juris is not necessarily barred only by passage of short period of time, but it is indispensible requirement that States (including those not specially affected) act in uniform manner . Rule: Two necessary conditions to constitute opinio juris (1) acts must amount to a settled practice and (2) must be carried out in such a way as to be evidence of a belief that practice is rendered obligatory by existence of a rule of law . Rule: frequency or habitual character of acts is not in itself enough as they may be motivated by courtesy, convenience, or tradition and not any sense of legal duty . Instant custom: modern tendency to find new customary law based mainly on opinio juris (e.g. statements legal rule has now been recognized) without demonstrating uniform conduct among states is especially prevalent with regard to human rights, environmental protection and economic development

Persistent Objector . Persistent objector rule: to invoke a customary law against a state, it is not necessary to show specific acceptance of the custom as law by that state; acceptance is presumed unless the state can produce evidence of its actual opposition to the practice Restatement implies persistent objector rule not applicable to jus cogens norms . New states begin with clean slate in regard to treaties . Large number of states may create new customary law by departing from existing rule of law – to determine when new law has repealed old rule, must consider: (1) extent, consistency, and frequency of departures, (2) relation of states (both departing and adhering states) concerned to subject matter of rule, and (3) duration of departure process US has been successful persistent objector to prohibition on death penalty, but has ceded on issue of juvenile death penalty

Where No Disagreement Exists Nicaragua v. United States, ICJ (1986) . Facts: US contested jurisdiction of ICJ on grounds including reservation it had made regarding acceptance of court’s jurisdiction to certain disputes arising under UN Charter and Nicaragua countered its claim was based on rules of customary law expressed in treaty . Rule: Customary international law is to be looked for primarily in the actual practice and opinio juris of States, although multilateral conventions may play important role in recording and defining rules deriving from custom . Rule: With respect to customary rules, state conduct inconsistent with such rules are generally treated as breaches of rule, and not indications of recognition of a new rule

18 . Holding: ICJ finds that provisions regarding abstaining from use of force have risen to jus cogens status, independently of UN Charter

Jus Cogens Filartiga v. Pena-Irala, 2nd Cir. (1980) . Facts: Dr. Filartiga and Pena are both citizens of Paraguay and it is contended that Pena kidnapped and tortured to death Filartiga’s son in retribution for Filartiga’s political beliefs. Pena was subsequently detained by INS while visiting the US under a visitor’s visa. . Rule: Law of nations may be obtained by (1) consulting works of jurists, or (2) by general usage and practice of nations, or (3) by judicial decisions recognizing and enforcing law . Holding: Dispensing with proof of practice, Court looks to opinio juris in determining act of torture by state official violates established norms of international law of human rights and thus jus cogens norms, conferring jurisdiction to US federal courts under Alien Tort Statute

Voluntarism Revisited Legality of the Threat or Use of Nuclear Weapons, ICJ (1996) . Issue: Is threat or use of nuclear weapons in any circumstance permitted under int’l law? . Rule: State practice shows that illegality of use of certain weapons results not from absence of authorization, but in terms of explicit prohibition (“anything not prohibited is permitted”) . Rule: opinio juris is not established where division exists among states and where international agreements addressing topic have been adopted with substantial numbers of negative votes and abstentions . Holding: ICJ did not conclude definitively in advisory opinion that threat or use of nuclear weapons would be unlawful in extreme circumstance of self-defense, where very survival of state is at stake

Evidence of Custom Sosa v. Alvarez-Machain, US (2004) . Facts: DEA hired Mexican nationals to seize Alvarez who was wanted for torture and murder of DEA agent captures on assignment in Mexico. Alvarez sought civil remedies for “outrageous governmental conduct” under FTCA and Alien Tort Statute . Rule: Caution must be exercised in applying customary international law where there is no legislative mandate to seek out and define new and debatable violations of international law . Holding: no remedy for Alvarez under either statute

3. Other Sources

“Soft Law” . Soft law: not an independent source of law, but an expression of commitments that are not themselves legally binding . Can include: Formal statements from international organizations or multilateral meetings Codes of conduct from interest groups . Impact Nonbinding but can lead to compliance with its standards Can generate state practice that gives rise to new customary international law Serve as interim stage in development of international law to be codified later in treates . Much of today’s international environmental law is or arose out of soft law

19 General Principles of Law . When no law is exactly on point (including legislative statute or judicial precedent), judge will proceed to deduce rule by analogy from existing rules or from the general principles that guide the legal system . General consensus is that general principles constitute separate source of law, but of limited scope . Most common application of general principles are in realms of ‘procedure, evidence, and due process” 5 – International Law in the United States

1. Introduction

. Enforcement of international law is generally up to the domestic system Sometimes a convention orders States to implement the convention internally, more often treaties are silent about how they should be treated domestically . 2 major questions: Who gets to make law? In what manner is int’l law incorporated into domestic law?

Two Views on Relationship of Domestic and International Law . Monism: View domestic and int’l law as a single legal system Domestic law even derives its power from a “superior” international law International law should be given direct effect in domestic law and should trump in the event of a direct conflict . Dualism: Views domestic and int’l law as two distinct legal systems International law has no effect domestically unless it has been incorporated into the legislative system International law trumped by domestic legislative acts . Most countries observe a hybrid of the two

Scope of Executive Powers . Examined in Youngstown v. Sawyer (1952) President unilaterally exercises Article II powers in seizing steel mills 3 scenarios  President acts in accord with express legislative delegation: OK  President acts in conflict with express legislative delegation: NOT OK  President act where legislature is silent on issue: COURTS MUST DECIDE

States and Int’l Law . States may enter into non-binding agreements with other countries

2. US Treaty Law

Separation of Powers . Ultimate ratification power lies with President

20 Article II (US Constitution) treaties International agreements on basis of congressional authorization International agreements on behalf of President’s independent constitutional authority to conduct foreign relations Basis of authorization contained in earlier Article II treaty . Executive negotiates treaties; Senate ratifies treaties by 2/3 majority Senate can add reservations, condition ratification or append interpretations which the Supreme Court will use President can decide not to ratify treaty due to reservations, but cannot ignore reservations of Senate (“take-it-or-leave-it”)

Supreme Law of the Land . Treaties are co-equal with the Constitution and federal statutes, constituting the supreme “Law of the Land” (Article VI) . 5% of US international agreements are proper treaties, while 95% are executive agreements

Asakura v. City of Seattle, US (1924) . Facts: Seattle passed ordinance refusing to grant business licenses to non-US citizens despite treaty between US and Japan guaranteeing citizens of each right to carry on trade and business in manner consistent with native citizens . Illustrates (1) self-executing treaties and (2) supremacy of treaties over state law

Scope of Treaty Power and Limits . “Treaty” is not defined in Constitution and by practice includes any international agreement, regardless of subject matter, that has been approved by 2/3 vote of Senate

Missouri v. Holland, US (1920) . Facts: Treaty between US and UK to protect migratory birds . Issue: Legislative acts in conflict with rights reserved to states by Tenth Amendment (federalism) . Rule: If treaty is valid there can be no dispute about validity of statute under Article I §8, as necessary and proper means to execute powers of government . Rule: Without valid treaty, acts of Congress to regulate activity of states within their borders is unconstitutional

Reid v. Covert, US (1957) . Facts: Civilian spouses of US servicemen abroad were tried by court-martial under Uniform Code of Military Justice (UCMJ) . Issue: Can treaty makers disregard individual rights protections in Constitution? . Rule: No agreement with a foreign nation can confer power on Congress or any other branch of government free from restraints of Constitution . Rule: Treaty power is subject to individual rights limitations (treaty does not override Constitution)

 Reconciling Missouri and Reid Missouri deals with political matters involving states vs. federal government, while Reid deals with individual rights, of which courts tend to be more protective Since 1990s, renewed focus on federalism in Supreme Court suggests Missouri might be decided differently today

21 Self-Executing and Non-Self-Executing Treaties . Implementing Legislation Self-executing: domestically enforceable as federal law upon ratification, absent implementing legislation Non-self-executing: only domestically enforceable as federal law through implementing legislation passed by Congress . Interpretation If international agreement is silent as to self-executing character and intent of US is unclear, account must be taken of: (1) any statement by President in concluding agreement, (2) any statement by President in submitting it to Senate for consent, and (3) any expression by the Senate in dealing with the agreement International agreement cannot take effect as domestic law without implementing legislation if it addresses issue within exclusive law-making power of Congress under Constitution  Cannot bring US into state of war  Cannot create international crime or require US to punish certain actions  Cannot “raise revenue” by imposing new tax or tariff (Article I, §7) Mandatory and affirmative language (e.g. “shall,” “will commit”) more likely to be self-executing Obligations to refrain from acts are more likely to be self-executing than treaties requiring affirmative acts Treaty obligations concerning rights of individuals are more likely to be self- executing . Arguments #policy Presumption of self-executing nature  Only way citizens can enforce compliance  No harm in allowing actors to stake a claim in court  Domestic red tape may prevent incorporation of treaties into domestic law Presumption against self-executing nature  Treaties are between States, not individuals  Most treaties cover issues meant to be enforced and resolved among states and not individuals; creating a private right of action is awkward  Bicameralism: Treaties are ratified by 2/3 Senate only, bypassing the House; requiring implementing legislation allows the House to participate too

US v. Noriega, S.D. Fla (1920) . Issue: Whether Geneva III (POWs) is self-executing and thus provides Noriega with right of action for violation of provisions regarding detaining of POWs . Rule: Treaties protecting individual rights are typically self-executing . Holding: Court holds Geneva III is self-executing, was ratified by Senate, and it would be inconsistent with language and spirit of treaty not to recognize private right of action even if Geneva III is not self-executing

Hamdi v. Rumsfeld, 4th Cir. (2003) . Facts: Hamdi captured as enemy combatant in Afghanistan

22 . Rule: Courts will find a treaty to be self-executing only where document, as a whole, evidences an intent to provide a private right of action . Holding: Hamdi may be legally detained as enemy combatant as Geneva Convention is not self- executing and provides for enforcement through diplomatic means of states and not private right of action

 Reconciling Noriega and Hamdi Noriega is one-off case with no lasting implications, while Hamdi sets precedent for hundreds (if not thousands) of enemy combatants captured in War on Terror

Charming Betsy Canon and Statutory and Constitutional Interpretation . Charming Betsy canon of interpretation: “act of Congress should never be construed to violate law of nations if any other possible construction remains” (Chief Justice Marshall) . Last-in-time rule: Supreme Court has long held that where conflict arises between self- executing treaties and federal statutes, that enacted later in time or most recently will prevail

Breard v. Greene, US (1998) . Facts: Breard was Paraguayan citizen scheduled for execution for rape and murder who appealed for sentence to be overturned due to violations of Vienna Convention, where he was not informed upon arrest of right to contact Paraguayan Consulate. Subsequent to Vienna Convention, Congress enacted AEDPA which requires habeas petitioner to forfeit evidentiary hearing if claim is not developed in state court . Rule: Act of Congress is on a full parity with a treaty and when statute subsequent in time is inconsistent with treaty, statute renders treaty null to extent of conflict . Holding: Court holds Breard cannot establish violation of Vienna Convention rights due to failure to confirm to requirements of subsequent AEDPA

Medellin v. Texas, US (2008) . Facts: US ratified Vienna Convention on Consular Relations and Optional Protocol in 1969, which included consent to ICJ, before withdrawing in 2005 from Optional Protocol. Medellin was a Mexican national convicted of capiture murder who alleged violation of Vienna Convention rights due to failure of law enforcement to notify him of right to contact Mexican consulate. President Bush subsequently indicated intent to submit to ICJ jurisdiction in the case. . Rule: ICJ judgments are not binding in domestic courts and President may only exercise governmental power stemming from an act of Congress or the Constitution itself . Holding: Court holds Optional Protocol, UN Charter, and ICJ statute are not self-executing and cannot be binding in absence of enacting legislation . Dissent (Stevens): Presumption of self-execution with treaties and Vienna Convention is self- executing . Dissent (Breyer): ICJ judgment is self-executing . Medellin is now leading case on distinction between self-executing and non-self-executing treaties

Treaty Termination . Constitution is silent on procedural requirements of treaty termination . Constitutionality of President’s unilateral termination of a treaty first addressed by Supreme Court in Goldwater v. Carter (1979) – no opinion gained a majority, thus no rationale controls

23 Political question doctrine cited by Rehnquist plurality opinion: some constitutional issues are non-justiciable because resolution is better suited to political process or because Constitution itself delegates particular constitutional powers in dispute to President or Congress

Kucinich v. Bush, D.D.C. (2002) . Issue: Whether President can withdraw from US-Soviet ABM Treaty without congressional consent . Rule: Foreign governments must be able to rely on pronouncements of the US regarding its treaties . Holding: Court holds issue is nonjusticiable political question

Treaty Reinterpretation . Question of President’s powers to reinterpret treaty in way that differs from meaning given it by President and Senate at time of ratification has never been resolved by Court . Legislature often hedges against this today via explicit RUDs

3. Executive Agreements

. Executive agreements: international agreements concluded by US other than Article II treaties . Not mentioned specifically in Supremacy Clause, but are also supreme Law of Land . Three types: Pursuant to treaty Congressional-executive agreements (CEAs): authorized by statute or joint resolution of Congress  Less problematic constitutionally Sole executive agreements (SEAs or “Presidential executive agreements”): based on independent presidential constitutional authority  Used infrequently . Traditionally submitted as Article II treaties Human rights, extradition, diplomatic and consular privileges, military alliances, war and peace, arms control, boundaries, immigration, intellectual property, taxation, environment . Traditionally concluded as executive agreements Trade, finance, energy, fisheries, postal matters, bilateral aviation relations . Arguments #policy For executive agreements  Art. II does not state treaties are only form of int’l agreements  Easier to pass  Often bundled with implementing legislation to avoid “self-executing” question Against executive agreements  Make Art. II process (advice and consent) merely voluntary  Congressional executive agreements cannot surpass powers granted to Congress under Art. I #exam

4. State Preemption

24 . Increasing relationship in recent years between foreign affairs and federalism for three reasons Increasing overlap between certain areas of international law and areas of traditional state regulation Supreme Court has imposed some federalism constraints on national government domestically States and cities are increasingly expressing own views regarding foreign policy

Crosby v. National Foreign Trade Council, US (2000) . Issue: Whether MA law restricting authority of its agencies to purchase goods and services from companies doing business with Burma is invalid under Supremacy Clause . Rule: State law must yield to congressional Act (1) when Congress intends federal law to “occupy the field” and (2) to extent of any conflict with federal statute . Holding: Court holds law is invalid as it is at odds with federal objectives by going too far

5. Customary International Law

. Most controversial element of international law . US Constitution refers to customary law in Art. I, §8 (“law of the nations”), but does not categorize it as the “supreme Law of the Land” . Some suggest customary law is equivalent to federal common law . President and violations of international law #exam No case law on issue Courts hold lower-level executives subject to IL

6. Summary of Supremacy of International Agreements

. See handout #exam

6 – Subjects of International Law

1. UN Charter (1945)

Chapter I – Purposes and Principles . Article 1 (Purposes) Maintain international peace and security through collective measures Develop friendly relations based on equal rights and self-determination of peoples International cooperation in solving international problems (economic, social, cultural, humanitarian) Centre for harmonizing actions of nations . Article 2 (Principles) Sovereign equality Fulfill obligations in good faith Settlement of international disputes by peaceful means Territorial integrity Non-intervention

25 Chapter II – Membership . Article 4 (Membership) Membership limited to states

Chapter IV – General Assembly . Article 9 (Composition) General Assembly consisting of all members of UN

2. Statehood

Conditions . Recognition of statehood speaks to who is allowed to act on int’l stage and how Full sovereignty Monopoly over force Allowed to make int’l law Immunity from interference within borders Judicial decisions binding Access to int’l courts . Questions of statehood often arise during: (1) unification, (2) colonial independence, (3) secession . Art. 1 of Montevideo Convention on the Rights and Duties of States (1933) identifies four qualifications of statehood #exam Permanent population  No minimum #  Population that is significant and permanent Defined territory  Borders need not be final  Use of force to define territory prohibited by int’l law  State territory includes subsoil, airspace, and 12 nautical miles from shore  Entity does not cease to be state even if all its territory is temporarily occupied by a foreign power Government  Some authority exercising governmental functions and able to represent entity in international relations  Current policy is to continue recognizing governments of failed states (failed state is “political” concept, not legal one) Capacity to enter into relations with other states  Competence within its own constitutional system to conduct int’l relations and political, technical, and financial capabilities to do so  Voluntarism  Entity does not cease to be a state if it voluntarily turns over to another state control of its foreign relations (e.g. protectorates and “associated states”)  States do not cease to be states because of agreements to not engage in certain international activities or delegation of authority to “supranational” entity (e.g. EU . Example: Sealand – not a state for 2 reasons: #exam

26 Territory: does not cover land as it is on a rig raised above seabed Population: insignificant and lacks culture/community . Example: EU – not a state Government: limited especially w/respect to foreign relations, UN observer, no unified foreign relations position among its constituent members . Special Status UN observers that are not states (e.g. Vatican, PLO) Members of regional int’l organizations (e.g. Palestine – Arab States, Western Sahara – African Union) Associated States (Puerto Rico – US, Cook Islands – New Zealand) – aka “states- minus”

Recognition . Recognition of statehood ordinarily determined by other states through (1) formal recognition or (2) admission to membership in international organization . Two theories of statehood recognition Declaratory: entity that satisfies requirements of §201 is a state (objective test – less arbitrary) Constitutive: entity is not a state unless it is generally recognized as such by other states (subjective test – encourages political accountability) . IN US law, President has exclusive authority to recognize or not recognize foreign state Implied in President’s express constitutional powers to appoint and receive ambassadors . US recognition of states has been effected by Official declaration Conclusion of bilateral agreement with state Presentation of credentials to authorities of new state Receiving credentials of diplomatic representative of that state . US membership in international organization of which another state is also a member is not alone sufficient to constitute recognition of statehood

Independence of Kosovo (Kosovo v. Serbia), ICJ (2009) . Facts: Kosovo declares its independence from Serbia in 2008, but never applies to UN for membership due to dissent over statehood recognition and advisory opinion is sought from ICJ . Kosovo’s claim: constitutive claim to statehood based on subsequent political processes and long- term legal effects . Serbia’s rebuttal: statehood is declaratory and Kosovo does not satisfy conditions

Emerging Criteria . US and EU issued new proposed guidelines regarding recognition of new states including: Peaceful and democratic constitution Support for democracy Respect for human rights Observation of all appropriate international obligations No recognition of states emerging by aggression

Duty to Recognize or Not Recognize

27 . Restatement §202 State is required to treat an entity meeting requirements of §201 as a state, even if it does not formally recognize the state Exception: if entity attains qualifications for statehood through threat or use of armed force in violation of UN Charter #exam

Cyprus and Turkish Republic of Northern Cyprus (TRNC) . Greek and Turkish Cypriots maintain separate identities based on religion, language, and close ties with respective “motherlands” . Since 1974, Cyprus has been divided de facto into government-controlled 2/3 and Turkish Cypriot controlled 1/3 Government of Republic of Cyprus is internationally recognized authority In 1983, Turkish Cypriots declared Turkish Republic of Northern Cyprus (TRNC), which is only recognized by Turkey . US recognition of TRNC would almost certainly be conditioned on emerging criteria They have a distinct territory and definite border They have a permanent population. Formally recognized by Turkey Right to self-determination as Greeks have rebuffed all attempts to reconcile . Arguments against recognition of TRNC Possibly premature recognition. Attempt of Turks to reconcile may be indicative that their government has not truly established itself. Only formal international relations are with Turkey, they have no international economy and Sec Council has refused to recognize them

3. State Succession

. Succession: one state replacing another state with respect to the territory, capacities, rights, and duties of the predecessor state . Types of succession New state totally absorbs the first (e.g. conquest, annexation, merger) New state becomes independent of first (colonial independence) New state takes only part of territory of another (e.g. secession and movement of boundaries) State dissolves into two or more states (e.g. USSR and Yugoslavia) . Important questions raised by succession Ownership of public property Obligations for public debts Burdens and privileges under international agreements . Three competing theories of succession Universal succession: assumption of all of preceding state’s rights and responsibilities Partial succession: assumption of some of preceding state’s rights and responsibilities Clean slate: assumption of none of preceding state’s rights and responsibilities

State Succession in Respect of Treaties . Restatement §210 #exam

28 (1) Part of territory of state becomes territory of another state (e.g. movement of boundaries): international agreements of predecessor cease to have effect and those of successor come into force (2) State is absorbed by another state (e.g. annexation): international agreements of absorbing state become applicable to absorbed state (3) When part of state becomes new state (e.g. secession): new state does not succeed to predecessor international agreements, unless it expressly or by implication accepts such agreements (4) Pre-existing boundary and other territorial agreements continue to be binding . Two important sources on treaty succession regarded as declarative of existing customary law by United States 1978 Vienna Convention on State Succession in Respect of Treaties Customary international law . Vienna Convention Art. 6: ensures that Convention does not bestow any legitimacy on conquest or other acquisition of territory by unlawful use of force Generally favors continuity in treaty relations  Art. 11: state succession does not affect a boundary treaty  Art. 12: succession does not affect certain rights and obligations pertaining to use of territory  Art. 31: when two or more states unite, successor is bound by treaties of all predecessor states  Art. 34: when state splits, successor states are presumptively bound by treaties of larger predecessor state Some provisions reject continuity (“clean slate” especially in colonial context of “newly independent states”) . Customary international law generally favors continuity in treaty relations

State Succession in Respect of State Property and Debt . Restatement §209 Addresses title to state property and responsibility for the public debt In general, private property rights are not impacted by change in sovereignty over territory in which property is located or in which its owner resides . 1983 Vienna Convention on Succession of States in Respect of State Property Has not entered into force, but is useful for analysis #exam Succession of state property  Art. 16: when two or more states unite (e.g. annexation), successor inherits state property of predecessors  Art. 14: when part of territory of one state is transferred to another (e.g. movement of boundaries) succession of state property should be accomplished by agreement – in absence of such agreement, immovable property in transferred territory should pass to successor and movable property should pass if it is “connected with the activity of the predecessor state in respect of the territory” in question  Art. 15: Newly independent state entitled to immovable state property unless state and predecessor agree otherwise

29 Succession of debt  Two or more states unite: successor state simply inherits debts of predecessors  Most other scenarios: debt is settled by agreement or split in “equitable proportion”  Art. 38: Newly independent states are liberated from debt (very controversial) Odious Debt  Rule of thumb is that new state inherits old debt unless debt is odious  Odious debt is (1) incurred by previous regime, (2) for regime’s own purposes and not benefit of the people

State Succession in Respect of International Organizations . New state can sometimes succeed to predecessor’s UN seat without reapplying for admission (e.g. Russia, But See Yugoslavia) Successor state is more likely to succeed to UN seat without reapplication if other successors acquiesce or otherwise consent More likely if successor was “dominant” part of predecessor state in size, population, or both More likely to succeed if other states acquiesce

Other Matters of Succession . New states do not inherit wrongful acts of previous state (e.g. genocide) . New state is obligated to guarantee residence/safe haven to all inhabitants and not to displace them, but is not obligated to require that all inhabitants be granted citizenship in new state

4. Recognition of Governments

. Legal significance of recognition of specific government is formal acknowledgement that a particular regime is effective government of state and confer standing as representative on int’l stage . Traditional approach requires states considering recognition to determine Effectiveness of control  Lack of control constitutes premature recognition and intervention with domestic affairs of state Stability and permanence Popular support  Consent or acquiescence of people (not necessarily voluntary and positive support) Ability and willingness to fulfill obligations . Change in government or ideology of state traditionally do not change state or affect its international rights and obligations Name change? Not sufficient No change in territory claimed? Generally insufficient except with newly independent colonies

Doctrines of Recognition . Tobar Doctrine Interventionist approach

30 Less popular of the 2 . Estrada Doctrine Non-interventionist approach Brushes aside all political, legal, or moral issues as irrelevant to right of government to be a representative of the State Rejects intervention in the internal affairs of other States Eliminates practice of granting recognition to governments; only new States are recognized . US Practice Followed Wilson doctrine until 1970, viewing recognition of governments as discretionary in furtherance of national policy Post-1970, deemphasized and avoids use of recognition and primary concern is maintenance of diplomatic relations with new governments

China/Taiwan . Facts: US decided in 1978 to normalize relations with People’s Republic of China, withdrawing recognition from Republic of China (Taiwan) . Exception to recent US policy of declining to take stand on recognition of government UN resolution to recognize PRC in lieu of ROC did not require vote of Security Council because it involved governments and not states #exam . US maintains “nonofficial ties” with “the people of Taiwan” under Taiwan Relations Act

5. Self Determination

. Self-determination: all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social, and cultural development . Self-determination embraced as principle with adoption of UN Charter (1945) Decolonization of non-self-governing territories . Argument for jus cogens recognition of self-determination If merely a customary int’l norm, it will always be trumped by need to protect sovereignty of nations . What defines a “people” (often addressed in context of secession attempts)? Ethnicity Race Language History Shared identity Culture . Violations of int’l law inflicted by secessionist states are not attributed to parent state; however a state successfully seceding will be held responsible for any violations it committed during struggle

Reference Re Secession of Quebec, Can (1998) . Issue: Whether Quebec can unilaterally secede from Canada and is there a right to self- determination under international law that would confer this right of secession?

31 . Rule: International law does not specifically grant component parts of sovereign states legal right to secede unilaterally . Rule: right to self-determination of a people is normally fulfilled through internal self-determination (within framework of existing state) and external self-determination (e.g. secession) arises in only most extreme cases . Rule: Right to external self-determination arises (1) in situations of former colonies, (2) where a people is oppressed, or (3) where a definable group is denied meaningful access to government to pursue their political, economic, social, and cultural development . Effectivity rule: illegal act may eventually acquire legal status if it is later recognized as a legal act on the international plane (principle is ex post and cannot be relied upon ex ante)

6. Corporate Responsibility

. Growing recognition of power and influence of non-state, multinational corporations, insurgents, and other sub-state actors . Ruggie’s “Protect, Respect and Remedy” framework addresses corporate responsibility through three core principles: State duty to protect against human rights abuses by third parties  Governments should not assume they are helping business by failing to provide adequate guidance or regulation of human rights impact of corporate activities  Less governments intervene, more they increase reputational and other risks Corporate responsibility to respect human rights  Requires due diligence to ensure compliance with national laws and manage risk of human rights harm Need for more effective access to remedies  Access to judicial redress is often problematic and non-judicial means are limited in number

7 – State Responsibility and Remedies

1. Basic Principles

. Rules of state responsibility Breach by a state of an international obligation engages the responsibility of the state for the consequences of that breach If breach results in injury, injured state is entitled to reparation (no requirement that norm being breached, such as a treaty, expressly provide for reparation) Responsibility arises whenever there is a breach of an international obligation . Framework Primary rules: breach of which is source of responsibility Secondary rules: determine legal consequences of failure to fulfill obligations established by primary rules

2. Draft Articles on Responsibility of States for Internationally Wrongful Acts

. Not in form of a treaty and have not been drafted or adopted by states Have had weighty influence on jurisprudence of international tribunals

32 Impact on states is less certain  Many governments have registered strenuous objections  Skepticism about whether more controversial aspects reflect state practice and/or opinio juris . Largely based on tort model versus a criminal model Tort-model  Self-help  Economic utilitarian calculations  Reparations (“make whole”) Criminal-model  All nations can invoke wrongfulness (“retributive”) . Mens Rea No general mens rea, each primary rule has own intent requirements Draft Articles provide that internationally wrongful act:  Must be attributable to State under international law (Art. 2(a))  Constitutes breach of an international obligation of the State (Art. 2(b))  Wrongfulness is governed by international law and not internal law (Art. 3)

3. Attribution

. Attribution is addressed in Chapter II of Draft Articles (Arts. 4-11) Art. 4: Conduct of organs of a State Art. 5: Persons or entities exercising elements of governmental authority  Acts by private contractors entrusted by government are attributable Art. 6: Organs placed at State’s disposal by another state Art. 7: Excess of authority or contravention of instructions  Ultra vires acts by organ, person or entity empowered to exercise governmental authority are attributable Art. 8: Conduct directed or controlled by a State Art. 9: Conduct carried out in absence or default of official authorities Art 10: Conduct of insurrectional or other movements  Acts of insurrection which becomes new gov’t or establishes new State are attributed to State Art. 11: Conduct acknowledged and adopted by State as its own

United States v. Iran (Tehran), ICJ (1980) . Facts: Armed attack on US embassy in Tehran and seizure of Consulates at Tabriz and Shiraz . Holding Original acts of students in seizing Embassy and Consulates not attributable to Iran (lacking official character) Iran was guilty of separate int’l violations for not stopping acts of students in accord with duty to protect embassy, consulates, staff, archives, etc. Decree by Ayatollah endorsing actions of seizing embassy and holding staff hostage (and similar actions by organs of state) of sufficient character to attribute responsibility for ongoing occupation to Iran Court also rules Iran not justified in taking hostages as countermeasure to US intervention

33 Control Tests for Attribution . Two control tests for attribution: Effective control (Nicaragua) Overall control (Tadic)

Nicaragua v. US (Paramilitary Activities), ICJ (1986) . Facts: US implicated in various paramilitary activities in Nicaragua in 1983-84 including: mining ports/waters and attacks on port/oil installations. Nicaragua alleged these acts were carried out by either US military personnel or Unilaterally Controlled Latino Assets (UCLAs) paid and acting on direct instructions of US. Also alleged US intervened by supporting rebel contras in territory. . Issue: Nicaragua alleged: (1) US violated int’l law, (2) US supported UCLAs in through planning, and (3) US supported contras through intervention. . Effective Control Test: Party must (1) be in effective control of actor, and (2) control must be exercised with respect to specific operation where breaches were committed . Holding US liable for direct intervention in violation of customary int’l law (Art. 4) US liable for mining and other operations of UCLAs under specific instructions (Art. 5) US not liable for acts of contras as a result of funding and general direction to (Art. 8)  Evidence of armed opposition by contras prior to any US involvement  Not demonstrated that funding was made towards particular offensive  US liability for contras would require effective control and complete dependence Note that under Art. 7, US would be liable for actions of UCLAs if they massacred civilians while carrying out mining operation, even if they went against express orders of US #exam

Prosecutor v.Tadic, ICTY (1999) . Tadic court rejects Nicaragua “effective control” test in favor of “overall control” test for military or paramilitary groups Inconsistent with int’l law; Art. 8 holds State responsible for acts of individuals regardless of whether State has issues specific instructions At variance with judicial and state practice which differentiates between control required with respect to individuals and military or paramilitary groups . Overall Control test: applicable to military or paramilitary group; requires that State wields overall control through financing and coordinating/assisting in general planning of military activity Lower standard of proof than “effective control” as instructions for commission of specific acts are not required Tadic maintains Nicaragua test still applicable to non-organized individuals Third test for individuals assimilated to State organizations on account of their actual behavior within the structure of a State – no need for specific instructions . Tadic court also provides framework for attribution of acts based on whether acts occurred internally or externally to boundaries of accused state Acts outside controlling state: more extensive and compelling evidence of control required Acts within state amid turmoil, civil strife, and weakened state authority: more extensive and compelling evidence of control Acts in adjacent state where controlling state has territorial ambitions: reduced threshold to establish control

34 Bosnia & Herzegovina v. Serbia & Montenegro, ICJ (2007) . Issue: Were acts committed at Srebrenica committed by an organ of Serbia? (Art. 4) If no, were they committed by persons acting on instructions, or under direction of control, of Serbia? (Art. 8) . Holding Court answers no on Art. 4 question Court answers no on Art. 8 question and readopts Nicaragua “effective control” test “Overall control” test of Tadic has drawback of broadening scope of State responsibility well beyond fundamental principle governing law of international responsibility: a State is responsible only for its own conduct or persons acting on its behalf #policy

. Example: US invasion of Afghanistan offers evidence higher standard for attribution of int’l law violations is not always preferable #policy US justification for targeted killings outside zone of hostilities in areas such as Yemen and Pakistan is that local governments effectively have no control and thus US is empowered to exercise control to resolve issue Serious challenges to principles of sovereignty and non-intervention

4. Existence of Breach

. Art. 12 of Draft Articles provides “there is a breach of international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin and character.”

Fault . Draft Articles do not establish general rule requiring state be at fault before it can be said breach occurs . Articles are neutral on what standard of culpability must exist for breach to occur, leaving issue to be addressed by “primary rules” of the specific obligation at issue in any given case . Trend has been to move away from general, abstract, and vague notions (e.g. “abuse of right,” “liability without fault”) to define specific conduct expected by states to prevent harm

Injury and Legal Interest . In case of some primary rules, breach does not occur unless and until injury occurs Obligation to protect embassy of foreign government is not breached merely for negligence of protection . In case of other primary rules, breach may occur even without tangible injury to another state . Erga Omnes Obligations (Art. 48) State responsibility even in absence of tangible injury where state obligated generally to treaty partners (multilateral treaties) or international community as a whole (customary international law) States other than injured State may invoke responsibility if obligation is owed to “international community as a whole” under Art. 48(1)(b) . Legal Standing (Art. 33) Injured State Group of States (sometimes) International community as a whole (sometimes)

35 Barcelona Traction (Belgium v. Spain), ICJ (1970) . Facts: TLC was incorporated in Canada but shareholders and some executives were in Belgium. TLC also did business in Spain. Spain harmed interests of the TLC through economic and regulatory schemes. Belgium then brought suit against Spain on behalf of TLC . Rule: To bring claim under erga omnes obligations to protect foreign nationals, State must prove: (1) defendant State has breached obligation towards national state w/ respect to its nationals, and (2) only party toward whom obligation is due may bring claim . Holding: Belgium lacks standing to bring claim – TLC is Canadian corporate citizen and thus Canada is protecting power, not Belgium

5. Circumstances Precluding Wrongness

. Special circumstances generally considered to preclude wrongfulness for acts not in conformity with international obligations: Consent (Art. 20) Self-defense (Art. 21) Force majeure (Art. 23) Distress (Art. 24) Necessity (Art. 25)

Consent . Draft Articles Art. 20 . Example is territorial breach at invitation of another country Targeted killings by US at invitation of Yemen US military bases abroad

Self-Defense . Draft Articles Art. 21 . Governed by UN Charter

Force Majeure . Draft Articles Art. 23 . Occurrence of irresistible force or unforeseen event, beyond control of State, making it materially impossible in circumstances to perform obligation Natural disaster or other natural means that compel state to run afoul of int’l obligation (e.g. vessel or aircraft crossing territory in bad weather) Cannot be invoked if situation caused in part by State or State has assumed risk of that situation occuring

Distress . Draft Articles Art. 24 . Actor has no other reasonable way of saving life or life of others Cannot be invoked if distress caused by actions of actor or act is likely to create comparable or greater peril . Distinguished from force majeure in that it is possible to conform, although it would result in loss of life

36 Rainbow Warrior (New Zealand v. France), UN Arbitration (1990) . Facts: French agents explode Greenpeace vessel docked in New Zealand and UN arbitration ordered agents be transferred to isolated French military facility for 3 years and prohibited from leaving except with mutual consent of governments. One agent was transferred for emergency surgery and the second when it was learned her father was dying of cancer. . Issue: New Zealand alleged breach of obligations for: (1) failure to obtain consent prior to removal, and (2) failure to return agents to island for duration of confinement . Holding: Distress is not equivalent with mere inconvenience and even if initial removal without consent was appropriate, agents should have been returned to confinement when distress conditions subsided . NOTE: exchange of letters between New Zealand and France to coordinate temporary release of agents is sufficient to constitute a “treaty” under VCLT #exam

Necessity . Draft Articles Art. 25 . Only way for State to safeguard an essential interest against grave and imminent peril and does not seriously impair essential interest of State(s) towards which obligation exists or int’l community as a whole Cannot be invoked if obligation in question excludes possibility of invoking necessity or state has contributed to condition . Distinguished from self-defense in that it is proactive and not reactive . Distinguished from force majeure in it involves a deliberate act not to conform . Distinguished from distress in that it is generally more difficult to prove

Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ (1997) . Facts: Hungary sought to terminate 1997 treaty with Slovakia for construction of system of locks on Danube River on grounds of impossibility, citing it would cause irreparable environmental damage . Rule: Court generally construes facts to argue for compliance rather than non-compliance #policy If not imminent, court will seek to encourage negotiation among states to preserve integrity of int’l obligations . Holding Recent trends support view that safeguarding ecological balance is an “essential interest” of all States Apprehension of possible peril not sufficient to invoke necessity; imminence is synonymous with “immediacy” or “proximity” far beyond “possibility”

CMS v. Argentine Republic, Tribunal (2005) . Facts: Suspension by Argentina of tariff adjustment formula applicable to CMS invoking necessity in light of 2000 financial crisis . Holding Argentina breached provisions of Bilateral Investment Treaty with US Court rejects necessity defense on grounds that other measures were available and Argentine actions contributed to conditions compelling them to invoke necessity  #Blum: Reservations about Court’s reasoning here and draws distinction between court requiring parties to negotiate (Hungary dam case) and validity of country choosing from one of several questionable options in an economic crisis #exam

37 Peremptory Norms and Circumstances Precluding Wrongfulness . Draft Articles Art. 26 . None of these circumstances excuses transgression of peremptory norms

6. Reparations

. If state has committed an act that breaches an international obligation and thereby causes injury, state is obliged to make “reparation” for injury . Reparation must, as far as possible, wipe out all consequences of illegal act and re-establish situation which would, in all probability, have existed if that act had not been committed . Types of reparation (Art. 34) Restitution (Art. 35)  Restoring the situation to state ex-ante  Ordered in a minority of cases Compensation/Indemnity (Art. 36)  Money damages  Direct damages (damnum emergens)  Lost future profits (lucrum cessans)  Allows for efficient breaches because no punitive element  Most common remedy Satisfaction (Art. 37)  Acknowledgement of breach, expression of regret, formal apology, guarantee of no repetition of wrongful act

7. Countermeasures

. State injured by another state’s violation of an international obligation is entitled to take measures against offending state as a means of inducing compliance Int’l law system is largely one of “self-help” Countermeasures are most contested section of Draft Articles . Three types of unilateral measures Reprisals: countermeasures that would be unlawful if not for prior illegal act of state against which they were taken (e.g. seizure of assets)  Most unlawful  Injured state violates different treaty in response to original offense Reciprocal measures: non-performance by injured state of its obligations towards offending state when such obligations correspond to or are directly connected with obligations breached  Most common in bilateral agreements  Injured state violates same treaty in response to original offense Retorsion: measures of injured state against offending state that are generally permissible in international law irrespective of prior breach (e.g. suspending diplomatic relations, cessation of trade, curtailment of immigration, or denial of bilateral aid)  Least unlawful . Arguments #policy For countermeasures

38  No central authority to deal with violations of primary rules of int’l law Against countermeasures  Need for strict limitations on self-help to prevent abuses and provide for procedural controls including dispute settlement . Object and limits of countermeasures (Art. 49) Purpose is to induce compliance (not revenge) Countermeasure must be (1) proportional and (2) reversible . Peremptory Norms (Art. 50) Countermeasures may not violate jus cogens norms Violation of jus cogens norms by one state does not justify reciprocal violation . Proportionality (Art. 51) Countermeasures must be proportional to injury suffered . Procedural constraints on use of countermeasures (Art. 52) Duty to negotiate in good faith to resolve issue Notice to offending state that countermeasures will ensue unless compliance is obtained

Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ (1997) . Issue: Slovakia contented it was entitled to implement significant variation from original plan in response to Hungary’s repudiation of original plan in 1977 treaty . Rule: Countermeasures must be: (1) in response to breach, (2) only taken after assurance party has failed to fulfill obligations, (3) be proportionate, and (4) be reversible . Holding Slovakia’s act was in response to original breach of obligation by Hungary Slovakia requested Hungary to resume performance of its obligations to no avail Slovakia’s actions in unilaterally assuming control of shared resource were not proportionate

Air Services (France v. US), Arbitration (1978) . Facts: US claimed France violated bilateral Air Services Agreement of 1946 by refusing to allow smaller planes to be substituted for larger aircraft in flights to Paris via London. France contended that “change of gauge” was not authorized by agreement without consent. France compelled airline to cease flights to Paris. In response, US suspended French flights to Los Angeles under same agreement. . Rule: Countermeasures may be employed by injured state, even if case is pending before a tribunal, until point where tribunal is in position to effectively resolve issue originally justifying countermeasures, especially where state has offered procedure to expedite resolution of dispute . Holding: US actions justified in restoring in negative fashion symmetry of initial positions Collective Sanctions . Countermeasures for violation of international obligation through joint or parallel action of states Typically involve severance of diplomatic relations, trade boycotts, and cessation of air/sea traffic States not directly injured may join on ground that violation affected collective interest or common concern of the international community . State injured by breach of a multilateral treaty may suspend its performance of obligations toward the state that acted wrongfully May be barred when unilateral non-performance by one party as countermeasure would entail damage to collective interest

39 Multilateral treaties may provide expressly for responses to violations by collective decisions or other procedures

Private Right of Action for International Claims . Restatement §906 Private person injured by violaton of international obligation may bring claim against state or assert violaton as a defense in a court or other tribunal (a) of that state, pursuant to its law, (b) of the injured person’s state of nationality or, (c) of a third state, pursuant to the law of such state

8 – International Dispute Resolution

1. Dispute Resolution

. Goal of international law is to replace disputes with rule of law (See UN Charter) . Essentially all international adjudication is subject to consent . Adjudication in the ICJ is still overwhelming exception to the rule . What is a dispute? Not every disagreement is a dispute Disputes involve: (1) question of legal significance and (2) specificity . Generally negotiations are required before a court will accept an issue for adjudication . Uses of international law Induce compliance As an “anchor point” to resume negotiations/reconciliation between states w/ objective criteria on issue

2. Non-adjudicative Measures

. Negotiation Non-binding . Inquiry: fact-finding mission by third party Non-binding . Mediation: third-party acts as bridge between parties unable to negotiate resolution themselves Non-binding . Conciliation: identical to mediation, but with a commission of mediators Non-binding . Arbitration: states agree to appoint a binding mediator Binding More common than formal adjudication through ICJ Advantages: speed, efficiency, allows parties role in selecting panel, allows non-state actors to participate, preferable to negotiation by weaker nations, broader subject matter available for resolution than in ICJ

3. International Court of Justice (ICJ)

40 . International Court of Justice (“ICJ” or “World Court”) – created by UN Charter (1945) and designed to be principal judicial organ of UN Main function is to decide legal disputes between states (only states may be parties to ICJ disputes) In practice, ICJ is more of standing arbitration mechanism than judicial mechanism, largely due to element of consent ICJ judgments are only binding on parties to that case (ICJ Statute Art. 59) . ICJ jurisdiction primarily limited to 2 types of cases: (1) contentious cases and (2) advisory opinions

Contentious Cases . Very few cases as states are wary of submitting critical cases of national import for adjudication by foreigners . ICJ Statute Art. 36 provides for jurisdiction in 4 ways: Ad hoc consent/special agreement (Art. 36(1))  Least common Dispute settlement (“compromissory”) clauses of treaties (Art. 36(1))  Most common UN Security Council referral (Art. 36(1))  Typically for disputes involving non-state actors General consent under Optional Clause (Art. 36(2))  Only applicable to disputes with other states that have also accepted compulsory jurisdiction  Declarations antedating ICJ and conferring compulsory jurisdiction on PCIJ are considered to be acceptances of ICJ jurisdiction under ICJ Statute Art. 36(5)  Common reservations  Disputes committed to other tribunals or agreed to be settled by other means  Disputes relating to matters “exclusively” or “essentially” within domestic jurisdiction of declarant state (some further provide this determination to be made by declarant state, known as “self-judging” clause)  UK is only P-5 member to accept compulsory ICJ jurisdiction . DRC v. Rwanda (2002): Reservation to ICJ jurisdiction in treaty addressing jus cogens norm is not incompatible with object and purpose of treaty as it only excludes a particular method of dispute resolution and does not affect substantive obligations under treaty

Oil Platforms (Iran v. US), ICJ (1996) . Issue: Iran challenged lawfulness of destruction by US military forces of several oil platforms in Persian Gulf during Iran-Iraq war, which they alleged violated 1955 U.S.-Iran Treaty of Amity, Economic Relations and Consular Rights, which contained an ICJ dispute resolution clause. US contended dispute involved law regulating use of force and self-defense and not treaty. . Holding: Freedom of “commerce” as guaranteed in Article X of treaty could arguably have been impacted by destruction of platforms and ICJ jurisdiction is thus appropriate . Illustration of jurisdiction under compromissory clause of treaty . Demonstrates that ICJ may touch on merits of case even at preliminary objection stage #exam

41 Certain Norwegian Loans (France v. Norway), ICJ (1957) . Facts: French nationals owned bonds issued before WWI by Norway and Norwegian banks promising payment in gold. Norway later passed legislation allowing payment of the bonds in notes not convertible into gold. Both states had accepted compulsory jurisdiction to ICJ, but France logged a reservation excluding disputes of an essentially domestic nature. . Issue: Can Norway compel ICJ to decline jurisdiction, relying on reciprocity of French reservation? . Holding: Court finds that narrower limits of French control and Norway is entitled to rely on reservation due to reciprocity, denying ICJ jurisdiction . Illustration of jurisdiction under optional clause and “self-judging” reservation clause . NOTE: If ICJ had found French reservation invalid, it would negate French consent to compulsory jurisdiction and end result would remain the same – no ICJ jurisdiction

Paramilitary Activities (Nicaragua v. US), ICJ (1984) . Facts: US consented to compulsory ICJ jurisdiction in 1946, subject to reservation that six months notice would be given prior to withdrawal. When Nicaragua brought claim to ICJ in 1984, US deposited notification with UN indicating 1946 declaration did not apply to disputes with any Central American State, effective immediately and remaining in force two years. . Rule: Reciprocity is concerned with scope and substance of commitments and not form; reciprocity cannot be invoked to excuse departure from terms of State’s own declaration . Holding: Court rejected US’s attempted “modification” of its 1946 declaration and found basis for ICJ jurisdiction over dispute

Non-Appearance in Contentious Cases . No judgment by default . Absent third parties: when court decides it lacks jurisdiction over one of several parties in a multistate dispute that is essential to resolution of the dispute, court will decline to rule on case . States not originally parties to the dispute may request to intervene if they are materially impacted

Procedure in the ICJ . Cases decided in phases Preliminary objections (jurisdiction or “admissibility” of case) Merits of case Reparation (damages) . Provisional Measures ICJ Statute Art. 41 ICJ may issue preliminary order that grants some interim relief to one of the parties or directs parties to refrain from acts that would aggravate the dispute while pending Binding . Admissibility Argument that claim cannot be submitted to ICJ on ground that some other applicable rule of international law has been breached  Failure to exhaust local remedies  Failure to attempt to reach agreement through diplomatic negotiations where provided for in treaty or customary international law

42  Contention that dispute is not legal in nature and instead must be addressed by UN Security Council

Paramilitary Activities (Nicaragua v. US), ICJ (1984) . Issue: Whether issue is judiciable or must be settled solely before UN Security Council . Rule: UN Charter prohibits General Assembly from acting on dispute before Security Council, but no express prohibition applies to ICJ in either UN Charter or ICJ Statute (Art. 24 of UN Charter provides that Security Council holds “primary” responsibility and not “exclusive” authority)

. Finality Judgments of ICJ are binding (ICJ Statute Art. 59) Judgments of ICJ are not subject to appeal in ICJ, but parties may request interpretation of ruling (ICJ Statute Art. 60) No provisions on enforcement of decisions Decisions can theoretically be appealed to Sec Council, but this has never been enforced accordingly due to effective veto by P-5  Consider ways framework could be changed to encourage compliance w/ ICJ decisions #exam  UN Charter Art. 94 allows measures to encourage enforcement (e.g. suspension of veto power for certain issues such as intervention)  Have states submit bonds or hold funds in escrow that would be forfeited in case of non-compliance

Advisory Opinions . ICJ empowered under UN Charter (Art. 96) and ICJ Statute (Art. 65) to render advisory opinions on any legal issue presented by various international organizations . States may NOT request advisory opinions, only UN General Assembly, Security Council, and other organs and specialized agencies authorized by General Assembly . Requirements for requesting advisory opinion #exam Is agency/body authorized to seek advisory opinion?  WHO may seek opinion on effects of nuclear weapons on health, but not legality of use of such weapons)  General Assembly and Security Council authorized to seek advisory opinion on “any legal question” under UN Charter Art. 96(1) Is question within scope of requesting agency/body? Is question legal or political in nature? . Discretionary grounds for declining to provide opinion Advisory opinions are to be given unless there are compelling reasons to refuse Court rendered advisory opinions over objections in Nuclear Weapons and Israeli Wall cases, noting that potential political impact was not a compelling reason to decline to give an opinion . Advisory opinions are not binding, but states may agree to treat them accordingly

Assessment of Future of ICJ . Court’s caseload has remained relatively light . Jurisdiction or admissibility often challenged in contentious cases

43 . Acceptance by states of court’s authority, as indicated by consent to compulsory jurisdiction is limited . Effectiveness hampered by rigid procedures and lengthy case resolution time . Concerns about enforceability of rulings . Increasing popularity of formal international dispute resolution bodies and regional/specialized courts

9 – National Jurisdiction

1. Principles of Jurisdiction

. International lawyers are concerned with allocation of power and authority among states States control borders, regulate conduct, and claim power over access to resources . Jurisdiction: authority to affect legal interests (prerogative, not a duty) . 2 focuses of jurisdiction Domestic: when can a state exercise jurisdiction internally over acts occurring outside its territory International: what can a state do? . Differentiating between public and private international law Public international law: whether a state has the authority to apply its drug laws, tax laws, or antitrust laws to conduct by persons in another state Private international law (“conflict of laws”): whether a state may apply its tort, contract, or property rules to events or transactions that have significant connections with it and another state . Restatement identifies 3 types of jurisdiction Jurisdiction to prescribe (authority of state to make law applicable to persons/activities) Jurisdiction to adjudicate (authority of a state to subject particular persons or things to its political process) Jurisdiction to enforce (authority of a state to use resources of government to induce or compel compliance with its law)

2. Prescriptive Jurisdiction

. Presumptions Under classical view (SS Lotus) the presumption was in favor of jurisdiction and the burden fell on the party contesting it to show that there wasn’t jurisdiction Modern view is that reason must be provided for any extraterritorial action in the form of one of the enumerated prescriptive bases . 5 Prescriptive Bases Territorial Nationality Protective Passive Nationality Universal . Reasonableness limitation on prescriptive jurisdiction (Restatement §403)

44 (1) Even when a basis for jurisdiction exists, a state may not exercise jurisdiction to prescribe law when the exercise of such is unreasonable (2) Reasonableness is determined by evaluation of all relevant factors, including:  Link of activity to territory of regulating state (occurs within territory or has substantial effects within)  Connections between regulating state and actor to be regulated (nationality, residence, economic activity)  Character of regulated activity and extent of regulation by other states  Existence of justified expectations that may be harmed by regulation  Importance of regulation to international community  Extent to which regulation is consistent with international traditions  Extent to which another state has interest in regulating activity  Likelihood of conflict with regulation of another state (3) When concurrent jurisdiction exists between two states the greater interest should prevail based on factors above . Principle of comity: regulate clashes between states in extraterritorial actions; hold that states should defer to state w/ greatest interest in dispute Limitations are self-imposed by legislature in adopting a statute Limitations adopted by court in fashioning a decision that affects foreign interests . Generally jurisdiction will be found on territorial basis, but recent trend is for exercise on other bases due to (1) increasing speed of communications, (2) more sophisticated structure of commercial organizations or enterprises with int’l ramifications, and (3) growing international character of criminal activities

Territorial Jurisdiction . Exercise of jurisdiction by a state over property, persons, acts or events occurring within its territory Clearly conceded by international law to all members of the society of states . Customary to cede to state territory: (a) maritime coastal belt or territorial sea, (b) ship/aircraft bearing flag of state wishing to exercise jurisdiction . Jurisdiction ceded by international law over aliens (no presumption of immunity arises from fact that person against whom proceedings are taken is an alien) . Technical extensions Subjective territorial principle: jurisdiction to prosecute and punish crimes commenced within their territory, but completed or consummated in territory of another sate Objective territorial principle: jurisdiction to offenses or acts commenced in another state but (1) consummated or completed within their territory, or (2) producing gravely harmful consequences to social or economic order within their territory  Effects must be (1) substantial and (2) reasonable  Useful with respect to exercise of jurisdiction over multinational corporations . Long-standing canon of construction that, unless contrary intent appears, US laws should be construed to only apply within territorial jurisdiction of US #policy Non-intervention No representation of int’l community in US legislature

45 Nationality Jurisdiction (Actor) . Exercise of jurisdiction by the state of which the person, against whom the proceedings are taken, is a national Generally conceded by international law Normal practice is to allow each state to determine who its national are . Legal Persons or Corporate Nationality Europeans argue no grounds w/ respect to foreign subsidiaries under territorial or nationality grounds, US disagrees . Example: Helms-Burton Act (1996) #policy Facts: Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 created right of action in US courts on behalf of any US national with a claim to property confiscated by Cuba since 1959 against any person who “traffics” in such property (defined as selling, transferring, buying, or leasing property; engaging in commercial activity benefiting from confiscated property). Applicable to corporate officers, principals, shareholders and to the spouse, minor child, or agent of any person excludable under preceding categories. Criticized as a secondary boycott, contrary to international law in time of peace, as it seeks unreasonably to coerce conduct that occurs wholly outside of state purporting to exercise its jurisdiction to prescribe  Primary boycott (“embargo”): State A prohibits trade/investment with State B  Secondary boycott: State A says that if X (national of State C) trades with State B, X may not trade/invest with State A

Protective Jurisdiction . Exercise of jurisdiction by the state over crimes against its security and integrity or its vital economic interests (Restatement §402(3)) . Examples of generally recognized crimes against security of state Espionage, counterfeiting of state’s seal or currency, falsification of official documents, perjury before consular officials, conspiracy to violate immigrations/customs laws . Does not support jurisdiction to foreign nationals of laws against political expression (e.g. libel) . Justification Offenses subject to application are such that consequences may be of utmost gravity and concern to state against which they are directed Unless jurisdiction were exercised, many such offenses would escape punishment because they did not contravene law of place where they were committed (lex loci delicti) or because extradition would be refused by reason of political character of offense . Arguments Against Each state presumes to be its own judge as to what endangers its security or its financial credit, thus application is quite arbitrary  #Blum: trend in recent years to expand protective principle beyond original intent

US v. Romero-Galue, 11th Cir. (1985) . Issue: Whether Congress, in enacting statute, intended to reach possession of marijuana by foreigners aboard a vessel on the high seas

46 . Holding: Act was designed to prohibit all acts of illicit drug trafficking on the high seas and US entitled to assert protective jurisdiction on basis of “War on Drugs”  #Blum: STREEEEETCH (once you allow jurisdiction outside of territoriality and on economic grounds, you face issues in defining limits where actions are not reasonable to protect financial interests #exam

Passive Nationality or Personality (Victim) . Exercise of jurisdiction by the state of which the person suffering injury or a civil damage is a national Weakest of prescriptive bases, recognized by international law subject to certain qualifications Not generally accepted for ordinary torts or crimes, but increasingly accepted as applied to terrorist or other organized attacks on nationals by reason of nationality or attempts to assassinate state’s diplomatic representatives/officials (Restatement §402, comment g) Blends w/ protective principle when applied to terrorism and organized attacks . Justification Each state has perfect right to protect citizens abroad and to punish persons causing injury if the locus delicti neglects or is unable to do so and the persons responsible come within its power . Arguments Against General interests of state are scarcely attacked “merely because one of its nationals has been victim of offense in a foreign country”

Universal Jurisdiction . Offense contrary to interests of international community as a whole and thus subject to jurisdiction of all states wherever it may be committed (essentially jus cogens norms) Piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, acts of terrorism Generally not subject to limitations of time Generally applied only to criminal law, but application to non-criminal law is not foreclosed . US federal criminal statutes relying on universal jurisdiction Terrorism and human rights-related statutes Maritime Drug Law Enforcement Act Alien Tort Statute (ATS) . Exercise of prescriptive jurisdiction in US determined by Congress, not int’l law or federal courts No federal common law of crimes (federal criminal liability must be enacted domestically by legislation) US courts will not apply foreign criminal law as matter of public policy Separation of powers and accountability do not allow treaties to create domestic criminal liability (non-self-executing treaties) US law allows federal statutes to supersede earlier inconsistent international law  Later in time rule  Lower courts have uniformly held that where there is conflict between federal statute and customary international law, statute prevails without regard to timing

47 . Interpretation Charming Betsy canon: courts attempt to construe federal statutes so they do not violate international law Courts presume federal statutes do not apply extraterritorially (exception made for antitrust law or criminal statutes that are focused on extraterritorial matters) Courts likely to give deference to views of executive branch regarding content of int’l law . US is only country in world to assert universal jurisdiction for civil liability (ATS)

3. Jurisdiction to Enforce and Adjudicate

. Enforcement jurisdiction addressed by Restatement §431 Must be reasonable Greater limitation on enforcement of activity in another state than on high seas . Limited by principle of comity . Enforcement jurisdiction is said to be territorial Limits much more strictly observed than with prescriptive jurisdiction . State may not exercise authority to enforce law that it has no jurisdiction to prescribe Fact that it cannot exercise enforcement jurisdiction does not preclude cooperation by appropriate means with state that has jurisdiction to prescribe . State that has jurisdiction to prescribe may enforce law through its courts if it also has jurisdiction to adjudicate Fact that it cannot exercise judicial jurisdiction does not preclude enforcement through non-judicial means . Judicial enforcement measures Criminal sanctions (fines/imprisonment) Order to produce document Sanction for failure to comply with court order Judgment of court awarding or denying damages in civil action is generally NOT viewed as enforcement . Extradition Typically limited to serious crimes where act is “doubly criminal” under both domestic and foreign law Some states will not extradite (1) own nationals, or (2) to states employing death penalty Once defendant is within territory, courts will generally exercise jurisdiction and leave issues with how defendant was delivered to executive branch to resolve . Non-judicial enforcement measures Denial of right to engage in import/export transactions Removal from list of persons eligible to bid on government contracts Suspension, revocation, denial of permit to engage in business activity Prohibition on transfer of assets Measures of state policy (e.g. trade embargo with foreign state) is NOT viewed as non- judicial enforcement . Non-judicial enforcement need not meet all requirements for exercise of criminal jurisdiction, but cannot be arbitrary . Aid in Enforcement (Restatement §432)

48 State’s law enforcement officers may only exercise functions in territory of another stte with consent of other state

10 – The Use of Force: Jus Ad Bellum

1. Principles

. Destruction of the “Caroline” (1837) Self-Defense: confined to cases where necessity of self-defense is (1) instant, (2) overwhelming, (3) leaving no choice of means, and (4) no moment for deliberation Use of force also subject to requirement of proportionality . Naulilaa (1928) Account of customary law of reprisals  Reprisals: acts of self-help by injured state in retaliation for acts contrary to international law on part of offending state, which have remained unredressed after a demand for amends  Observance of rule of international law is temporarily suspended  Limited by considerations of humanity and rules of good faith  Illegal unless based on previous act contrary to international law  Seek to impose on offending state (1) reparation for the offense, (2) return to legality, and (3) avoidance of new offenses Reprisals must be (1) in response to act contrary to international law, (2) preceded by unsuccessful demand for redress, and (3) reasonably proportionate . Neutrality Neutral state accorded freedom from belligerent acts and respect for its territory Based on principles of (1) nonparticipation and (2) nondiscrimination  Nonparticipation: guarantee that neutral state would not assist one of the belligerents against the other  Nondiscrimination: neutral state would deal with belligerents impartially Laws of neutrality codified in Hague Conventions Neutral state trading with belligerents  Trade in any nonmilitary supplies permissible  Allow private individuals to supply military goods  Nondiscrimination applicable to private intervention so neutral state could either (1) impose total embargo on export of military exports by private individuals or (2) allow exports without discrimination between belligerents

2. Historical Background

. Historically, use of force was a right of sovereign states . Right to use force was later co-opted and endorsed by clergy to justify as punishment or to save others (e.g. Crusades, “just war”) . League of Nations Arose out of WWI First attempt to restrict recourse to use of force among states Failure was that it (1) did not outlaw war outright, but merely put in place procedural safeguards to delay resort to force, and (2) failed to get membership of US

49 . Kellogg-Briand Pact (1928) Parties condemn recourse to war for solution of international controversies, and renounce it as an instrument of national policy in int’l relations (Article I) Parties agree that settlement or solution of all disputes or conflicts shall never be sought except by pacific means (Article II) Positive criticism  Prohibition of resort to war is now valid principle of international law  Does not mean that use of force is illegal in all circumstances  Right to self-defense is still recognized principle of international law  View of measures short of war (such as reprisals) remained unclear Negative criticism  Called for renunciation of war, but without establishing means for enforcement . Nuremberg Charter and Trials International Military Tribunal established at Nuremberg, Germany in 1945 by allied powers Defined certain crimes and authorized Tribunal to try people for them and to impose judgment and sentence Article 6 defined crimes within jurisdiction of Tribunal for which individual responsibility was imputed  Crimes against peace (war of aggression, war in violation of int’l agreements, participation in planning or conspiracy of above)  War crimes: violations of laws or customs of war (murder/ill- treatment/deportation/enslavement of civilian population, murder/ill-treatment of POWs, killing of hostages, plunder, wanton destruction)  Crimes against humanity (murder, extermination, enslavement, deportation, and other inhumane acts against civilians; persecutions on political, racial, or religious grounds) Relied heavily on Kellogg-Briand Pact to address criminalization of wars of aggression

3. UN Charter’s Use of Force Regime

. UN Charter envisioned 3-tiered system addressing use of force Prohibition on use of force (Arts. 2(3) and 2(4)) Limited exception to self-defense (Art. 51)  Limited to situations in which armed attack has occurred  Unilateral right (no approval required from any external body for state to assert right)  Collective right (allows state to join others to collectively repel armed attack)  Interim right (states entitled to use force only until such time as Security Council or other collective force can police peace) Security Council Policing (Ch. VII)  Provides Security Council may authorize use of force in interests of collective security . Tension between Arts. 2(4) and 51 (either may be read broadly or narrowly) Art. 2(4) purposefully uses term “use of force” as it was intended to be broader than Kellogg-Briand 2 primary interpretive questions/issues:

50  Is prohibition only against direct threat or use of force, or is it also applicable to implied threats?  Prohibition not applicable when use of force is “justified” – recall self-defense is governed by (1) necessity and (2) proportionality Weak countries probably prefer a strong Art. 2(4) and a weak Art. 51 (prohibition on force, but outlet to invoke self-defense if they feel sufficiently threatened) #policy . Collective Security UN Charter intends to make collective security the norm Achieved by use of international military police forces and lesser but forceful measures such as diplomatic and economic sanctions . Role of General Assembly Important due to risk Security Council will not be able to act due to veto Uniting for Peace  Resolution that provides for General Assembly to make recommendations, if Security Council is gridlocked, for collective measures to maintain or restore peace and security  Art. 24 confers Council with “primary” responsibility, implying “secondary” responsibility may be exercised by the Assembly Chapter 6 ½  “Blue hats” peacekeeping operations  Today it is difficult to imagine substantial action under this mandate without backing of Security Council

. Criticisms of UN “use of force” regime were that it failed to address four seismic developments #policy Cold War (froze Security Council’s collective security capabilities due to veto) Ingenuity with which states substituted indirect aggression (e.g. insurgency and intervention) for traditional frontal military aggression Technological transformation of weaponry (e.g. nuclear, chemical, biological) and delivery systems – issues with states claiming right of “anticipatory self-defense” Rising global public consciousness of importance of human freedom and link between repression of human rights and theats to peace . Quasi-Constitutionality of UN Charter In event of conflict between obligations of members under Charter and obligations under any other international agreement, obligations under Charter prevail (Art. 103)

4. Simple Cases

Armed Attack . Not every use of force constitutes an “armed attack” . Defining armed attack #exam Nicaragua court differentiates between “armed attack” and “frontier incident” Whether force constitutes “armed attack” dependent on its “scale and effects” . Pyramid of Acts of Aggression

51 Drop Bombs Armed Attack Sending Insurgents

Arming Organized Groups Not an Armed Attack

Funding Organized Groups

. Cumulative Theory of Armed Attack: series of “frontier events,” insufficient individually to constitute an “armed attack,” but sufficient when viewed collectively . Self-defense and non-state actors #exam Art. 51 does not limit self-defense to circumstances where armed attack is launched by another state ICJ interpreted Art. 51 as limiting self-defense to armed attacks by states in advisory opinion on Israeli Wall . Influences on evolving interpretations of Art. 51 Technological changes (e.g. internet, cyberattacks) Increasing power in the hands of individuals/non-state actors

Collective Self-Defense Collective Self-Defense #exam  Nicaragua court ruled there is no customary rule of international law that permits non-injured state to exercise right of collective self-defense on basis of its own assessment of situation  Collective self-defense requires a request by State which is the victim of the alleged attack

4. Hard Cases

. Self-help may be justified as a remedy of last resort in situation where all alternatives for peaceful resolution have been exhausted and law and facts indisputably support a plea of extreme necessity . Framework for analysis of legitimacy of justification #exam Historical state practices International reaction Influence of P-5 nations . Claimed justifications to use of force based on “creative” interpretations of Art. 51 Reprisals Hostages Insurgencies/Civil Wars Ideology

52 Terrorism Anticipatory Self-Defense

Reprisals . Acts of self-help by injured state in retaliation for acts contrary to international law on part of offending state, which have remained unredressed after a demand for amends . Arguments for Lawful countermeasures undertaken out of necessity Some suggest reprisals legal if carried out in narrow and proportional manner . Arguments against Only valid when initial offense violates peremptory (jus cogens) norms or UN Charter

Hostages . Rescue or protect citizens abroad through military rescue or forcibly deterring those who threaten their safety . Military action is more likely to be condoned (1) if threat to citizens is demonstrably real and grave, (2) if motive of intervening state is genuinely protective, and (3) if intervention is proportionate, of short duration, and likely to achieve purpose with minimal collateral damage . Arguments for Hostages are extensions of states targeted as result of their nationality, thus constituting attack against territorial/political independence . Arguments against Not necessary (e.g. negotiations, Sec. Council)

Insurgents/Civil Wars . State provides support to actors, other than its own regular armed forces, who are engaged in violent acts in or against another country (“indirect aggression”) . Arguments for When government invites intervention it constitutes consent Promotion of self-determination of peoples (when aiding rebels) Justified under collective self-defense provision of Art. 51 . Arguments against Art. 2(7) prohibits intervention in domestic affairs Art. 51 only offers collective self-defense to member states and not to sub-state actors (e.g. rebels)

Ideology . State exercises self-defense against source of ideological subversion external to its borders . Response of international community to this justification has been entirely and resoundingly negative . Example: Brezhnev Doctrine of Soviet Union asserting right to intervene in support of socialist governments threatened by anti-socialist forces and countering Reagan Doctrine claiming right to use military force or provided other assistance to restore or impose “democracy” . Arguments for

53 Art. 51 offers collective self-defense for ousted/imperiled governments Democracy promotes peace and security . Arguments against Undermines peace and security General principles of non-intervention Undermines self-determinative right of states UN Charter privileges peace and security over any particular ideology  #Blum: does not feel that a military dictatorship can be justified under any self-determination principle

Terrorism . State exercises self-defense in response to attacks by terrorists, insurgents, or surrogates operating from another state . Emerging tolerance in wake of 9/11 for states that carry on wars with terrorists and insurgents across borders to strike at safe havens . Defining “Terrorist” Conventions typically shy away from explicit definitions and instead take functional approach by outlawing specific acts (e.g. airplane hijacking, assaults on diplomats, taking hostages) Some conventions also include element that act must be done with purpose of influencing political authorities in a state UN Resolution 1566 in wake of 9/11 provides: with purpose of (1) provoking state of terror in general public or particular group, (2) intimidating population, or (3) compelling government or international organization to do or abstain from doing any act . Arguments for Does not violate Art. 2(4) if attacking sub-state actors located within member state Art. 51 allows self-defense “Effective control” is not appropriate test, modern practice is more analogous to international rules prohibiting “aiding and abetting” illegal conduct . Arguments against Violates Art. 2(4) as it violates territorial integrity and political independence of state Terrorist acts are generally “frontier attacks” failing to rise to scale of armed attack Acts of sub-state actors not controlled by state typically cannot be attributed to that state under either the “effective control” or “overall control” standards Harboring terrorists is legally distinct from any violent acts carried out by the terrorists

DRC v. Uganda, ICJ (2005) . Facts: Uganda operated in Congo at invitation of DRC government to combat anti-Ugandan rebels in Congolese territory. DRC later accused Uganda of invading its territory and withdrew consent. . Issue: Whether Uganda’s continuing military actions were justified under self-defense . Holding: Uganda’s actions did not constitute self-defense and were in violation of Art. 2(4)as consent was withdrawn, actions of rebels could not be attributed to DRC, and Uganda exceeded bounds even if they did have a claim

Israel Wall, ICJ (2004)

54 . Issue: Whether Israel can build a wall in Palestinian territory asserting self-defense . Holding: ICJ rules that Israel does not have right to self-defense against non-state actors by building wall in disputed territory

Anticipatory Self-Defense . State exercises self-defense to anticipate and preempt an imminent armed attack . Webster letter from Caroline incident was foundational for anticipatory self-defense prior to UN Charter . UN Charter limits self-defense to actual attack . Nicaragua court suggests self-defense is to be read broader than Art. 51 suggests . Key interpretative question: should Art. 51 be read as “bright-line” rule or standard? . Interceptive self-defense: some argue this is lawful under Art. 51 because it takes place after other side has committed itself to armed attack in ostensibly irrevocable way . US, Israel, and UK claim right to anticipatory self-defense, while majority of states reject doctrine . George W. Bush went beyond “preemptive strike” doctrine to “preventative war” doctrine and was roundly criticized by international community #policy . Arguments for State/actor attacked originally threatened use of force in violation of Art. 2(4), justifying self-defense under Art. 51 Imminent threats cannot reasonably require actual attack before justifying response (reductio ad absurdum) . Arguments against Plain text of Art. 2(4) discusses armed attacks or threats, while Art. 51 only mentions actual armed attacks Law cannot have intended to leave states free to resort to military force whenever it perceives itself grievously endangered, for it would negate any role of law (reductio ad absurdum) Ambiguity (can extinguish or ignite powderkeg)

Humanitarian Intervention . State exercises self-defense to abate an egregious, generally recognized, and yet persistently unredressed wrong . Military intervention on humanitarian intervention grounds is lawful only if authorized by UN Security Council or justified act of self-defense Justification is more persuasive if wrongful acts are characterized explicitly or implicitly by applicable treaties as offenses erga omnes . Tension exists with principle of sovereignty due to unrequested nature of intervention in affairs of sovereign state . Arguments for Art. 2(4) elevates principles of international order and peace over principle of using force for “preserving justice and redressing injustice” No or only nominal consequences are appropriate where state wrongfully intervenes to prevent some greater wrong (“excusable breach” doctrine) . Arguments against Unrequested nature of intervention violates principle of sovereignty

55 Art. 51 does not confer right on any state(s) to act unilaterally as the “police force” of the world

Montenegro (FRY) v. Belgium et al., ICJ (2000) . Facts: FRY alleges bombing of territory under “humanitarian intervention” grounds was violation of Art. 2(4). NATO notified FRY of intent to take military action if FRY failed to fulfill its international commitments and then commenced military action. . There was no Security Council authorization for NATO to use force due to likelihood of Russia/China veto . Belgium’s objections to ICJ claim against action Intervention due to violation of Art. 2(4) Collective self-defense claim due to instability in region, displacement of refugees, and unwillingness of Security Council to act Difficult to justify humanitarian intervention here based on text of Art. 2(4) alone, must look to purpose of UN Charter itself of promoting peace and security Could also make anticipatory self-defense claim to stem future aggressive actions by Serbia in the region

5. Responsibility to Protect

. Drafted in part in response to Kosovo . Soft law document endorsed by Security Council and General Assembly represents emerging customary norm (assuming practice and opinio juris) . Basic Principles State sovereignty implies responsibility and primary responsibility for protection of its people lies with state Where population is suffering serious harm and state in question is unwilling or unable to halt or avert it, principle of non-intervention yields to international responsibility to protect . Duty to Protect embraces three specific responsibilities To Prevent To React To Rebuild . Just Cause Threshold: military intervention requires serious and irreparable harm occurring or imminently likely to occur Genocide (killing) War crimes Ethnic cleansing (displacing/deporting people) Crimes against humanity . Authority Security Council authorization should be sought in all cases prior to any military intervention States calling for intervention should formally request authorization or have Council raise matter on its own initiative or have Secretary-General raise it under Art. 99 Absent Security Council authorization, alternative options are (1) “Uniting for Peace, or (2) form “coalition of the willing” with regional or sub-regional organizations

56 6. Case Study: Iraq

First Gulf War (1991) . Facts: Iraqi force invaded Kuwait and systematically looted country while brutalizing its people . Security Council Resolution 678 authorized use of “all necessary means” (magic words = use of force) for first time since Korea in . Resolution 687 imposed “cease-fire” conditions that would have continuing implications in region

Second Gulf War (2003) . Facts: Following 9/11 and failure of Iraq to comply with WMD weapons inspections, US and UK commenced military operations against Iraq . Security Council Resolution 1441 incorporates Resolutions 678 and 687, which US argued Iraq was in material breach of . US and UK realized they would not be able to obtain authorization from Security Council due to French veto . US could also make anticipatory self-defense claim regarding Iraq WMDs and non-state actors in wake of 9/11

11 – The Laws of War: Jus In Bello . International humanitarian law (IHL): sets limits on permissible means of waging war, establishes basic humanitarian protections for the participants in and victims of warfare, and governs the role of “occupying power” in war Jus in bello or international humanitarian law or “law of armed conflict” or “laws of war” Significantly more law under jus in bello than jus ad bellum International humanitarian law generally responds to new developments in (1) technology, and (2) government structure

1. Development of International Humanitarian Law

Law of Geneva . Concerned with condition of war victims who have fallen into enemy hands First Geneva Convention (1949): provides for humane treatment of wounded and sick soldiers on land Second Geneva Convention (1949): provides for humane treatment of wounded, sick and shipwrecked sailors at sea Third Geneva Convention (1949): governs status and treatment of prisoners of war (POWs) Fourth Geneva Convention (1949): governs treatment of civilians who have fallen into hands of the enemy . International Committee of the Red Cross (ICRC) supervises compliance with 1949 Geneva Conventions

57 Law of Geneva . Concerned with proper and permissible means and methods of war Prohibitions on: using poisoned weapons, killing treacherously, employing arms “calculated to cause unnecessary suffering,” destroying enemy property unless necessary, declaring that no quarter will be given, and attacking undefended towns and villages

Additional Protocols . Additional Protocols incorporate both law of Geneva and law of Hague Additional Protocol I (1977): applicable in international armed conflicts Additional Protocol II (1977): applicable in non-international armed conflicts

Reprisals . Until WWII, international humanitarian law was built around concept of reciprocity and belligerent reprisals were allowed . In wake of WWII and reprisals of Germany, IHL re-envisioned to focus on right of individual and not states, banning reprisals . Ensuring compliance sans reprisals States responsible for training military and officials on rules of war Enforcement by domestic courts and transnational tribunals

2. Scope of International Humanitarian Law

. Scope of international humanitarian law is changing for 2 reasons: (1) nature of modern wars difficult to classify w/ consensus among states, and (2)

International Armed Conflict . Four 1949 Geneva Conventions each contain identical “Common Article 2” defining scope of application of Conventions #exam Provisions do not apply to hostilities between state and non-state actor Provision apply to any difference arising between two states leading to intervention of members of armed forces, regardless of length of conflict or casualties References to “armed forces” suggests reluctance to consider many types of covert actions as covered under Conventions Conventions cover armed forces, but not police forces Armed conflict involving intervention in civil war becomes “international” only if outside state intervenes on side of non-state force – government is permitted to seek outside assistance in using force against domestic insurgency . Additional Protocol I (1977) Further elaborates IHL in international armed conflicts Extends coverage to “armed conflicts of peoples fighting colonial domination and alien occupation in exercise of right of self-determination” Compromise between view that irregular fighters be accorded status of combatants yet be exempted from obligation to distinguish themselves from civilians and opposing view against any exceptions favoring irregular fighters United States has signed but not ratified and is referred to by Reagan Administration as the “Terrorist Protocol”

58 Non-International Armed Conflict . Four 1949 Geneva Conventions each contain identical “Common Article 3” applicable in “armed conflict not of an international character occurring in territory of one” of the parties to the Conventions #exam Prohibits (a) murder, mutilation, cruel treatment and torture; (b) hostage-taking; (c) outrages upon personal dignity; (d) passing of sentences and execution without proper trial Provides for care of the sick and wounded . Additional Protocol II (1977) Significantly expands law of non-international armed conflicts previously addressed on Common Article 3 Triggered only for conflicts marked by violence of greater intensity than that required to trigger application of Common Article 3

Applicability . People . Objects (protects religious and historical artifacts, dams, nuclear power reactors, etc.) . Means and methods of warfare

Absolute Rules/Prohibitions . Targeting/killing of civilians . Torture . Perfidy: acts inviting confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence Rules of Engagement (RoEs) . No legal basis, merely “operating guides” in theatre of war . Can raise standards for laws of war, but cannot lower #exam

3. Four Principles

Military Necessity . Objective must be to weaken or disable military capacity . Art. 35 of Protocol I identifies basic rules governing means and methods of waging war . Art. 52(2) of Protocol I defines valid “military objective” . Excessively injurious and indiscriminate conventional weapons defined in framework treaty and protocols as: (1) weapons producing nondetectable fragments, (2) mines and booby- traps, (3) incendiary weapons, (4) blinding lasers, and (5) explosive remnants of war

Humanity . Must not commit acts that are superfluous, cruel, or unnecessary . Provided for generally in Conventions and in Fourth Geneva Convention which emphasizes responsibilities of occupying power to ensure humanitarian needs of occupied territory

Distinction

59 . Responsibility to distinguish legitimate targets from illegitimate/protected targets . Art. 48 of Protocol I sets forth principle of distinction

Proportionality . Derivative of Catholic moral principle of “double effect” regarding unforeseen/unintentional circumstances of actions – requires precautions against collateral harm and that it not be excessive relative to military gain . Customary international law principle

4. Case Study: ICTY Report on NATO in Kosovo

. Facts: NATO conducted bombing campaign against FRY in 1999 . Issue: Alleged that NATO violated IHL by (a) general violations of UN Charter Art. 2(4), (2) deliberate attacks on civilian infrastructure targets, population, and infliction of excessive civilian casualties

Relationship Between Jus Ad Bellum and Jus in Bello . Equal application principle: jus in bello is considered independently of jus ad bellum (mere fact that law is just does not confer legitimacy to manner in which war is conducted) . Rationale is that broad application of jus ad bellum would incentivize illegitimate aggressors to perpetuate further and more substantial illegitimate acts #policy

Damage to Environment . Basic legal provisions applicable to protection of environment in armed conflict are Art. 35(3) and Art. 55 of Protocol I . Art. 55 may reflect current customary law . Art. 55 requires triple, cumulative standard that damage be (1) widespread, (2) long-term (e.g. lasting years), and (3) severe

Permissible Weapons . Basic legal provision applicable to permissible weapons in armed conflict is Art. 35(2) of Protocol I . No specific prohibition on any particular weapon in Art. 35(2) and justification for prohibition of weapons is found by referencing treaty and/or customary law . Only generally applicable customary law is prohibition on chemical and biological weapons

Distinction . Basic legal provision applicable to distinction in armed conflict is Art. 48 of Protocol I Practical application of principle is reflected in Art. 57 of Protocol I . Arts. 50-51 of Protocol I define “civilians” Class-based test (binary) Any soldier contributing to military cause (e.g. cook, trumpet player) is legitimate target Civilians performing essentially military functions are legitimate targets Direct Participants in Hostilities (DPHs) are most contested category (US asserts they are legitimate targets, ICRC asserts they are not)

60 Military Objectives . Basic legal provision applicable to definition of “military objective” in armed conflict is Art. 52 of Protocol I Functional test Determined by (1) nature, location, purpose or use, and (2) destruction, capture, or neutralization must offer definite military advantage

Proportionality . To what extent is military commander obligated to expose forces to danger in order to limit civilian casualties or damage Loose prescriptions provided in Arts. 57-58 of Protocol I

5. Law of Belligerent Occupation

. Applicable laws set forth in Hague Convention IV (1907), Geneva Convention IV (1949), and customary international law . Protocol I (1977) contains most recent codification of occupation law . Jus Post Bellum: Emerging body of laws regarding continuing obligations of occupiers/victors post-war

Occupation . Occupation begins as soon as territory is “occupied” by adversary forces, when government of occupied territory is no longer capable of exercising its authority #exam Entire country need not be conquered State of occupation need not be formally proclaimed Obligations and rights of occupying power extend only to areas they actually control Not legally relevant that occupiers claim to be “liberating” the population Presence of troops alone does not constitute occupation (See Israel in Lebanon) . Occupation is NOT a transfer of sovereignty . Whether occupation occurs is question of fact (Hague Convention Art. 42) . Strong preference for allowing local authorities to perform governmental functions . Government need comply with all requirements of occupation law for only one year following termination of hostilities #exam

Maintaining Law and Order . Occupation law imposes policing responsibilities on occupying power during occupation . Occupying Power obligated to restore order and essential services (Hague Conv. Art. 43) . Members of occupying forces are immune from members of jurisdiction of local law enforcement and judicial authorities . Occupying power may issue regulations, including penal regulations to meet its obligations under occupation law Censorship of media Limitations on public gatherings Control over travel and means of transportation (both public and private) . Penal provisions cannot be retroactive and do not come into effect until published in inhabitants’ language

61 Crime and Punishment . Occupying power must allow domestic courts to continue functioning whenever feasible If they cannot, they may establish tribunals to enforce law, but may not prosecute offenses (other than violations of IHL) committed prior to occupation May impose punishment only after trial when accused has been informed in writing of charges Trial must occur within reasonable period and accused is entitled to ccounsel and to present evidence No absolute right of appeal No person under age 18 may be executed Collective punishment of population for individual offenses is forbidden

Taking Care of Civilian Population . Occupying power responsible for care of civilian population (health and hygiene) If food, water, medical supplies are inadequate, foodstuffs and medical supplies must be delivered Required to permit delivery of relief supplies by other states and humanitarian organizations if it cannot meet needs of population alone . Religious and cultural practices are to be respected . Children entitled to special care . Individuals or groups may not be forcibly deported outside of occupied territory Temporary assignment to security camps allowable only for valid security reasons . Nationals of other states have to be allowed to leave if they so desire

Labor and Private Property . Civilians over 18 may be compelled to work to meet needs of occupation force, operate public utilities, or provide for basic needs of population . Public officials may not be punished for refusing to perform any official functions . Real or personal property may not be destroyed unless “absolutely necessary” . Pillage (looting) strictly forbidden . Occupation powers may “control” property to keep it from enemy forces . Seizing (temporarily taking) private property of direct military use (e.g. communications or broadcasting equipment) is permissible . Property of municipalities and that of religious, charitable, educational, artistic, and scientific institutions is to be treated as private property

Public Property and Future of the State . Enemy State-owned property other than real property (e.g. cash, funds, transportation, other movable property) may be confiscated without compensation if it is usable for military purposes or administering occupied territory . State-owned real property not military in character (e.g. public buildings, parks) can only be “administered” . Occupying power may leave existing currency in place, introduce own currency, or issue new currency for use only within occupied territory

62 . Occupation formally ends with reestablishment of a legitimate government (including UN) capable of adequately and efficiently administering territory . Occupier remains responsible for any violations of international law committed by local authorities, including transition government installed by occupier Counterargument to justify continuing presence of occupying troops is that they remain at consent of transition government

12 – Human Rights

1. Background

. International human rights law (IHRL): vehicle for expression of concern for treatment by state of its own nationals (elevates individual at expense of the state) . Historically state was allowed to treat persons within its territory as it pleased under principle of sovereignty Exception was treatment of nationals of another state, which was proper concern of that state (political, not humanitarian motivation) Few major-power intercessions unless demanded by domestic constituency with special affinity for victims in another country . Next development was international obligation to respect freedoms of ethnic minorities Belief was that violation of minority rights led to intervention by countries identifying with said minorities . Next development was authentic humanitarian motivations to mitigate horrors of war by outlawing certain weapons, protecting sick and wounded POWs and safeguarding civilians Interest derived in part out of concern by states for own soldiers and citizens . Prohibition of slavery and slave trade by international agreement in early 19th Century was less ambiguous example of genuine humanitarian concern

2. UN Charter and Universal Declaration

UN Charter . Purposes of UN include achievement of international cooperation to address problems of humanitarian character and to promote respect for human rights and fundamental freedoms (Art. 1) . Art. 55 provides specifically for promotion of human rights . Art. 56 requires all member states pledge to take joint and separate action towards achievement of purposes of Art. 55

Universal Declaration of Human Rights . Adopted by General Assembly in 1948 . Sets forth common standard of achievement with respect to human rights (30 rights total) . Not a treaty and thus not legally binding, but today is considered to be customary Key achievement was to convert body of discredited rights/ideas into a legitimate, universal document Many states coming into existence afterwards have incorporated language directly into their own constitutions . Criticism

63 Reflects Western jurisprudence and view individual egoist as center of moral universe

3. Implementation and Enforcement

The International Covenants . International Covenant on Civil and Political Rights (ICCPR) Entered into force in 1976 Includes wide array of civil and political rights (rights to self-determination, protection from discrimination, procedural rights concerning arrest, trial and detention, right to privacy, rights of association and assembly) Second Optional Protocol (1991): calls for abolition of death penalty  Not ratified by US Enforcement  Art. 41 provides for violations claims by states (rare)  First Optional Protocol (1976): allows violations claims by individuals (more active)  Human Rights monitoring Committee  Art. 2 provides that rights be given effect through domestic legal mechanisms . International Covenant on Economic, Social, and Cultural Rights (ICESCR) Entered into force in 1976 Not ratified by US Broad list of rights (rights to work, join trade unions, obtain social security, adequate standard of living, education) Enforcement  Monitoring Committee  Optional Protocol: allows violations claims by individuals (not yet in force) . ICCPR and ICESCR were drafted jointly in attempt to codify nonbinding provisions of Universal Declaration into binding treaty obligations (“international bill of rights”)

Other Global Human Rights Treaties . Convention on Prevention and Punishment of Genocide (1951) . Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) . Convention on the Elimination of All Forms of Racial Discrimination (1963) . Convention on Elimination of All Forms of Discrimination Against Women (1981) . Convention on the Rights of the Child (1990) . 1951 Convention Relating to the Status of Refugees

Type of Obligation Assumed . Customary law in IHRL is proven more by state declarations/words than by state practice Traditional view: emphasis on state practice (objective Modern view: emphasis on state declarations (subjective/deductive) Research suggests human rights treaties do not by themselves seem to produce significant changes in state behavior Sizable debate exists as to obligations of states under IHRL when operating extraterritorially . UN Human Rights System

64 Art. 68 directs UN Economic and Social Council to “set up commissions for promotion of human rights” UN Human Rights Commission (1946)  Disbanded in 2006 and replaced with Human Rights Council Criticism  Election of member states with poor human rights records  Bloc voting by regional groups on basis of geopolitical and not human rights criteria . Customary International Human Rights Law Addressed in Restatement §702 . Example: Declaration of the World Food Summit “Soft law” resolution, not legally binding US still adds reservation to steer conversation/dialogue in event this ultimately becomes customary law Opposing viewpoints of US and Norway on obligations reflect competing viewpoints on meaning of “democracy” #policy  US promotes “negative freedoms” that shield individuals from government intervention  Norway promotes “positive freedoms” that compel government to provide certain fundamental rights

Interpretation & Limitation

Lustig-Prean v. UK, ECHR (1999) . Facts: Officers in UK Navy discharged on sole ground of their homosexuality via official policy . Issue: Whether discharge constituted a violation of their right to privacy (and guaranteed against discrimination . Rule: Art. 8(2) of Convention for Protection of Human Rights and Fundamental Freedoms (195) permits interference with right to privacy where such was necessary in a democratic society to achieve a legitimate aim; however if interference concerns intimate part of individual’s private life, particularly convincing and weight reasons of justification are required . Holding: Investigations into applicants’ sexual orientation nor discharge on grounds of their sexual orientation were justified and there was a violation of privacy. No separate issue arose under discrimination grounds.

Derogation . Derogation: right to abstain from IHRL obligations in time of emergency (ICCPR Art. 4) Very narrow exception permitted only in extraordinary circumstances where life of nation is threatened #exam No derogation permitted with respect to certain provisions of ICCPR (e.g. right to life, prohibitions on torture and slavery) . ICCPR’s Human Rights Committee issued General Comment 29 (2001) to assist state parties in meeting requirements of Art. 4 Measures must be of an exceptional and temporary nature Allowed only when situation constitutes threat to life of the nation Parties must provide careful justification for their decision to proclaim state of emergency, but also for any specific measures based on such proclamation

65 No peremptory norms subject to derogation, even if not listed in Art. 4(2) Must immediately inform other state parties of derogation through UN . Tension between IHRL and IHL #policy Why are needs of humanitarian rights not balanced with military necessity in doctrine of derogation (as is case in IHL)?  IHRL exceeds basic protections of IHL, so escape clauses oare needed in times of emergency Conflict between IHRL and IHL  IHL-centric view: IHL is special law of war that overrides/supersedes even IHRL  IHRL-centric view: IHRL applicable at all times, even extraterritorially and in times of war (US does not believe this and views IHRL as applicable within its own territory, JAGs operating outside of US look to IHL)

A and X v. Secretary of State for Home Dept., UK (2004) . Facts: UK derogates from European Convention on Human Rights and ICCPR on right to liberty specifically with respect to detaining terrorists suspects using immigration statutes. Suspected international terrorists detained indefinitely in UK as removal elsewhere was barred by prohibition on deportation to states where they faced prospect of torture, they could not be deported to third countries, and they were not charged with any crime. Suspected terrorists who were UK nationals were not detained in similar fashion. . Analysis 3 groups potentially subject to be detained under relevant statute  UK nationals (not detained)  Foreign nationals, non-torturing sponsor (not detained)  Foreign nationals, torturing sponsor (detained) . Holding: Decision to detain one group of suspected international terrorists based on nationality and not others was not a justifiable derogation from UK’s international law obligations. Derogation from IHRL must be applied without discrimination to comply with IHRL. Measure also fond not to be “strictly necessary” or “proportionate “ to threat.

Reservations and Obligations . Cannot add IHRL reservations concerning customary or peremptory law . Cannot invoke domestic law as justification for reservations . Inconsistent IHRL reservations are severed . Cannot withdraw from IHRL treaties

US RUDs and IHRL . Historical Background US frequently accused of double standard where it seeks to enforce IHRL norms against other countries, while not being subject to such regulation itself Concerns in 1950s that UN Charter’s human rights provisions would (1) allow Congress to enact legislation exceeding its constitutional powers, and (2) preempt state laws by virtue of Supremacy Clause In response, Eisenhower committed to not seeking to become party to any more human rights conventions This practice continue until Carter administration and subsequent administrations have been uniformly active in involvement with major human rights treaties

66 . Policy Concerns #policy Failure to ratify major IHRL treaties would (1) preclude US from participating in treaty-related institutions that influence course of IHRL, and (2) create “troubling complication” of harming US credibility on embracing such norms Ratifying such treaties would introduce substantial legal uncertainty due to vaguely worded rights and self-executing nature of some treaties that would be costly to litigate Since Carter, US Presidents have included RUDs with submission of IHRL treaties to Senate . Five categories of US RUDs Substantive (reservations): declines consent to certain provisions based on conflicts with US constitutional rights or political/policy disagreements (exception to rule) Interpretive (understandings): clarifying scope of US consent to vague treaty terms Non-Self-Execution (declarations): state that substantive provisions are not self- executing Federalism (understandings): implement provisions to extent federal government exercises jurisdiction over provisions not reserved to the states ICJ (reservations): retain right to decline ICJ jurisdiction on claims brought for frivolous or political reasons . Criticism For RUDs: US legislative system is unique in requiring 2/3 consent of Senate and RUDs (often necessary to obtain consent) are better than no ratification at all Against RUDs: unconstitutional as Article VI of Constitution provides expressly for lawmaking by treaty as alternative to Congressional legislation and RUDs essentially revive objectives of Bricker Amendment

International Enforcement Roper v. Simmons, UK (2004) . Facts: Juvenile (age 17) convicted of murder and sentenced to death penalty . Holding (Kennedy): Imposition of death penalty on juvenile is prohibited under Eighth Amendment proscription of cruel and unusual punishment . Dissent (Scalia): Court exceeds power reserved to executives to ratify treaties and American law does not necessarily have to conform to international law . Illustrates ongoing debate as to degree to which emerging international law norms should be used as interpretive tool in domestic law

13 – War on Terrorism

1. Definition

. 12 different conventions exist addressing terrorism (very indeterminate) . Historically, terrorism was dealt with by domestic police forces (e.g. FBI) and viewed solely as criminal activity Israel was one exception in using military force to combat external terrorism Partially explained by predominance of homegrown terrorist groups operating solely in domestic venues

67 2. War/Crime Distinction

. Tension in two paradigms has been apparent since 9/11 Laws of war applicable? Use of force? Detaining terror suspects? . 9/11 marks turning point for US in moving from crime to war-based paradigm towards terrorism

3. Jus Ad Bellum

. Key question with respect to 9/11: Can a non-state actor commit an armed attack? Nicaragua “scale/effects test” (note that 1993 WTC bombing fails this test, unlike 9/11) . UN Resolution 1368 (2001) Expresses view that US entitled to inherent right of self-defense (acknowledged in Art. 51) in response to non-state actors (individual and collective) Declared terrorism threat to international peace and security – precondition to use by Security Council of its Chapter VII powers under UN Charter . US initiates military action in Afghanistan under Authorization for Use of Military Force Resolution (AUMF) passed by Congress Authorizes “use of all necessary and appropriate force” against countries that “aided the terrorist attacks” . Justifications for NATO operations in Afghanistan Operating with consent of recognized government to root out Taliban Attribution of Al Qaeda acts to Afghanistan in its entirety Operating in Afghanistan due to status as “failed state” unable to effect control within its borders . Arguments Against NATO operations in Afghanistan Taliban controlled 90 percent of Afghanistan at time of invasion, even though only three countries recognized them as legitimate government of Afghanistan, while others recognized Northern Alliance Cannot impute acts of non-state actors to state

4. Jus In Bello

Classification of Conflict . International or non-international armed conflict? #exam International = Common Article 2 Non-International = Common Article 3 and Additional Protocol II  Blum: Afghanistan is non-international as it doesn’t involve state actors

Classification of Combatants . Civilians or combatants? #exam Terrorists do not fit neatly into either established category

68 . Combatants (2 categories) Members of armed forces of a party to the conflict Others who take a direct part in hostilities . Impact of Combatant Distinction Only lawful combatants are entitled to Third Geneva Convention protections of POWs Combatants remain so even when they are not fighting and may be attacked at any time Traditional view is there are no combatants in Common Article 3 conflicts . Identifying Combatants Membership in organized armed group is functional: did person assume continuous function for group involving their direct participation in hostilities #exam US position is that neither Taliban nor Al Qaeda fighters in Afghanistan were combatants as defined in Third Geneva Convention . Unlawful Combatants Subset of civilians who forfeit immunity of lawful combatant Distinguishing Direct Participants in Hostilities (DPHs) vs. Unlawful Combatants  Time: unlawful combatant can be targeted anytime, DPH only when actively participating in hostilities  Membership: sufficient for unlawful combatant; functional test for DPH . Criticism of Applying Laws of War to Terrorism Terrorists can rely on “combatant’s privilege” under which they are immune from prosecution for common crimes Terrorists attacks on military, police, or other governmental personnel would not be prosecutable and government installations are a lawful target of war

Detention . Third Geneva Convention (POWs) applicable only to international armed conflicts . Common Article 3 applicable to non-international armed conflict occurring in territory of one of the parties to the Conventions . 4 detention sites in War on Terror Battlefields US military installations Secret prisons Guantanamo Bay . Key consideration for detainees in War on Terror is under what authority may prisoners be detained Geneva Convention III (POWs) Geneva Convention IV (Civilians in occupied territory) Common Article 3 (Armed conflict “not of international character”) . US government asserts Taliban could not be considered combatants because for 2 reasons: No fixed distinctive emblem Did not obey laws of war . US determines Geneva Conventions applicable to Taliban detainees, but not to al-Qaeda detainees Al-Qaeda is noon-state terrorist organization not party to Geneva Conventions and thus entirely removed from “combatant” framework . US vs. Israel on Membership and Detention of Unlawful Combatants

69 US: membership in organization is enough Israel: membership is not enough, must demonstrate individual is dangerous . 2 Supreme Court decisions establish some level of judicial review and address due process concerns with respect to War on Terror detainees – Hamdi (2004) and Hamdan (2006)

Hamdan v. Rumsfeld, US (2006) . Facts: Yemeni national captured in Afghanistan , held in custody at Guantanamo Bay and deemed eligible for trial by military commission for unspecified crimes . Issue: Does military commission lack authority to try Hamdan on basis that it violates international law provisions including principle defendant must be allowed to examine evidence against them? . Holding: Common Article 3 applicable to ensure basic protections even in non-international armed conflicts and military commission does not have jurisdiction under circumstances

Boumediene v. Bush, US (2008) . Facts: Habeas submission made on behalf of Bosnia citizen held in military commission at Guantanamo . Holding: Court rejects assertion that Guantanamo is outside US as US exercises de facto sovereignty over territory and orders habeas review in DC court

Targeted Killings . Targeted killing: targeting of individual during armed attack based on who they are and what they do specifically In war, states are entitled to target named combatants (e.g. armed forces commanders) . Criticized as extrajudicial execution #policy No opportunity to defend No review process . Additional concerns w/ targeted killings #policy Collateral damage Often conducted outside zone of hostilities Extensive use of drones . Specific concerns with use of drones #policy Lack of reciprocal risk “Video gameization” of war (“dehumanizing of war”) . Counterarguments to criticism #policy Fairness: Why should war be fair? Historically war is about race to best weapons and minimizing risk for own troops Drones: Studies show drone operators suffer from higher-degrees of PTSD due to fact they are often much more aware of personal histories of targets (no “dehumanizing” element) . Executive Order 12.333: bans assassinations by US Assassinations: killings for purely political purposes Targeted killings: justified killing of unlawful combatants or other actor with legitimate military purpose . In global “War or Terror,” US views “battlefield” extended broadly to wherever terrorists might be #policy Consent only addresses ability of state to operate in another state’s territory There must be an independent basis for state to kill individual within that territory

70 Possible justification in Art. 51 and inherent right of self-defense of imminent threat, under anticipatory self-defense doctrine Comm. Against Torture in Israel v. Israel, Israel (2005) . Issue: Israel employs preventative strikes against second intifada (seeking to harm Israeli civilians and soldiers) that inflict death of terrorists in Judea, Samaria and the Gaza Strip that at times harm innocent civilians . Holding Court rules that international armed conflict paradigm is applicable Court refuses to recognize third distinct category of “unlawful combatants” (in contrast to US) and rules terrorists remain civilians directly participating in hostilities Court uses functional test to hold that membership is not enough (again in contrast to US) and that it must be shown individual actively contributed to hostilities Court holds that use of force should be resorted to lonely when absolutely necessary and that capture and trial is preferable to use of force Court states balancing must be performed so that attack is deemed proportionate if benefit of military objectives is proportionate with damage caused to civilians

14 – International Criminal Law . International crimes: generally grave acts that implicate interests or values of international community as a whole and impose liability directly on individuals Similar to manner in which IHRL transfers rights from states to individuals, ICL transfers obligations from states to individuals Primary justification is symbolic nature of international criminal tribunals; cannot be said to have retributive or rehabilitative benefits . Historical Overview Major development was post-WWII Nuremberg and Japan trials Recent developments are Int’l Criminal Tribunal Yugoslavia (ICTY) and Int’l Criminal Tribunal Rwanda (ICTR)

1. International Criminal Court (ICC)

. ICC established by Rome Treaty and went into effect in 2003 . Undoubtedly most important development in ICL Global in scope, unlike ICTY/ICTR

Jurisdiction . ICC has jurisdiction over only “most serious crimes of concern to the international community as a whole, including genocide, crimes against humanity, war crimes, and aggression” . Bases of Jurisdiction #exam PJ/Territorial preconditions to exercise of jurisdiction (Rome Statute Art. 12)  State party to Statute accepts jurisdiction with respect to crimes  State on the territory of which conduct in question occurred or State of which person accused of crime is a national Referrals (Rome Statute Art. 13)  Security Council can refer all crimes under ICC jurisdiction w/ exception of aggression (Art. 13(b))

71 . Principle of Complementarity #exam Case is not admissible before ICC if domestic judicial system of state has taken or is taking steps to investigate or prosecute perpetrator If state conducts investigation and declines to prosecute, case is not admissible before ICC unless decision resulted from unwillingness or inability of State genuinely to prosecute . ICC has jurisdiction over natural persons only, not corporations #exam . No statute of immunity . No death penalty . US Objections to ICC #policy Institution of unchecked power (self-initiating prosecutor, answerable to no state or institution) Threatens state sovereignty Exposes soldiers and officials to prospect of politicized prosecutions and investigations . Arguments for ICC #policy Principle of complementarity ensures ICC is court of last resort Familiar American trial rights are indoctrinated in ICC Statute ICC is fledging international body bearing high hopes of democratic nations that depends on good will and acceptance of international community . Drawbacks to compulsory ICC jurisdiction #policy Compromise outcomes unlikely to emerge from adjudicated rather than negotiated resolutions Significant prestige and authority lends special political impact to ICC decisions, posing heightened risk to states Decisions of international court tend to be more authoritative than those of any individual state and would confer power to create international law disproportionate to that of any single state

2. Specific Crimes

. International crimes are breaches of international rules entailing personal criminal liability of individual concerned Violations of international customary rules or treaty provisions codifying customary law Intended to protect values considered important by international community Universal interest in repressing these crimes

Genocide . Intent to kill or destroy at least a substantial part of a protected group Infliction of rape, sexual violence or other severe bodily and mental harm (Rwanda) Killing of large numbers of persons on basis of perceived political views and social status is not genocide (Khmer Rouge) . Addressed in 1948 Genocide Convention

Prosecutor v. Krstic, ICTY (2004) . Facts: 1995 massacre by Bosnian Serb forces of between 7,000-10,000 Bosnia Muslim men in the town. Krstic was general in Bosnian Serb Army (VRS) carrying out massacres.

72 . Rule: Genocide must be considered not only in absolute terms, but in relation to overall size of group and its prominence within the group . Rule: Convictions for genocide can be entered only where intent has been unequivocally established . Holding: Killing was done with genocidal intent, and Krstic was not principally liable, but only as an “aider and abettor”

Crimes Against Humanity . Murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution, disappearance, apartheid or other inhumane acts committed as part of a widespread or systematic attack against a civilian population, with knowledge of the attack . Does not require connection to armed conflict

Prosecutor v. Kunarac, ICTY (2002) . Facts: 1992-93 killing, rape, and mistreatment of non-Serb civilians in Bosnia by Serb forces . Rule: Five elements: (1) must be an attack, (2) acts of perpetrator must be part of attack, (3) directed against any civilian population, (4) widespread or systematic, (5) perpetrator must know . Modern development is that there is no requirement of a “policy” or “plan” only that it is part of a widespread and systemic attack

War Crimes . Grave breaches of Geneva Conventions including killing, torture, extensive destruction/appropriation of property, conscription, hostage-taking, etc. Tadic court ruled provisions do not include persons or property within Common Article 3 and Additional Protocol II (non-international armed conflicts) contains no grave breach provisions

Aggression . Proposed amendment to ICC Statute defines aggression as: planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN” . Jurisdiction suspended until ICC parties settle definition

Torture . Any act by which severe pain or suffering (physical or mental) is intentionally inflicted for purposes of obtaining from actor or third person information or a confession, punishing actor for act committed by actor or third person or is suspected of committing, intimidating or coercing actor or third person, or any reason based on discrimination of any kind with consent or acquiescence of public official . 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment makes torture crime under international law

15 – International Trade Law

1. World Trade Organization (WTO)

73 . Overriding objective is to help trade flow smoothly, freely, fairly and predictably Covers trade in goods, services and intellectual property . What is the WTO? Negotiating forum Set of rules Dispute resolution mechanism . Principles of WTO Trading System Trade without discrimination Freer trade: gradually, through negotiation Predictability: through binding and transparency Promoting fair competition Encouraging development and economic reform . Predecessor 1947 General Agreement on Tariffs and Trade (GATT) was undermined by numerous factors GATT drove governments to device forms of protection besides tariffs for sectors facing increased foreign competition States sought bilateral market-sharing agreements with competitors States embarked on subsidies races to maintain holds on agriculture trade Increasing complexity of world trade Prominence of trade in services (not covered by GATT rules) . WTO succeeded GATT as international organization GATT remains as WTO’s umbrella treaty for trade in goods

2. Balancing Trade and the Environment

Shrimp-Turtle, WTO (1995-96) . Facts: Federal agencies requires Caribbean/western Atlantic shrimpers to install devices designed to reduce entrapment of endangered turtles (Shrimp-Turtle I) and permits import of shrimp from waters of uncertified state if exporter declared shrimp were harvested under conditions that did not adversely affect sea turtles (Shrimp-Turtle II) . Holding: Rejected US argument as inconsistent with GATT Art. XI and measures cannot be arbitrary or discriminatory under Art. XX

Tuna-Dolphin, WTO (1991) . Facts: Federal statute designed to prevent entrapment of protected dolphin species by tuna fishermen . Holding: Regulations based on products (permissible), while those based upon process through which product is made (impermissible) under GATT Art. III. Trade limitations based on unpredictable conditions cannot be regarded as necessary.