Cases to Know Flashcards
The Montevideo Convention
1933 Article 1 – Came up with the definition of statehood
Defined statehood as an entity that has a defined territory and a permanent population, under the control of its own government and that engages in, or has the capacity to engage in, formal relations with such entities
States should possess:
- A permanent population
- A defined territory
- Government and
- Capacity to enter into meaningful diplomatic relations with the other states
Charming Betsy (Murray v. Schooner)
1804
Rule: National statute must be construed so as not to conflict with international law.
NB: main goal of Marshall was to keep US neutral in hostilities between France and the UK; also dealing with problems with French “privateers”
Facts: Shattuck (American) living in St Thomas, sworn allegiance to Denmark, purchased a schooner
- Schooner captured by French privateers, then recaptured by Murray (American naval officer), who then brought her to port and sold the proceeds
Held: vessel was to be treated as belonging to a Danish citizen and hence not subject to forfeit
Tinoco Arbitration
1923: did the restored Costa Rican government have the power to nullify contracts and legislation regarding currency that was enacted during the Tinoco regime?
Rule: As a matter of international law, a new government is generally bound by the legal commitments of an old government.
- Though the government changes, the nation remains, with rights and obligations unimpaired.
- Tinoco was the de facto government
NB: estoppel argument – GB cannot make claims against a government it did not recognize, but there was no detrimental reliance
Principle of Continuity of States: state is bound by engagements that have ceased to exist; the restored government is generally liable for the acts of the usurper
Clean Slate Doctrine: newly independent state begins its existence free from the obligations of its predecessor state (disruptive to notions of a world order/international obligations/state responsibility)
Autocephalous Greek-Orthodox Church Of Cypress v.
Goldberg & Feldman Fine Arts Inc
1990: determining the rightful possession of ancient mosaics
Issue: do the decrees of the Turkish regime have effect (de facto status)?
Held: confiscatory decrees made by the unrecognized Turkish administration does not ban the Church from claiming title to the mosaics
Rule: no effect to a law of an unrecognized entity – also no judicial access for unrecognized governments/entities
secession of Quebec
1998: Canadian law did not permit unilateral secession, although there is a constitutional duty to negotiate if Quebecers voted for secession by a clear majority on a clear question
Issue: is there a right to self-determination under international law that would give Quebec the right to effect secession
Held: Cannot conclude that under current circumstances Canada’s government places Quebecers in a disadvantaged position within the scope of the international law right to self-determination. Denied the ability to exert internally their right to self-determination
Test (for allowable secession under external self-determination)
- Access to government
- Freely make political choices
- Pursue economic, social, cultural development
Five Day War
Russian – Georgia Conflict (August 8, 2008) (start of Olympic truce period)
New era of muscular intervention and little faith in multilateral institutions
Pretext of “free will of people” who wanted to secede from Georgia
Russian involvement:
- Provides military
- Invites Ossetia to join them
- No evidence of following negotiation/peace process (compared to the pre-UN/NATO involvement in Kosovo)
- Invited South Ossetians to have citizenship
Russia sees hard power as the true currency of international relations
Overview of International Organizations
League of Nations:
〈 Wilson proposed in “14 points”; Treaty of Versailles created LoN (1918)
- Senate didn’t ratify, US not a party
- Failed to prevent Japan from invading Manchuria (1931); also failed to prevent G&I from invading before WWII
United Nations (1945)
〈 Important objective was to maintain international peace and security
〈 Components: General Assembly, ICJ, Security Council (15 members)
〈 Charter
a. Purposes: security, human rights, social progress
b. Establishes requirements for membership
c. Article II, 4 – Prohibition on use or threat of force
d. Article II, 7 – Where UN may not intervene
〈 Permanent SC Members: US, UK, China, France, USSR (now Russia)
Permanent members of SC given veto power; non-permanent members could
Jurisdiction of the ICJ
Statute of ICJ
Article 36: contentious jurisdiction – only states party to the ICJ statute may be parties in contentious cases
- Legal disputes concerning:
o Interpretation of a treaty
o Question of international law
o Existence of fact which would constitute a breach of international obligation
o Nature or extent of the reparation to be made for breach of an international obligation
- NB: if jurisdiction is disputed, court shall make determination; 3 ways:
o Compulsory jurisdiction thru “optional clause” of 36(2)
o Compromise: consent on an ad hoc basis
o Treaty obligation
Article 65: can give advisory opinions in accordance with Article 96 of the UN Charter (upon request from the UN – either General Assembly or Security Council) – advisory opinions are non-binding
The diplomatic and Consular Staff Case
1980 (US v. Iran, embassy/hostage seizure)
Issue: Iran suggests they should not be brought in front of the ICJ
- US had submitted to compulsory jurisdiction
Held: Although the militants were not state actors, under Vienna Treaties, Iran violated its obligation to protect diplomatic personnel and premises and archives of embassy.
NB: Iran argued they had undergone a major revolution; could have argued they were not bound by any of the treaties, but did not argue treaties were irrelevant because wanted their diplomats protected abroad
Rule: inviolability of diplomatic envoys and embassies is “fundamental” and part of customary international law
Reparations Case
1949: assignation of UN-appointed mediator and another UN observer; UN seeking an advisory opinion from ICJ
Issues:
- Does the UN have international personality?
- Can the UN bring a suit for reparations under international law?
- Can the ICJ bring a suit against a non-member state for reparations?
Held:
- UN is an international person, but is not a State
- UN is a subject of international law and capable of possessing international rights and duties, and can bring international claims
- Infringement against its agents necessitates remedy to the UN directly
Result: Finding all three in the affirmative, Israel pays reparations of $50K
Elements for International Wrongful Act
ILC: composed of leading international lawyers 61st session
GA delegated authority to the ILC to research international law and draft conventions
- As a result, ILC has drafted many multilateral conventions that codify existing customary international law and create new laws
Two essential elements for an internationally wrongful act:
- Attribution of conduct to an international organization
- Conduct constitutes a breach of an obligation
Peacekeeping UN
NB: Peacekeeping is not described anywhere in the UN Charter
- Chapter V, Article 29:
o Security council may establish such subsidiary organs as it deems necessary for the performance of its functions
o Could allow peacekeeping under this statute, even without an expressed provision
Ex: Division of North and South Korea
- Security Council was divided (Soviets walked out)
- General Assembly has authority to participate in discussions dealing with international peace and security
- General Assembly has authority to act when the SC is unable to respond effectively – which it did, by passing the United for Peace Resolution
Certain Expenses Case
1962: ICJ Advisory Opinion
Background: during the Cold War, it was difficult to get decisions relating to peace and security without a veto of the SC. GA members went around the council to fund peacekeeping missions.
Issue: can certain expenditures which were authorized by the General Assembly to cover the costs of the UN operations in the Congo and in the Middle East be within the UN Charter?
Held: Expenditures must be tested by their relationship to the purposes of the UN; if the expenditures were made for a purpose which is not one of the purposes of the UN, it cannot be considered an “expense of the Organization”
Article 17(2): expenses of the Organization shall be borne by Members as apportioned by the GA Article 18: decisions of the GA on important questions shall be made by a 2/3 majority of members present and voting (hadn’t occurred here)
Nottebohm Case
1955: can Liechtenstein assert claim for Nottebohm, originally a German national who has been living in Guatemala for many years (Guatemala seized his property)
Issue: question of Nationality
- NB: Dualism: nationality is within domestic jurisdiction, to be recognized internationally, must be “genuine” and meet certain general standards
Held: though Liechtenstein issued citizenship, it had only a tenuous connection to the individual – was not attached by his tradition, his establishment, his interests, his activities, his family ties, nor his intentions
Rule: not enough to be a citizen – must have enough ties related to that citizenship to prove standing (jus standi)
Genuine Link Test
Barcelona Traction Case
1970: Question of the national identity of a corporate entity – BT was incorporated in Canada, operated in Spain, owned mostly by Belgians – Spanish shareholders declared bankruptcy, Belgian shareholders lost money.
Issue: whether Belgium has standing to sue in international court on behalf of its shareholders
Held: Belgium does NOT have standing – only the country of incorporation has standing to sue
- Allowing nationality based on shares would create problems
Rule: Traditional rule attributes the right of diplomatic protection of a corporate entity to the state under the law of which it is incorporated and in whose territory it has registered office
NB: purview of ICJ – those issues that fall under erga omnes typically only dealing with human rights (which is why this case doesn’t qualify)
Individuals as Subjects
1970: Question of the national identity of a corporate entity – BT was incorporated in Canada, operated in Spain, owned mostly by Belgians – Spanish shareholders declared bankruptcy, Belgian shareholders lost money.
Issue: whether Belgium has standing to sue in international court on behalf of its shareholders
Held: Belgium does NOT have standing – only the country of incorporation has standing to sue
- Allowing nationality based on shares would create problems
Rule: Traditional rule attributes the right of diplomatic protection of a corporate entity to the state under the law of which it is incorporated and in whose territory it has registered office
NB: purview of ICJ – those issues that fall under erga omnes typically only dealing with human rights (which is why this case doesn’t qualify)
Nuremberg Judgment
1946: turning point for individual human duties AND rights on international level
Issues: crimes against the peace, war crimes, crimes against humanity
Defense: ex post facto – prior to war’s end there were no laws on the books prohibiting the crimes for which they were now being prosecuted
- Cited Kellogg-Briand Pact (1920’s)
- Hague Convention: designated crimes without expressly anointing them as such
REJECTS POSITIVISM
Individual Responsibility: responsible for violations of international law whether or not in violation of the domestic law of the country where perpetrated: individuals have international duties which transcend the national obligations of obedience imposed by the state
True Test: if moral choice is in fact possible
ICC-International Criminal Court
International Criminal Court – established through the Rome Statute as a permanent international criminal court (established to deal with so-called Nuremburg issues, since nothing in the UN Charter about prosecution for international crimes)
Four goals: Justice and Punishment; Deterrence; Record-keeping; Progressive development of international law
US signed the Rome Treaty (prior to the end of the Clinton Administration)
- GWB withdrew US signature – fear that the US military is so extended around the globe that it would be risky to expose our troops to international criminal prosecution – a risk that no other country shares
Subsidiary principle: ICC moves ahead only if the state responsible (typically the national state of a prospective defendant) fails to bring that person to justice (written in the Rome Statute
US is NOT a party to the so-called Rome Statute nor the ICC
Republic of Congo in
Prosecutor v. Thomas Lubanga Dyilo
Prosecuted in the ICC (2007)
Issue: is there sufficient evidence to establish substantial grounds that Dyilo is criminally responsible for crimes he is charged with?
- Dyilo was an insurgent faction leader, not a technical government official
Criticism of ICC: has not completed a prosecution, all its defendants are African, its work complicates peace efforts
Ad Hoc International Criminal Tribunals: still occurring with frequency
- Many countries not part of the ICC (including US) – need for ad hoc tribunals when dealing with countries not under jurisdiction of ICC
- Established through the SC under their responsibility of maintaining international peace and security
Damian Thomas v. Jamaica
2000: examined under the UN HR Commission (one forum for pursing complaints of HR abuses)
Facts: minor imprisoned as adult in violation of the International Covenant on Civil and Political Rights (all individuals within states that are signatories to the optional protocol have the right to petition)
- Jamaica was a signatory, but is requesting withdrawal
Held: State is under an obligation to provide Thomas with an effective remedy entailing is placement in a juvenile institution and entitled to compensation
Sunday Times Case
1979: Thalidomide (sedative) marketed to expectant mothers, caused birth defects
Issue: whether the article interferes with judicial proceedings (i.e. settlement negotiations)
House of Lords: upheld injunction preventing publication – exercise of freedom of expression may be subject to such conditions/restrictions as are prescribed by law and are necessary in a democratic society
ECHR: overruled House of Lords
Held: there was an interference with the applicants’ freedom of expression that is prescribed by law and Article 10 (of the European Convention) guaranteed the right to freedom of expression AND the right of the public to be informed
Interest of the public in being informed and interest of the newspaper in freedom of expression outweighed the interest of the drug defendants in getting a trial free from media intereference
Universal Declaration of Human Rights
1948: As a resolution was NOT binding, but became binding as a new rule of customary international law
International Covenant on Civil and Political Rights: automatically binding, with US as a party
International Covenant on Economic, Social and Cultural Rights: NOT binding, US NOT a party
- Protects rights of: self determination and of all peoples to freely dispose of their natural wealth and resources
Examples of guaranteed rights:
- Right to own property
- Marriage shall be entered into only with the free and full consent of the intending spouses
- Freedom of thought and religion
Soering Case
2000: Massachusetts Law prohibited state entities from doing business with any person identified on a “restricted purchase list” of those doing business in Burma
- Congress passed a less restrictive law, conflicting with Mass Law
Supreme Court struck down – Supremacy Clause violation
No state in a position to decide and evaluate terms of foreign policy
Filartiga—
Relationship Between International Law
& Municipal Law
1980: torture/murder of Filartiga by Pena – both Paraguayan
Domestic US Court applying international law to two aliens using the Alien Tort Claims Act
Threshold question: is the ATCLA determining what the applicable law IS or is it establishing the parameters of the law?
Held: where no treaty and no executive legal act or judicial decision controls, resort to customs and usages of civilized nations
- Torturer had become a hostis humani generis
- Freedom from torture was part of customary international law for which the ATCA provides jurisdiction
NB: extends US jurisdiction to tortuous acts committed around the world
MaCann v. UK
Dualism: municipal and international laws are entirely separate legal systems – international law is binding but federal law is not automatically superseded
- UK (any treaty obligation must be implemented by parliament to be binding) – two step system
Monoism: international and domestic law are all part of the same legal system , may elevate international law to level of supremacy over any conflicting domestic law
- If it IS integrated, automatically binding and has automatic legal force within a government system
US: somewhere in between, due to self-execution and non-self-execution of treaties
- Most agreements are executive agreements and by constitutional practice have been accepted as within the prerogative of the executive
Crosby v. National Foreign Trade Council
1992: US v. Alvarez-Machain: SC held a US government kidnapping in Mexico DID NOT violate the terms of the US-Mexican extradition treaty (met with outrage); eventually AM (Mexican doctor) was acquitted (Ker-Frisby Doctrine)
2004: Under either FTCA or ATS may Mexican bring claim against the US government for abduction by the DEA?
Held: FTCA claim (against US gov’t): arrest took place outside US, so exempted
- ATS claim (against individual kidnappers): ATS did not create a separate ground of suit for violations of the law of nations (limited categories of claims: piracy, offenses against ambassadors, violations against safe passage) and this offense did not fall into one of those categories
Rule: New violations may become definite enough in modern international law to qualify for ATS protection BUT “courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of 18th Century paradigms we have recognized.”
Filartiga v. Pena-Irala
1995: (ECHR)
Killing of suspected terrorists (IRA) in Gibraltar – use of deadly force absolutely necessary?
Held: actions taken by the police were in violation of Article 2 of the Convention
Layers of Action: must exhaust domestic remedies first
Efficacy: domestic politics/public opinion can often have an influence on outcomes/states ultimate willingness to conform to international standards
Sovereign states have an interest in consenting to jurisdiction to build legitimacy and credibility in dealing with other states
Sosa v. Alvarez-Machain
June 26, 1945
- The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations;
d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. - This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto
Article 38 of the ICJ
Circa 160 BC
Mutual defense treaty – very similar to NATO
Attack against one is attack against all.
A treaty between The Jews and the Romans
1648 (Ended 30 years war)
Established treaty-based system of peace and cooperation, successful for 100 years
- Provided for coexistence of Catholics and Protestants
Established pacta sunt servanda – treaties are to be obeyed and observed
Treaty of Paris
1928: precursor to the Nuremberg Trials
- Prohibited war and war crimes
- Nothing accomplished, but became an influential source of “soft law”
Soft law: not binding – usually GA recommendations and resolutions
Hard law: GA resolution, strong presumption that a law-declaring resolution is a correct statement of law if adopted WITHOUT a negative vote or absention
Kellog-Briand Pact
1933: Territory dispute between Norway and Denmark concerning verbal assurances made to each other
Issue: Effect of diplomats statements/declarations?
Held: Statements/declarations could not be construed as constituting a binding agreement between two states, could be construed as an agreement by Norway NOT to contest Danish sovereignty over Greenland and to refrain from occupying part of it
Hull-Lothian Agreement (reservation case)
1951: UN seeking advisory opinion from ICJ
Issues:
- Can a state be a party to a treaty when its reservation is objected to by one/some of the other parties (but not all)?
- What is the effect of the reservation on the agreement/parties?
Held:
- Reservations are ok (Under Article 19 of Vienna Convention) unless:
o Reservation is prohibited by the treaty
o Treaty provides that only specified reservations may be made
o The reservation is incompatible with the object and purpose of the treaty
The Eastern Greenland Case
1991: USCt – case of interpretation of treaty
Issue: whether Article 17 of the Warsaw Convention (which dealt with transportation) provides for recovery of damages for purely mental injuries, unaccompanied by physical injury
Held: Air carrier not held liable under Article 17 when an accident has not caused death, physical injury, or physical manifestation of injury
NB: looked at French text, definition, expectations of the parties, purposes of treaty, negotiations framework, subsequent conduct of parties, etc
Section 3 of Vienna Convention: treaties shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of their treaty in their context and in light of its object and purpose
The Reservations to The Genocide
Convention Case
1997: plans to divert the Danube River
Issue: whether Hungary’s notification brought the treaty to an end
Held: material breach hadn’t happened at the time of the Hungarian refusal to be bound
NB: unusual in that there was no specific provision for termination within the treaty, parties have an obligation to renegotiate but no way to terminate unless there is mutual assent
Eastern Airlines, Inc v. Floyd
1900: Custom and Non-Consensual Sources of International Law
(fishing vessels captured/seized during time of war)
NB: Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations
- By common consent of mankind these rules have been acquiesced in as of general obligation.
Frequently cited for: manner of determining customary international law, way in which it is incorporated into municipal laws of the US, and the proper relationship between US courts and the executive branch in international legal relations
For general practice to be considered binding law: (requirements)
- General acceptance (subjective factor)
- Over an appropriate or adequate period of time (durational – objective)
- Legally binding – opinio juris
The Gabcikovo-
Nagymaros Project
1950 – ICJ
Peruvian revolution leader seeking asylum in Colombian embassy
Held: Colombian Government had not proved the existence of a custom that required Peru to allow de la Torre to gain asylum in Colombia (allowed Peru to hold him for trial for military rebellion)
Rule: a universal custom can be regional without interfering with a larger global custom
Lotus Case
1982: ECJ, protection of written communication between attorney and client is generally recognized – scope and criteria for applying it vary
Issue: if there is a gap in international law, how ought it to be defined?
Held: turned to general principles of law to fill the gap; looked at comparative law to see how they ruled on the issue
General principle of law: one so fundamental that it is a basic tenet in virtually every major legal system
Asylum Case
1977
Facts: Libya nationalized several American oil companies that were operating within Libya; Concessions provided that contracts were to be governed by laws of Libya common to principles of international law
Issue: did Libya actions violate the concession contracts between the state and the private company?
Held: Yes, Concessions were binding on the parties and Libya violated them and is legally bound to perform the contracts and give them full effect
Pirates!!!
Texaco v. Lybia Arbitration
1819: Pirates!!
Court finds a basis for prosecution even though the definition of piracy had never before been articulated
Court in 1820 was in the habit of turning to the Law of Nations and:
- Applying it directly so as to define something that otherwise was intended to be defined by one of the branches of our own government AND
- Allowing the Law of Nations to be applied directly to an individual
Piracy is the first and historically obvious example of a crime that can provide for universal jurisdiction
AM & S Case
Proposals:
- A treaty norm is void if it is either in violation of a compulsory norm of general international law or contra bonos mores
- A treaty norm is contra bonos mores if a state is prevented by an international treaty from fulfilling the universally recognized tasks of a civilized state
- If the immorality of a treaty norm is contested, the dispute has to be submitted to the decision of an arbitration or of the Permanent Court of International Justice
US v. Smith
2002: ICTFY – torture
- Prohibition of torture imposes upon states obligations erga omnes – obligations owed toward all other members of the international community, each of which then has a correlative right
- Has evolved into a peremptory norm, which non-derogable and is at the top of the international hierarchy of rules; fundamental standard which is absolute
- Individuals: remain bound to comply with the principle: individuals have international duties which transcend the national obligations of obedience imposed by the individual state
Re-affirms Nuremburg regarding individual international duties
Nicaragua Case
1984: US support of contras, including mining of harbor – illegal use of force or collective self defense?
Jurisdiction due to provision of treaty (compulsory)
Rule: no collective self-defense justification because Nicaragua didn’t commit armed attack, the victim states didn’t request help, and the US didn’t report; no necessity nor proportionality either
Principle of Non-Intervention: forbids all states to intervene directly or indirectly in internal or external affairs of other states; wrong when it uses methods of coercion
UN Article 2(4)
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations
Caroline Dispute
1837: US citizens abet Canadian insurrection against British, British attack ship docked in US port
Self-defense requires:
- An instant overwhelming necessity
- Leaving no choice of means and
- No moment for deliberation
- Proportionality – nothing unreasonable or excessive
Naulila case
1928: German delegation of SW African colony went to bordering Portuguese colony, fiasco ensues, Germans killed, Germans retaliate
Reprisal: an act of self-help on the part of the injured state – after an unsatisfied demand – responding to an act contrary to the law of nations on the part of the offending state
Requirements
- Initial act must violate international law (legit provocation, i.e. necessity)
- Injured state must make a demand before responding
- Proportionality
Retorsion: an act that, though unfriendly, would have been entirely legal even if not taken in response to another state’s action (economic sanctions, withdrawal of ambassador)
- Countermeasure: catch-all euphemism now used to encompass unilateral non-judicial self-help remedies
Hamdan v. Rumsfeld
2006
Issue: whether the crime charged (prosecuted on) has to be on the basis that it is in violation of the law of war
Government argued Article 3 of Geneva Convention didn’t apply to Hamdan because it was only supposed to apply to a conflict of known international character
Court disagreed – the term conflict not of an international character is used in contradistinction to a conflict between nations – a non-international armed conflict is distinct form an international armed conflict because of the legal status of the entities opposing each other
Self Defense-
Imminent Threat v. Qualitative Threat
Conditions for lawful self-defense (imminent threat view)
- Defending state must be the victim of a significant armed attack
- Armed attack must be either underway or victim must have at least clear and convincing evidence that more attacks are planned
a. If no attack yet, clear and convincing evidence required to show incipient attack - Defending state’s target must be responsible for the attack
- Force used must be necessary for purpose of defense and proportional to injury threatened
Bush Doctrine (qualitative threat view)
- Deterrence paradigm no longer effective
- Imminent threat doctrine adapted to anticipatory action
a. Even if uncertainty remains as to the time and place of attack, US will act preemptively to forestall or prevent hostile acts - Justified largely based on threat of WMD
- UN rejects: non-imminent situations by definition allow for alternate means of action
Threshold: internal conflicts must involve MORE THAN situations of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence
ICJ Principles of Humanitarian Law
- Aimed at protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets
- It is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering; States do not have unlimited freedom of choice of means in the weapons they use
Rainbow Warrior Case
1990: state responsibility issue – French agents bomb Greenpeace boat in NZ
NZ and France enter arbitration: 2 agents were to spend 3 years on French military base; agents left before term was up without NZ’s consent
Applied customary law of treaties and of state responsibility
- Court cites France for failure to try to do more to adhere to requirements of the agreement, pay a fine
- Loose interpretation of term “three years” and start time
Northern Sea Continental Shelf Case
1969: Law of the Sea Treaties (ICJ) – delineate jurisdictional waters between Denmark, Germany, and Netherlands
Law of the Sea Treaties: 1982 treaties, US not a party but has accepted most of the provisions
- Coast 12 miles: territorial waters (basically same as land)
- 1224 miles: contiguous zone: not exclusive sovereignty, may have authority with respect to health, immigration, sanitation
- 24200 miles: exclusive economic zone – coastal state has authority with regard to oil, fisheries, oil and minerals on continental shelf, etc
o Can extend up to 350 miles offshore, depending on continental shelf
- 200 miles +: “high seas” – no sovereignty by any country
Held: applied equitable principles - helped Germany
Rule: general principles and equity are used as gap fillers
Truth and Reconciliation Process
1995: Parliament enacted Promotion of National Unity and Reconciliation Act
- Provided for creation of Truth and Reconciliation Commission (TRC)
Committee on Amnesty = quasi-judicial body
- May grant amnesty if it is satisfied the applicant has committed an act constituting “a gross violation of human rights” and made “a full disclosure of all relevant facts”
- Act must be associated with a political objective committed in the course of conflicts of the past
o Look at motive of offender, context of act, whether it was committed in the course of or as part of a political uprising
- Political offense:
o Directed against the political institution of the state
o Committed in the course of a political uprising
o Taken action as a member of a political faction
Medellin v. Texas
2008
Facts: petitioner denied his right upon arrest to be informed of his separate right to contact his nation’s consul. After his trial, ICJ in Avena held that US had violated Vienna Convention by not informing Mexican nationals of their right to consult.
Issues: whether the ICJ opinion in Avena is legally binding upon domestic courts of the states (here, Texas); whether President’s Memo require the States to provide review and reconsideration of the claims of the 51 Mexican nationals in Avena
Held: while ICJ judgment in Avena creates an international obligation on the part of the US, it does not of its own force constitute binding federal law that preempts state restrictions on the filing of successive habeas petitions.
- Presidential Memo did not incorporate the treaty, needed ratification by Congress to be binding (because it did not contain self-executing language)
Foster & Elam v. Nelson
1829: US form of dualism
Important in crystallizing the idea that some treaties would be automatically applicable within US jurisdictions and some would not (self-execution)
“shall be ratified and confirmed to the persons in possession of the land”
- fairly dispositive that this is a non-self-executing treaty – legislature muse execute before it becomes a law
Barring that language, most treaties in the US are presumed to be self-executing under the Supremacy Clause
Miguel Dominguez Case
2002: death penalty for a minor
US has persistently objected to the development of a customary international legal principle prohibiting the execution of juvenile offenders
NB: persistent objections are impotent against peremptory norms, which are non-derogable
No longer at issue in this country
proscecutor v. Tadic
1996: Yugoslavia
- Argues there was no armed conflict in the region in which he is alleged to have committed crimes
- Armed conflict: exists wherever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups, or between such groups within a state
Threshold: internal conflicts must involve MORE THAN situations of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence
International Character: Tadic’s Bosnian-Serb forces acted as de facto organs of another state, justifying application of international (rather than internal) standards
- Control required by international law may be deemed to exist when a party to the conflict has a role in organizing, coordinating, or planning the military actions
Self Defense for test
- Start with Art 2(4) and the idea that force should not be used
- Discuss Article 51 exception and its requirements:
a. Requires a request (Nicaragua)
b. Requires a self-defense, or “collective” self-defense
c. Action must be reported to the SC - Discuss three views on the use of force
a. Constructionist (Caroline / Henkin)
b. Imminent threat (4 conditions)
c. Preventive/Preemptive (Bush Doctrine) - Discuss validity within each school of thought
- If the UN has acted, Discuss Chapter VII and UN’s peacekeeping powers
a. Enforcement action - Discuss Chapter VIII Regional Arrangements if Applicable
International Legal Personalities
Participants:
- States
- International organizations (UN)
- Nongovernmental Organizations (Red Cross, IOC)
- Corporate entities
- Individuals (human rights)
Stimson v. Estrada Doctrine
Stimson
Recognition is NOT permissible under international law IF a government took power unconstitutionally or contrary to the covenants and obligations of the Treaty of Paris.
An entity need not be treated as a state if it has attained the qualifications for statehood by violating international law.
Estrada Estrada (foreign minister) Mexico argued it was no business of the U.S. to interfere/influence the government of Mexico by use of a recognition power. (U.S. and some European countries had withheld recognition in order to garner influence
More a matter of effective control rather than recognition by some countries
DeJure v. DeFacto Recognition
De jure: recognition by other states – is the government widely accepted by other states? Implies government is lawfully in power even if it retains little actual power
De facto: government in control, but illegally so – most commonly used when there are unstable circumstances and a political reluctance to fully recognize the government. Two types:
- After expelled former authorities and establishes it own functionaries, so as to represent the actual sovereignty of the nation (generally recognized)
- Portion of inhabitants of a country have separated themselves from the parent state and established an independent government (depends on ultimate success)
- See Church of Cyprus
Recognition of Governments
Traditional approach:
- In effective control of the state without the assistance of foreign intervention
- It has the consent, or at least the acquiescence of the people; and
- It shows willingness to comply with the state’s obligations under international law
Self-determination
The right of people in a territory to decide the political and legal status of that territory.
Historically seen as a principle and NOT a right – in the UN charter as a principle
Scope of Right:
- Usually fulfilled through internal self-determination (pursuit of political, economic, social and cultural development within existing state
- External: unilateral secession – establishment of a sovereign and independent state
- International Law views External Self-Determination with skepticism, with three exceptions:
a. Colonial people
b. Oppressed people
c. Those to whom internal self determination is denied
Article 2(7)
Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII
UN Chapter 7 generally
ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE AND ACTS OF AGGRESSION
- Security Council determines necessity of intervention
- Article 41: measures not involving the use of armed forces
o Interruption of economic relations
o Communication
o Severance of diplomatic relations - Article 42: if 41 inadequate, may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security
- Article 43: negotiated agreements for all members of UN to “make available” to SC armed forces, assistance, etc
- Article 47: established a Military Staff Committee to advise/assist SC
- Article 51: self-defense
6 organs of un
- General Assembly
- Security Council
a. 15 members; 5 permanent
b. Other 10 rotating elected by GA for 2-year terms
c. Permanent members have veto power over any nonprocedural decision - Secretariat: Secretary-General, chief administrative officer of UN
- ICJ: Principal Judicial Organ (see Article 36 for jurisdiction)
- Trusteeship Council
a. Responsible for administering trusteeship territories that are not yet self-governing - Economic and Social Council
a. Supervise the work of commission, committees and expert bodies in the economic and social fields
European Human Rights Law
European Court of Human Rights
Created by the European Convention for the protection of Human Rights and Fundamental Freedoms (1950)
Jurisdiction over 47 states, functions as a European Bill of Rights
(originally optional, as of 1998, mandatory)
Article 34: gives individuals and states the right to petition the ECHR
Article 32: gives ECHR jurisdiction to hear and try cases already reported on by the Commission
Ker-Frisby Doctrine
Forcible abduction is not a sufficient reason why a party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense.
Circumstances in which a person is brought in for trial are irrelevant to trying an individual – trial may take place regardless.
See U.S. v. Alvarez-Machain (1992)
Vienna Convention Law of Treaties
1969: codifies the law of treaties; US not a party, but regarded as customary
Establishes the rules about making and interpreting agreements, their observation, modification, and termination.
Article 2: Treaty: international agreement concluded between states in written form and governed by international law
- Reservation: unilateral statement where a state purports to exclude or modify the legal effect of certain provision of the treaty in their application to that state
Reservations: Articles 19, 20, 21: provides for reservations with some exceptions
Article 31: Interpretation in good faith and in accordance with plain meaning
