Professor Steinhardt Fall 2011

INTERNATIONAL LAW .................................................................................................. 4

Overview .................................................................................................... 4 Typesand Sourcesof InternationalLaw .........................................................7
I.Customary International Law....................................................................................................... 7 C.Customary International Law in Domestic Courts II.General Principles of Law..........................................................................................................14 III.Rules of Conventional International Law................................................................................ 15 A.United States Law Governing Treaties 1.US Constitutional Principles.................................................................. 15 3.Self-Executing and Non-Self-Executing Treaties..................................16 4.Treaty Interpretation.............................................................................. 18 5.Treaty Termination................................................................................ 18 6.Presidential Power to Enter International Agreements......................... 19 7.Reconciling Federalism with International Legal Obligations...............20 B.International Principles Governing Treaties 1.The Formation of Treaties..................................................................... 22 2.Treaty Invalidity and Termination.......................................................... 25 3.Observance and Interpretation of Treaties............................................26

DisputeSettlementandthe Enforcementof Rulesin ExemplaryInternationalSettings ................28

I.Alternative Dispute Resolution.................................................................................................. 28 A.The International Court of Justice............................................................................................28 B.Regional and Specialized Courts............................................................................................. 31 C.International Arbitration............................................................................................................ 34 III.Espousal..................................................................................................................................... 36

Statehood ................................................................................................. 38
I.Prerequisites................................................................................................................................ 38 A.Criteria B.Recognition of States

C.Recognition of Governments D.State Succession II.Consequences of Being a State................................................................................................ 41 III.International Limitations on Jurisdiction................................................................................ 43 A.Jurisdiction to Prescribe B.Jurisdiction to Enforce C.Jurisdiction to Adjudicate IV.Immunity from National Jurisdiction.......................................................................................47 A.Immunity of Foreign States 1.Absolute Immunity................................................................................. 47 2.Restrictive Immunity.............................................................................. 47 3.Foreign Sovereign Immunities Act........................................................ 47 B.Immunity of Persons 1.Diplomatic and Consular Immunity....................................................... 52 2.Head-of-State Immunity........................................................................ 52 C.Act of State Doctrine D.Comity E.Forum Non Conveniens F.Exhaustion of Local Remedies

Applyingthe Rulesin CriticalSettings .......................................................... 58

I.The International Law Governing Resort to Force...................................................................58 II.International Property Law........................................................................................................ 63 A.International Regime Governing the Seas B.International Regime Governing Airspace and Outer Space 1.Airspace.................................................................................................65 2.Outer Space.......................................................................................... 65 C.International Environmental Law

InternationalLaw
Overview
I. Sources of International Law A. International Treaties B. International Customary Law 1. consistent state practice 2. AND opinio juris Rest. 102 C. General Principles D. decisions by domestic courts and scholarly work Statute of the ICJ, art. 38 II. Trends A. From Fences to Bridges 1. Fences The Lotus Case, PCIJ 1927 restrictions on the independence of states cannot be presumed 2. Bridges The Texaco/Libya Arbitration (1977) international standards govern nationalization of Libyas domestic industries B. Enforcement of International Law 1. Compliance The Texaco/Libya Arbitration (1977) - Libya complies with arbitration despite refusal to participate in proceedings concern for global perception as an international outlaw ability to attract FDI legitimacy of its new government Velsquez-Rodriguez v. Honduras (IACtHR 1988) Honduras compensates s family 2. Internalization The Paquete Habana (SCOTUS 1900) owners of ship seized in violation of CIL must be reimbursed Filartiga v. Pena-Irala (2d Cir. 1980) US residents can be held liable for official torture through Alien Tort Statute Alien Tort Statute aliens with PJ connections to US can be held liable for official torture The Helms-Burton Act (1996) lack of jurisdiction to prescribe internalized by US Presidents who have consistently suspended the provision C. Dualism Vienna Convention, Art. 27 The Paquete Habana (SCOTUS 1900) - Spanish civilian fishing ships captured by US forces after President declares war CIL could have been overriden by President, but his proclamation did not mention fishing vessels 4

The Nicaragua Litigation (ICJ 1984) - US attempts to modify its reservations to Optional Clause are an invalid termination

D. Consent 1. state not bound unless it has consented a) persistent objectors b) pre-VCLT reservations regime 2. state bound without specific consent a) acquiescence b) VCLT, Art. 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force c) VCLT, Art. 38 treaty can bind a non-signatory through international custom d) no treaty can override jus cogens The Nicaragua Litigation (ICJ 1984) US bound to ICJ jurisdiction despite lack of pure ongoing consent E. Blurred Distinction between Public and Private International Law 1. use of public law to regulate private law 2. arbitration between states and private parties Iran Claim Tribunal 3. UN model arbitral rules, relied almost solely by private parties for use in contracts

TypesandSourcesof InternationalLaw
I. CUSTOMARYINTERNATIONALLAW A. Definition 1. Consistent StatePractice general practice of states that has been consistent for a sufficient period of time objective element The Lotus Case, PCIJ 1927 - Turkey prosecutes officer of French Lotus for crash with Turkish Boz-Kourt no evidence of CIL prohibiting extraterritorial jurisdiction when states have exercised such authority before without protest from other states a) who no distinction between legitimate and illegitimate governments (1) states benefited by the principle (2) states disadvantaged by the principle b) how (1) participating in the activity (2) abstaining from violations of the activity (3) acquiescing in others actions can give rise to an inference of obligation Temple of Preah Vihear Case (ICJ 1962) - Thailand and Cambodia claim 11th century temple silence: Thailand loses claim because of failure to respond to diplomatic notes and repeated requests for information about boundary dispute acquiescence: Thailand did not object to maps and claimed to have retaken disputed land The Nicaragua Litigation (ICJ 1984) - Nicaragua fails to object to publications listing it as under compulsory jurisdiction technical fault in PCIJ ratification overridden by Nicaraguas acquiescence 2. AND opiniojuris subjective element states follow the practice from a sense of legal obligation The Lotus Case, PCIJ 1927 no evidence of CIL based on state practice of not exercising extraterritorial jurisdiction when such abstention was not based on a sense of legal obligation Nuclear Weapons Advisory Opinion (ICJ 1996) no opinio juris on states restraint on use of nuclear weapons since 1945 because such practice can be explained by deterrence

B. Emergence of Custom 1. Formation a) no definitive moment of origination 2. Evidence a) acts by statesin fact over time (1) types of action in particular, look to the actions of those states disadvantaged by the principle (a) government practice (b) diplomatic exchanges (c) interstate interactions (d) defenses of non-conforming states factual defenses support existence of CIL i) denial that the facts occurred ii) assertion that the conduct was unauthorized iii) assertion that the facts do not constitute a violation of the norm Filartiga v. Pena-Irala (2d Cir. 1980) official torture violates CIL when no state has asserted a right to torture and allegations of torture are usually met with factual defenses (2) nature of action (a) claims no norm if claims of a right are legal (b) defenses no norm, if defenses of a violation are legal The Paquete Habana (SCOTUS 1900) - Spanish civilian fishing ships captured by US forces invalidates capture of civilian fishing vessels, citing practice of civilized nations b) treatiesin consistentform (1) codification of existing customary law can be evidence of a norm despite existence of non-signatories Nuclear Weapons Advisory Opinion (ICJ 1996) jus in bello principles from humanitarian law treaties, as CIL, limits use of nuclear weapons (2) establishing new customary law differences in treaties can exist, if core definition of the norm is consistent throughout Filartiga v. Pena-Irala (2d Cir. 1980) although US is not a party, treaties show evidence that official torture violates CIL North Sea Continental Shelf Cases (ICJ 1969) no CIL when only 39 states have ratified Geneva Convention adopting the principle c) domesticlaw, constitutions,andhighcourt decisions used as evidence of a countrys understanding of customary law Filartiga v. Pena-Irala (2d Cir. 1980) - Paraguay Inspector General tortures and kills Filartigas son in retaliation for his political opposition to Paraguayan President official torture violated CIL, as evidence by its prohibition in 55 constitutions 8

d) writingsby publicists The Paquete Habana (SCOTUS 1900) - Spanish civilian fishing ships captured by US forces invalid capture of civilian fishing ships, citing scholarly works as evidence of CIL e) UN GeneralAssemblyResolutionsand Declarations not legal binding themselves, but can reflect CIL The Texaco/Libya Arbitration (1977) - Gaddafi nationalizes oil industry, taking control of TOPCo assets Libya must compensate TOPCO according to international standards because UN Resolution 1803 reflects CIL (1) strong evidence of CIL (a) addresses a legal subject (b) is consistent with state practice (c) adopted by consensus unanimous or near unanimous approval without objection by major actors The Texaco/Libya Arbitration (1977) older UN Resolution is given more weight than more recent resolution #1803 approved by non-homogenous body comprised of members of the North and South passage of #1803 depended on issue at stake here (nationalization governed by international law as well as domestic law) (2) weak evidence of CIL The Texaco/Libya Arbitration (1977) little weight given to Resolution 3281 when opposed by all industrialized economies Nuclear Weapons Advisory Opinion (ICJ 1996) - GA declares use of nuclear weapons would violate UN Charter no outright prohibition on use of nuclear weapons because GA Resolutions were adopted with objections and not reflective of state practice f) decisionsby internationaltribunals g) authoritativecompendiaand restatementsof customarylaw Restatement of Foreign Relations Law International Law Association Rest. 102

3. Opting Out of CIL a) factors (1) timing (a) Persistent Objector makes objection clear as the norm is emerging (b) Subsequent Objector makes objection clear after the norm emerges Temple of Preah Vihear Case (ICJ 1962) Thailand not a persistent objector when earlier it had acquiesced to Cambodian control Norwegian Fisheries Case (ICJ 1951) - Norway defines coastline differently than method defined by UK and all other states Norway is persistent objector because it had always defined coastline differently from other states (2) reaction of other states (a) opposition subsequent objector is less valid (b) acquiescence subsequent objection is valid Norwegian Fisheries Case (ICJ 1951) Noways delimitation valid because UK remained silent on issue despite maritime presence in the region while France accepted Norways delimitation (c) acceptance and adherence could create a new norm b) limitations objectors interpretation must be reasonable Norwegian Fisheries Case (ICJ 1951) Norways method of defining coastline must be sufficiently linked to land domain and supported by historical economic interests peculiar to the region

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4. The Relation Between Customary Law and Treaties no hierarch between custom and treaties a) CIL can be codified by a treaty b) treaty norm can become CIL (1) treaty provision is fundamentally norm creating (a) strong influence since its ratification (b) not subject to reservations (2) wide-spread and representative participation in the treaty (a) ratified by specially-affected states (b) ratified by those adversely affected by the provision (3) passage of time c) treaties as primary source of international law d) treaties as development of customary international law (1) creating norms of CIL (2) speeding up process of CIL creation (3) forming evidence of CIL only if non-parties conform Rest. 102 North Sea Continental Shelf Cases (ICJ 1969) - 1958 Geneva Convention, which adopts principle of equidistance to deliminate territorial waters, is ratified by 39 states but not Germany no CIL has emerged requiring treaty principal in the few years since ratification Nuclear Weapons Advisory Opinion (ICJ 1996) no red light: no outright prohibition on use of nuclear weapons because CIL has not yet formed no green light: any use of nuclear weapons must adhere to international humanitarian law because those principles have become CIL binding on all states

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C. CustomaryInternationalLawin DomesticCourts 1. Part of Our Law a) legitimacy of CIL as US domestic law The Paquete Habana (SCOTUS 1900) CIL is federal common law that must be ascertained and administered by judges b) limitations (1) Constitution CIL cannot justify prohibition of critical speech surrounding embassy (2) controlling executive act a conscious, explicit override of CIL by the President The Paquete Habana (SCOTUS 1900) - US declares war against Spain, and President institutes blockade of Cuba ships capture is invalid because US Admiral is not highly ranked executive official and because Presidents proclomations did not mention fishing vessels (3) controlling legislative act a statute intentionally and explicitly overrides CIL possible exception: CIL develops after statutes enactment The Paquete Habana (SCOTUS 1900) - Spanish civilian fishing ships unaware of US embargo of Cuba are captured by US forces capture was violation of international customary law, and thus a violation of US law 2. Interpretation of CIL a) high evidentiary standard (see above for details) general state practice + opinio juris The Paquete Habana (SCOTUS 1900) 5 centuries of empirical evidence show capture of peaceful vessels is illegal b) The Charming Betsy Canon domestic statues should be interpreted in light of international law (1) exceptions (a) controlling executive or legislative act (b) later-in-time rule: CIL emerges after statutes enactment (c) international law violates Constitution Letelier v. Chile (DDC 1980) - former ambassador from Chile is killed by car bomb in DC and sues under FSIA no FSIA immunity when assassination is clearly contrary to precepts of humanity 3. Torture Victim Protection Act a) holds individuals civilly liable for damages to torture victims b) limitations (1) is US citizen (2) commits torture under auspices of a foreign government (3) must exhaust remedies in location giving rise to claim (4) 10 year statute of limitations Torture Victim Protection Act 4. Alien Tort Statute grants district courts original jurisdiction, but does not provide a cause of action a) jurisdictional requirements 12

(1) plaintiffs are aliens (2) defendants actions are a tort (3) tort is a violation of CIL b) cause of action (1) universal of an international character, accepted by the civilized world comparable to 18th century paradigms (piracy, neutrality, protection of ambassadors) (2) defined with specificity (3) obligatory Filartiga v. Pena-Irala (2d Cir. 1980) - Paraguay Inspector General tortures and kills Filartigas son in retaliation for his political opposition to Paraguayan President official torture violated CIL and is actionable in US courts Sosa v. Alvarez-Machain (SCOTUS 2004) - Sosa abducts Alvarez in Mexico, holds him overnight, and flies him to US for arrest no liability because short, arbitrary detention does not meet ATS standards Abdullahi v. Pfizer (2d Cir. 2009) - Pfizer performs unconsensual drug test on Nigerian children with government involvement in all stages CIL prohibition on nonconsensual medical experimentation meets Sosa standards private company liable because it acted in concert with the state c) scope of liability generally has been limited to persons acting in a governmental capacity because most violations of international law can be committed only by states (1) direct liability of non-governmental persons the person who committed the offense is held liable (a) per se wrong international law hold both private and public actors liable i) slavery ii) genocide iii) OR certain war crimes Kadic v. Karadzic (2d cir. 1995) - Bosnian Croats sue Bsonia President for genocide, war crimes, torture private individual liable for genocide but not torture and murder (b) contextual wrong private actor can be held liable if it works with state in a violation of CIL i) private party doing a public function ii) private party acting because of state compulsion iii) private party acting jointly with the state Abdullahi v. Pfizer (2d Cir. 2009) private company liable because it acted in concert with the state Kadic v. Karadzic (2d Cir. 1995) - Bosnian Croats sue non-state actor for genocide, war crimes, torture private individual liable for acting in concert with state in torture and murder (2) secondaryliability private actor can be held liable for aiding and abetting a state in a violation of CIL 13

(a) presence of private party where the violation occurred (b) private party has knowledge of the violation (c) private actor benefits from the violation (d) private actor participates in the violation (e) private actor is in control of the violation Kiobel v. Royal Dutch Shell (2d Cir. 2010) - Shell enlists aid of Nigerian government to suppress local resistance to oil exploration CIL does not extend scope of liability to corporations when no corporation has ever been held liable under CIL of human rights

II. GENERALPRINCIPLESOF LAW the legal rules borrowed from domestic law as the gap-filler of international law constitutes a separate source of law with fairly limited scope ICJ Statute, Art. 38 A. reparations B. circumstantial evidence C. res judicata D. estoppel E. concept of the limited liability company F. unjust enrichment G. force majeure H. duress

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III. RULES OF CONVENTIONALINTERNATIONALLAW A. UnitedStatesLawGoverningTreaties 1. US ConstitutionalPrinciples a) constitutional authority (1) Treaty Power (a) made by president (b) with advice and consent of Senate (c) AND two-thirds approval of Senate Const., Art. II (2) legitimacy of treaty law as US domestic law treaties are supreme law of the land Const. Art. VI b) Scope of Treaty Power (1) allows government to do what would otherwise be unconstitutional (2) treaty = any international agreement approved by two-thirds vote of the Senate (3) extends to all proper subjects of negotiation between US and foreign governments Missouri v. Holland (SCOTUS 1920) - federal bird protection law struck down for violating 10th amendment - Congress re-enacts bird protection law after ratifying Migratory Bird Treaty valid congressional power because treaties are supreme law of the land c) Limitations on Treaty Power (1) a treaty cannot violate express provisions in the Constitution Reid v. Covert (SCOTUS 1957) - US-UK treaty makes civilian dependents of soldiers subject to court martial for crimes committed on overseas military bases treaty invalid because of s 6th Amendment rights to confront wit nesses (2) federalism see below 2. RUDs unilateral statements about a treaty can be attached by President or Senate a) Reservations changes legal obligations under the treaty b) Understandings an interpretive statement that elaborates on a treaty obligation c) Declarations a statement of policy relating to the treaty

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3. Self-ExecutingandNonSelf-ExecutingTreaties a treaty cannot be enforced until it has been executed a) Self-Executing Treaties treaty becomes US law once it enters into force internationally no implementation by Congress required Asakura v. City of Seattle (SCOTUS 1924) - city ordinance prohibits foreigners from running pawnbroker business US-Japan Treaty of FCN trumps city ordinance without the aid of any legislation b) Non-Self-Executing Treaties treaty provisions require implementing legislation by Congress North Pacific Fur Seals Convention - each party agrees to enact and enforce such legislation as may be necessary 1951 Refugee Convention - States shall as far as possible facilitate the [treaty goals]. c) Interpretive Principles (1) intent of the parties to the agreement treaty intends to have immediate legislative effect without implementation Rest. 111(4) (a) language i) treaty text requires present action, not future action ii) treaty text is obligatory, rather than aspirational Medellin v. Texas (SCOTUS 2008) - Medellin (Mexican citizen) arrested without being informed of VCCR rights of consular notification - ICJ court demands Medellins case be reconsidered, and President agrees - TX state court upholds conviction based on state procedural default rules VCCR Optional Clause not self-executing because compulsory jurisdiction compulsory compliance UN Charter not self-executing because undertakes to comply is merely a commitment to take future action and not a directive to states US v. Postal (5th Cir. 1979) - Convention on High Seas says Ships shall sail under the flag of one State not-self-executing because treaty text less important when many treaty parties do not recognize treaties as self-executing (b) context i) constitutional considerations the more a treaty entrenches on enumerated congressional powers, the more likely it is non-self-executing Rest. 111(4)(c) ii) purposes of the treaty iii) domestic procedures and institutions appropriate for implementation iv) alternative means of enforcement v) consequences of holding the treaty self-executing or not US v. Postal (5th Cir. 1979) not-self-executing when treaty is inconsonant with US historical policy and US did not clearly manifest intent for treaty to be self-executing (2) wildcards (a) plaintiff lacks standing 16

 plaintiff is not in the class intended to be protected by the treaty (b) treaty does not create private right of action in US courts (c) issues involves a political question

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4. TreatyInterpretation a) plain meaning of the text US v. Alvarez-Machain I (SCOTUS 1992) - abducted from Mexico to stand trial in US without following Extradition Treaty no treaty violation when treaty contains no explicit prohibition on kidnappings b) principles of CIL, especially in areas where treaty is silent c) practice of the parties (1) before ratification (travaux preparatoires) (2) after ratification, especially if practice is mutual US v. Palestine Liberation Organization (SDNY 1988) PLOs UN office is valid because of 40+ years of US acquiescence with Treaty d) executive submissions not dispositive, but given substantial deference US v. Palestine Liberation Organization (SDNY 1988) PLOs UN office is valid because State Department opposes enforcing the Act e) Charming Betsy Principle reconcile treaties and statutes whenever possible US v. Palestine Liberation Organization (SDNY 1988) - Anti-Terrorism Act forbid PLO from maintaining offices in the US PLOs UN office is valid because lack of clear legislative intent to violate UN Headquarters Agreement Treaty 5. TreatyTermination a) Later-in-TimeRule conflict between statutes and treaties are resolved by looking to the most recent document (1) conflict between a statute and a self-executing treaty (2) AND conflict is unavoidably inconsistent later-in-time rule will not be applied unless Congressional intent to override that obligation is clear and manifest Charming Betsy Principle US v. Palestine Liberation Organization (SDNY 1988) no conflict between statute and treaty Breard v. Greene (SCOTUS 1998) - Breard arrested without consular notification, in violation of 1969 treaty - Breard sentenced to death in state court and then challenges arrest in federal court no violation of treaty because 1996 law mandates defense be raised in state court b) Unilateral Termination by the President - President Carter withdraws mutual defense treaty with Taiwan - Bush 43 terminates Anti-Ballistic Missile Treaty c) Reinterpretation by a subsequent President President reinterprets treaty different from meaning given by ratifying President and Senate - Reagan initially interprets ABM Treaty to permit development of weapons previously not in existence at time of ratification

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6. PresidentialPowerto EnterInternationalAgreements an alternative to Treaty Power a) sources of authority to conclude international agreements (1) authority from prior Article II treaty (2) independent presidential authority Const., Art. II (a) express constitutional authority example: commander-in-chief-power (b) implied constitutional authority example: conducting foreign relations US v. Pink (SCOTUS 1942) - USSR nationalizes bank but is barred from taking NY branch because govt is not recognized by US - pursuant to executive agreement, USSR assigns President its claim in exchange for recognition US has valid claim for NY branch because executive agreement supersedes NY law (3) authority from Congress Const., Art. I Dames & Moore v. Regan (SCOTUS 1981) - Carter signs Algiers Accords as executive agreement, negotiating hostage release and establishing Iran Claims Tribunal - Reagan implements Algiers Accords by suspending s claim against Iran valid agreement because congressional approval implied from its acquiescence Medellin v. Texas (SCOTUS 2008) - (Mexican citizen) arrested without being informed of VCCR rights of consular notification - President issues Memorandum requiring TX reconsider in light of ICJ judgment - TX state court upholds conviction based on state procedural default rules invalid presidential action because treaty is non-self-executing (no authority from Congress) and no President has tried to transform ICJ judgment into domestic law (no congressional acquiescence) b) Types of Executive Agreements international agreements, other than Article II treaties, concluded by the United States (1) Agreement pursuant to a prior Article II treaty prior Treaty authorizes President to enter into subsequent agreements (2) Congressional-Executive Agreements an executive agreement based on congressionally delegated or statutory authority can be approved either ex ante or ex post (a) explicit congressional authorization specific authorization by statute or joint resolution joint resolution authorizing US participation in IMF and World Bank (b) implicit congressional approval inferred from statutory provisions that merely refer to such agreements (3) Presidential Executive Agreements an executive agreement based on independent presidential constitutional authority (a) independent presidential powers i) represent the nation in foreign affairs 19

Dames & Moore v. Regan (SCOTUS 1981) - through executive agreement, President suspends s claim against Iran valid agreement because it related to foreign affairs and has congressional approval ii) receive ambassadors US v. Pink (SCOTUS 1942) President has power to negotiate agreement in exchange for receiving Russian ambassadors iii) Commander-in-Chief iv) Take Care Clause (b) limitations i) cannot violate the Constitution ii) cannot be inconsistent with constitutional legislation Department of State Circular 175 c) Choice of Procedure (1) discretion to the President President has discretion to determine which type of agreement to use Department of State Circular 175 for a list of factors, see p. 202 (2) report to Congress all international agreements must be transmitted to Congress, but definition of term is left to the discretion of the President Case Act 7. ReconcilingFederalismwith InternationalLegalObligations a) Statutory Preemption Congress can override state law and prevent states from regulating Crosby v. National Foreign Trade Council (SCOTUS 2000) - Congress imposes sanctions on Burma after MA legislature does something similar despite identical purpose, MA law is invalid because its conflicting remedies pose an obstacle to congressional objectives under the federal law Congress need not expressly state its intent to preempt state law b) Foreign Affairs Preemption states are preempted from regulating issues relating to foreign affairs Zschernig v. Miller (SCOTUS 1968) - OR law prohibits inheritance by residents of communist countries state law invalid because it intrudes into foreign affairs field American Insurance v. Garamendi (SCOTUS 2003) - CA law requires insurance companies to disclose information about policies sold in Nazi Europe - executive agreement establishes fund to compensate Nazi insurance co. victims CA law invalid because its strict requirements stand in the way of Presidents chosen policy c) Limitations on the Federal Government the more explicit the constitutional delegation to the states, the less likely that the federal power will trump the state power Medellin v. Texas (SCOTUS 2008) 20

- (Mexican citizen) arrested without being informed of VCCR rights of consular notification - ICJ court demands Medellins case be reconsidered, and President agrees - TX state court upholds conviction based on state procedural default rules President cannot require state courts to comply with ICJ judgments through executive agreement

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B. InternationalPrinciplesGoverningTreaties 1. The Formationof Treaties a) Definition an international agreement between states intended to be legally binding Rest. 301 (1) VCLT scope (a) concluded between States (b) in written form (c) governed by international law Vienna Convention on the Law of Treaties (VCLT), Art. 2 VCLT, Art. 11 consent may be expressed by signature, ratification, acceptance, approval, etc. US-Japan FCN Treaty (2) Political Commitments a nonbinding agreement can be used to avoid domestic constitutional requirements of treaties (a) Legal Effect may still cary force when expectations of compliance develop Joint Statement of the Six-Party Talks 2008 G8 Plan of Action b) Creating a Legal Obligation (1) Obligation on Treaty Parties valid upon ratification = state makes clear its intent to be legally bound (a) states cannot invoke domestic law as justification for failure to preform VCLT, Art. 27 (2) Obligation on Signatories an interim legal obligation on signatory that has not yet fully ratified the treaty (a) Obligation Not to Defeat the Object and Purpose requires states, at a minimum, do not act in a way to defeat treatys object i) less than good faith performance ii) cannot violate the treatys spirit iii) can be a duty not explicitly contained in the treaty VCLT, Art. 18 (b) exception: unsigning (3) Obligation of Third Parties non-signatories can become bound by treaty norm that develops into CIL VCLT, Art. 38 North Sea Continental Shelf Cases (ICJ 1969) - 1958 Geneva Convention, which adopts principle of equidistance to deliminate territorial waters, is ratified by 39 states but not Germany Germany not bound because treaty principle had not yet become CIL

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c) Reservations (1) Pre-VCLT Reservations (a) reservations must receive affirmative unanimous consent of other parties (2) VCLT Reservation Regime effect of a reservation depends on whether it is compatible with the treatys object and purpose (a) Formulation of Reservations i) reservations allowed ii) exceptions (1) reservation prohibited by the treaty (2) reservation inconsistent with treatys object and purpose unanimous consent of other parties required VCLT, Art. 19 (b) Legal Effects of Acceptance or Objection - State X makes reservation i) State A accepts reservation both X and A get the benefit of the reservation VCLT, Art. 21(1) ii) State B objects to reservation (1) State B objects to entry into force of the treaty no treaty relations between X and B Declaration of the Netherlands (2) State B does not object to treatys entry into force that provision of the treaty applies to neither X nor B Declaration of the United Kingdom VCLT, Art. 21(3) iii) State C is silent both X and C get the benefit of the reservation VCLT, Art. 20(5) (c) Criticisms i) objecting states must object to the entry into force or else it effectively accepts reservation ii) reserving states obligations under the treaty are different depending on the reaction of each other party iii) treatys integrity sacrificed in order to obtain more signatures The Reservations Case (ICJ 1951) - UN GA questions legal effect of reservations to Genocide Convention reservation valid unless contrary to object and purpose of the treaty Convention on the Elimination of All Forms of Discrimination Against Women Convention on the Prevention and Punishment of the Crime of Genocide (3) Human Rights Commission less lenient of reservations than under VCLT (a) reservations allowed unless: i) conflicts with customary law ii) conflicts with jus cogens iii) outside scope of 11-12 (b) effect of an invalid reservation i) reservation is not valid 23

invalidity determined by Human Rights Commission ii) reserving party is still a party to the treaty UN Human Rights Committee comment on ICCPR

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2. TreatyInvalidityand Termination a) Invalidity of Treaties (1) consent procured through threat or use of force might not extend to economic threats or pressures VCLT, Art. 52 (2) conflict with jus cogens jus cogens = preemptory norm of general international law to which no derogation is permitted VCLT, Draft Art. 50 b) Termination and Suspension of the Operations of Treaties (1) material breach (a) definition i) a repudiation of treaty not sanctioned by VCLT ii) OR a violation that is essential to treatys object and purpose (b) purpose preserves maximum scope of action to non-breaching parties the affected parties can respond unilaterally (c) effect i) in bilateral treaty non-breaching party may terminate or suspend treaty in whole or in part ii) in multilateral treaty (1) by unanimous agreement of non-breaching parties may suspend treaty in whole or in part, or may terminate treaty for all parties or just for the breaching party (2) by specially affected party may terminate or suspend in whole or in part, in relation with breaching party iii) exception reprisals are allowed for a material breach of humanitarian law treaty VCLT, Art. 60 (2) impossibilityof performance VCLT, Art. 61 Gabcikovo-Nagymaros Project (ICJ 1997) no impossibility defense because an economic joint venture consistent with environmental protection was not the essential object of the Treaty no impossibility when economic unfeasibility is due to delay by Hungary (3) rebussic stantibus when conditions which led to conclusion of the treaty change fundamentally (a) application rebuttable presumption against invocation, except in narrow circumstances i) the change constitutes an essential basis to which consent was obtained ii) AND extent of change completely prevents obligations from being completed Gabcikovo-Nagymaros Project (ICJ 1997) - communist leaders in Hungary and Slovakia sign treaty providing for joint lock operation on Danube River - after fall of the Iron Curtain, Hungary suspends and then abandons project invalid defense when communist political and economic systems were not an essential basis for the countries consent 25

(b) exceptions -- termination prohibited i) treaties establishing boundaries ii) unclean hands doctrine invocation prohibited by the state that caused the fundamental change (c) problems i) could undermine all treaties VCLT, Art. 62 (4) emergence of a conflicting jus cogensnorm VCLT, Draft Art. 64 c) Withdrawal from or Denunciation of a Treaty (1) withdrawal pursuant to terms of the treaty VCLT, Art. 54 Gabcikovo-Nagymaros Project (ICJ 1997) invalid withdrawal when Treaty does not mention termination (2) termination by consent of all parties VCLT, Art. 54 Gabcikovo-Nagymaros Project (ICJ 1997) invalid withdrawal when Slovakia objected to Hungarys withdrawal (3) possibility of unilateral withdrawal intended by treaty drafters VCLT, Art. 56 Gabcikovo-Nagymaros Project (ICJ 1997) - Hungary announces termination will take effect within 6 days invalid withdrawal when Treaty did not envision such short notice of termination (4) possibility of unilateral withdrawal implied by nature of treaty VCLT, Art. 56 Gabcikovo-Nagymaros Project (ICJ 1997) invalid withdrawal when Treaty provided for long-term joint operation\ The Nicaragua Litigation (ICJ 1984) - US reserves right to modify its acceptance of ICJ Optional Clause modification invalid because good faith requires reasonable time for withdrawal 3. ObservanceandInterpretationof Treaties a) treaties must be performed in good faith VCLT, Art. 26 b) General Rule of Interpretation (1) good faith interpretation (2) in accordance with the ordinary meaning of the text (3) in context (a) treaty text (b) side agreements made at the time of negotiation (c) unilateral statements accepted by the other parties (d) subsequent agreements (e) subsequent practice (4) in light of the treatys object and purpose VCLT, Art. 31 (5) travaux preparatoires 26

 as a supplementary means of interpretation when meaning is ambiguous, obscure, or leads to absurd result VCLT, Art. 32

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DisputeSettlementand the Enforcementof Rulesin ExemplaryInternationalSettings

I. ALTERNATIVEDISPUTERESOLUTION A. Negotiation dialogue between the parties intended to resolve a dispute B. Mediation third-party assists the parties to negotiate a settlement C. Conciliation impartial third-party examines dispute and explores potential solutions

II. INTERNATIONALCOURTS A. THE INTERNATIONALCOURTOF JUSTICE 1. Structure and Organization principal judicial organ of the United Nations a) Procedure (1) application = complaint (2) memorial = opening brief (3) Provisional Measures grants interim relief to an injured party in a pending dispute ICJ Statute, Art. 41 b) Availability (1) limited to states ICJ Statute, Art. 34(1) (2) open to all UN members ICJ Statute, Art. 35(1) 2. Jurisdiction in Contentious Cases disputes over jurisdiction are to be resolved by the ICJ ICJ Statute, Art. 36(6) a) Compromis an agreement to submit a particular existing dispute to the ICJ for resolution parties have maximum control over litigation (a) parties can stipulate facts (b) parties can stipulate principals of law (c) parties can dictate particular issues to be resolved ICJ Statute, Art. 36(1) b) A CompromissoryClause a treaty provision requiring submission of future disputes under that treaty to the ICJ jurisdiction proper when sufficient connection exists between alleged facts and the treaty ICJ Statute, Art. 36(1) Genocide Convention, Art. 9 - provides for ICJ jurisdiction over all genocide disputes - US reservation requires its specific consent prior to adjudication Art. 9 is remedial (not substantive) and reservation does not conflict with treatys object and purpose 28

US-Iran Treaty of Amity, Economic Relations, and Consular Rights - provides for ICJ resolution of disputes as to interpretation or application of treaty Oil Platforms Case (ICJ 1996) - US destroys Iranian oil platforms during 1988 Iran-Iraq War ICJ has jurisdiction over dispute about military force because freedom of commerce as used in Treaty encompasses ancillary activities related to the sale and purchase of goods The Nicaragua Litigation (ICJ 1984) - 1956 Treaty of FCN provides for ICJ jurisdiction if diplomacy is unsuccessful - without trying diplomacy, Nicaragua files application without mentioning Treaty proper jurisdiction because diplomacy would have been futile and because Nicaragua cited Treaty in its opening brief Yugoslavia v. USA (ICJ 1999) - Yugoslavia requests provisional measure to stop NATO bombing campaign - USs reservation to Genocide Convention requires specific consent to go to ICJ no provisional measures can be indicated without specific consent of the party

c) The OptionalCause signatories agree in advance to submit to compulsory jurisdiction over any claim against another signatory (1) claim must concern an international legal dispute (a) treaty interpretation (b) questions of international law (c) factual issues which, if true, would be a violation of international law (d) OR nature or extent of a reparation for a violation of international law (2) reciprocity applies only in relation to another signatory (a) a signatory can bring a claim against other signatories (b) any reservation by one signatory can be invoked by another signatory Certain Norwegian Loans Case (ICJ 1957) - France accepts Optional Clause with self-judging reservation over issues of national concern - Norway issues gold bonds to French nationals, but later pays with cash no jurisdiction because Norway is subject to same exceptions as France The Nicaragua Litigation (ICJ 1984) - US accepts Optional Clause subject to certain reservations - parties agree to settle in another tribunal - Connally Reservation: self-judging reservation on domestic issues - Vandenberg Reservation: on issue arising out of a treaty, all treaty parties must appear before ICJ - US may terminate 6 months after notification invalid invocation of Vandenberg Reservation because claim is based in CIL, which had merely been codified into treaties d) TransferredJurisdiction cases previously under the jurisdiction of PCIJ ICJ Statute, Art. 36(5) The Nicaragua Litigation (ICJ 1984) 29

- Nicaragua accepts compulsory jurisdiction under PCIJ, but fails to submit instrument of ratification proper jurisdiction because Nicaraguas acceptance became valid upon joining UN technical fault overridden by Nicaraguas acquiescence (failure to object to publications listing Nicaragua as under compulsory jurisdiction) e) ForumProrogatum one state submits an application to ICJ pending consent from its adversary Certain Criminal Proceedings in France (Congo v. France, 2003) 3. Enforcementof ICJ Judgments a) compliance required by all UN Members b) noncompliance referred to UN Security Council moves enforcement into the political realm UN Charter, Art. 94 The Nicaragua Litigation (ICJ 1984) - US withdraws from case and refuses to comply with ICJs holding political consequences for US: lost influence abroad and difficulty in mission in Central America

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B. REGIONALAND SPECIALIZEDCOURTS 1. InternationalTribunalfor the Lawof the Sea resolves disputes arising under the Law of the Sea Convention 2. InternationalCriminalCourt tries suspected war criminals and perpetrators of genocide or crimes against humanity 3. The Courtof Justiceof the EuropeanCommunities a) Functions (1) ensure EC law is enforced (2) act as referee between Member States, EC, and EC institutions (3) ensure uniform interpretation and application of EC law b) Sources of European Community Law (1) primary legislation law created directly by Member States (2) secondary legislation law created by the EC institutions (3) international agreements agreements concluded by EC as an entity with an international legal personality (4) unwritten sources (a) general principles of law rules reflecting the elementary concepts of law and justice common to the Member States (b) legal custom practices which have been followed, accepted, and become legally established c) Creation of Black Letter Doctrine ECJ has created new legal principles, moving regional integration forward (1) Direct Applicability EC Law creates direct rights and obligations for citizens of Member States citizens responsible for enforcing their rights by suing their government similar to US self-enforcing doctrine: EC Law does not need implementation Van Gend en Loos Case (ECJ 1963) - Benelux increases tariff on unreaformaldehyde sold by Dutch company private company has a valid claim for violation of the EEC Treaty because the Treaty is national law and creates enforceable rights on individuals Simmenthal Case (ECJ 1978) - Italy imposes fee on French beef import pursuant to its domestic health law national courts have a duty to protect rights conferred on individuals under EU (2) deference to interpretations by national courts Van Gend en Loos Case (ECJ 1963) case remanded to Dutch court for decision on the merits (3) Principle of Precedence upon entry into force, EC Law automatically renders conflicting national law inapplicable 31

 similar to US supremacy clause, but opposite of later-in-time rule Simmenthal Case (ECJ 1978) national courts are required to strike down domestic law conflicting with EC Law

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4. Inter-AmericanCourtof HumanRights a) Advisory Opinions non-binding b) Contentious Jurisdiction binding on the parties before the court c) Creation of Black Letter Doctrine (1) Disappearances are a violation of IAHR Convention although not expressly prohibited by Convention, the constituent acts of disappearances are prohibited Velsquez-Rodriguez v. Honduras (IACtHR 1988) has a cause of action under IAHRC, Arts. 7, 5, 4 (2) Pattern-and-Practice Liability states liability inferred from a pattern and practice of disappearances (a) forcible abduction (b) of individuals deemed dangerous by the state (c) using weapons restricted to government use (d) recurring modes of operation (blindfolds, safe houses, etc.) (e) denial of any information by the state (f) systemic lack of adequate judicial protection Velsquez-Rodriguez v. Honduras (IACtHR 1988) Honduras liable for s disappearance based on general cir cumstantial proof (3) Burden of Proof (a) initial BoP on the must establish prima facie case with specific facts of Pattern-and-Practice (b) BoP switches to the state state must prove its innocence because of the state monopoly on the evidence Velsquez-Rodriguez v. Honduras (IACtHR 1988) Honduras failed to satisfy BoP when it was allusive and ambiguous (4) Due Diligence Standard the state can be held liable for human rights violations by private parties (a) duty to take reasonable measures to prevent violations (b) AND duty to offer an effective remedy for violations within its territory Velsquez-Rodriguez v. Honduras (IACtHR 1988) Honduras liable for failing to take preventative and investigative measures (5) Civic Faith violations may still occur in the future, but compensation is legitimate, required and expected Velsquez-Rodriguez v. Honduras (IACtHR 1988) Honduras complies with courts decision and compensates s family

Velsquez-Rodriguez v. Honduras (IACtHR 1988) - kidnapped by armed men in civilian clothes and tortured to death in clandestine jail - over 100 similar clandestine kidnappings occurred in Honduras in span of 3 years - few successful prosecutions because police ignore judges, lawyers and judges are jailed, and hostile witnesses are killed 33

C. INTERNATIONALARBITRATION 1. Fundamentals a) important considerations (1) location of arbitration (to facilitate enforcement) (2) mode of arbitration (3) choice of law b) types (1) internal arbitration parties agree in advance where to settle disputes arising out of a contract ICSID (2) external arbitration states agree ad hoc to resolve a dispute through arbitration 2. Remedies a) restitution b) satisfaction (1) punishment of the responsible individuals (2) safeguards against repetition (3) nominal monetary damages (4) declaration of unlawfulness The Rainbow Warrior Case (1990) France removes agent without making efforts to obtain New Zealands consent tribunal declares Frances actions a material breach and recommends establishing a fund to promote bilateral relations 3. Creation of Black Letter Doctrine a) distress (1) extreme urgency (2) reestablishment of the original situation after emergency has disappeared (3) AND good faith effort to obtain consent of the other party The Rainbow Warrior Case (1990) - French secret service sinks Green Peace ship in New Zealand - UN mediates agreement, providing for transfer of French agents to French military base island for at least 3 years, but French agents return home early valid distress justification because of agents life threatening injury invalid distress justification because of agents pregnancy without prior consent b) sic utere principle (1) no state can use its territory to injure another state (2) limitations (a) injury must be of serious consequence (b) AND injury must be proven by clear and convincing evidence (3) potentially vast and broad application (a) damming a river (b) spillover broadcasting (c) causing mass refugees (d) harboring terrorists Trail Smelter Case (1941) - fumes from Canadian smelter cause injury in Washington Canada liable for transnational pollution of a private actor TOPCO Arbitration 34

The Ambatielos Claim Arbitration (1956) Tinoco Claims Arbitration Tattler Arbitration (1920)

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III. ESPOUSAL A. Definition means for a State to take diplomatic and other action against another State on behalf of its national whose rights and interests have been injured by the other State B. Exceptions to Espousal 1. Exhaustionof LocalRemedies the first attempt to resolve a dispute should be through recourse to domestic judiciary a) Exceptions (1) redress through domestic remedies is not reasonably available or possible (2) undue delay in remedial process, which is attributable to state (3) is manifestly precluded from pursuing any domestic remedies (4) nation has waived the requirement (5) no relevant connection between injured person and state The Ambatielos Claim Arbitration (1956) - UK breaches contract for sale of ships from Ambatielos (Greek national) local remedies not exhausted when Greek national did not call a helpful witness in domestic UK judicial proceedings Interhandel Case (ICJ) - Swiss sues US for expropriation claim local remedies not exhausted because case still pending in US appellate process 2. Waiver the earlier a waiver occurs, the more effect the waiver has a) anticipatory waiver (Calvo Clause) an individual waives the right of espousal before the dispute arises (1) CalvoDoctrine only local law is relevant to a foreign private partys disputes with the government can be found in a states constitution, statutes, or contracts (2) limits (a) waiver covers only the economic and technical aspects of the contract (b) no waiver of international legal remedies for host states outrageous conduct (c) no waiver of espousing states rights under international law when it is not a party b) waiver immediately before espousal an individuals waiver of his claim bars espousal of that claim Tattler Arbitration (1920) - US ship arrested by UK in Nova Scotia and later released no espousal when ship owners signed waiver in exchange for release of ship c) waiver after espousal individual cannot waive claim, preventing his state from espousing that claim

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3. InsufficientNationality a) individuals real and effective links test limited to the issue of standing in ICJ cases, relative to the opposing party Nottebohm Case (ICJ 1955) - Nottebohm purchases Liechtenstein citizenship but conducts business in Guatemala insufficient nationality for Liechtenstein to espouse claim against Guatemala b) corporations (1) location of the companys incorporation Barcelona Traction Case (ICJ 1970) - Belgium brings claim on behalf of Belgian stockholders of company incorporated in Canada Belgium lacks sufficient interest to invoke the right of diplomatic protection (2) OR location of the companys control can include directors or shareholders used when defining property in time of war, err on the side of inclusion

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Statehood
I. PREREQUISITES A. Criteria 1. permanentpopulation must be significant and stable no numerical minimum 2. definedterritory borders must be sufficiently consistent absolutely settled borders not required 3. government some authority exercising governmental functions and able to represent the entity in international relations a) effective control required b) OR legitimate - Palestine not a state because Hamas is terrorist organization 4. capacityto enter into internationalrelations and abide by international law a matter of competence, not ideology a) ability to send, receive, and protect diplomats b) ability to sign treaties c) AND ability to meet international obligations Montevideo Convention Rest. 201 Vatican City is a state with the Holy See as its government B. Recognitionof States who decides what is a state 4. declaratory theory the new state decides for itself a) other state have a duty to treat as a state any entity that meets the criteria b) recognition has no legal effects 5. constitutive theory recognition is an additional criterion for statehood a) an entity is not a state until generally recognized as such by other states b) recognition has legal effects 6. mixed approach other states decide for themselves Rest. 201 a) recognition of its government important, but not the only factor b) admission to United Nations c) input from ICJ Kosovo Advisory Opinion (ICJ 2010) Kosovo declaration of independence is in accordance with general international law and not inconsistent with SC practice and SC Resolutions The Tinoco Claims Arbitration (1923) - Tinoco comes to power in Costa Rica via coup and grants concessions to UK - Tinoco is later deposed, and new government abrogates the former concessions 38

 de facto governments contracts valid because UKs failure to recognize Tinocos government for political (rather than legal) reasons is not evidence that Costa Rica was not a state Greek-Orthodox Church Case (7th Cir. 1990) - conflict between church and foreign art dealer over mosaics, after invasion - de facto govs decrees on local artifacts not effective because not recognized by any other state except Turkey

C. Recognitionof Governments a formal acknowledgment that a particular regime is the effective government of a state 4. peaceful change relations with other states are unaffected Rest. 208 5. new government arises through violation of domestic law a) Traditional Approach recognition of the new government based on the following factors: (1) effectiveness of control (2) stability and permanence (3) popular support the ability to have habitual, if not willing, obedience (4) ability and willingness to fulfill obligations b) Estrada Doctrine states should not judge, through recognition or refusal of recognition, the new government of a foreign state a states choices are limited to maintenance or non-maintenance of diplomatic relations with the foreign state refusal to recognize a government constitutes an unlawful intervention in that states domestic affairs c) Tobar Doctrine no recognition of a new government that arises through revolution or coup detat 1907 Treaty among five Central American states 6. Recognition in US Practice a) President has exclusive authority to recognize a foreign state (1) express recognition (2) implied recognition b) Domestic Consequences of non-recognition (1) no access to US courts unrecognized governments cannot sue as a unrecognized governments cannot assert FSIA defense (2) no access to property located in the US that states property can be seized without recourse (3) domestic matters of the state are still given legal effect marriages and incorporations of businesses are still recognized Rest. 205 Taiwan Taiwan Relations Act 39

D. StateSuccession 4. Types of Succession one state replaces another state with respect to the territory, capacities, rights, and duties of the predecessor state a) new state totally absorbs the first can occur through revolution, conquest, annexation, or merger b) new state becomes independent and takes only party of the territory of the first example: Namibia c) first state dissolves into two or more states example: former Soviet Union 5. Sources of Law a) Treaty have few parties and less evidentiary effect of CIL Vienna Convention on Succession to Treaties Vienna Convention on Succession to Public Debts b) State Practice (1) universal succession -- continuity new state succeeds to all of the preceding states rights and responsibilities traditional customary rule usually followed by new states as a practical matter The Tinoco Claims Arbitration (1923) Costa Rica liable for contracts made by deposed dictator (2) Nyerere Doctrine -- clean slate new state determines which of the preceding states rights and responsibilities continue exception: boundaries established by treaty (uti possidetis) usually endorsed by new states as a legal matter, but not followed as a practical matter Vienna Convention on State Succession, Art. 16 6. Legal Obligations of the New Government a) State Property and Contracts (1) title to property (2) public debt of the predecessor Rest. 209 b) International Agreements Rest. 210 c) Seat in the UN (1) acquiescence of other member states (2) acquiescence/consent of other successor states (3) successor constitutes a dominant part of predecessors size and/or population 7. changes in government or ideology do not change the state or affect its international right and obligations Rest. 208

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II. CONSEQUENCESOF BEINGA STATE prerogatives of states can change over time as international law develops A. sovereignty over its territory 4. absolute and exclusive domestic jurisdiction B. authority over its nationals 4. right to grand nationality 5. right to withhold nationality C. capacity to participate in and make international law 4. capacity to enter into treaties 5. capacity to form CIL 6. capacity to become full member of international organizations Rest 206 D. Ratchet Effect once statehood is granted, it is hard to undue

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III. INTERNATIONALLIMITATIONSON JURISDICTION A. Jurisdictionto Prescribe the authority of a state to make its laws substantively applicable to particular persons or property or events Rest. 402 The Helms-Burton Act (1996) - creates cause of action in US courts against those who traffic in property confiscated by Cuba from a US actor - authorizes President to suspend the provision, which every President has done 1. Territorial Jurisdiction a) subjective territorial principle authority over conduct that occurs, at least partly, in the states territory American Banana v. United Fruit US antitrust law does not regulate conduct in Central America Rest. 403(1)(a) b) objective territorial principle authority over conduct whose effects are felt in the states territory (1) intent to have an effect within the state (2) AND actual and substantial effects occur Rest. 403(1)(b) Lotus Case Cecil McBee v. Delica court applies US trademark law against Japanese magazine The Helms-Burton Act (1996) - creates cause of action when effects of expropriation were felt in the US effects were not substantial conduct occurred several decades ago asserts jurisdiction over individuals, but effects were caused by Cuban government 2. Nationalityof the Actor authority over the conduct of its nationals wherever they go a) controversial applications when national is a corporation (1) authority over foreign operations of foreign-incorporated subsidiaries of US parent corporations (2) authority over foreign operations of independent foreign corporations with only tenuous connections to the US Rest. 403(2) 3. ProtectivePrinciple authority to protect the states security, integrity of governmental functions, and vital economic interests examples: currency counterfeiting, passport fraud, attacks on diplomats, espionage Rest. 402(3) The Helms-Burton Act (1996) - creates cause of action because Cuba is a threat to national security asserts jurisdiction over private individuals, who are not the cause of the threat US v. Usama Bin Laden (SDNY 2000) 43

- bin Laden and Odeh bomb US embassies in Kenya and Tanzania US has proper jurisdiction to proscribe extraterritorial attacks on its embassies 4. Nationalityof the Victim -- Passive Personality authority to protect the states national wherever they go more accepted for criminal law, but not ordinary torts Pinochet - Spain prosecutes Pinochet for crimes against Spanish citizens in Chile a) United States stance (1) problem: lack of notice actors are unlikely to inquire into nationality of victim (2) more recent exception - passive personality jurisdiction accepted victim targeted because of his/her nationality The Helms-Burton Act (1996) - creates cause of action because US nationals are victims victims nexus to US is insufficient for nationality 5. UniversalJurisdiction authority over egregious offenses contrary to the interests of the international community includes piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and terrorism Rest. 404 DRC v. Belgium (ICJ 2002) - Belgium issues arrest warrant for against DRC President for war crimes warrant invalid because current President immune US v. Usama Bin Laden (SDNY 2000) - bin Laden and Odeh bomb US embassies in Kenya and Tanzania extraterritorial application of US law supported by universal principle over terrorism 6. Limitationson Jurisdiction to Prescribe a) Reasonableness Requirement assertions of jurisdiction must be reasonable (1) link of the activity to the states territory (2) connections of nationality, residence, economic activity (3) character of the activity (4) justified expectations (5) laws importance to the international political, legal, or economic system (6) consistency with international traditions (7) interests of other states (8) conflict with the law of other states Rest. 403 The Helms-Burton Act (1996) asserted jurisdiction unreasonable because US would not accept reciprocal secondary boycott against it US v. Usama Bin Laden (SDNY 2000) - Jordanian Odeh bombs US embassies in Kenya and Tanzania nexus between and US sufficient to satisfy Due Process based on international law principles 44

b) Presumption Against Extraterritorial Application (1) courts presume that US law does not apply outside US territory prescriptive jurisdiction is determined by Congress not by courts US v. Usama Bin Laden (SDNY 2000) - bin Laden and Odeh bomb US embassies in Kenya and Tanzania no liability on 2 charges because Congress limited its reach to within US (2) exception: clear manifestation requirement (a) explicit provision for extraterritorial application (b) implicit provision for extraterritorial application can include text, structure, legislative history, and nature of the offense US v. Bowman (SCOTUS 1922) valid extraterritorial application when such a limitation would greatly curtail scope and usefulness of statute US v. Usama Bin Laden (SDNY 2000) - bin Laden and Odeh bomb US embassies in Kenya and Tanzania - US charges with violations of US criminal law clear manifestation satisfied when application of statute solely to US nationals would make little sense c) reactions by other states to extraterritorial jurisdiction of Helms-Burton Act (1) blocking or antidote legislation prohibits cooperation with implementation of Helms-Burton Act (2) claw back provisions creates cause of action against the US national who won a Helms-Burton Act judgment in a US court B. Jurisdictionto Enforce the authority of a state to induce or compel compliance with its law 1. Territory a state has exclusive and plenary authority to enforce within its territory 2. extraterritorial enforcement by US officials a) with consent of the foreign state b) with due authorization by the US c) AND in compliance with laws of US and of the foreign state Rest. 433 Rest. 432 US v. Alvarez-Machain I (SCOTUS 1992) - US abducts Alvarez-Machain from Mexico foreign abduction by US agents does not bar trial when Mexico never protested 3. Treaties Consenting to Extraterritorial Enforcement Hague Convention on Service of Documents Hague Evidence Convention extradition treaties ad-hoc arrangements 4. Types of Enforcement Measures a) Judicial Enforcement Measures includes criminal sanctions, orders by civilian courts, and executive measures approved by the judiciary (arrests pursuant to warrant) b) Nonjudicial Enforcement Measures 45

can include suspension of permits, ineligibility of bidding for government contracts Pinochet - UK arrests Pinochet when he is in UK seeking medical help Rest. 431

C. Jurisdictionto Adjudicate satisfied if personal jurisdiction requirements are satisfied Rest. 421

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IV. IMMUNITYFROMNATIONALJURISDICTION A. Immunityof ForeignStates a court cannot hear a claim against a foreign state where it is immune 1. AbsoluteImmunity a sovereign state cannot be made a respondent in the courts of another sovereign followed by most states up to 20th century The Schooner Exchange v. MFaddon (SCOTUS 1812) - private US ship captured by France in US waters and converted into French warship France not liable because foreign governments cannot be called into court the same way citizens can 2. RestrictiveImmunity immunity of a sovereign is recognized for public acts but not for private acts became increasingly followed beginning in 1900 a) Public Acts -- jure imperil sovereign is entitled to immunity includes going to war, inflating currency b) Private Acts -- jure gestionis sovereign is held liable like other private actors includes leasing property and contracts to buy supplies for the army Tate Doctrine (1952) adopts restrictive theory, with deference to the State Departments recommendation on immunity for each particular case 3. ForeignSovereignImmunitiesAct a) Entities Covered foreign sovereign entity bears the burden of proof (1) foreign states (2) political subdivisions of foreign states core functions test: functions of entity are noncommercial (3) agencies and instrumentalities of foreign states core functions test: functions of entity are predominantly commercial (a) an organ of a foreign state (b) OR majority of shares owned by a foreign state FSIA 1603 Samantar v. Yousuf (SCOTUS 2010) - Yousuf sues former Somali VP and Prime Minister for torture and murder FSIA does not grant immunity to individuals b) Grants Original SMJ and PJ to Federal Courts (1) limits relief to monetary compensation, rather than equity (2) prevents claims in state courts against foreign sovereigns FSIA 1330(a) Argentina v. Amerada Hess (SCOTUS 1989) - Liberian oil tanker attacked by off the coast of Falklands - district court finds no FSIA exception but finds jurisdiction under ATS no jurisdiction because FSIA provides the exclusive means for suing a foreign state in US courts 47

Siderman v. Argentina (9th Cir. 1991) - Argentine military kidnaps and tortures Jewish s no jurisdiction over torture claims because no FSIA exceptions for jus cogens c) Rebuttable Presumption of Immunity (1) designation of immunity determined by courts, not by the State Department FSIA 1602 (2) can only be overcome by exceptions enumerated in 1605-07 FSIA 1604 d) Exceptions -- no immunity plaintiff bears the burden of prof (1) CommercialActivity reflects restrictive approach to foreign sovereign immunity FSIA 1605(a)(2) (a) commercial activity i) s claim is basedupon that activity the elements of s claim are sufficiently connected to commercial activity Saudi Arabia v. Nelson (SCOTUS 1993) - Nelson sues for his detention and torture while an employee insufficient connection when states commercial conduct merely led to s injuries ii) AND nature of act is commercial purpose of act is irrelevant potentially limits immunity to acts of raging war and of inflating currency FSIA 1603(d) Argentina v. Weltover (SCOTUS 1992) - Argentina raises money by issuing bonds to foreign creditors issuance of bonds is commercial activity because Argentina acted as private player rather than regulator Saudi Arabia v. Nelson (SCOTUS 1993) - Nelson sues for his detention and torture while an employee not commercial when nature of states actions (abuse of police powers) are usually performed by public parties Siderman v. Argentina (9th Cir. 1991) - Argentine military kidnaps and tortures Jewish s and seizes their business commercial activity because s continuing operation of s business is of a kind in which a private party might engage (b) nexus to US i) commercial activity carried on in the US by the foreign state Siderman v. Argentina (9th Cir. 1991) - Argentina military seizes and continues to manage s hotel business sufficient nexus because of advertisements in US and accepts American credit cards from American guests at their hotel ii) an act performed in the US in connection with a foreign commercial activity by the foreign state Siderman v. Argentina (9th Cir. 1991) sufficient nexus because solicits and accepts reservations in the US 48

iii) OR direct effect in the US of a foreign act connected to a foreign commercial activity Siderman v. Argentina (9th Cir. 1991) insufficient nexus because mere financial loss is insufficient without evidence that payment was to be made in the US Argentina v. Weltover (SCOTUS 1992) - Argentina reschedules payments on bonds held by Weltover direct effect = Argentinas failure to submit payments to NY bank account Saudi Arabia v. Nelson (SCOTUS 1993) - Saudi Arabia hires Nelson (US citizen) to work as engineer at state hospital - Nelson reports safety defects at hospital and is arrested and tortured

(2) Waiver foreign state has waived its immunity (a) explicit waiver waiver can be found in treaty or contract provisions (b) implicit waiver generally construed narrowly, requiring indication of willingness to be sued in US courts i) the state files responsive pleading without asserting immunity ii) the state agrees to arbitration in another country (i.e., US) iii) the state agrees that foreign (i.e., US) law should govern a contract Siderman v. Argentina (9th Cir. 1991) - Argentine military kidnaps, tortures, and criminally prosecutes Jewish s valid implicit waiver because requested assistance from CA courts to obtain personal jurisdiction over FSIA 1605(a)(1) (3) Counterclaim foreign state brings a lawsuit in a US court (b) no immunity for claims arising out of the same transaction or occurrence (c) no immunity for claims up to the amount of the states claim FSIA 1607 (4) NoncommercialTorts no immunity from damages for personal injury caused by torts of a foreign state (b) requirements i) noncommercial tort includes assault, battery, false imprisonment excludes tortious interference with contracts ii) committed by a foreign state includes agency/instrumentality iii) causes personal injury, death, damage to or loss of property iv) AND injury occurs in the US Siderman v. Argentina (9th Cir. 1991) no immunity exception because act of torture occurred in Argentina (c) exceptions -- immunity retained i) tort based on a discretionary function (1) act involves an element of judgment or choice 49

(2) choice is based on social, political, or economic policy Letelier v. Chile (DDC 1980) - former ambassador from Chile is killed by car bomb in DC not discretionary function because assassination is clearly contrary to precepts of humanity Risk v. Halvorsen (Norway) (9th Cir. 1991) - Norway helps divorced mother escape to Norway with his children discretionary function because nature of act (advising citizens and issuing passports) is based on social policy ii) OR malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, interference with contract rights FSIA 1605(a)(5) (5) TerroristActs no immunity from engaging in or providing material support for terrorist activities (b) requirements -- no immunity i) money damages sought for specified violations (1) an act of torture, extrajudicial killing, aircraft sabotage, hostage taking (2) OR the provision of material support/resources for such an act ii) conduct engaged in by an official under color of office iii) AND foreign state has been designated as a state sponsor of terrorism (c) exceptions -- immunity retained i) act occurred in the foreign state, but claimant did not give that state a reasonable opportunity to arbitrate the claim ii) OR neither claimant nor victim were a US national when the violation occurred (d) cause of action FSIA serves as an enforcement provision for acts meeting terrorism exception FSIA 1605(a)(7) Alejandre v. Cuba (SD Flor. 1997) - s, searching for Cuban refugees off Florida coast, are shot by Cuban Air Force terrorism exception met: unprovoked rocket firing is extrajudicial killing Cuban Air Force is agent of Cuba Cuba is designated as state sponsor of terrorism act occurred outside of Cuban territory (e) 2008 Amendments i) gives courts discretion to hear cases even when all requirements are not met ii) expands class of potential plaintiffs claims allowed by armed service members, US government employee or contractor, and US nationals iii) provides an explicit private right of action against states that meet the 1605A conditions iv) defines and expands recoverable damages v) defines standard of liability FSIA 1605A

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(6) Expropriation no immunity in cases involving an issue of property taken in violation of international law (b) property taken in violation of international law the state takes property owned by a foreigner AND i) not for a public purpose ii) discriminatory iii) OR no just compensation Siderman v. Argentina (9th Cir. 1991) - Argentine military kidnaps and tortures Jewish s and seizes their business - s flee Argentina to live with daughter (US citizen) no immunity exception for Argentine s because expropriation of s own citizens property does not implicate settled principles of international law valid exception for daughter because property was taken for personal profit based on s ethnicity without compensation (c) AND nexus to US i) the property is present in the US and connected to commercial activity in the US by the foreign state ii) OR agency/instrumentality owns the property and engages in commercial activity in the US property need not be present in the US Siderman v. Argentina (9th Cir. 1991) - Argentine military kidnaps and tortures Jewish s and seizes their business sufficient nexus because s former business is agency FSIA 1605(a)(3) (7) Enforcementof Arbitral Agreements no immunity from actions seeking to enforce arbitration agreements FSIA 1605(a)(6)

e) Immunity from Attachment or Execution (2) property of a foreign state is immune from attachment or execution FSIA 1609 (3) exceptions -- property can be attached/executed does not apply to diplomatic assets or military property (b) commercial property (c) AND nexus between attached property and underlying claim FSIA 1610-11

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B. Immunityof Persons 1. Diplomaticand ConsularImmunity a court cannot hear a case against a foreign diplomat or consular a) Obligations on the Host State (1) duty to refrain from acting within the diplomatic premise no enforcement measures may be taken host state has jurisdiction to prescribe (2) duty to protect diplomatic premises from private interference VCDR, Art. 29 b) Immunity (1) absolute immunity from criminal liability (2) presumption of immunity from civil liability (a) exceptions i) commercial activity outside scope of official functions ii) actions relating to private immovable property in host state iii) actions relating to succession outside scope of official functions VCDR, Art. 31 c) Limitations (1) applies only to those accredited as diplomats no immunity for everyone traveling with a diplomatic passport (2) can be waived by the sending state (3) persona non grata host state can expel a diplomat, usually ending the diplomats career Vienna Convention on Diplomatic Relations, Arts. 2, 4, 5, 23, 26, 27, 31, 33, 35, 41, 43, 45 Vienna Convention on Consular Relations 2. Headof-StateImmunity a court cannot hear a case against a sitting head-of-state a) source: common law b) factors (1) executive submissions most important factor US v. Noriega (11th Cir. 1997) no immunity when Executive Branch has denied head-of-state immunity (2) ratification/authorization by state US v. Noriega (11th Cir. 1997) no immunity when Panama has not sought immunity protection (3) international illegality US v. Noriega (11th Cir. 1997) no immunity when charges relate to s private pursuit of personal enrichment (4) domestic illegality US v. Noriega (11th Cir. 1997) no immunity when never served as constitutional leader (5) chronology (current or former official) (6) actors motivation US v. Noriega (11th Cir. 1997) - Panama military commander is ousted by US forces and indicted for drug crimes 52

C. Act of StateDoctrine a court should not sit in judgment on the validity of an act by a foreign government done within its own territory Underhill v. Hernandez (SCOTUS 1897) 1. Requirements a) territorialityrequirement the act must be located within acting governments territory Banco Nacional v. Sabbatino (SCOTUS 1964) - After Cuba nationalizes sugar industry, US broker pays former sugar company instead of Cuba for sugar shipment foreign act valid when taken property was in Cuba b) diplomaticrequirement (1) government must be existing at time of suit (2) AND government must be recognized by US at time of suit Banco Nacional v. Sabbatino (SCOTUS 1964) foreign act valid when Cuba is extant and recognized country Sison v. Marcos (9th Cir. 1989) - is tortured to death at direction of Philippines President no AoSD because is a deposed dictator c) publicact issue involves a formal expression of official authority (1) ratification of a policy Dunhill v. Cuba (SCOTUS 1976) - Cuba expropriates Cuban cigars. Former owners sue Dunhill for payment no AoSD because Cubas repudiation of liability at trial was not a policy (2) exceptions (a) abuse of authority Kirkpatrick v. Environmental Tectonics (SCOTUS 1990) - Kirkpatrick bribes Nigerian officials to win construction K over no AoSD when Nigerian officials abused their authority in taking bribes (b) commercial act the more commercial the act, the lesser presumption of validity more inclusive than FSIA (an act sufficient for FSIA commercial activity exception may be insufficient for AoSD exception) Dunhill v. Cuba (SCOTUS 1976) concurrence: no AoSD because act was repudiation of a commercial duty Sison v. Marcos (9th Cir. 1989) - is tortured to death at direction of Philippines President no AoSD when torture was not Philippines official policy, even under Marcos d) unclearlaw consideration international legal standards are unclear or unsettled AoSD not applicable when international law has been clearly violated, as defined by treaty or CIL 53

Banco Nacional v. Sabbatino (SCOTUS 1964) foreign act valid when communist and capitalist countries disagree on international standards governing expropriation

e) congressionaloverride AoSD not applicable where limited or overridden by Congress (1) express override (a) Hickenlooper Amendment directs courts not to apply AoSD for acts related to takings (b) Helms-Burton Act directs courts not to apply AoSD in some claims against traffickers of expropriated property (c) Federal Arbitration Act directs courts not to apply AoSD for enforcement of arbitral agreements (2) implicit override a statute says international standards apply f) executivebranchrecommendations relevant but not dispositive First National City Bank v. Banco Nacional de Cuba (SCOTUS 1972) - Castro seizes s branches in Cuba, and State Department advises court not to apply AoSD AoSD inapplicable but Justices disagree on effect of executive submissions Kirkpatrick v. Environmental Tectonics (SCOTUS 1990) - Kirkpatrick bribes Nigerian officials to win construction K over Enviro. Tectonics no AoSD when State Department gave green light to the case Philippines v. Marcos (9th Cir. 1988) - sues its former president for fraud and transportation of stolen property no AoSD when the Executive declares AoSD does not apply to Marcos Sison v. Marcos (9th Cir. 1989) - is tortured to death at direction of Philippines President no AoSD when neither Philippines nor US government object to the case Kirkpatrick v. Environmental Tectonics (SCOTUS 1990) - Kirkpatrick bribes Nigerian officials to win construction K over Enviro. Tectonics mere prospect of embarrassment to Nigeria is insufficient to invoke AoSD no AoSD because validity of Nigerias act is not in question

2. Source of AoSD a) common law Congress can override or revise the doctrine b) constitutional underpinnings serves separation of powers by preventing courts from interfering with executive branch decisions in international relations

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3. DifferencesBetweenFSIAand AoSD a) who may invoke it (1) FSIA only governments and their agents (2) AoSD both governments and private parties government need not be a party to the case b) result of invocation (1) FSIA invocation provides SMJ and PJ over a party and a case (2) AoSD invocation ends litigation over one particular issue of the case court must still determine whether acted legally independent of the act of state c) source of it (1) FSIA statutory, with more mechanical application (2) AoSD common law, with more discretionary application d) exceptions to it (1) commercial activity (a) FSIA exception is clear and obligatory (b) AoSD not as clear (See Dunhill) (2) waiver (a) FSIA immunity can be waived either implicitly or explicitly (b) AoSD waiver is irrelevant (3) executive suggestions (a) FSIA no deference to executive branch because of issues of jurisdiction (b) AoSD more deference to executive branch because its an issue of foreign policy

D. Comity a court may decline to hear a case in deference to the law and interests of a foreign country E. ForumNonConveniens a court may decline to hear a case where an adequate, alternative forum exists and public and private interests favor trial in that forum

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F. Exhaustionof LocalRemedies a court should not hear a case unless exhausted its possible remedies available in the local forum

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Applyingthe Rulesin CriticalSettings

I. THE INTERNATIONALLAW GOVERNINGRESORTTO FORCE A. Limitationson Useof Force 1. Anticipatory Self-Defense limited to threats which are instant, overwhelming, leaving no choice of means and no moment for deliberation Caroline Case 2. Principle of Proportionality use of force limited to necessity of self-defense 3. Neutral States a) duty of non-participation b) right of nondiscrimination 4. The Kellogg-Briand Pact a limitation on states use of war 5. Nuremberg Charter individuals held criminally liable for a sovereigns use of force 6. Rome Statute increases criminal liability of individuals 7. UN Charter a) resolution of disputes by peaceful means UN Charter, Art. 2(3) b) prohibition on the threat or use of force affects only certain types of force, with exceptions UN Charter, Art. 2(4) c) prohibition on interference in domestic affairs zone of discretion on what constitutes domestic affairs has diminished over time UN Charter, Art. 2(7) OAS Charter, Art. 18 B. LegitimateUsesof Force 1. Self-Defense a) response to an armed attack b) anticipatory self-defense Caroline c) limitations (1) cannot be defined by subjective determinations of the state Oil Platforms Case (ICJ 1996) - US destroys Iranian oil platforms during 1988 Iran-Iraq War ICJ has jurisdiction under FCN Treatys compromissory clause despite US justifications of self-defense (2) not valid against non-state actors exception: post-9/11 wars (3) must be reported to SC (4) valid only until SC intervenes UN Charter, Art. 51 Kosovo (1999)

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 no self-defense justification because no NATO member had been attacked and NATO did not report use of force to Security Council Iraq (2003) no self-defense justification because threat of attack did not meet Caroline standard and was not proportionate 2. ChapterVII enforcementmeasures a) procedural requirements (1) SC determines existence of preconditions (a) threat to the peace (b) breach of the peace (c) OR act of aggression (2) non-force measures tried first (3) AND use of force limited to amount necessary to maintain or restore international peace and security b) types of enforcement measures (1) non-force (a) condemnation of conduct (b) economic sanctions (c) severance of diplomatic relations (d) creation of a war crimes tribunal UN Charter, Art. 41 (2) force (a) demonstrations (b) blockade (c) other action by sea, land, or air forces UN Charter, Art. 42 c) compliance (1) Member States must comply with SC decisions UN Charter, Art. 25 (2) SC can authorize other states to impose SC decisions on a disobeying state UN Charter, Art. 48(1) (3) Member States share the burden of enforcing SC decisions UN Charter, Art. 49 Libya (2011) UN SC Resolution 1973 authorizes no fly zone, arms embargo, and asset freeze 3. ChapterVIII regionalorganizations a) Regional Peace (1) use of force must be consistent with UN Charter UN Charter, Art. 52(1) b) Utilization by SC for Enforcement (1) must by authorized by SC Art. 53(1) Kosovo no Chapter VIII authorization because NATO is not UN regional organization

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4. HumanitarianIntervention a) Traditionally (1) limited to protection of intervening states nationals (2) OR pre-textual justification for intervention based on racial hegemony, resources, etc. Russias invasion of Georgia b) Responsibilityto Protect a state loses its right to sovereignty when it fails to protect its citizens rights (1) just cause (a) large-scale loss of life (b) OR large-scale ethnic cleansing (2) right intention primary motive is to stop or avert human suffering factors: support of the people, of neighboring countries, of international community Kosovo - NATO justifies bombing campaign first to prevent oppression of Kosovo population and second to secure regional stability (3) last resort all reasonable non-military options have been exhausted (4) proportional means scale, duration, and intensity of intervention is not excessive (5) reasonable prospects intervention will not cause more problems than it resolves (6) right authority UN SC should be the first, but not the exclusive source of authority (a) UN Security Council UN Security Council Resolution 1973 (2011) (b) UN General Assembly (c) UN regional organization (d) narrow Kosovo intervention principle i) SC expressly identifies impending humanitarian catastrophe as threat to peace Kosovo: UN SC Resolutions 1199 and 1203 (1999) calls Kosovo a humanitarian crisis and threatens use of force ii) target government refuses to comply with SC demands iii) collective intergovernmental organization decides to intervene iv) intervention obeys jus in bello (force is necessary and proportionate) v) AND SC does not condemn intervention Kosovo: UN SC Resolution 1244 (1999) post-intervention authorization of NATO-led peacekeeping force (e) OR broad Kosovo principle UN authorization not needed Commission on Kosovo Report (2000) - NATO initiates bombing campaign to prevent oppression of Kovoso population and to secure regional stability without express authorization by UN Security Council finds NATO intervention was illegal but legitimate Libya: UN Security Council Resolution 1973 (2011) 60

 UN SC authorizes use of force specifically targeted at protection of civilians in response to Gadaffis speech about cleansing the cochroaches

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II. INTERNATIONALPROPERTYLAW A. InternationalRegimeGoverningthe Seas 1. InternalWaters includes ports, harbors, rivers, lakes, channels, anything landward of baseline the state has absolute sovereignty 2. Territorial Sea a) Breadth 12nm from baseline b) Rules for Passage coastal state cannot interfere with foreign vessels right of innocent passage (1) Innocent Passage passage which is not prejudicial for the peace, good order, or security of the coastal state The Corfu Channel Case (2) per se prejudicial passage show/threat of force transporting goods in violation of coastal states law serious and willful pollution carrying out a search without consent of coastal state The Corfu Channel Case

3. ContiguousZone a) Breadth starts at 12nm from baseline ends at 24 nm from baseline LOS Convention, Art. 33 b) Right of Hot Pursuit coastal state may prevent and punish violations of certain laws within its territorial sea limited to customs, fiscal, immigration, and sanitary laws LOS Convention, Art. 33 c) Freedoms of Foreign Vessels (1) navigation Freedom of Navigation Exercises in Libya

4. ExclusiveEconomicZone a) Truman Proclamations (1) Continental Shelf (a) US reserves shelf resources contiguous to its land (b) US reserves conservation zone with fishing activity above the continental shelf (c) waters above the shelf remain subject tot he rights of the high seas (2) justification (a) the first to occupy terra nullius claims title to it (b) widely accepted and followed by other states 63

b) After the Truman Proclamations rights and duties within EEZ defined by CIL Icelandic Fisheries Case (ICJ 1974) the coastal state has preferential fishing rights even beyond its territorial sea those preferential rights are not exclusive and cannot override UKs historical fishing practice c) Law of the Sea Convention coastal state may exercise authority over living and non-living resources (1) breadth extends up to 200 nm from baseline (2) Reasonableness Requirements (a) coast state must act with due regard to passing vessels (b) AND foreign vessels must act with due regard to coastal state (3) rights of foreign vessels (a) navigation (b) fish the surplus catch (c) AND research, subject to limitations 5. HighSeas a) freedoms (1) navigation (2) overflight (3) fishing (4) lay submarine cables and pipelines (5) construct artificial structures (6) scientific research Rest. 521 b) Limitations (1) reserved for peaceful purposes LOSC, Art. 88 (2) reasonableness requirement all states must act with reasonable regard to the interests of other states Rest. 521 (3) freedoms can be waived by the flag state Haitian Interdiction Program c) enforcement jurisdiction (1) vessels have complete immunity from interference by other states (2) limitations -- boarding by enforcement ships allowed (a) vessels engaged in piracy, slave trade, or unauthorized broadcasting (b) vessels without nationality (c) vessels flying a foreign flag but has the same nationality as the enforcement ship Rest. 522 Proliferation Security Initiative

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B. InternationalRegimeGoverningAirspaceandOuterSpace 1. Airspace a) Sovereignty states have complete and exclusive sovereignty over airspace above its territory b) Limitations on sovereignty over airspace (1) freedom of transit subjacent state may define routes for foreign planes (2) freedom to land for non-traffic purposes limited purposes: emergency, refuel, etc. (3) freedom to take traffic from the home country to a foreign country (4) freedom to bring traffic from a foreign country to the home country (5) freedom to pick up and discharge traffic at intermediate points between the home country and the foreign country (6) open skies agreements (a) allows greater competition in foreign markets (b) cargo services between nations allowed c) Sources of Law Chicago Convention International Civil Aviation Organization 2. OuterSpace a) presumption of res communus occupation does not establish sovereignty cannot be annexed or apportioned b) Breadth (1) treaty law: no clear boundary (2) CIL: the point where satellites can no longer orbit c) Bogota Declaration equatorial states claim exclusive sovereignty over geostationary orbit d) Common Heritage Principle an area no state can exploit without sharing the benefits with the rest of the world US is persistent objector deep sea bed Charter of Economic Rights and Duties Law of Sea Treaty Moon Treaty

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C. InternationalEnvironmentalLaw 1. sic utere principle a) no state has the right to use or permit use of its territory in such a manner as to cause injury to the territory of another state b) limitations (1) injury is of serious consequence (2) AND injury is established by clear and convincing evidence Rest. 601 Trail Smelter Case (1941) - fumes from Canadian smelter cause injury in Washington Canada liable for transnational pollution of a private actor 2. emerging principles protected zone of exclusive jurisdiction has been whittled away a) sovereignty and responsibility for the environment (1) state has sovereign rights over its natural resources (2) AND state has responsibility to prevent and limit damage outside of its territory Stockholm Declaration, Principle 21 Rio Declaration, Principle 2 b) Good Neighborliness requires international cooperation, especially for activities with adverse affects on the environment of other states UN Charter, Art. 74 c) Sustainable Development (1) commitment to preserve natural resources for future generations (2) appropriate standards for exploitation of natural resources (3) an equitable use of natural resources, considering other states and people (4) economic development plans take account of environmental considerations d) Common but Differentiated Responsibility the special need of developing countries must be considered (1) common responsibility to protect certain environmental resources (2) AND must take account of states contribution to the cause and its ability to respond to a particular environmental problem e) Precautionary Principle lack of full scientific certainty is no excuse for postponing cost-effective preventative measures in response to threats of serious environmental degradation Rio Declaration, Principle 15 f) Polluter Pays Principle costs of pollution should be borne by those responsible Rio Declaration, Principle 14 OECD council Recommendations EC Treaty of Rome

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