International Law

International Law
a brief primer
by Nathaniel Burney
Nothing on this page constitutes legal advice.

All content is copyright 2007-2010
CONTENTS
IX. International Environmental Law
I. The Sources of International Law
Customary International Law
Treaties, General Principles, and Other Sources X. International Agreements
Judicial/Subsidiary Sources of International Law
The Law of Treaties
Nonbinding International Documents
Capacity to Enter Into Treaties
II. The Relationship Between International and
Making a Treaty
Domestic Law
Observance of Agreements
Domestic Law vs. International Law
Interpretation of Agreements
Customary Law
Amendments and Modifications
Treaty Law
Invalidity of Treaties
III. Executive Agreements
In General
What the President Can Do
Purely Executive Powers vs. Shared Powers
IV. States
Definition
Recognition of States
Recognition of Governments
Self Determination
Sovereignty Over Land, Sea and Air
V. Non-State Entities: Organizations,
XI. Human Rights

Basics
Some U.S. Mechanisms Related to Human
Rights
State Involvement
Substantive Bases of Responsibility
Substantive Human Rights
Fundamental Human Rights Violations
Procedure
What to Do When an American is Tortured by a
Foreign Government
Suspension of Human Rights
Corporations and Individuals

International Organizations
Individuals and Nationality
Corporations
VI. Jurisdiction
General Principles
Prescriptive Jurisdiction
Enforcement Jurisdiction
Conflicts of Jurisdiction
Extradition
VII. Immunity from Jurisdiction
Sovereign Immunity
The Act of State Doctrine
Immunity of State Representatives
VIII. The Law of the Sea
Introduction
Territorial Rights
Transit Passage, Straits and Archipelagos
I.
Duplication of Claims
XII. Settling Disputes Peacefully
The First Rule of the Use of Force Is Not to Use
It
Settling Disputes Peacefully
Dispute Settlement through the U.N. and other
international organizations
International Arbitration
Formal Adjudication: The International Court of
Justice
XIII. The Use of Force
Introduction
Analysis for All Use-of-Force Issues
Self Defense
Uses of Force Permitted by Customary
International Law, but not in UN Charter
Intervention
Humanitarian Intervention
Intervention to Effect Changes
Intervention Against Terrorism
Intervention in Civil Wars
Example: Nicaragua
Necessity and Proportionality
War Powers Resolution
Collective Use of Force
"Lawfare"
THE SOURCES OF INTERNATIONAL LAW

Article 38 of the Statute of the International Court of Justice defines the sources of international
law. Look at them in order, to find the law.
First, look to treaties and other bilateral agreements to which sovereigns are signatories,
and which govern the issue.
Second, look to multinational agreements among sovereigns, which govern the issue.
Third, look to customary international law.
a.
General practices of states, accepted as if they were law.
b.
Followed not out of habit or expediency, but because considered law.
Fourth, look to general principles common to mature legal systems.

Fifth, look to subsidiary determinations of law (e.g., Supreme Court decisions). Cases are
important. They are used in real life.
CUSTOMARY INTERNATIONAL LAW

Customary international law is something done as a general practice not because it is
expedient or convenient, but because it is considered law, out of a sense of legal
requirement (opinio juris).

Element 1: General practice.
Element 2: States do it out of a sense of legal obligation.
What you do becomes precedent. Your actions have a legal effect, even though you didnt
actually create a legal document.
Any order or document issued by any government entity can be used as
precedent!
The Paquete Habana case relied on edicts and agreements as far back
as 1403.
Even when no binding document exists, there is such a thing as estoppel.
White House memos can be just as precedental as a treaty!
Whenever considering whether something is custom, ask the following:

What constitutes state practice?
How much practice is required?
How much consistency is required?
Inconsistent state practices can be ignored if you look at the big trend.
Are dissenting and non-participating states bound by custom?
Do regional and special customs involve different requirements? May a special
custom (one that conflicts with general custom) bind a state that has not
supported it?
What evidence is required for opinio juris, the requirement that practice be
accepted as law?
May treaties be invoked as evidence of customary law? May they create it?
Is there a normative hierarchy in customary law?
Would declarations of law adopted without dissent by the UN General Assembly
constitute presumptive evidence of accepted international law, regardless
of actual state practice?
Would the adoption of recommended standards of conduct by the General
Assembly or another representative international assembly give rise to
customary law if they are generally followed by states?
Those countries with the ability to do it have more influence than others when it comes to
creating custom. The U.S. is frequently in this position.
The Paquete Habana (1900)

A case about the Rules of Engagement, going into customary international law.
Rules of Engagement Before the military engages in an action, it is
governed by standing instructions on what they can and cannot
do. These are frequently classified, of course.
The Paquete Habana and the Lola were Cuban fishing boats that were seized by
the U.S. during the Spanish-American war. The U.S. District Court said
that the Navy had acted within its authority, under Federal statute.
The Cubans argued that customary international law prohibited us from seizing
the ships. The U.S. S. Ct. agreed, holding that international law is part of
out law.
This established rule of international law had existed to protect peaceful fishermen
from wartime seizures. Coastal fishing vessels, their cargoes, and their
crews, are exempt from capture as prizes of war. (As a result, every US
ROE since then has said to leave fishing boats alone if involved in the
peaceful act of fishing [but not if using fish to camouflage silkworm
missiles, however].)
Asylum Case (1950)

Under the Vienna Convention on Diplomatic Relations, when you get inside the
walls of an embassy, you are inviolable, because others cannot go in and
get you without that embassy countrys permission. One inch outside,
though, and youre out of luck. (Theres lots of tense chases here in DC
for that reason, spies etc., and China doesnt let people within a mile of
the US embassy.)
Note, there are several Vienna conventions. Lots of conventions of all
sorts. Be specific which ones you are referring to.
A deposed Peruvian political leader sought asylum in the Colombian embassy in
Peru. The Colombians granted asylum, and wanted to transport him
through Peru to Colombia unscathed, as a matter of law.
Colombia relied on a treaty that Peru had not signed on to. Peru claimed
it had no legal obligation.
There was no bilateral agreement between Peru and Colombia.
There was no multinational agreement binding on Peru. Peru had even
repeatedly repudiated the Montevideo agreement, so that it would
have the status of a nonconsenting state.
A multinational agreement can still be binding as customary
international law, even if you didnt sign on. Only if you
repeatedly repudiate it do you earn the status of a
nonconsenting state.
You do have the option of dissenting while international
law is being formed, but your dissension must be
active and persistent.
Dont sit on your hands. Make your protest. Nobody is
going to tell you to do it, youre a sovereign.
States can do whatever they want. You have the
ability to assert your rights, if you choose, but that
means youd better do so or else you may lose
the right.
Certain fundamental rules, however (such as freedom from
torture, slavery, apartheid, genocide, etc.) cannot be
repudiated. They are peremptory norms.
International agreements are governed, not by contract
law, but by the Vienna Convention on Treaty
Law. Under it, states can do anything they want

to agree to, unless it violates a peremptory norm.
Is there a rule of customary international law binding on Colombia and
Peru?
The ICJ said cases went both ways. Colombia pointed to
numerous and frequent examples where American
countries allowed safe transport like this. However, the
custom was only for political expediency it was not
done out of a sense of legal obligation.
Note Asylum has different meanings in international law contexts and U.S.
domestic-law contexts. It can mean leaving people alone who are under
the protection of another countrys embassy (something the US refuses to
do, same as Peru here). It can also mean we wont repatriate you to a
country you fled for political/humanitarian reasons.
Mere uniformity of external regularity never justifies a conclusion of normativity.

Governments attach importance to distinguishing between custom by which they
hold themselves bound, and the mere practices often dictated by consideration of
expediency and therefore devoid of definite legal meaning. The inductive
reasoning that establishes the existence of custom is a tied reasoning: the matter
is not only one of counting the observed regularities, but of weighing them in
terms of social ends deemed desirable.
Portugal v. India (1960) Customary relations between nations becoming binding. (Not,
by the way, related to the Anglo-Saxon concepts of adverse possession or
easement.)
Portugal had territory within India, and India wouldnt let the Portuguese move
their military and ammo back and forth to the enclaves. India asserted the
rights that England had enjoyed, and the right of passage only applied to
civil activities.
If you dont take the measures to assert your rights, and protest, you acquiesce.
You may even create legal precedent for a customary international law
contrary to your interests.
The major seafaring nations, for example, sail right up to the 12-mile limit
when countries try to claim more sea territory. At the very least,
they object to those countries claims.
OPINIO JURIS North Sea Continental Shelf Cases (1969)

Germanys coastline was concave, so the Dutch/Danish method of equidistant
lines would have reduced German sea control drastically. Germany had
actually signed an agreement to that effect at a party, but when it sobered
up it decided not to ratify it.
The agreement didnt say it was binding upon being signed, so it wasnt
binding on Germany until it was ratified. (Geneva Convention of
1958.)
That didnt mean Holland & Denmark couldnt argue that it was binding as
customary international law, since everyone else was doing it.
There are 3 ways the treaty could have become binding customary international
law:
The treaty re-stated a pre-existing custom.
The treatys rule crystallized customary law that had been in the process
of formation.
The treatys rule generated a new customary law following its adoption.
Holland & Denmark argued that this treaty had generated a new customary law, a
new norm of international law binding on everyone.
That wasnt such a good argument, because Germany had repudiated the
treaty.
Also, there had been very little time since the treaty [customary
international law can be created in a short time, but the
presumption is that it isnt].
Also, only a few countries were using this rule, and even then they had
resorted to equidistance out of frustration, not because they felt it
was a binding legal obligation.
Also, it was not apparent that the provision was a norm-creating
provision. It was a secondary provision only.
Also, the treaty permitted reservations, and many countries had made
their reservations known. That was hardly acceptance of a normcreating law.
The ICJ therefore held that there was no customary international law for the
Dutch/Danish position.
Nicaragua v. U.S. (1986).

Customary law may be a source of international law in international disputes. It is
separate from treaty law and convention law, as it must be applied even if
the countries are parties to a treaty.
The court held that it is no longer okay to settle disputes with force, a customary
norm.
Note Use of force can be justified three ways: (1) self-defense, (2)
enforcement under Ch. 7 of the UN Charter, or (3) pre-UN rules of
necessity & proportionality [the US and a few other countries
assert this third principle from time to time].
Back to Contents2007-2010 Nathaniel Burney
TREATIES, GENERAL PRINCIPLES, AND OTHER SOURCES OF INTERNATIONAL LAW

Treaties: International agreements are governed, not by contract law, but by the Vienna
Convention on Treaty Law. Under it, states can do anything they want to agree to,
unless it violates a peremptory norm.
Many countries dont have governments that work. But, presuming there is a
government that works, one country can make an agreement with another
government.
Problems are settled between the parties apology, reparation, etc. There are
plenty of mechanisms to work out violations of international obligations.
States are grown-ups, they can deal with it.
General Principles of Law and Equity.

There arent that many of these:
Promises are binding there is an obligation to perform in good faith.
Clean hands you cant take advantage of your own wrongdoing.
Estoppel is always out there to slam you. Especially if you are foolhardy
enough to attach a map to an agreement (dangerous).
Never agree to a document when there is something in it you
dont understand. Its nice to be polite, but it is better to
be right & useful than to be liked & dangerously
incompetent.
Two big ones: Considerations of Equity, and Considerations of Humanity.
All mature legal systems have equitable principles.
Meuse case, Netherlands v. Belgium (1937).

Belgium was prevented from suing France for breaching its agreement not to build
a dam, when Belgium had breached the same agreement.
Under Article 38, equity is part of international law.
Corfu Channel case, United Kingdom v. Albania (1949).

a.
Albania, the most xenophobic country ever, with a pillbox every half
mile in anticipation of an invasion that has never come, littered the Strait
of Corfu with mines. Then it didnt tell anyone. Some British ships got
blown up, and they also fired at British ships from shore batteries.
b.
The ICJ held that elementary considerations of humanity are binding

as customary international law. Therefore, laying mines require you to tell
those who sail there. Failing to notify violates elementary considerations
of humanity.

JUDICIAL/SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW.
Here in the U.S., we use stare decisis, unlike civil law countries. Article 59 of the Statute
of the ICJ, however, says that ICJ decisions are binding only on the parties to the
dispute.
And yet, ICJ cases are cited over and over as representing international law. Not
because of stare decisis, however, but because it was a well-reasoned
case that countries keep pointing to as evidence of international law.
It is not law just because the ICJ says so in one case. It may come to be
regarded as law, however.
Often, arbitration tribunals and municipal courts (such as the US S. Ct.) are also cited as
sources of international law, even though their decisions are not binding on other
countries.
Foreign law journals (not U.S. law-school journals) and the U.S. Restatement of
International Law are often cited.
These are never enough by themselves they are only academic opinions of
what the law is. They are still of some use, nevertheless.
UN General Assembly Declarations & Resolutions.
The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law
Filartiga v. Pena-Irala (2d Cir. 1980).
A Paraguayan official tortured to death a 17-year-old Paraguayan boy,
because of the boys fathers political beliefs. The kids father and
sister sued in U.S. District Court! Under the 1789 Alien Tort
Statute, under which only aliens may sue, for a tort in violation of
the law of nations (international law).
Note We also have the Torture Victim Protection Act, which
also protects Americans.
The District Court dismissed the case for lack of jurisdiction. the 2d
Circuit, however, concluded that if torture violated the law of
nations, and alien could sue another alien in U.S. courts and
collect damages.
To see if torture violates international law, the 2d Circuit turned to two UN
General Assembly declarations.
The Universal Declaration of Human Rights, one of the first acts
of the UN, and arguably one of the greatest documents of
all time (unanimous, abstentions from South Africa,
USSR and other SSRs, Yugoslavia, and Saudi Arabia),
and which has been embellished over time.
The 1975 Declaration on the Protection of All Persons from
Torture.
A Declaration creates an expectation of adherence, and so far as the
expectation is gradually justified by national practice, a
declaration may by custom become recognized as laying down
rules binding on all countries.
These mere declarations have been foundations for treaties and
conventions which took these rights and built on them
and codified them as international law. All of them say
that torture is a human rights violation. (Time was, torture
was just good police work, but no more. Now it is
universally renounced.) Not only is this customary
international law, but it is a fundamental principle that
cannot be limited.
So the 2d Circuit entered a judgment, and assessed compensatory &
punitive damages. The defendant escaped the US before the
judgment could be enforced, but if he or any of his property
returns it is subject to jurisdiction. (We actually deported him.
Communications between the agencies are not fantastic.)

This was not a suit against the Paraguayan government because of an
official actor Paraguay had denounced the defendant, even
though he had been acting under the color of authority.
As result of this case, the Alien Tort Statute has been used more
frequently. See the judgment entered against Radovan Karadzic
[70 F.3d 232 (2d Cir. 1995)] for genocide. (That case has a good
discussion of the sources of international law and affirms that
these are real rules binding on us, and states that certain forms of
conduct violate the law of nations regardless of whether
undertaken by those acting under the auspices of a state or only
as private individuals.)
Western Sahara Case (1975) General Assembly Resolutions cited for the proposition
that free-association and self-determination are norms of international law.
Texaco Overseas Petroleum et al. v. Libyan Arab Republic (1977) The legal value of
UN resolutions can be determined on the basis of the circumstances under which
they were adopted, and by analysis of the principles they state.
Arbitration decision. Texaco went to Libya, planned for the worst and got an
agreement that Libya wouldnt nationalize the oil fields or refineries.
Note A contract between a corporation and a foreign government is not
international law. Its much better to get an agreement between
the US government and the foreign government. Otherwise,
international legal standards wont apply unless there is some
other way to get international jurisdiction, and you can easily wind
up getting screwed by the foreign government.
Aside Be wary of even the most highly-paid corporate lawyers advice
on international law matters. In the experience of professional
diplomats, many if not most corporate lawyers are clueless about
the realities of international law.
Texacos lawyers put in the contract that the applicable law was Libyan law that
was in accord with international law principles, and any blanks would be
filled with international law, and disputes would be decided by
international arbitration, not by the Libyan courts.
Libya tried to nationalize the fields and refineries, so they went to the International
Arbitration Court. The court said that UN resolutions are of varying
weight. Not all represent clear agreement. But Resolution 1803 of 1962
was a clear agreement that Libya would have to compensate Texaco. It
had no unfettered right to take the facilities without compensation.
They had to find Libyan law, but Surah 5 of the Koran was part of it, and it said
you had to perform your contracts.
Note There is no generally-recognized right to property in international law.
II.
THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW
AND
THE RELATIONSHIP OF INTERNATIONAL LAW TO U.S. FOREIGN RELATIONS LAW
The US is truly a nation of laws, especially as compared to many other countries
throughout the world. A problem with that, however, is that often our law is contrary to
international law.
That is not an excuse for a violation, by the way. We may be obligated by our law
to not perform a promised duty, yet we will be liable for the breach. Shouldnt
have undertaken the obligation. Sometimes it happens because of internecine
squabbles, but youre still going to have to compensate for the violation.
The principle that a state cannot plead its own law as an excuse for noncompliance with international law has long been established and generally
recognized. In 1887, e.g., Secretary of State Bayard said: It is only necessary to
say, that if a Government could set up its own municipal laws as the final test of its
international rights and obligations, then the rules of international law would be but
the shadow of a name and would afford no protection either to States or to
individuals. It has been constantly maintained and also admitted by the
Government of the United States that a government can not appeal to its
municipal regulations as an answer to demands for the fulfillment of international
duties. Such regulations may either exceed or fall short of the requirements of
international law, and in either case that law furnishes the test of the nations
liability and not its own municipal rules.
Article 13 of the Draft Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 says: Every State has the duty to carry
out in good faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its constitution or its laws as
an excuse for failure to perform this duty.
That standard makes sense. Nazis couldnt defend their actions by saying they
did what the Reichstag said to do, and neither can you.
Some other countries constitutions say that international law is part of their law,
and that in the event of a conflict international law trumps as a matter of municipal
law.
In Germany, e.g., if you can prove an international law violation, you win
in German court. International law takes precedence over municipal law.
See also Italy, Austria, Greece, and France.
Other systems, like the US, dont acknowledge international law as precedental
over municipal law.
See Switzerland and the Netherlands.
Lots of systems leave open the question of which rules prevail.
Also, in many countries, the substance of international law is not an issue of fact
for the jury, but a matter of law for the court.
We are bound to international agreements, even though our convoluted municipal

law may result in failure to keep our end of the deal. In the United States, there
are conflicts at times between our law and international law.
Customary international law is NOT the supreme law of the land here.
Only treaties are.

So customary international law loses to municipal law. But first do
all you can to interpret the law in such a way that there is no
conflict.
Customary international law is still important it just isnt as
strong as treaty law.
Treaty law is even more complicated.
Treaties prevail over inconsistent state laws.
The Constitution prevails over inconsistent treaties.
When a treaty conflicts with a federal statute, the most recent one
prevails. And the treaty would have to be either self-executing or
already executed by Congress.
You have to break this all down into customary international law and treaty international
law.
The United States is very complex here.
Customary international law.
In the Paquete Habana case, our courts applied customary international
law, but note that it did not involve law contrary to US law. No controlling
treaty or municipal law existed, and the S. Ct. said that, had a treaty or
executive/legislative/judicial law existed, it would have trumped customary
international law.
The Constitution refers to international law in Article I 8: Congress has

the power to define and punish offenses against the law of nations. So
the framers knew that international law existed.
Article 6 says the supreme law of the land includes the Constitution, laws
made in pursuance thereof, and treaties made in the name of the US.
Period. Not state law, federal common law, judge-made law, etc. You
cannot plead supreme law of the land to excuse a breach of
international law.
Murray v. Schooner Charming Betsy (1804) An act of Congress is

never to be construed in a way so as to conflict with international law, if
there exists a construction that doesnt conflict.
When there is indeed a conflict, we must apply the supreme law
of the land, which the President is sworn to uphold. There is
authority for the President, when there is a true conflict, to apply
US law over international law.
Courts dont involve themselves in conflicts here its a political
question for the executive branch. Under the Act of State
doctrine, because of separation of powers, the courts just stay out
of it.
There are potential conflicts between the executive and
legislature, between the feds and the states.

The Constitution makes the President extremely powerful
Chief Executive Officer of carrying out all executive
functions, monstrous powers in foreign affairs,
Commander in Chief of armed forces, head of state
embodying the country in international activities.
The President also has an interesting power to receive
ambassadors and other public ministers. This has been
read to mean that the President alone has the power to
recognize another country.
The legislature also got some international powers: it can
borrow money, regulate customs, nationalization, define
and punish felonies, maintain & arm the navy, make rules
for the conduct of the armed forces, power of the purse
for the executive to pay for what it wants to do, and the
power to declare war.
Note Regarding declarations of war, there havent
been all that many declared wars in the many conflicts in
our history. Some say that a treaty where we say we will
protect another country is a de facto declaration of war.
The NATO treaty doesnt require US commitment of
forces, only such action as we deem necessary to take
care of a situation, because Congress was and remains
jealous of its power to declare war.
The judiciary doesnt have much, but it does have
responsibility for interpreting the Constitution.
The 10th Amendment may or may not give the states and
the people some say.
Treaty international law.

Know the difference between Ratifying a treaty vs. Implementing or
executing it. Different things.
A treaty that says the parties agree to is binding. A treaty that says
the parties intend to is not binding.
Treaties are not made by Congress, but only by the President with
ratification by the Senate. Nevertheless, those treaties become the law of
the land, regardless of what the House of Representatives or the
Supreme Court might have said about it. The only check on this power is
where powers are given to Congress as a whole the power to declare
war is one such power, which Congress guards jealously.
If a treaty makes X a crime, Congress alone has the power to decide the
punishment the treaty provision has to be executed by Congress.
Such provisions thus are never self-executing.
Missouri v. Holland (1920) Conflict between a treaty and state law.

Unlike acts of Congress, which are the supreme law of the land only if
constitutional, treaties are de facto law of the land, and are binding on the
states as well as on the federal government.
We had a treaty with England/Canada protecting migratory birds.
Missouri sued to prevent a federal game warden from enforcing
the treaty. The S. Ct. held that state powers fall whenever they
conflict with the treaty.
This principle has been stated even more dramatically in years
since. It is a slam dunk: the state loses. Under Belmont, state
lines disappear; states dont exist so far as treaties and executive
agreements are concerned. The federal national interest is so
supreme that treaties and executive agreements always trump
state laws.
Note The rule doesnt apply when state action is required to
implement a treaty.
Reid v. Covert (1957) If a treaty is contrary to the Constitution, then the

treaty fails. The Constitution trumps. Treaties and executive agreements
have the possibility of violating a constitutional provision and thus being
invalid.
Watch out for clauses in international agreements that are
contrary to the US Constitution:
Interference with the power to declare war.
Prohibitions on free speech.
Restricting the rights of aliens (recall that the Constitution
protects persons, not citizens).
Denying due process of law.
Denying equal protection.
Taking private property.
Limiting the right to travel.
Just because a treaty is agreed-to, it may still need a little more to make it
the supreme law of the land.
Foster & Elam v. Neilson (1829) A treaty is equivalent to a legislative

act whenever it is self-executing. That means it operates of itself without
aid of any legislative provision. But, when the terms are contractual, the
parties must execute it, so it requires an act of the legislature.
The US needed access to the Gulf of Mexico, and Napoleon
needed money for his wars, and so was willing to sell the whole
Louisiana tract for $15M. But the land had French subjects and
Spanish subjects. Titles were granted to different people for the
same land, then the US got it all. In order to secure the rights and
privileges of the people on the land, the US, Spain and France
needed a treaty to settle it.
The treaty was alleged to give the King of Spain power to grant
title to land even after the US took control. The language said
that such a grant shall be ratified and confirmed. Did that meant
it was automatically ratified, or did it need an additional act of
Congress.
The treaty was contractual. Therefore, the contract must be
actually performed to get the end result. The treaty merely stated
the intent of the parties to confirm a grant of land. It envisioned
an additional act of the legislature to implement it before the grant
was confirmed.
Self-executing treaties vs. Non-self-executing treaties.

An international agreement cannot take effect as domestic law without
implementation by Congress if the agreement would do something that is
within the exclusive law-making power of Congress.
Thus, an international agreement providing for the payment of
money by the US requires an appropriation of funds by Congress.
An international agreement cannot bring to US into a state of war.
An international agreement cannot make something a US crime.
An international agreement cannot raise revenue by imposing a
new tax or tariff, but it can affect tariffs with most-favored-nation
and similar clauses.
If an international agreement is silent as to whether it is self-executing or
not, and the intention of the US is unclear, then look to things said by the
White House/State Department or by the Senate in ratifying it.
If a provision is non-self-executing, then the US is under an international
obligation to adjust its laws and institutions (if necessary) to give effect to
the agreement. (Wed get a reasonable time to do so before being held in
default.)
Fujii v. California (1950) A California statute forbade aliens ineligible for

citizenship from owning or using real estate. The plaintiff relied on the UN
charter, in part, claiming that the statute violated human rights. This was
held not to be enough, however. The charter was not a binding set of
rules without some other act. (He won on 14th Amendment grounds,
anyway.)
Any agreement which itself requires further legislative enabling action by
the countries is non-self-executing.
Note Im not talking about ratification by the parties.
Ratification is self-execution.
If you write in a provision describing how the US will fulfill its
obligations on its side, thats fine, but thats not binding as part of
the international legal obligation.
You do have some power to go into who implements
what. Its just a problem when the unilateral obligation is
not rationally-related to the international agreement itself.
Note well If the agreement makes it enter into force, and the provision
is self-executing, then it is binding even if it hasnt yet been implemented

by the legislature.
Whitney v. Robertson (1888) In the event of a conflict of a treaty with

United States statute, the one that is most recent in time prevails.
The US and the Dominican Republic had a most-favored-nation
agreement, where the US would never give another country a
better deal on sugar tariffs. If another country did get a better
deal, then the Dominican Republic would get the same
treatment. The D.R. was utterly dependent on sugar exports, so
it was important that the treaty say theyd always get the lowest
tariffs on sugar.
Congress then let Hawaii export sugar duty-free. The D.R.
objected to the duty its had to pay, and paid only under protest.
The S. Ct. acknowledged that treaties and statutes are both the
law of the land. When there is a conflict, it held, then the later in
time controls.
The statute violates the international agreement, sure, but the US
law is whichever is most recent. The D.R. still has the right to
reparations or other satisfaction, though.
Note A more recent treaty overtakes inconsistent prior
legislation automatically only if it is a self-executing treaty.
Otherwise, it overtakes the legislation upon the passage of
implementing legislation.
Charlton v. Kelly (1913) A breach of a treaty by one party makes the

treaty voidable by the other party.
The US and Italy had a mutual-extradition treaty. Usually, states
dont agree to extradite their own natives, but this agreement said
thats what the parties would do. Italy refused to extradite its own
nationals to the US, however.
An American was going to be extradited to Italy under this treaty,
and argued that because Italy had breached the agreement it was
void, and so there was no need to extradite him.
The Supreme Court held that a material violation of an
international agreement doesnt automatically void the
agreement. A treaty is binding until abrogated, so it was still
binding and the US had to perform.
The executive branch decides when a treaty has been
abrogated. In this case, they felt that it wasnt worth it. So the
American got extradited to Italy.
III.
EXECUTIVE AGREEMENTS
95% to 99% of all international agreements to which the United States is a party are
Executive Agreements.
The Constitution doesnt refer to executive agreements, but they have been
entered into from the beginning.
Not the same as a treaty, but in terms of international law there is no difference.
In terms of municipal law, the difference is that executive agreements are
not submitted to the Senate for approval. Treaties must be.
The 1972 Case Act requires that Congress be given a chance to look at
executive agreements within 60 days. 1 U.S.C. 112b. All that happens,
though, is that Congress recognizes the existence of the executive
agreement there is no need for congressional approval.
If an executive agreement conflicts with the Constitution, the Constitution prevails.
If an executive agreement conflicts with state law, state law loses.
United States v. Belmont, 301 U.S. 324 (1937) The Soviets

nationalized everything in Russia. American companies property was
seized. The President froze soviet bank accounts, as always, so that an
agreement could be made where the soviets would drop their claims to
the accounts, which would then be distributed among the United States
citizens whose property had been taken. Pennies on the dollar, but at
least it would be something. In exchange, the President recognized the
soviet government.
Belmont was a private banker doing business in New York state.
The United States sued to recover the soviet deposits with him.
The lower court held that this would conflict with the interests of
New York state, so it couldnt be done.
The S. Ct. held that the feds have sole and complete power over
international affairs, so even if the result of federal action would
be contrary to the controlling public policy of the state, the state
still loses.
New York didnt have the power to recognize foreign
governments. Only the President could do that.
United States v. Pink, 315 U.S. 203 (1942) same holding. Whenever
there is a conflict between an executive agreement and state law, state
law loses. These are huge executive powers.
Nevertheless, it is important to establish good relations with state
authorities who do things, because they are probably going to violate
some executive agreement along the line if theyre unaware of it.
When the President needs an executive agreement, he can do one of three things:
1. If the agreement is crucial to international and national agreements, he should
get a treaty.
UN membership, NATO, extradition, taxes, postal matters. Only the really
big commitments, nothing else.
2. The President may just sign the agreement as an executive agreement, based
either
a. on his sole powers under the Constitution, or
b. with congressional acquiescence if based on shared powers.
Regardless of which basis it is, neither kind of executive
agreement requires congressional approval.
The statute books are full of acquiescences by Congress to let
the President make executive agreements in certain areas.
So what happens when, even though the basis is shared
powers, Congress was silent, and the President still did
it?
What happens when Congress is vocally opposed to it,
and the President still does it?
3. Sometimes, in certain economic agreements, the President knows he could do
a treaty or an executive agreement, but instead he does a fast-track agreement.
The President makes the agreement, and it goes to the House and
Senate for a strict thumbs-up or thumbs-down. They cannot make any
modifications.
These are rare. NAFTA, GATT.
Purely Executive Powers, versus Shared Powers.

There are some, albeit very few, areas where the President has powers that he
doesnt have to share with Congress. Congress opposition or acceptance is
irrelevant regardless of how Congress votes, the President alone can do these
things, such as:
Recognition of foreign governments.
Receiving ambassadors.
Most presidential powers here are shared with Congress. So most executive
agreements are Congressional-Executive Agreements. Congress has either
supported it or acquiesced to it. The President does it with Congress blessing.
Recall Youngstown Sheet & Tube, Trumans steel seizure case. Truman
committed many troops to Korea, 50,000 of whom would die there,
without a peep from Congress yea or nay. While that was going on, a
steelworkers union strike was planned. Hours before the strike, Truman
ordered the executive branch to take over the steel mills and keep them
running. The S. Ct. said his power to do this had to come from either the
Constitution or a statute. No statute, not even any act of Congress
existed from which this power could be implied. Justice Jacksons opinion
broke it down well (he was freshly back from the Nuremburg tribunal).
There was lots of overlap between the powers of the executive and the
legislature here, which created a zone of twilight (soon the be the name
of a TV show) in between the areas where each branch clearly trumps.
The lawyers job is to decide whether the President can go ahead or not.
This case had many different opinions, only three of which allowed the
President to go ahead and do it. So Truman lost the President did not
have the power to seize the steel mills. Only Congress could do it.
When there are shared powers, it is important to know whether Congress
has spoken on the area.
Usually, Congress winks at the executives actions, or actively
supports them. But this isnt always the case.
Merely because Congress has powers in an area, that doesnt
mean that the President doesnt.
Apply this analysis to conflicts in foreign affairs:

Take, for example, the nonproliferation of nuclear weaponry.
Nothing is more important tons of it is pouring over borders.
Nuclear devices are all over. They arent technically weapons,
but theyre just as deadly. Chemical & biological weapons are out
there, too, and theyre no joke either.
Because we arent part of an exclusive club here any
more, Congress justifiably is anxious that something be
done about it and fast.
So Congress gives the executive branch funding and
marching orders to do something about it.
Executive agreements are handy tools for doing
something about it.
What if Congress hasnt spoken on a subject, and the President makes an
executive agreement?
The President has a good record here, so its still okay.
If Congress vocally opposes it, however, and the executive agreement
conflicts with a statute, then theres a problem.
The standard is not the same as a conflict between a statute and
a treaty. If the President lacks the sole constitutional authority to
make this executive agreement, and Congress shares the
authority, then Congress prevails.
Only once has a court addressed this problem. In 1948, the 4th
Circuit decided Capps, where Congress had passed a law to
protect farmers.
The law said that should the President detect a possible
trade problem, then the President was to order an
investigation. If the investigation turned up a problem,
there were certain things he could then do.
Our ambassador to Canada noticed that a lot of potatoes
were pouring in to the United States from Canada. The
Secretary of State made an executive agreement with
Canada to permit unlimited potatoes, but only for seed
purposes, not for eating. The Secretary of State took it
upon himself to do this without going through the steps
Congress had laid out.
This is clearly a shared power commerce and trade.

Congress had spoken dont do X without doing Y.
Of course the Secretary of State likely had no knowledge
of the statute, as it was only a few months old. The court
nevertheless still held that the executive agreement failed
because Congress had said not to do it.
There was much citing of Youngstown.
There was another case in 1981, Dames & Moore v. Regan, but it
really wasnt on point here. So Capps remains the only precedent
here.
IV.
STATES
Definition.
The nation-state is the fundamental entity of international law. States are not the
only actors there are also people, corporations, international organizations, etc.
but states are the big ones.
A government is not the same thing as a state.
A government is a separate entity from the state.
Four Requirements:
1. DEFINED TERRITORY, OVER WHICH THE SOVEREIGN EXERCISES
CONTROL.
Not every single river, stream and rock need be defined. Border
disputes are common.
Emerging states It is a common principle that emerging states
inherit the territorial borders they had before. Usually, the only
other alternative is bloodshed.
The former Yugoslavia did have a border agreement at
first each entity would retain the borders it had prior to
independence. Had the nations of the world enforced
that border agreement, much of the bloodshed and
atrocities would have been avoided.[1]
Still, the all bets are off approach seems to be the
exception, rather than the rule, for emerging states.
2. DEFINITE POPULATION OF PEOPLE.
Can be a few hundred only, but you do need some people.
3. UNDER CONTROL OF ITS OWN GOVERNMENT.
If another state governs you, youre not a state yourself.
4. CAPACITY TO ENGAGE IN INTERNATIONAL DEALINGS WITH
OTHER STATES.
More on the 4 requirements:

States can give up any of these. Liechtenstein, for example, has given p
all foreign-affairs power to Switzerland, yet it is still a state.

There was a U.N. meeting to determine who was to pay for a
certain project. The Swiss ambassador ran over to the Liech.
seat and argued that the U.N. should pay for it, then ran back to
the Switz. seat to argue that the beneficiary nations should pay
for it.
You have to make decisions on whether an entity is a state or not, if you
are to know what to do in a situation.
Usually, this is not a problem. But sometimes...
The question of statehood arises particularly in the following
situations:
Break-up of an existing state into a number of states.
Secession or attempted secession by part of a territory of
an existing state.
Cases where foreign control is exerted over the affairs of
a state, whether by treaty, unilateral imposition of
authority, or delegation of authority.
Cases where states have merged or formed a union.
Claims by constituent units of a union or federation to the
attributes of statehood.
Territorial or non-territorial communities which have a
special international status by virtue of treaty or
customary law, and which claim statehood for certain
purposes.
The Restatement (Third) 206 states that the capacities, rights and
duties of states include the following:
Sovereignty over its own territory, and general authority over its
nationals.
Status as a legal person, with the capacity to:
own, acquire, and transfer property;
make contracts and enter into international agreements;
become a member of international organizations; and
pursue, and be subject to, legal remedies.
The capacity to join with other states to make international law, as
customary law or by international agreement.
Recognition of States.
Recognition is unnecessary for you to be a state, but it helps.
Salimoff (1933) Recognition neither creates nor constitutes a state.
There is no duty to recognize a state, even if it meets the 4 requirements.
Recognition is discretionary.
Even if you dont recognize a state, you may still be obliged to treat its
authorities and actions as if it is a state.
Is there ever a duty not to recognize a state?
Yes, in certain circumstances. As when the general international
consensus is that control has been wrested by force or threat of it.
Like when Iraq invaded Kuwait, the United States and U.K.
embassies remained there for a very long time in horrid
conditions, to emphasize the nonrecognition of any incorporation
into Iraq, and nonrecognition of the puppet government.
Other situations where you dont recognize a state:
Where recognition would be premature, as when an
emerging state is still in the throes of civil war. Wait until
its really independent.
Illegal states, founded on a violation of international law.
Rhodesia, for example, was a fake South African
apartheid home-rule reservation.
States long for recognition, and savor it when they have it. They need foreign
recognition, even though it isnt necessary for statehood.
When the United States rebelled against England, we wanted recognition
from other countries. Other states were eager to recognize us, the Dutch
first (to stick it to the English). France wanted to, but couldnt, because
the smart British took control of the cities. In retrospect, they should have
gone after Washingtons army, but they didnt. Then Saratoga, the first
time the brits got their butts kicked, showed that the rebels had something
to back up their independent entity. Only then could France intervene
(and even then it was way premature). And without the French fleet in the
Hampton Roads, there would have been no surrender, and there would
be no United States.
Recognition was a major issue in our Civil War, as well. The Confederacy
at first fought a defensive war. Then Lee said that the best way to win the
war and get foreign recognition was to invade the north. This was
calculated to get British and French recognition. The blockade of the
southern ports had put vast numbers of the British population out of work,
and there was great starvation. The average subject, though, was still so
appalled by the idea of slavery that no matter how much it hurt the British
refused to recognize the Confederacy, though they came very close.
(Even though they were starving, human rights still mattered.) The driving
force behind Antietam and Gettysburg was foreign recognition by the
French, British, Prussians, etc. (as well as that little thing called winning
the war, but thats a subject for another discussion).
In the United States, recognition is a political power left up to the President alone.
There has to be a government in charge, for there to be recognition.

A government may be a hard thing to find, as in Somalia in the 1990s,
even though it is there.
Finland wasnt recognized for a while, because all sorts of peoples lived
there. Yugoslavia had the same situation, but went the opposite direction
and became so... balkanized... that it is not one state any more.
Because a government is not the same thing as a state, there is a
difference between recognition of a state and recognition of a
government. Also, you can do both yet still have limited or severed
diplomatic relations (these mean little, other than that you dont like each
other). See Recognition of Governments, below.
(Proposed) FIVE ADDITIONAL CRITERIA FOR RECOGNITION, developed

following the Yugoslavian crisis that began in 1991. Recognition would be
accorded in light of the states adherence to:
1. Peaceful and democratic determination of the countrys future.
2. Respect for all existing borders, both internal and external and
change to those borders only through peaceful and consensual means.
3. Support for democracy and the rule of law, with emphasis on the key
role of elections in the democratic process.
4. Safeguarding human rights, based on full respect for the individual and
including equal treatment of minorities.
5. Respect for international law and obligations, especially adherence to
the Helsinki Final Act and the Charter of Paris.
See, Slovenia had broken off and whipped the Serbs thoroughly.
They got their own territory, people, post offices, etc. But the
EEC, the US, and the UN said they had to do the above as well.
These criteria are NOT part of customary international law!
They are expedient, not law, and the EEC has gone back on
requirements in many cases.
This may be the beginning of a custom, but it isnt law yet.
Recognition isnt guaranteed, even if it would be okay.

Macedonia meets all 4 requirements for statehood. The UN
peacekeepers are there with the consent of the government. It looks like
a state, acts like one. Yet nobody has recognized it, because Greece
doesnt like the name (they have a border province with the same name,
and they dont like the implications, unsurprisingly). And the flag
resembles Alexander the Greats seal, so the Greeks dont like that
either. So Greece hasnt recognized Macedonia, and it gets mad at
anyone who even thinks of it. (So immediately Turkey and Bulgaria
recognized it.) But nobody else has recognized it. Lesson: Governments
are made up of people. Bitter, petty people.
Even though a state is not recognized, not a de jure state, it still may have
responsibilities and obligations as a de facto state.
Nonrecognized states can and do engage in activities that affect other
states.
Recognition of Governments.
It is possible to recognize a state its borders and people at least yet not
recognize the governing authority. Like the United States did with Vietnam.
Foreign governments that are not recognized cannot sue in United States
courts.
Guaranty Trust Co. of New York v. United States, 304 U.S. 126
(1938) Which government is to be regarded as the recognized
representative of a foreign sovereign state is a political question,
not judicial. It is to be determined by the executive, whose
decision will be conclusive on all domestic courts.
There is no requirement under international law to recognize a foreign
government. There are certain legal ramifications in your own country, but thats
all. So go ahead and slap that government in the face by not recognizing it.
You can also recognize a government yet choose not to have diplomatic
relations with it. For example, we recognize Castros government in
Cuba, we just dont have any embassies there.
Standards for Recognition of Governments:

Thomas Jefferson set the early stage for this following the French
Revolution, instructing the U.S. envoy in Paris that it accords with our
principles to acknowledge any government to be rightful which is formed
by the will of the nation substantially declared.
For a long time, regardless of how the government was formed,
whether by revolution or whatever, if it was formed by the will of
the people then we recognized it.
During the 1800s, we had the simple standard that every nation
possesses a right to govern itself according to its own will, to
change its institutions at discretion, and to transact its business
through whatever agents it may think proper to employ.
In the 20th Century, the United States got upset at the Latin-American
governments. There was a period of time when we didnt recognize
governments of revolutionary countries (like Mexico).
We developed an interesting dichotomy between de facto
government and de jure government.
De facto the government that is actually there.
De jure the proper government, the lawful
government. The one we like best.
This has resulted in a ton of awkward, difficult situations and
problems.
The 1930 Estrada Doctrine (from the Statement of Mexican
Foreign Minister Estrada) was that there is no need for
recognition of governments. Being the de facto government is

enough. (Still, Mexico never recognized Franco as the de jure
government of Spain.)
The movement now is to just focus on the de facto government.
When has a government emerged to the point where you can recognize
it?
Have to be careful. If you do it too soon, you may be
impermissibly intervening in a civil war.
There were two warring camps over who represented the people
of Spain in 1936. The Nazis and Italians supported Franco as the
lawful government, but they did so way prematurely (when the fall
of Madrid was anticipated by many observers). Such premature
recognition can constitute impermissible involvement in the
conflict. (Of course the Nazis had no problems with violating
international law left and right. They actively got involved in the
conflict anyway.)
There is definitely a subjective element to this. Its still an
emerging area of law.
Restatement (Third) 203 Although you dont have to formally recognize the
government of another state, you still have to treat as the government whatever
regime is in effective control of the state (unless its control came about in violation
of international law).
What is the status of a government during the murky period of nonrecognition?

Tinoco Claims Arbitration (1923) Britain asserted claims against Costa
Rica for acts of the predecessor Tinoco regime, which had come to power
by a coup and maintained itself in control for two years. Britain didnt
recognize the Tinoco regime. When it fell, the restored government
nullified all of the Tinoco contracts, including an oil concession to a British
company. Britain argued that the Tinoco government was the only
government in Costa Rica when the liabilities were created, and that its
acts couldnt be repudiated. Costa Rica argued that the Tinoco regime
was not a government, and that Britain was estopped by its
nonrecognition of Tinoco anyway. The sole arbitrator (Chief Justice
William Howard Taft) held that a government which asserts control
throughout the country with the acquiescence of the people becomes the
de facto government the nonrecognition of it by major powers has no
effect on whether or not it is the government. Also, the claim of estoppel
was wrong because the British nonrecognition didnt dispute the
existence of the Tinoco regime, and also because the successor
government had not been led by British nonrecognition to change the
governments position.
To hold that a government which establishes itself and maintains
a peaceful administration, with the acquiescence of the people for
a substantial period of time, does not become a de facto
government unless it conforms to a previous constitution would
be to hold that within the rules of international law a revolution

contrary to the fundamental law of the existing government
cannot establish a new government. This cannot be, and is not,
true.
It didnt matter that the government wasnt recognized. You
couldnt deny that it had been in control.
This had been a deal between a British company, not the
government, and Costa Rica. Britain stepped in to protect the
company (rare, and its usually a bad idea for a corporation to
contract with a government anyway).
Ordinarily, changes in government dont change the states
obligations. The President signs for his state, not for himself.
The Shahs agreements are still binding on Iran, and they have to
go through the procedures to remove them if they dont like them.
Remember Tinoco in dealings with nonrecognized entities they
are still the effective government of their states.
Control can be brief. Here, Tinoco only had thirty
months. It cant be just for a day, though.
You also cant take over a portion of a state and speak for
the whole state (with the small exception of obligations
that are normally incurred by government anyway).
Once in a while, unrecognized governments do things like sign
agreements with foreign governments, maintain diplomatic corps, etc.
Nonrecognized governments can engage in acts that will be recognized by United

States courts.
Salimoff & Co. v. Standard Oil of N.Y., New York Court of Appeals 1933
Even though the Soviet government was not recognized by the United
States, soviet confiscation of property within the territory of the USSR was
binding on the United States courts.
The property in question, oil land, was in the USSR. The de facto
power in control of the Russian territory was the Soviet
government. The land had been confiscated from Salimoff & Co.,
who claimed that the Soviet government was a band of robbers.
The Soviet government was not yet officially recognized by the
United States, so what was the validity of its acts? The case was
taken to court in New York State.
If a nonrecognized government is allowed to sue, then
youd be recognizing it. Here, however, neither party was
the Soviet government; the only parties involved were
businesses.
The first thing to ask in a situation like this is Is a foreign
government (or its agency) a party directly involved?
There are a whole array of analyses that will go wrong if
you dont ask this first.
1. Is the foreign government involved?
2. Is it a party to the court proceeding?
The USSR met all four requirements of statehood, and the Soviet
government de facto existed. Recognition does not create the
state. So the New York court held that the Soviet governments
actions did pass title of the oil lands, and it was legally binding in
United States courts.
Note that this was only property located within the USSR. We
didnt permit the Soviets to confiscate assets abroad, such as
bank accounts in the United States.
Salimoff, read in conjunction with Tinoco, also means that successors of

nonrecognized governments are bound by their actions.
Upright v. Mercury Business Machines, New York appellate division 1961

Just because a government isnt recognized, that doesnt invalidate
private obligations arising out of dealings with that government.
The defendant company issued a note to pay for typewriters from
East Germany (very cheap, because East Germany didnt feed its
workers). The note got passed around, and citizen Upright tried
to have it honored.
The defendant company rebuffed the poor schmo, claiming that
East Germany was not a recognized government, and the
manufacturer of the typewriters was an instrument of that
government.
However, the fact that the government was not recognized
doesnt invalidate the typewriter sales transaction, even though
the manufacturer was controlled by that government.
Fairness is also an issue here you cant transact with the
manufacturer and then refuse to honor your own note, regardless
of the validity of the manufacturer. You made the note, you honor
it.
National Petrochemical Company of Iran v. M/T Stolt Sheaf (2d Cir. 1988).
Bizarre exception to the rule that nonrecognized governments cannot get
access to United States courts.
Iran was trying to sue in United States courts over black-market
shenanigans. The State Department wanted Iran to be allowed to sue, on
this one occasion only.
The executive has great powers here, to which the judiciary deferred.
On international law matters, a State Department amicus is
actually given weight by the courts.
A foreign government in exile is not a de facto government. It may be de jure,

however.
It doesnt control a defined territory, thus it is not a state.
It can be treated as a de jure government, however. The Polish

government in exile was very effective during WWII, acting out of
London.
You have to choose whether to take the status of de jure government in
exile.
The PLO decided not to, because although it could have been
recognized as such, that would be admitting that they werent
actually in control.
The Palestinians have been doing everything they can to look like
a state theyve got a flag, currency, passports, etc. But they
arent necessarily in control of their own territory, and theyre not
really able to engage in foreign relations. Maybe theyll be an
independent state sometime, but Israel wont let that happen until
theyre satisfied on security. (Israel still makes agreements with
the Palestinians regarding extradition, however.)
State Succession.
The rights and responsibilities a state takes from its predecessor are only
those which it can convince other states that is has succeeded to.
If a state has just undergone a change in government, the
rights/capacities/obligations of the state are unchanged.
Only a concern if the state acquired sovereignty over a territory from
another state (absorbed another state or part of it, or became
independent).
Self-Determination.
The right of peoples to self-determination is undeniably a right under customary
international law, but the hard part is defining Self in self-determination.
One source of customary international law here is the United Nations
Declaration of Principles of International Law Concerning Friendly
Relations Among States in Accordance with the Charter of the United
Nations (1970).
The right to split away and form your own new government is only
recognized in terms of ending colonialism or ending foreign
subjugation.
The declaration is not meant to authorize or encourage
any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign
and independent states conducting themselves in
compliance with the principle of equal rights and selfdetermination of peoples, and thus possessed of a
government representing the whole people belonging to
the territory without distinction as to race or creed.
This is a big exception.
Self-determination is not just the right to break free and establish a new territory.
There is also a middle course, a right of minorities to be themselves without being

punished a right to participate in cultural, linguistic, etc., groups.
The problem is, that leads to more separatism. If every ethnic, religious
or linguistic group claimed statehood, there would be no limit to
fragmentation. Peace, security and economic well-being for all would
become even more difficult to achieve.
Separatist groups may not have the right to rebel. Nor may they be
entitled to foreign assistance. (They do, of course, have human-rights
rights.)
Sovereignty over Land, Sea, and Air.

States are sovereign, and cannot interfere with other states without permission.
Sovereigns are responsible for everything and everyone inside their territory.
Citizens owe real allegiance to their sovereign state (IRS goes wherever you go,
for example).
UN Charter Article 2, 7, says that you cant interfere with what a
sovereign does in its own territory, with the exception of enforcement.
Acquisition of Territorial Sovereignty.
How do you acquire territorial sovereignty? How do you get control over
this plot of land?
Borders are not set in stone, and there are many border disputes
around the world. But most border disputes are settled by
negotiations, not with tanks.
Borders have amazing legal ramifications. On one side
of an imaginary line drawn through the woods, youll be
punished for behavior that may be positively encouraged
on the other. Usually, without GPS or a surveying team,
you cant determine which side of a border youre on.
To maintain your territory, you dont have to physically
occupy every square inch of land 24-7, but not a day
goes by without some action to maintain your borders.
Title, in most cases, descends from discovery of the land.
Island of Palmas Case (1928) oft-cited case here.
Right on the international boundary between the Dutch
East Indies and the Philippines sat the Island of Palmas.
It had been discovered, but not settled, by Spain. It had
been treated as Dutch by the Netherlands for centuries.
The United States got Spains Pacific holdings, and the
Treaty of Paris specifically included this island (well, on
the map only, it wasnt listed in the document, but
including something on a map thats part of a document is
dangerous this way. And the Dutch werent party to the
Treaty, so they wouldnt be estopped by the map
anyway). So was the island Dutch or American?
Spain had based its territorial claim on discovery
(well, at least they were the first Europeans to
sight it). But all they did was see it, they didnt
set foot on it.
The Dutch claimed that it was theirs, based on a
continuous and peaceful display of sovereignty.
Well, they hadnt occupied it either, but the Dutch
government had been having official relations
with the tribal leaders there, and theyd had
dealings with the island from time to time. During
the couple of hundred years that this was going
on, there was nary a peep out of Spain.
By discovery, Spain got inchoate title.
Thats just a preliminary right. You have
to do something else within a reasonable
period for title to vest. In this case, theyd
have had to occupy the island.
At the very least, Spain should have
objected to the Dutch activities. By
failing to do so, it was estopped from
claiming sovereignty over the island. And
thus so was the United States when it
took over Spains territories.
Spains claim of contiguity was a red herring
here. (Its ours because its close to us.) Thats
not a factor when islands are at issue. Maybe,
however, if part of a land mass.
Legal Status of Eastern Greenland Case (1933).

In 1814, Denmark lost Norway and Sweden
because it had sided with Napoleon and lost
(ironically, Swedens new ruler had been a field
marshal for Napoleon). Denmark still retained
control over Iceland, Greenland, and some other
islands.
For many years, nobody objected or disputed
Denmarks claim to Greenland, not until the first
half of the 20th century. However, in the
meanwhile, Norway secretly coveted Greenland.
This was a big deal 840,000 square miles of
territory.
In 1921, Norway disputed Denmarks claim. In
1931, Norway landed a military force on the
island, saying that it had been terra nullius, and
that now they occupied it. I dont see anybody
here, and its mine now.
Denmark disputed this claim, and in good Nordic
tradition submitted it to ICJ arbitration.
Denmark based its claim on a peaceful and
continuous display of sovereignty (having read
the Island of Palmas case). Itd been
continuously asserting its rights, and nobody had

disputed it until 1921.
TWO REQUIREMENTS FOR PEACEFUL AND
CONTINUOUS DISPLAY:
1. Demonstrated will to be sovereign,
AND
2. Display that sovereignty through
affirmative actions not just by saying
that nobody else owns it.
Denmark had done little, but they had done what
they could they put their claims in international
documents from time to time. From 1815 to
1914, there was no doubt about their claim, and
even between 1921 and 1931 Denmark had still
done enough for the arbiter to decide in their
favor.
According to the court, Norway would
have lost anyway, on 2 other unrelated
grounds.
Norway had failed to object when
signing a multilateral agreement
on herring, where the Danes had
stated that Greenland was
theirs. What they should have
done was either not sign it, or
make a reservation (up in the
corner, state that your country
does not assent to that
assertion).
Norway had expressly promised
not to contest Danish sovereignty
over Greenland.
Norways express promise not to contest Danish sovereignty over Greenland were
oral. Just some vague statements between ministers at a cocktail party. How
could that possibly be legally binding on Norway?
Norways Minister for Foreign Affairs sent an official memo back to his
government on July 22, 1919, stating: I told the Danish Minister to-day
that the Norwegian Government would not make any difficulty in the
settlement of this dispute.
The PCIJ considered it beyond all dispute that a reply of this nature given
by the Minister for Foreign Affairs on behalf of his Government in
response to a request by the diplomatic representative of a foreign Power,
in regard to a question falling within his province, is binding upon the
country to which the Minister belongs.
Understandably, lawyers get antsy when the appointed diplomats
start talking out of turn.
Norway replied that under its constitution, the foreign minister could not
enter into a binding international agreement on matters of importance
without approval of the King in Council. But the PCIJ rejected that claim.
It was sufficient, the Court found, that the foreign minister acted within his
province in replying to an inquiry of the Danish government.
DONT DO BUSINESS ORALLY. PUT IT IN WRITING. Dont take the
risk of getting stuck like this, especially because the conversations cant
accurately be reconstructed.
Burkina Faso v. Republic of Mali Frontier Dispute (I.C.J. 1986) There are lots of
problems in Africa resulting from political borders being drawn across tribal and
geographical boundaries. They can live with the borders as drawn, or make them
all contested (in which case bloodshed is unlimited). Here, bloodshed was
avoided by an ICJ settlement.
Malis President made a statement to the press that Mali wouldnt care if
Burkina Faso got the disputed territory. His handlers quickly covered for
him, saying that it was a marvelous example of his witty nature. The ICJ
held that it wasnt binding anyway, because the statement was made to
the press, not in diplomatic channels.
El Salvador v. Honduras (I.C.J. 1992) A riverbed was the border. The riverbed
shifted. So now where was the border? (This happens all the time on the Rio
Grande, too.)
If the shift is gradual (accretion), then the border shifts with the riverbed.
If the shift is sudden (avulsion), then the border is not changed.
Footnote: The horrid bloodshed and war that led up to this case
was the result of a soccer match! I kid you not.
Thalwig Doctrine Borders along rivers are usually in the middle of the
NAVIGABLE CHANNEL, not necessarily the same thing as the physical halfway
point of the riverbed.
AIRSPACE/SEA TERRITORY (much more on this under Law of the Sea).
There is a right of innocent passage on water within the 12-mile limit (the
territorial sea).
There is NO right of innocent passage in AIRSPACE, even within the 12mile limit/territorial sea.
Regularly-scheduled airline corridors and routes aside, everybody
needs clearance for each plane going over each countrys
airspace.
Countries vigorously enforce their airspace as their territory.
Use of force against violations must be PROPORTIONATE. Dont shoot
people down who pass in and out, or who are just dropping leaflets. You
may not even have the right to shoot the plane down, but try telling that to
the Sovs.
When an incoming craft is high-speed, we ask for ID before it gets to the
12-mile limit, but thats out of caution, not technically international law.
Airspace goes all the way up into outer space above your territory.
These rules are real. Americans are dead because of them. Pilots die
because countries wont let us fly over their airspace, and they run out of
fuel over water. You have to get explicit permission to fly over someones
airspace, and often it isnt given.
V.
NON-STATE ENTITIES: ORGANIZATIONS, CORPORATIONS and INDIVIDUALS

International Organizations.
Governmental (Public) International Organizations.
These are established by states.
Given powers by states (specified in the organizations charter).
Powers include much of what states can do. For example, they
may be able to enter into treaties with states.
Non-governmental International Organizations.
These are tolerated by states.
Multinational Companies.
Not corporations that operate in several countries. (Those are
transnational corporations.)
A truly multinational company is owned by several countries.

Individuals and Nationality.
The individual has always been a factor in international law, with piracy if for no
other reason.
Individuals can be responsible to international law for their own actions as
individuals, not solely their actions as government agents.
Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can
the provisions of international law be enforced.
The official position of a defendant, whether as a head of state, or as a
responsible official in government, shall not be considered as freeing him
from responsibility, nor in mitigating punishment.
DIPLOMATIC PROTECTION the state takes up a citizens claim on behalf of
the individual.
Mavromattis Palestine Concessions (Greece v. Great Britain) (PCIJ
1924).
A Greek citizen said he had been treated unfairly by Great Britain
in violation of international law, and he asked Greece to take up
his case before an international tribunal.
Great Britain said an individual has no right to have a state take
up his claim on the individuals behalf.
The PCIJ held that, by taking up the case of one of its subjects
and by resorting to diplomatic action or international judicial
proceedings on his behalf, a state is in reality asserting its own

rights its right to ensure respect for the rules of international
law. It just happens to be asserting that right through one of its
subjects.
The decision to provide diplomatic protection is left up to the state. It is
not the individuals decision to make.
Only the state of which the individual is a national has the right to provide
diplomatic protection.
Determining the nationality of the individual is therefore CRITICAL
in a situation like this.
Tinoco Claims Arbitration case again.

Great Britain took up the corporations claim on its behalf against
Costa Rica.
Corporations have nationality, as do ships & planes. [Aside:
Honduras, Panama, and Liberia have competed to have the
lowest safety standards and taxes, and most permissive liabilities
law, for ships and planes. This makes things even worse if you
have a problem on such a ship/plane.] Decisions about
nationality are important.
The doctrine of diplomatic protection is alive and well, and is in constant
use.
Nationality is important.
A state has prescriptive jurisdiction over nationals overseas. A state can
give diplomatic protection to a national. Extradition treaties may provide
that a state need not extradite its own nationals. Stateless people are at
the mercy of a cruel world, its good to have backup.
Whatever your citizenship, the laws of your country can follow you
wherever you go, if your country so desires.
You need to know the nationality of people in a given situation, to know if
there are any applicable treaties.
If you are stateless, youre screwed. No state can intervene on your
behalf, you have no protection. Youre an alien everywhere.
There is no international law obligation to let aliens into your
territory. But once admitted, there are obligations on how you
treat them.
Many refugees are stateless. Sure, theyre residents of some
state or other, but they arent nationals. Thus, they are not
entitled to the same rights as nationals.
States cant arbitrarily strip you of nationality. Its okay for espionage or
treason, but not for little crap.
There is no right of asylum, no matter what awful thing is happening to
you. Many states are signing agreements envisioning asylum, but it isnt
customary international law yet. Many states also say you cant be
repatriated once youre in their territory, but they arent required to say
that under international law.
All citizens are nationals, but not all nationals are citizens.
Citizenship is decided under municipal law, and doesnt affect
how someone is treated under international law.
In some countries, only a tiny portion of the population are
citizens (with rights like owning property, etc.), although most of
the population may be nationals.
Nottebohm Case (Liechtenstein v. Guatemala) (I.C.J. 1955). Big-time

important case. Established the rules for when states must accept you as
a national of X country. When must a state recognize your passport.
(Nationals have a right to a passport, but whether it is honored or not is
different.)
Mr. Nottebohm was born and reared in Germany. At the age of
24, he went to Guatemala, and lived & worked there for a long
time.
He never became a Guatemalan national, however, because that
way he could avoid taxes. (Countries have since gotten tired of
this loophole, but thats the way things worked then.)
After 34 years (it was now 1939), it was suddenly not a good time
to be a German national. So he went to Liechtenstein. There
they had some minimal procedures for naturalization, and he
went through them to become a national. He took an oath of
allegiance and paid back taxes. Well, he didnt really pay the
taxes, he just left a security deposit. He paid his fees, they
waived the residence requirement, and he was a Liechtenstein
citizen.
Then he went back to Guatemala.
WWII began. In wartime, enemy aliens are frequently rounded up
and put into interment camps where they are held to be traded for
your own nationals abroad. (Interment camps based merely on
race, where your own citizens are put, are bad.) Mr. N. was
picked up by the Guatemalans and sent to the USA for interment.
He said he wasnt a German, he was a Liechtensteiner. Had his
passport and everything. Guatemala didnt honor it.
Liechtenstein was outraged that its passport was being treated
like toilet paper, and sued Guatemala in the I.C.J.
The case never got to the legal issue of extradition, because first
they had to decide whether Liechtenstein was allowed to assert
diplomatic protection and assert the rights of this individual. They
could only do that if he really was a Liechtenstein national.
Note, this wasnt a formal extradition, they were just
deporting an alien. Extradition is when you send
someone to another country to stand trial for a crime.
Critical point international law leaves it up to each state to

make the rules for nationalization. Whatever the state says are
the requirements, thats the requirements to be a national.
Critical point but, whether other states must recognize that
nationality is up to international law.
Nationality is a legal bond having as its basis a social fact
of attachment, ...
a genuine connection of existence, interests and
sentiments, ...
together with the existence of reciprocal rights and duties.
Merely being a resident isnt enough for this
genuine connection.
Requirements:
At the time of naturalization, did the individual appear to
have been more closely attached by his tradition, his
establishment, his interests, his activities, his family ties,
his intentions for the near future, to this state than to any
other state?
Here, the I.C.J. said no, his switch wasnt genuine. So
Guatemala didnt have to honor his Liechtenstein nationality.
Involuntary Nationality.
Some countries embrace you as a national whether you want them to or
not. You walk through the airport, they say Welcome back, citizen, and
the next thing you know youve been sent into the army for your required
service, at the age of 54.
This may violate international law.
You might be able to say there isnt a genuine connection.
A state is not required to recognize a nationality imposed by another state
on an individual against his will on the basis such as marriage to a
national, a specified period of residence, acquisition of real property in the
states territory, bearing a child there, or having a particular ethnic or
national origin.
Nor is a state required to recognize a nationality that the individual has
renounced.
Dual Nationality.
United States ex rel. Merg v. Italian Republic (1955).
Mrs. Merg was born in the United States, and was an American
citizen. She married an Italian, thereby becoming an Italian
citizen under Italian municipal law. (Not only had she married an
Italian national, she married a diplomat under Mussolini.) They
were assigned to live in Imperial Japan.
She tried to maintain her United States citizenship. Under United
States law, she possibly could have maintained it.

At the end of WWII, her US citizenship became very valuable.
When wars are over, United States citizens who owned property
in other countries, and foreigners who had property in the United
States, bring claims in front of commissions where nationality is
important. Shed had a grand piano in Italy, which was destroyed
during the war. The US brought a claim on her behalf for the
value of the piano. Italy refused, claiming that she was an Italian
citizen, so the US couldnt represent her. The Commission had to
decide whose national she was.
First, looked at the peace treaty. That was no help.
Second, looked at the Hague Convention of 1930, which says you
cannot ask state 1 to intervene against state 2 when you are a
national of state 2.
States cannot assert diplomatic protection against another state
when the individual is a dual citizen of both.
BUT, if you are before a third party, such as an international
tribunal, there is a different test what is your DOMINANT
nationality?
What is the country to which you have the most
connections, your principle or habitual residence,
economic bonds, social/family bonds, etc.
Applying these factors, the Commission decided that she was
principally an Italian citizen. The United States therefore couldnt
make a claim on her behalf for the loss of the grand piano.
Alexander Tellech Claim (United States v. Austria & Hungary) (1928).

Sad case. Commission held that a 5-year-old accompanying his
parents to Austria was voluntarily incurring the risk incident to
residing in Austria, and voluntarily subjugated himself to the
duties and obligations of an Austrian citizen.
The claimant was born in the United States of Austrian parents in
1895, thereby acquiring both US and Austrian nationality. He
lived in the US until he was five years old, when he accompanied
his parents to Austria.
In 1914, at the age of 19, he was interred as an agitator engaged
in propaganda in favor of Russia. After 16 months in an
interment camp, he was impressed into military service.
The Commission rejected a United States claim on his behalf, on
the ground that Tellech was a citizen of both countries and that he
had voluntarily taken the risk incident to residing in Austrian
territory and subjecting himself to the duties and obligations of an
Austrian citizen arising under the municipal laws of Austria.
Heres a hypothetical situation. Say a citizen of the U.K. is a trader in

Singapore. He bets the firms ass on the Nikkei, and loses. He flees to
Germany. Should Germany extradite him to the U.K, or to Singapore?
The citizen would prefer to go to the U.K., since Singapore can be

a tad harsh in its punishments.
No problem. The U.K. simply drops its extradition request, and
Germany happens to have an extradition treaty with Singapore,
so bye bye trader.
Corporations.
How do you decide if a corporation is a national? Apply a different test than for
people.
Barcelona Traction (Belgium v. Spain) (I.C.J. 1970) Belgium wanted to exercise
diplomatic protection for the shareholders of Barcelona Traction. For that to
happen, the company had to be a national of Belgium. Absent nationality, the
state couldnt intervene on behalf of the company.
The company was incorporated in Canada, but 88% of the shareholders
were Belgians.
The shareholders clearly suffered harm when Spain deliberately sank the
company. Still, a corporation is clearly distinct from its shareholders. The
wrong was only done to the corporation.
Unequivocally, a state is the sole judge of whether, when, to what extent,
and for how long it exercises diplomatic protection.
Whether or not a company is a national depends on municipal law.
Otherwise, there would be tremendous legal difficulties.
A shareholder is not personally liable for the corporation. He isnt
responsible for it. The loss of a shareholders investment therefore is not
a legal wrong against the shareholder.
The test for nationality of a corporation is not a general connection test.
Nor is it a dominant/effective nationality test.
The test is wherever the corporation is registered. Wherever its principal
place of business is.
And of course, even if your company is registered in the United
States and its principal place of business is in the United States,
there is no guarantee that the State Department will argue on
your behalf if youre being screwed by another country. (Unless
theres an international agreement to that effect in place already.)
VI.
JURISDICTION
General Principles of Jurisdiction.
Definitions.
Prescriptive Jurisdiction
A legislature passes laws prohibiting conduct criminal laws.
This power to pass laws to regulate conduct in your territory (and
sometimes extraterritorially) is prescriptive jurisdiction.
Enforcement Jurisdiction.
This is the power to send cops out after you. Also called
Executive jurisdiction.
Judicial Jurisdiction.
This is the power to try and punish you.
Passing a law criminalizing conduct in another state is one thing. Going to that
other state and arresting you there is another thing entirely.
Entering another states territory without permission is a violation of that
states sovereignty.
So states make extradition treaties in advance. States can choose to give
up little bits of sovereignty in this manner.
PRESCRIPTIVE JURISDICTION. (This is important as hell.)
The power to prescribe is not questioned on your own territory. But
extraterritorial prescription can be a problem. People doing business in
Switzerland shouldnt have to worry about the laws of other sovereigns to
whom they owe no allegiance.
Bases of Prescriptive Jurisdiction:
Territorial states can regulate conduct within their borders.
Subjective Did the legislature actually attach liability to
conduct within its own borders?
A crime was committed inside your territory.
Regardless of where the crimes results were
consummated.
Absolute power of the sovereign over its own
territory.
Objective Did the legislature intend to attach liability to
the conduct, outside the territory, of non-nationals?
The crime began elsewhere, but was
consummated here.
This can be problematic how remote can the
repercussions be from an act done in another
country, and still have liability here?
[Yes, I know the labels appear mixed-up, but thats the
way they are used.]
United States v. ALCOA (2d Cir. 1945) Six

international corporations (1 Canadian, 1 British, 1
French, 2 German, 1 Swiss) formed an alliance in
Switzerland under Swiss law, to monopolize aluminum
and control its prices.
This was not a governmental association like
OPEC, just a business association. There was
no law against this in Switzerland.
The United States said all participants in this

violated the Sherman Antitrust Act, which doesnt
say that it only applies to United States
corporations. The United States was trying to
apply the statute to everything worldwide.
In order for the statute to apply extraterritorially,
(effects in the US, act abroad) the legislative
history had to show that Congress intended the
statute to be applied extraterritorially. (You dont
have to extend your jurisdiction unless you want
to.) (Not all laws have been held to apply
extraterritorially. Murder, e.g., has never been
applied extraterritorially.)
There was no problem finding such intent here,
as it would be a meaningless statute if you could
get around it just by shifting your operations
overseas.
The next question was whether the Constitution
permitted it. Here, they had to have both the
intent to affect commerce and the actual effect of
their conduct. (Courts today say this must be a
substantial effect, and foreseeable.)
Helms-Burton Act The law seeks to punish foreign

countries that trade with Cuba. A foreigner can lose his
visa to travel to the United States, can get kicked out,
fined, etc. Passed because Cubans were shooting down
planes that were in Cuban airspace ... planes that were
leaving Cuba. Some countries (like Mexico) say that if
one of their citizens pulls out of the United States under
Helms-Burton, he will be subject to Mexican penalties.
Counter-regulation like this does happen. And a United
States courts ruling wont be upheld by a Mexican court.
Nationality prescriptive jurisdiction follows you abroad.
Allows the United States, for example, to prescribe the
conduct of its citizens abroad.
This can cause problems for you when the law of the
United States conflicts with the law of the foreign country
you happen to be in.
One state has no right to mess with the affairs of another
by passing laws governing the conduct of foreigners
abroad (with the exception of reasonable international law
principles).
Blackmer v. United States (S. Ct. 1932) Blackmer was
a witness to part of the Teapot Dome scandal, whatever
that was. He was subpoenaed in France to come back to
the US and be a witness at the criminal trial.
A federal statute gave the Attorney General
power to subpoena witnesses from abroad. You

dont even need to look at the legislative history
for intent, because the statute itself specifically
said nationals abroad, and laid down the
procedure for getting them.
Blackmer objected to the service of the
subpoena, as he wasnt in the US, he was in
France.
Unless the legislatures intent was otherwise,
statutes are not construed to apply abroad.
But the jurisdiction of the United States over its
absent citizen, so far as the binding effect of the
legislation is concerned, is a jurisdiction in
personam, and he is personally bound to take
notice of the laws applicable to him and to obey
them.
If Congress wants to regulate American citizens
abroad, it can do so, but first it must say it wants
to.
This holding is consistent with international law.
Blackmer is cited all the time when we
grab nationals abroad for any of the 3000
federal crimes where the United States
has expressed intent to get you abroad,
such as bribery.
Protective states can exercise jurisdiction over things that are

inimical to the state itself.
There are certain fundamental principles & interests that
a state has a right to regulate.
Falsifying passports, counterfeiting money,
treason, espionage, etc.
Crimes that violate the political/territorial integrity
of a state. Not just acts that put some people out
of a job. Not just acts that offend sensibilities.
Apply this in a very limited fashion.
The activity has to have been illegal where it was
done, in addition to being inimical to United
States interests.
If not applied in a very limited way, this basis of
jurisdiction would make a mockery of the others.
Iran would be able to pass a law requiring all
United States women to wear veils and not work,
because it offends their sensibilities.
Universal for crimes that are universally bad, anybody can
prosecute, no matter where they occurred.

There are a very few certain crimes that are so
universally abhorrent, it doesnt matter where they were
done, who the victims were, how long ago you did it.
Anybody can implement such laws.
This began with piracy, people that preyed on shipping. If
you could catch them, you could prosecute them.
This area of jurisdiction is only grudgingly and carefully
extended. Covers slavery, genocide, and crimes against
humanity.
Doesnt yet cover drugs, as many countries make
most of their money from drugs.
Almost there on hijacking airliners. Enough
states have signed agreements to that effect that
this may well be now a universal crime. The
Fawaz Yunis case (below under passive
nationality) held that it is.
Maybe terrorism too, but terrorism is hard to
define. Certain terrorist traits, however, are being
identified.
Jurisdiction over ships and airplanes registered under the
states flag.
The laws of the flag nation apply to crimes committed on
ships and planes.
Article 91 of the Law of the Sea Convention,
paragraph 1, says ships have the nationality of
the state whose flag they are entitled to fly.
There must exist a genuine link between the
state and the ship.
A stateless ship can be boarded by
anybody.
The flag country of an airplane is responsible for
events on the plane wherever it flies, and has
jurisdiction over it. Chicago Convention on Civil
Aviation.
The powers of the state of registry have
been expanding over time, as is the
number of crimes that apply. (Terrorists
used to have loopholes they could take
advantage of.)
The U.S. Code says the United States
has jurisdiction over any aircraft
belonging in whole or in part to the
United States, while such aircraft is in
flight over the high seas, or over any
other waters within the admiralty and
maritime jurisdiction of the United
States. Thats pretty vague. Does
that refer to property ownership, as well

as to the registration of the plane? Yes it
does. Thats why most foreigners dont
want Americans to own any part of their
planes. (Note that this is from 18 U.S.C.
18 means JAIL.)
The person who did it is also under his countrys
nationality jurisdiction.
The victims country may have passive-nationality
jurisdiction.
If the crime was done in the territorial waters of another
country, its laws also apply.
Jurisdiction granted as a result of agreements.
This often fills in the holes when other sources of
jurisdiction dont work.
The agreement can be multilateral, like conventions, or it
can be bilateral between two countries.
Status of Forces treaties Apply United States law to
American servicemen abroad, rather than applying local
law. Well, ideally anyway. We dont want our guys put in
local jails when were over there to help the locals.
When an act is a crime both in the United States and in
the foreign country where it happened, it depends on who
has primary jurisdiction.
The United States has exclusive jurisdiction if the
act was on-base or against a U.S. citizen.
Locals have exclusive jurisdiction if the act was
off-base or against a local.
If only local law was violated, then the locals have
exclusive jurisdiction.
If only United States law was violated, then the
United States has exclusive jurisdiction.
Wilson v. Girard (U.S. S.Ct. 1957) the most oft-cited
case in this area.
Girard, a U.S. soldier, wounded a Japanese
woman during a military exercise in Japan (he
stuck an empty .30-cal shell casing in his
grenade launcher and launched it, and it went
through a womans back). An agreement
between the two countries provided that the
United States might waive its jurisdiction over
offenses committed in Japan by members of its
armed forces. A later agreement authorized that,
in criminal cases where the right to jurisdiction is
concurrent, the military authorities of the United
States would have the primary right to exercise
jurisdiction over members of the armed forces for
offenses arising out of any act or omission done
in the performance of official duty.

The United States claimed the right to try Girard,
on the ground that his act was done in the
performance of his official duty, and therefore the
United States had the primary right of
jurisdiction. But the U.S. ultimately waived any
jurisdiction it might have had.
Girard tried for habeas, but it was denied. Then
he asked for an injunction against delivery to the
Japanese authorities, and the injunction was
granted. The DOD appealed.
The Court held that a sovereign nation has
exclusive jurisdiction to punish offenses against it
committed within its borders, unless it expressly
or impliedly consents to surrender its jurisdiction.
Japans cession to the United States of
jurisdiction to try American military personnel for
conduct constituting an offense against the laws
of both countries was conditioned by the protocol
agreement, which provided that the authorities of
the state having the primary right shall give
sympathetic consideration to a request from the
authorities of the other state for a waiver of its
right in cases where that other state considers
such a waiver to be of particular importance.
There had been no prohibition against this, and
absent that the wisdom of the arrangement was
left up to the executive and legislative branches.
They had decided to waive jurisdiction and
deliver Girard to the Japanese authorities, so he
was s.o.l.
Work this stuff out before you start doing things in another
country. Just work out an agreement on who had
jurisdiction over what, and who has first claims, etc. This
can be unpleasant and time-consuming, but it is infinitely
preferable to not having done it. And without it, your
program probably isnt going to work.
Passive-nationality basis of jurisdiction (jurisdiction because the

victim of the crime was your national) new basis, and rare. Its
getting more popular, though, especially with regard to tourism.
United States v. Fawaz Yunis (D.C. Cir. 1991) The
defendant was one of four hijackers of a Jordanian
aircraft. The defendant was Lebanese, and the plane
was hijacked in a foreign country. The United States still
got jurisdiction.
He was brought before a magistrate for
conspiracy, air piracy, and hostage taking. A
couple of Americans on the plane were taken

hostage.
Normally, the fact that victims of a crime were
Americans isnt enough to give the United States
jurisdiction over the criminal. But here, the U.S.
Hostage-Taking Act 18 U.S.C. 1203 gives us that
jurisdiction here. If the entity being threatened is
the United States, or the hostages are
Americans, then the U.S. law applies.
Also, under the Air Piracy Act, it doesnt even
have to have been an American plane. If there
were Americans on board, thats enough.
The defendant said that these laws exceeded the
bounds of extraterritorial jurisdiction under
international law.
However, Charming Betsy being cited again, the
court said that you dont construe laws to conflict
with international law if a nonconflicting
construction exists.
Under the passive-nationality principle, a state
may punish non-nationals for crimes committed
against its nationals outside of its territory, at
least where the state has a particularly strong
interest in the crime.
More on jurisdiction over terrorism.

Tokyo Convention of 1963, Hague 1971, and Montreal 1971
Tried to define illegal acts on international flights, then tried to
elaborate who has jurisdiction over events happening on the
plane.
Article 4 of the Tokyo Convention 1963 said that only the
state of registration has jurisdiction. No other state gets
jurisdiction unless crimes are committed against or by a
national (or even a permanent resident) of that state.
This opened up passive-nationality jurisdiction.
A boy born in the West Bank becomes an orphan when
his parents are killed, and he goes to the Bakaa Valley to
become a terrorist. Then he goes to Syria for a bit, then
to Libya. Then he goes to France. After two years in
France, he commits a terrorist act in Germany.
Because he lived permanently in France over the
last 2 years, France can assert jurisdiction even
though he isnt a national.
Libya has signed a lot of these conventions, so a lot of
terrorists are covered by them.
Article 6 & 7 of Hague 1971 says that when a terrorist
ends up in your territory, you must detain him, and then
either extradite him or try him yourself.
You cannot be forced to extradite someone

unless you already agreed to.
Note, the fact that your ass is in Burundi doesnt mean
that Burundi has jurisdiction over you. If you didnt
commit a crime there, then they dont have jurisdiction
over you unless there is some other basis. BIG SOURCE
OF SCREWUPS.
Articles 6 & 7 of Hague 1971 are exceptions to
this rule.
1979 Convention Against Hostage-Taking.

Your state has jurisdiction over crimes committed by
stateless people who are residents of your state.
The United States has jurisdiction even if there is no
connection with the United States other than that the
terrorists want prisoners who are held in the United
States released.
Oh, there is also another universally-signed convention giving you
jurisdiction over crimes committed against your diplomats.
All countries have these various kinds of prescriptive jurisdiction, but a

country has to want to assert that jurisdiction.
In cases of overlapping jurisdiction, which state gets to assert it first is
usually up to whoever has possession of the suspect.
ENFORCEMENT JURISDICTION.
Enforcement jurisdiction is separate from the other kinds of jurisdiction
(prescriptive and judicial).
Dont mix them up.
Restatement (Third) 431 Jurisdiction to Enforce.
A state may employ judicial or nonjudicial measures to induce or
compel compliance or punish noncompliance with its laws or
regulations, provided it has jurisdiction to prescribe.
Enforcement measures must be reasonably related to the laws or
regulations to which they are directed. Punishment for
noncompliance must be preceded by an appropriate
determination of violation, and must be proportionate to the
gravity of the violation.
A state may employ enforcement measures against a person
located outside its territory:
--if the person is given notice of the claims or charges
against him that is reasonable in the circumstances;
--if the person is given an opportunity to be heard,
ordinarily in advance of enforcement, whether in person

or by counsel or other representative; and
--when enforcement is through the courts, if the state has
jurisdiction to adjudicate.
There is no question that we have prescriptive jurisdiction over someone
who killed Americans, but whether or not we have enforcement jurisdiction
is another matter entirely.
You need explicit permission to go onto another countrys territory to

enforce your own laws.
Kidnapping a felon is a no-no. But first, the foreign sovereign
must object. If it consents, then there is no violation of
international law.
The suspect has to be in one of these places:
-- In a country with which you have an extradition treaty.
-- On the high seas.
-- Aboard a ship flying your flag.
-- Aboard a ship that permits you to board.
You need permission to take the suspect from the other states
territory.
Mr. Yunis again. He had spent most of his life in countries unfriendly to
the United States. We might have sent in the Delta Force to grab him,
and once he was physically in U.S. territory we would have had
jurisdiction over him. (Thats the Ker-Frisbie doctrine).
Instead, we set up a clever ruse to lure him onto a U.S. ship,
when then went into international waters. At mile 13, he was
quickly (and violently) arrested.
We go out of our way to respect other countries sovereignty.
Ruses dont always work, but they are preferable to violating
another countrys sovereignty.
These rules are real. Americans are dead because of
them.
There was another guy named Eichmann, who was an evil Nazi now
hiding in Argentina. (The South American countries were popular with
former Nazis, because they didnt have extradition treaties.) Some Israeli
nationals kidnapped him, drugged him, put him in a box, and shipped him
to Israel. There, he was tried, convicted, and executed.
Argentina was not pleased with the kidnapping part. The U.N.
said that if the State of Israel was involved in the kidnapping, then
there would have been a problem. But before anything was done
about it, Argentina withdrew its objection, and Israel admitted that
it had committed an offense.

Conflicts of Jurisdiction.
In cases of overlapping jurisdiction, which state gets to assert its jurisdiction first is
usually up to whomever has possession of the suspect.
S.S. Lotus (P.C.I.J. 1927). Two ships collided on the high seas in the
Mediterranean on a dark murky night. One ship was Turkish, and the other was
French. The Turkish ship sank, and the French ship picked up the survivors, but
some Turkish sailors had been killed. The French ship put into port in Istanbul,
and Officer Demons was arrested and blamed for negligently causing the
accident. He was fined and sentenced to 80 days in a Turkish prison. The French
got upset, and the two countries agreed to international arbitration.
The French contended that the Turks had no right to assert their
jurisdiction over officer Demons. The passive nationality of the Turkish
victims wasnt a basis for jurisdiction, they said, and the P.C.I.J. said that
fact was so obvious that they wouldnt even discuss it.
The French argued that Officer Demons acts took place on a French ship,
under the French flag, and thus only the French had enforcement
jurisdiction over the alleged crime.
The French also argued that you cannot assert your jurisdiction beyond
your borders. The Turks said that was b.s., and that the French did it all
the time and had always done so.
The Court held that the French had the burden of proving that there was a
rule against the Turks having jurisdiction. The Turks argued that
jurisdiction is inherent in sovereignty; the events took place on both the
French and the Turkish ships; and Officer Demons was then physically
located in Turkey, so Turkey was entitled to exercise its jurisdiction.
The Court finally held that there was no rule of international law
prohibiting a state from exercising enforcement jurisdiction over a foreign
national who committed acts outside the states borders, and that both
states had concurrent jurisdiction over the matter.
Now, many years later, an Italian ship called the Achille Lauro was on the high
sea. Terrorists hijacked the ship, and it is unknown what their nationality was.
They committed many serious crimes, including the murder of an American who
was in a wheelchair. So who had jurisdiction?
Conventions have filled in the holes. The ships flag country had
jurisdiction. The victims country had jurisdiction. The perpetrators
country had jurisdiction.
If the crime were one of the rare universal crimes, or if it violated the
Hostage-Taking or Hijacking conventions, then the country with physical
custody of the perpetrator has jurisdiction.
Otherwise, mere possession of the suspect is not enough to grant
jurisdiction.
Also, except under these conventions, extradition only results
from an extradition treaty or the sovereign's choice.
The Hostage-Taking and Hijacking conventions say that the
country with possession must either try the suspect there or

extradite him for prosecution elsewhere.
So the terrorists fled the Achille Lauro and went to Egypt. How could the
United States get jurisdiction over them? By EXTRADITION (see below.)
But Egypt didnt extradite the terrorists. They let them stay in the country.
Then Egypt secretly put the terrorists on a plane. Of course, the United
States is the best at intercepting communications, and some F-14s
intercepted the plane and forced it down over the high seas, and made it
land in Italy.
The plane was surrounded by U.S. troops, who were then
surrounded by Italian troops.
Italy ultimately got control of the bad guys, and then they let them
go!
United States v. Humberto Alvarez-Machain (S. Ct. 1992) A DEA agent was
tortured over several days, and a Mexican doctor involved in torture kept the
agent alive throughout the ordeal so the torture could continue. The DEA put out
a bounty on the doctor. Some Mexicans kidnapped him and brought him to the
United States. The DEA didnt do the kidnapping, but they took responsibility.
In the United States, the fact that you were illegally seized doesnt mean
that you still cant be tried. But, if the abduction was accompanied by
brutality.
The United States still doesnt abduct foreign criminals on a general
scale. Usually, we get them by deception and ruses.
Here, the U.S. S. Ct. said the abduction was legal.
(On remand, the lower court still let the guy go, and he fled to
Mexico. But thats irrelevant.)
The doctor didnt argue that customary international law applied, he only
argued that the U.S.-Mexico extradition treaty was violated. That was a
really bad tactic to take, in light of the 1992 Supreme Court. There was
no provision like that in the treaty, so he lost.
Not that this treaty has been complied with by Mexico. Lots of
murders and rapes in California go unpunished, because the
perps go to Mexico.
What happens when the United States says you violate U.S. law if you trade with
Cuba, and Mexico says you go to jail if you obey the U.S. law? Youve got
overlapping jurisdictions with conflicting laws.
United States v. Bank of Nova Scotia (11th Cir. 1982) A Canadian bank
opened an office in the United States. It was therefore subject to personal
jurisdiction in the United States.
The bank had a branch in the Bahamas, where the secrecy laws
prohibit banks from releasing depositors info.
A Florida grand jury was convened to investigate some drug
lords, and it subpoenaed the bank for information on certain
depositors.
The bank wanted to comply, but its officers would go to jail in the
Bahamas. So they didnt.
The U.S. court held the bank in contempt, and fined them
$100,000 per day until they complied. Wham.
Such situations create nightmares for corporations. This bank
appealed to the 11th Circuit. It first argued that this was a real
violation of Due Process.
The Court said that nobody would have really gone to jail, and the
bank didnt really try to get the information released.
This involves also the idea of comity. Thats when a court steps
back and recognizes that another country has a more
fundamental national interest at stake than what is at stake here.
United States v. Field (S.Ct. 1976) had applied a
balancing test which countrys interests outweigh the
others?
Here, the 11th Circuit held that the United States interest
in getting the drug lords was more fundamental than the
Bahamian interest in account privacy.
Every corporation out there should be aware of the web
of conflicting laws.
Extradition.
No matter how heinous the crime, you cant be extradited without a treaty.
In the case of the Achille Lauro, where the terrorists had killed an
American on an Italian ship on the high seas and then fled to Egypt, there
were not yet any hijacking/terrorism treaties requiring extradition, so the
United States had to either convince Egypt to voluntarily give us the
perpetrators, or violate Egypts sovereignty and grab them ourselves.
Requirements for Extradition.
To successfully object to your being extradited, assert any of these:
-- What you did isnt a crime in the country youre in now.
-- It isnt a crime specifically listed in the extradition treaty (treaties
usually cover all crimes punishable by more than 1 year in
prison).
-- You havent had a hearing first to determine whether there is
enough evidence under the law of the country youre in now
to hold you to stand trial.
-- You havent yet had a hearing to determine whether you are the
same person who is wanted.
-- It was a political crime Need to show (1) it was a political
offense, and (2) your actions were politically motivated.
This is the loophole that terrorists try to use.
The European Convention on the Suppression of
Terrorism lists a number of things that cannot be politicaloffense exceptions:

-- Violations of the 1971 Hague Convention.
-- Actions on an airplane.
-- Offenses against a diplomatic agent or any
other internationally-protected person.
-- Hostage-taking.
-- Offenses using a grenade, automatic weapon,
bomb, rocket, firearm, etc.
Note: Knives are not listed. So a
terrorist who uses a knife or boxcutter
instead of a gun may be trying to benefit
from this loophole.
You can be extradited to a third-party country, just so long as it has an extradition
treaty with the country youre in.
There is no obligation for a state to extradite its own nationals.
If you are extradited, you have to be tried for the same crime for which you are
extradited.
VII.
IMMUNITY FROM JURISDICTION

Sovereign Immunity and the Act-of-State Doctrine.
Sovereign Immunity.
Sovereigns cannot exert jurisdiction against other sovereigns without their
consent. The United States cant sue Russia in U.S. courts unless Russia
agrees to it.
Sovereign immunity used to be absolute, but as states have gotten more
directly involved in commerce, their immunity has gotten less and less
absolute.
So check out the kind of action involved is it an official or public
act, or is it commercial?
This view of immunity is codified at 28 U.S.C. 1330, and is part
of modern customary international law.
Semi-official / semi-public entities pay big bucks to lock in their
status here.
The Schooner Exchange v. McFaddon (U.S.S.Ct. 1812) United States

ships were stolen by the French and converted to warships. They came
to New York harbor in a storm, and the owner recognized them and sued
to have them returned. But there was nothing the United States could do,
because warships are floating pieces of immunity.
If you let a warship into your territory, it is immune from your
jurisdiction. Even if a citizen is raped on board in the harbor, you
cant prosecute the crime.
If a warship comes in without your permission, thats called war.
Private individuals dont own warships, but they do get involved in

financial dealings, investing, buying perfume, etc.
Dralle v. Republic of Czechoslovakia (S.Ct. of Austria 1950)
When the communist countries started nationalizing commerce,
that caused problems all around the world. This was a classic
example.
The communists seized Dralles perfumes, and started
selling them under the Czech national name. Dralle sued
for trademark infringement.
The Czechs said that selling cosmetics was an official
government function, and therefore they were entitled to
sovereign immunity from lawsuits here.
The Supreme Court of Austria looked at customary
international law and saw that a state is not immune
when its acts are commercial.
Foreign Sovereign Immunities Act 28 U.S.C. 1602.
Unless the Act says otherwise, a foreign governments activities in
the United States are exempt from U.S. jurisdiction.
General exceptions to sovereign immunity in the U.S.:
The state waived immunity.
Commercial activity in the United States.
An act in the United States connected with a
commercial activity elsewhere.
An act elsewhere, connected with a commercial
activity elsewhere, but with a direct result in the
United States.
Case involves rights to immovable property in the
United States.
Participation in wills and estates in the U.S.
Any case where money damages are claimed for
tortious acts, so long as the tort occurred inside
the U.S.
If a diplomat runs over a pedestrian, then
there is no sovereign immunity. It is okay
within the Foreign Sovereign Immunities
Act to sue the foreign government or the
individual.
But, the Vienna Convention on
Diplomatic Relations gives immunity to
diplomats. So you still couldnt sue. See
below.
The main exception is commercial activity.

Specifically defined in 1603(d): either a regular course
of commercial conduct or a particular commercial
transaction or act. The commercial character of an
activity shall be determined by reference to the nature of
the course of conduct or particular transaction or act,
rather than by reference to its purpose.
The definition looks at the nature of the act, not its
purpose.
Selling cosmetics to advance justice for the
global proletariat is still selling cosmetics.
Applying the Foreign Sovereign Immunities Act is not snag-free.
The State Department goes to the mat on this all the
time.
Two beautiful, oft-cited cases here are Weltover and
Amerada.
Republic of Argentina v. Weltover, Inc. (U.S.S.Ct. 1992)
Argentina borrowed money. When it came time to pay,
Argentina decided to refinance. It created bonds, under
the terms of which the principle and interest would be
repaid in U.S. dollars, not in pesos. The payments would
be made not in Argentina, but in other financial markets
chosen by the creditors (New York, London, Zurich, or
Frankfurt).
When the bonds came due, Argentina issued a
presidential decree substituting other instruments
for payment, and unilaterally extending the term.
U.S. banks (ever stupid) accepted this. But
Panamanian corporations and Swiss banks
refused to go along with the rescheduling, and
insisted on full payment to be made in NYC.
Argentina didnt pay, and got sued in U.S. courts
(thats why NYC was chosen).
Argentina said issuing bonds was an official
public act, not commercial, so it was immune
from U.S. jurisdiction.
NOTE: They werent claiming immunity
under the Act of State doctrine. Thats
something else entirely. See below.
The Foreign Sovereign Immunities Act is the

sole basis for obtaining jurisdiction over a
foreign sovereign in the United States. It is the
only way.
They can do bad things maim, kill,
torture, terrorize, etc., but unless there
is an exception under the Act, you cannot
sue them in U.S. courts.
For the commercial activity exception to apply,

under 1605(a)(2)...
The act must take place outside the
United States;
The act must be in connection with a
commercial activity of Argentina outside
the United States;
And the act must have caused a direct
effect in the United States.
Argentina said the whole thing setting up the

bank, issuing the bonds, refinancing, etc. was
all governmental, economic policy.
The Supreme Court responded that the purpose
is irrelevant. Whether there was a profit motive
or a public-interest motive, it doesnt matter. The
nature of the activity governs.
And these were garden-variety debt instruments,
and garden-variety deadbeat refinancing. That
was commercial, so there was no sovereign
immunity.
An act that would have been immune as
a sovereign activity would be regulation
of currency a uniquely governmental
act. It is something an individual cannot
do, so it is a government activity even
though it is an economic activity.
However difficult is may be in some
cases to separate the purpose of the
activity from its nature, the statute
unmistakably commands that to be
done. It is irrelevant why Argentina
participated in the bond market in the
manner of a private actor; it matters only
that it did so.
So was there an immediate consequence in the
United States? Sure. The brilliant U.S. lawyer
who drafted the bond instruments made NYC the
place of payment. So even though the
Panamanian corporations and Swiss banks had
no dealings at all in the United States, they could
exercise the bonds in NYC, so there was a direct
effect. Argentina purposely availed itself of the
privilege of conducting activities in the United
States.
In Foremost-McKesson, Inc. v. The Islamic Republic of

Iran (D.C. Cir. 1990), the American plaintiff brought an
action against Iran asserting that Iran had used its
majority position in an Iranian corporate joint venture

wrongfully to deprive plaintiffs of benefits to which it was
entitled. Iran pleaded sovereign immunity. The court
ruled that Irans alleged wrongful conduct was
commercial and also found the requisite direct effect
under the third clause of 1605(a)(2).
The court distinguished this case from Zedan v.
Kingdom of Saudi Arabia (D.C. Cir. 1988), in
which it found the circumstance that the plaintiff
had not received the contractually-stipulated
payment for work done in Saudi Arabia after his
return to the United States wasnt an effect in the
United States as required by statute. In
Foremost, the complaint alleged a constant flow
of capital, management personnel, engineering
data, machinery, and equipment between the
United States and Iran.
Argentine Republic v. Amerada Hess Shipping Corp.

(U.S.S.Ct. 1989) A Liberian shipping company had to
float an oil tanker, the Hercules, between Argentina and
the Falkland Islands during the war. The company told
the belligerents about it, and the captain of the ship
radioed his presence. Argentina said it was okay to
pass. Then the ship was attacked repeatedly by
Argentinean warplanes.
At 12:15 GMT, the ships master made a routine
report by radio to Argentine officials, providing the
ships name, international call sign, registry,
position, course, speed, and voyage description.
About 45 minutes later, an Argentine military
aircraft began to circle the Hercules. The ships
master repeated his earlier message by radio to
Argentine officials, who acknowledged receiving
it. Six minutes later, without provocation, another
Argentine military plane began to bomb the
Hercules. The master immediately hoisted a
white flag. A second bombing soon followed, and
a third attack came about two hours later, when
an Argentine jet struck the ship with an air-tosurface rocket. Disabled but not destroyed, the
Hercules reversed course and sailed to Rio de
Janeiro, the nearest safe port. At Rio de Janeiro,
the ship was determined to have suffered
extensive deck and hull damage, and that an
undetonated bomb remained lodged in her No. 2
tank. After an investigation by the Brazilian Navy,
they decided it would be too hazardous to
remove the undetonated bomb, and a couple of
weeks later the ship was scuttled 250 miles off
the Brazilian coast.
Certainly, public international law was violated. A
neutral ship on the high seas shouldnt be

attacked. However, there was no lawsuit in the
I.C.J., because the ship was Liberian. Liberia is
a country where the government isnt going to
pick up the phone, because bullets are probably
flying through the room where the phone is
ringing. And Liberia doesnt get involved
anyway. So they sued in the United States
courts.
Even though the bombing was clearly illegal
under international law, it wasnt necessarily a
case that could be brought in the United States.
They sued under the Alien Tort Statute, as in
Filartiga.
But the Alien Tort Statute is not an
independent ground for suing a foreign
government. There had to be an
exception to the Foreign Sovereign
Immunities Act to sue.
Here, Argentina was definitely involved. This was
definitely an official act.
The Foreign Sovereign Immunities Act
has an exception for torts, but only if that
tort occurs inside the United States.
Congress intended the exception to have
this limitation.
It turned out that there was no exception to the
Foreign Sovereign Immunities Act here. So the
United States had no jurisdiction. It was bad
deed, but the United States courts couldnt do
anything about it.
Nelson v. Saudi Arabia (U.S.S.Ct. 1994) An American

plaintiff sued Saudi Arabia to recover for his detention and
torture in Saudi Arabia.
This is a very important case, and textbooks get
the outcome wrong, so be careful!
The plaintiff alleged that he had been recruited in
the United States as a monitoring systems
engineer in a Saudi hospital, but he was detained
and tortured in retaliation for reporting safety
violations.[2]
The 11th Circuit said in 1991 that the action was
based upon a commercial activity the
plaintiffs recruitment carried on in the United
States.
The Supreme Court reversed, holding that
recruitment and hiring were not commercial acts
related to the detention and torture.

Mistreatment in foreign prisons is a governmental
official act. So Saudi Arabia was immune from
suit in the U.S.
This was not a case where the
government denounced the actions, and
the suit was against the person who did
it. This was an action by the Saudi
government, and the suit was against the
country.
Act of State Doctrine.
Unlike foreign sovereign immunity, which is a requirement of international
law, the Act of State doctrine is purely a municipal policy of the United
States.
It is neither required nor barred by international law. Other
countries may or may not have similar rules.
Comes into play when the litigants are both private individuals or entities
(nobody is suing a state or a state official).
Comes into play only when the issue is whether the laws of another state
are to be respected in a U.S. court.
Rule Whether or not the laws of another state are to be respected in a
U.S. court is a decision left up to the executive branch (the State
Department).
The courts have decided not to get involved, based on separation
of powers. The reason is they dont want to say a foreign law is
bad while the President is saying its good, or vice versa, so they
leave it entirely up to the executive. They dont want to get
involved in the executives application and determination of
foreign policy.
Was it an act of state?

If a state does something that is not a state act, then this doctrine
doesn't apply. You have to assess whether it was an act of state.
An act of state is not necessarily the same thing as an actus
imperius for Foreign Sovereign Immunities Act purposes. There
may be the occasional overlap, but thats not necessarily so.
(There are many things that states do that the Foreign Sovereign
Immunities Act doesnt cover.)
Banco Nacional de Cuba v. Sabbatino (S.Ct. 1964) In retaliation for an

American reduction in the import quota for Cuban sugar, the Cuban
government nationalized many companies in which Americans held
interests, including Comaia Azucarera Vertientes-Camaguey de Cuba
(CAV). Farr Whitlock, an American commodities broker, had contracted to
buy a shipload of CAV sugar, which was nationalized enroute. To obtain
the now-nationalized sugar, Farr Whitlock entered into a new agreement

to buy the shipload from the Cuban government, which assigned the bills
of lading to its shipping agent, Banco Nacional. Farr Whitlock gained
possession of the shipping documents and negotiated them to its
customers, but, protected by CAVs promise of indemnification, Farr
Whitlock turned the proceeds over to CAV instead of Cuba. Banco
Nacional sued Farr Whitlock for conversion of the bills of lading and also
sought to enjoin Sabbatino, the temporary receiver of CAVs New York
assets, from disposing of the proceeds. Farr Whitlock defended on the
ground that title to the sugar never passed to Cuba, because the
expropriation violated international law.
This was not a suit against Cuba. It was an argument over who
had title to the sugar (who the broker should pay), CAV or Banco
Nacional.
CAV said it had title because the confiscation under Cuban law
was illegal under international law. (Recall that it is very difficult
to define what is and isnt illegal confiscation in international law.)
The case never got to the merits, because the U.S. Supreme
Court didnt want to assess whether an act by a foreign
government was contrary to international law.
Rather than laying down or reaffirming an inflexible and
all-encompassing rule in this case, we decide only that
the Judicial Branch will not examine the validity of a
taking of property within its own territory by a foreign
sovereign government, extant and recognized by this
country at the time of suit, in the absence of a treaty or
other unambiguous agreement regarding controlling legal
principles, even if the complaint alleges that the taking
violates customary international law.
Every sovereign state is bound to respect the independence of
every other sovereign state, and the courts of one country will not
sit in judgment on the acts of the government of another, done
within its own territory. Redress of grievances by reason of such
acts must be obtained through the means open to be availed of
by sovereign powers as between themselves.
That is a broad statement, and it no longer holds water in
expropriation cases.
Bernstein exception If the foreign act was so odious that the

State Department begged the U.S. courts to please make this
assessment, then maybe the courts would. But theyre only going
to consider the State Department request they arent
necessarily going to acquiesce.
The only time they even got close to doing this was when
the German Reichstag confiscated Jewish property. That
law was odious.
Sabbatino has been overruled by the Hickenlooper Amendment.

If a foreign country seized property,
And that property was within its own territory,

Then the U.S. courts must assess the legality of the expropriation
unless the State Department begs them not to.
Hickenlooper only affects this narrow context, however. Apart
from expropriation of property on the sovereigns own territory, the
Act of State doctrine is alive and well in the United States courts.
If a state does something that is not a state act, then the Act of State
doctrine doesnt apply. Therefore, you must assess whether it was an act
of state.
An act of state is not necessarily the same as an act imperii for
Foreign Sovereign Immunities Act purposes. There may
occasionally be overlap, but that isnt necessarily so.
Ask: What is the entity being sued?
Is it an entity entitled to foreign sovereign immunity?
If the dispute is between two non-state entities, then the
Act of State doctrine doesnt come into play.
Remember that the Foreign Sovereign Immunities Act doesnt
cover many evil things that states do.
Immunity of State Representatives.
Suing an official for purely official acts is really the same as suing the government
he works for. Nevertheless, the Foreign Sovereign Immunities Act doesnt cover
individuals.
If an individual is sued for actions he did in his official capacity, when he did it on
behalf of his government, then he is immune if the state would be immune if the
state was being sued.
In such a circumstance, suing the individual is the practical equivalent of
suing the state.
Chuidian v. Philippine National Bank (9th Cir. 1990) Chuidian, a Philippine
citizen, sued Daza, a Philippine citizen and an official of the Philippine
government, after Daza instructed the Philippine National Bank to dishonor a letter
of credit issued by the Republic of the Philippines to Chuidian.
Letters of credit are better than cash. Theyre how international dealings
are financed. They must be honored, or else the world financial system
would collapse.
Marcos cut an unethical deal, issuing a letter of credit to an underling,
payable by the bank (located, by the way, in California). Then Marcos got
kicked out of office.
An official government commission tried to find all the wealth he had
stolen from the Philippines and bring it back. Commissioner Daza
ordered the bank not to honor the letter of credit. The bank sued Daza in
California federal court.
If he had been acting within his official capacity, the 9th Circuit held, and if
he was acting on behalf of the government, then a suit against Daza is the
same as a suit against the sovereign.
Therefore, the Foreign Sovereign Immunities Act does apply here.
If a state official is acting within his official capacities, on behalf of the
state, then that individual is immune.
Diplomatic Immunities.
Depending on the legal status of the individual involved, the way a person
or some property is treated varies. So you have to sort out the legal
status of everybody involved Ambassadors, consular officials, their
families, the various levels of staff, etc.
Vienna Convention on Diplomatic Relations Signed by pretty much
everybody (173 out of 180).
Article I describes who is covered by this convention.
Consular officials are not covered by this one. If your
problem concerns a consular official, theres another
convention.
Article 29 Inviolability of the person.
The person of a diplomatic agent shall be inviolable.
He shall not be liable to any form of arrest or detention.
He cannot be arrested, not even detained the
slightest bit, no matter what he does.
The receiving state shall treat him with due respect and
shall take all appropriate steps to prevent any attack on
his person, freedom, or dignity.
Article 30 Inviolability of the persons residence.
The private residence of a diplomatic agent shall enjoy
the same inviolability and protection as the premises of
the mission.
A diplomatic agents correspondence is also inviolable.
His property is also inviolable, except in the case of:
an action concerning private real estate in the
territory of the receiving state.
a lawsuit over a decedents estate.
an action relating to professional or commercial
activity, outside his official functions, performed in
the receiving state.
The diplomatic compound is inviolable.
But if they dont pay their bills, you are entitled to shut off
their gas, water, electricity, etc. (Of course, people from
some countries feel right at home in a humid D.C.
summer without air conditioning or water, so it may not be
all that much of a deterrent.)
The land on which a diplomatic mission is located is not

sovereign territory of the sending state. It is territory of
the state where it is located.
You are, however, outside the jurisdiction of the receiving
state when you are on the diplomatic compound.
This is not necessarily a good thing. You might
be inside the compound of a foreign mission here
in D.C. against your will, and theres nothing the
cops can do.
Its good when youre being chased or need a
safe haven for some other reason.
Article 31 Immunity from jurisdiction.
A diplomatic agent is immune from the criminal
jurisdiction of the receiving state.
Even if the act was not part of his official duties.
He is immune from civil and administrative jurisdiction,
except in the case of:
an action concerning private real estate in the
territory of the receiving state.
a lawsuit over a decedents estate.
an action relating to professional or commercial
activity, outside his official functions, performed in
the receiving state.
Even if one of these exceptions applies, you still cannot
exercise your jurisdiction over him if that involves
infringing the inviolability of his person or residence.
A diplomatic agent is not obliged to give evidence as a
witness.
The immunity of a diplomatic agent from the jurisdiction of
the receiving state does not exempt him from the
jurisdiction of the sending state.
Article 32 Waiver of immunity.
The sending state can waive the immunity of a diplomatic
agent, his family, staff, etc.
Article 37 Family and Staff.
The diplomatic agents household family has the same
privileges and immunities as the agent himself (unless
the individual is a national of the receiving state).
The administrative and technical staff (and their
households) (but not nationals of the receiving state)
have the same immunities as the agent, except:
The civil and administrative immunity only covers
acts performed in the course of their duties.
The service staff (but not nationals of the receiving state)
have criminal/civil/administrative immunity only for acts
performed in the course of their duties.

Privately-employed servants and other private members
of the mission who arent employed by the sending
government only enjoy the privileges and immunities
granted to them by the receiving state.
For someone enjoying full privileges and immunities, the worst
that can happen to you is to be P.N.G.-ed sent home as
persona non grata.
Article 27 concerns the diplomatic bag. It can be as big as a
truck. Simply goes through without any problem.
Under Article 36, the personal baggage of a diplomat is
also exempt, with a couple minor exceptions.
Vienna Convention on Consular Relations.
All you need to know is that consular officials are only immune
from jurisdiction when they were acting in their official capacity.
States can agree to grant greater immunity to consular officials if
they want to.
A famous abuse of diplomatic immunities occurred when a British

policewoman was killed by a member of the Libyan consular staff in the
mid-80s. A whole bunch of people were protesting outside the Libyan
embassy in London. The British police surrounded the embassy to
protect it from the protestors. The Libyans decided to deal with the
protestors the way they did back home, and opened fire with machine
guns. They missed the protestors, but shot a policewoman in the head,
killing her. The Libyans got away with it, scot-free, because of their
diplomatic immunity. All the British could do was declare them PNG and
kick them out of the country.
In order to invoke your immunity:

You have to request immunity, it isnt automatic.
You have to have been recognized as somebody entitled to it.
You have to be on the list of immunized people.
Arcaya v. Pez (S.D.N.Y. 1956) The consul general of Venezuela in

New York was spending his time publicizing the bad acts of a private
Venezuelan citizen. If you came in the consular office, you saw posters
saying what a bad guy this citizen was. In South America, impugning
someones honor is a really big deal, of constitutional import. So the
private citizen sued the consul general for libel.
He was only a consular official, and this was not part of his official
duties, so he was not immune from a suit for libel.
While the trial was pending, the consular official was elevated to
diplomatic rank as the U.N. representative to the U.S. from
Venezuela. This was intended to (and did) serve to completely

immunize him from the civil jurisdiction.
However, because the action had been begun while he was but a
consular official, the moment he would lose his diplomatic status,
the case could be resumed.
The State Department was infuriated by this case, because this
meant consular officials who got in trouble could get out of trouble
by being elevated to diplomatic status. So the State Department
put its foot down and said a countrys mission can either be
consular or diplomatic; they cant have both diplomatic and
consular offices in the same place.
The basis is that diplomatic and consular officials have
incompatible roles. So youre either one or the other, and
you cant just switch.
The State Department can permit shared functions if it
wants to. Consular officials often get diplomatic duties,
so there is some overlap. But diplomatic officials are very
jealous of their important functions. But if the consular
official is the only guy there, hes got to do it all.
What do the courts do here?

Only the courts can decide what a persons legal status is for
immunity purposes. The courts jealously protect this power of
theirs.
Only the courts can decide whether a person was acting within
his authority or not. The courts jealously protect this power of
theirs.
VIII. THE LAW OF THE SEA
2007-2010 Nathaniel Burney
Introduction.
This is a discrete area of international law; it sits apart by itself.
It is governed by the Law of the Sea Convention.
The United States signed the Law of the Sea Convention, but has not yet
ratified it, and there has been a vigorous debate in the Senate for many
years.
Arguments against the treaty include:
National Sovereignty -- a U.N. agency that is not democratically
elected, with its own court and bureaucracy, would have power
over U.S. legal authority. Agency-created laws based on treaties
could be enforced against the U.S. Furthermore, the Convention
would force the U.S. to pay taxes to the U.N.
Undue Restriction on Military Activities -- the treaty limits US
military activities significantly. Intelligence collection, submarines
in coastal waters, and the boarding of ships for anti-terror
purposes are restricted by the Convention. Articles 88 and 301
appear to restrict all military operations entirely, limiting the sea to

"peaceful purposes."
It's Unnecessary -- the treaty is promoted as a codification of
navigation rights through straits, but the United States' rights are
not threatened by anyone.
Unfair Redistribution of Technology -- the Convention would force
U.S. businesses to turn over their technologies to other countries.
Bad Precedent -- it would pave the way for increased power of
non-governmental organizations over the U.S. and other
sovereign nations.
Prevents Safety Measures -- it would require all unmanned ocean
vessels, including submarines that protect ships by detecting
mines, to navigate only on the surface in territorial waters. This
eliminates their value for such purposes.
Internationalizing Domestic Law -- the laws passed by US citizens
would be endangered through conservation provisions, which
allow foreign organizations to change US environmental law
through legal action in international and domestic courts.
Nevertheless, the United States considers most of the provisions of the

Convention to be customary international law, and we abide by them.
The U.S. has already accepted much of the treaty by way of the
U.N. Charter and the 1958 Geneva Conventions. President
Ronald Reagan issued an executive order that treats the 1982
version of the Convention as binding except for the mining
provisions.
Arguments against ceding authority to the U.N. apply to all
international agreements, reflecting the importance of careful
consideration when entering into binding agreements such as
this.
The straits issue is not limited to the U.S. waters, but deals with
the scores of straits around the world, which the U.S. and other
countries rely on for military and trade shipping. Instead of
requiring all countries to collect a multitude of two-party
navigation treaties, this would simplify matters with a single
agreement. Unfortunately, other terms in the Convention are
more divisive. It is worth considering that the portion on straits,
standing alone, might have been successfully ratified as a treaty
unto itself.
With respect to dispute settlement, the International Seabed
Authority only has jurisdiction over seabed mining. The Law of
the Sea Tribunal does have wide jurisdiction, though it allows for
arbitration between nations. The purpose is to give nations a
peaceful way to resolve disputes when one country tries to close
its straits to navigation. It is not useful, however, when the
country closing its straits is not a party to the treaty, in which case
ordinary diplomatic pressures and sometimes military action
would be required anyway. Essentially, it gives already-friendly
countries a peaceful alternative to already-peaceful options, and
gives no help to non-party countries like Iran and the U.S.
More and more countries are signing on to the Convention.

The Law of the Sea Convention is a compromise of many competing
interests.
The Law of the Sea in general is the result of an eternal contest
between the seafaring nations and the coastal states.
The seafaring nations want freedom of shipping, while the coastal
states have territorial claims over often vast stretches of ocean.
This dispute has been going on at least since the rise of the
nation-state and Grotius development of international law back
around 1648.
It is getting more and more important for a lawyer to know the rules out there on
the ocean.
Law of the Sea.
Kinds of Territorial Rights. (The farther out you go, the more rights ships have
and the fewer rights the coastal state has.)
Land Territory.
The sovereign has exclusive jurisdiction over everything within its
borders (including lakes and rivers).
Borders on the sea are measured from the low-tide mark.
This low-tide mark is the baseline for measuring
everything in the law of the sea. Article 5.
Thats easy when the coastline is convex, but
when its indented and convoluted, Article 7
permits straight baselines to be drawn from set
points on the coast.
Not enough to know just where the coastline is.
You have to know where the baseline is.
Rivers and Bays.
Water on the land-side of the baseline is Internal
Waters, the same as land territory.
The state has exclusive jurisdiction.
There is no right of innocent passage.
If the mouth of the water is broader than 24 nm (12 nm
from either side), then the territorial sea will be indented
there.
Territorial seas are 12 nm out from the coastline.
Article 10 defines bays.
There must be a certain amount of area
behind the mouth of the bay, otherwise
its just an indentation.

Unless it is a historical bay.
Taking the mouth as a diameter, the area
must be at least that of a half-circle of
that diameter.
If the distance between the low-water marks is 24 nm or
less, then just draw the baseline straight across the
mouth of the river/bay.
Territorial Sea.
Article 3 permits states to claim out to, but not exceeding, 12 nm
from the low-tide baseline.
Countries have the right to claim this much, but they
arent required to exert their jurisdiction this far out.
There used to be no rule as to what was the breadth of a
territorial sea. If the coastal batteries could hit you, then
you were in the states territorial sea. That became
meaningless with long-range weapons.
It used to be just 1 nm, then 3 nm. Then in the 1940s
states started claiming all sorts of distances 15, 20,
100, 200, etc. This caused problems for those who were
trying to navigate.
The Law of the Sea Convention got the vast majority of
the states to agree on the 12 nm limit.
When the few rogue states out there try to claim more,
there are protests and countermeasures against them.
The United States recognizes the 12 nm rule, and asserts
its territorial-sea jurisdiction right up to the limit.
Innocent Passage.
Articles 17 - 32. This is what effected the compromise
between the seafaring and coastal nations. You get the
12-mile belt provided other states get the right of innocent
passage within it.
Passage is innocent so long as it is not prejudicial to the
peace, security, and good order of the coastal state.
A variety of laws and regulations can be applied to ships
in innocent passage it is not the same as the high
seas.
Cannot do anything threatening force. Cant
practice with your weapons.
No spying or propaganda.
No launching or landing aircraft or any military
device.
No commerce contrary to the laws of the coastal
state.
No willful and serious pollution.

No fishing.
No research or surveying.
Cant do anything else not having a direct bearing
on passage.
Submarines must navigate on the surface and
show their flag.
Coastal states have the rights & duties to regulate
innocent passage.
They set up sea lanes, regulate safety, etc.
nnocent passage CAN be SUSPENDED at the discretion
of the coastal state.
Exception Israels only Red Sea port is at the
mouth of the Gulf of Aqaba. Article 45 says that
innocent passage there cannot be suspended by
Egypt and Saudi Arabia.
Innocent passage is a problem for warships.
Many states say that passage of a warship is by
definition prejudicial to the peace and good order
of a coastal state.
The big-navy states (U.S., U.K, Russia, France,
etc.) contest this. So many states say its okay
only if the coastal state gives permission.
Jurisdiction in Territorial Seas.

A Panamanian cruise liner is just passing through the
United States territorial sea. Abu the Butcher is on board,
and he has clearly violated United States laws. Can the
U.S. Coast Guard board the ship and arrest him?
No. Article 27 defines the only circumstances in
which the coastal state gets criminal jurisdiction
over ships in innocent passage.
A crime must occur during passage.
The consequences of that crime must
extend to the coastal state.
The ship puts in to port. A murder occurs while the ship is
in port. Can the U.S. authorities board the ship and make
an arrest?
Yes. A different set of rules applies when the ship
is anchored in port.
If the crime disturbs the tranquility of the
coastal state, then the coastal state can
assert jurisdiction.
It is up to the local police and judicial
authorities to decide whether a particular

incident disturbs the peace of the port.
Wildenhus Case, U.S. S. Ct. 1987 Belgian

ships were moored off New Jersey. A Belgian
national killed another Belgian on board a
Belgian ship.
The murderer could have been subject to
Belgian jurisdiction, under Nationality
jurisdiction and Flag-ship jurisdiction. But
the ships were moored in port here.
Murder disturbs the tranquility of the
shore state, so the local authorities had
jurisdiction.
Note that the U.S. wanted jurisdiction.
You have to assert it.
British view:
The subjugation of the ship to the local
criminal jurisdiction is complete. Any
derogation from it is a matter of comity in
the discretion of the coastal state.
United States v. Flores, U.S.S.Ct. 1933.
There was a murder on a U.S. ship that
was moored at the Belgian Congo.
Belgium did not want jurisdiction, so the
murderer was brought back to the United
States to stand trial.
When the local sovereign does not assert
its jurisdiction, then the flag state has
jurisdiction.
It doesnt matter that the crime took place
outside of the United States, because the
murderer was a U.S. citizen, and also
because the U.S. has extended its
jurisdiction over all acts on U.S. flag
vessels.
So it is important to know:
What the flag state is.
Where the crime occurred.
Whether the ship was in port.
Warships are immune from jurisdiction within the

territorial sea.
Article 95 gives them complete immunity.
You cannot board a warship and exert your

jurisdiction. If anything happens on board that
ship, even in port, it is exclusively the concern of
the flag state.
Hot pursuit. (Article 111)

If someone engages in a violation in one zone,
and is caught in the act by a marked official
vessel or plane, and they try to flee, then the
coastal state may pursue them into the high seas
and board you.
Pursuit must be continuous. You have to keep
constant contact.
Radar/satellite tracking does not count as
contact, yet, for hot-pursuit purposes.
You can go through other states EEZs, but once
the bad guys get into another states territorial
sea, they are scot-free. (You cant exert your
police powers within another sovereigns
jurisdiction.)
Unless the bad guys are flying your flag,
in which case you can board them
anywhere, even in another states
territorial sea.
And of course you can get the states
permission to board the bad guys even if
theyre flying a different flag. You can
always cut a deal.
As long as you maintain contact with the bad
guys, if they violate innocent passage you can
chase them all the way into the high seas and still
exert jurisdiction. But you cannot pursue them
into another states territorial sea without
permission.
Drug courier ships by definition do not have
innocent passage, because theyre trafficking
drugs, so you can go after them.
Civil jurisdiction.
Civil jurisdiction is almost impossible to assert
against a ship in innocent passage.
Of course, you still have to decide whether the
ship was in innocent passage or not.
Contiguous Zone. (Article 33)

Beyond the 12nm territorial sea, the Contiguous Zone is another
band that goes out another 12 nm.

With just a territorial sea, a coastal state could be
harassed by violations of innocent passage. All youd
have to do is line up your ships just beyond 12 nm, and
wait for the right moment to send your speedboats in
(after all, you cant police every inch of the sea every
second of the day).
The Contiguous Zone prevents this.
Within the Contiguous Zone, a coastal state has some

jurisdiction. Less than it has in its territorial sea, but still some.
The coastal state may exercise the control necessary to:
Prevent infringement of its customs, fiscal, immigration,
or sanitary laws within its territory/territorial sea.
Customs.
Fiscal laws.
Immigration laws.
Sanitary laws.
Punish infringement of those laws which were committed
within its territory/territorial sea.
EVERYTHING ELSE which would be a violation of innocent

passage IS OKAY in the Contiguous Zone.
Exclusive Economic Zone. (Articles 55 - 75)

This goes out 200 nm from the Baseline.
Art. 56: Within the Exclusive Economic Zone, the coastal states
has rights for exploring, exploiting, conserving, and managing the
fish and other resources below the surface.
This is big business. Fishing is the prime contributor to
many countries economies. Theres also a lot of mineral
and oil mining out there.
You go fishing in someone elses EEZ, and youre likely to
get blown out of the water. As Spains fishing fleet
learned from Canada not long ago.
A ship passing through the EEZ is only subject to the economic

regulation of the coastal state.
If youre going exploring, fishing or mining, you need a
license. Conservation and management are the coastal
states responsibility.
Otherwise, its pretty much like the high seas.
Enforcement. (Article 78)

You can inspect other ships in your EEZ, and can make
arrests or otherwise enforce your rules.
If you do arrest someone, they have the right to be
released on bond.
EEZs are ruthlessly patrolled by many countries for
enforcement purposes.
Islands.
Islands get to assert a 200 nm Exclusive Economic Zone,
the same as other coastal states. Article 21.
Rocks which cannot even support life do get a territorial
sea, but they dont get an EEZ.
Continental Shelf. (Article 76)

Underneath the water, a coastal state has the right to exploit the
resources within the Continental Shelf area.
Legally, the Continental Shelf extends out 200 nm, even when
there is no physical geologic shelf present.
Some geologic continental shelves go out beyond 200
nm, but usually 200 is right.
High Seas.
On the high seas, ships can do just about anything.
The high seas are open to all states, whether coastal or
landlocked.
Anybody can go there.
You can only be boarded under the narrow scope of
Article 110.
Right of Visit (Article 110)

Warships of a different flag CANNOT board you unless
your ship is:
Engaged in piracy.
Engaged in the slave trade.
Engaged in unauthorized broadcasting and the
warships flag state has jurisdiction under Article
109.
Without nationality.
In reality, of the same nationality as the warship,

even though youre flying a different flag.
Warships CAN board you with your flag states

permission, however.
The U.S. Coast Guard is adept at getting
permission.
Article 108 deals with drug-courier ships. You still cant

board another states ship, BUT if the drug ship enters
your territorial waters thats not innocent passage, its
drug trafficking, and you can go for it. And you can even
chase them all the way out to the high seas if youre in
hot pursuit.
The Area (Articles 133 - 191).

Below the High Seas, beyond the 200nm Continental Shelf, lies
what is called The Area. With a capital A.
There are a lot of provisions here, mostly dealing with the deepsea-bed mining authority.
Transit Passage, Straits, and Archipelagic States.
Transit Passage.
Less restrictive than innocent passage. Ships (and aircraft)
must:
Proceed without delay through or over the strait.
Refrain from any threat or use of force against the coastal
states.
Refrain from any activities other than those incident to
their normal modes of continuous and expeditious transit
(unless necessary because of distress or force majeure).
Comply with generally-accepted international regulations
for sea/air safety.
Comply with generally-accepted regulations for
controlling pollution.
Turkey says Russian tankers shouldnt be
allowed to use the Bosporus to get into the
Mediterranean, because theyre too bad for the
environment, and theres a pipeline right across
Turkey anyway (which by the way provides
Turkey with some fees). It doesnt help the
Russian position much that their tankers keep
running aground.
Military ships have every right to transit in their normal mode.
Subs get to submerge, for example.

Transit Passage may not be suspended.
Straits.
When you extend a territorial sea out from 3 nm to 12 nm, straits
have a tendency to disappear. Like Gibraltar. And then all
passage between the Atlantic and the Mediterranean would have
to be innocent passage under the jurisdiction of Spain and
Morocco.
So through straits you have Transit Passage, rather than innocent
passage.
Definition:
It must have been a traditional sea route.
Generally passage from one High Seas/EEZ to another.
Corfu Channel Even if there are alternate
routes, a route from the High Seas to the High
Seas, used by international navigation, is a strait.
Exception, under Article 38, is when the strait lies
between a state and its island.
Then, if there is an alternate route that is
just as convenient, there is only innocent
passage, not transit.
Archipelagic States (like Oceania).
These can set baseline borders around the clusters of islands, but
they must permit sea lane passage (Articles 46 - 54).
The baselines cannot be extended out around islands far away
from the rest of the group.
To prevent gerrymandering, the rule is that the ratio of
water to land must be no greater than 9:1 within the
boundary.
IX. INTERNATIONAL ENVIRONMENTAL LAW
There is no clear customary international law here yet, but were starting to establish some
clearly-stated goals.
Not obligations yet, just goals.
The Law of the Sea Convention says signatory nations have the obligation to
preserve the sea, but thats a really broad statement.
The Law of the Sea Convention also says states must take all measures
necessary to ensure that activities within their own jurisdiction wont harm
the environment of other states.
And when you learn of damage to the environment, you have to notify
everyone about it. (Chernobyl sped that provision along.)
The duty of a source state to inform others of impending arm to

them or of significant risk of such harm is an obvious corollary of
the general obligation to prevent and minimize transboundary
harm.
This is soon to be a binding provision.
Transborder Pollution Trail Smelter Case (U.S. v. Canada, U.N. arbitration

tribunal 1941) United States claimed that Canada was polluting the
U.S. The court held that:
Under the principles of international law, as well as the law of the
United States, no state has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein, when the
case is of serious consequence and the injury is established by
clear and convincing evidence.
Restatement (Third) 601: State Obligations with Respect to

Environment of Other States and the Common Environment.
Really mealy-mouthed. An example of how to draft something so it wont
be a binding obligation.
To understand international environmental law, youve got to understand
the formation of customary international law cold, because thats what its
all about.
X.
INTERNATIONAL AGREEMENTS
Vienna Convention on the Law of Treaties.
An international agreement is defined at the top of the Vienna Convention on the
Law of Treaties, which is universally accepted as the codification of the law of
everything to do with treaties.
The United States hasnt signed it, because we have some problems with
appendices to the Convention, but we do obey it.
The Vienna Convention on the Law of Treaties is gospel. It is international law
with regard to treaties.
Covers anything that is it treaty:
Parties must be states.
Parties must have agreed.
Agreement must be in writing.
The parties must have intended it to be binding.
The agreement must state that the governing law will be international law.
International agreements can lack some of these requirements, but that just
means they arent treaties.
Parties must be states.
The U.N. is not a state.
A contract between a corporation and a state is not an
international agreement. Companies/individuals cannot even
make international agreements, much less treaties.
Preferable, then, to get an international agreement
between your state and the state youre dealing with, at
the international legal level, setting the rules for the
treatment of companies and contracts.
Absent that, your country has no obligation to come to
your rescue when the other country shafts you. And that
country youre dealing with can shaft you big time, and
theres nothing you can do about it.
Parties must have agreed.
Agreement must be in writing.
An agreement can exist without a writing, but the Vienna
Convention wont apply to it.
Oral agreements are difficult. How do you establish what actually
happened? And did the words used establish an intent to be
bound?
Recall the discussion between the Danish and Norwegian
ministers that became a binding agreement, when the Norwegian
ministers statement was affirmative, dealt with an issue within his
authority, and he informed his government what was said.
Parties must have intended it to be binding.
The title of the document means nothing.
Mere hopes, plans, and desires mean nothing.
You want the words the parties shall . . . or the parties agree
Nuclear Test Case (Australia & New Zealand v. France, I.C.J.

1974) France was making above-ground atmospheric nuclear
tests. Australia and New Zealand protested furiously, and it went
to the I.C.J.
The court never got to the legality of these evil cloudproducing tests, however, because the French President
made a unilateral statement that they would cease
above-ground atmospheric tests.
Context is important. The assertion was made by
the head of state. The assertion was made while
negotiations were going on. The assertion was
made to the international community. And
everybody was clamoring for this result at the
time.
In context like this, the statement was binding,

even though there was no consideration, and
even though it was just a unilateral assertion.
Mali v. Burkina Faso case again The Prime Ministers

statement to a reporter from Mali about conceding a border
dispute did not create a binding legal obligation. It was not in the
context of negotiations. It was not announced to the world in the
forum of a legal dispute. He was merely chatting to the press.
Statements are only binding when the state intends them to be
binding.
The agreement must state that the governing law will be international law.
Are you engaged in discussions or are they actually negotiations?
In negotiations, you make offers which, if accepted, become binding.
n discussions, youre just spouting off ideas without intending to be bound
by them.
Make sure you know WHY YOU ARE AT THE TABLE! And if youre just
there to discuss, dont slip into negotiation!
Nonbinding international documents may still have legal effect.
You are estopped from claiming that you never intended X, when you said you did
intend it in a nonbinding document.
Such as a State Department memo. Or a letter to another government.
Or a document where the two countries say wouldnt it be great if we . . .
So nonbinding documents are still out there to be used against you. Be careful.
Nonbinding documents may still be the building blocks of binding obligations.

Dont minimize the importance of these documents.
Some nonbinding documents have become binding international law, and others
have achieved great legal significance.
Capacity to Enter Into Treaties.
The capacity for treaty-making is both an attribute of statehood, and a requirement
for statehood. Sub-entities of a state only have treaty-making power if the
constitution of the state says so.
Doctrine of Full Powers.
In most negotiations, the presumption is that the guy at the table has the
authority to speak for his state.
You can request a document to that effect, but there is no need if
youre negotiating with a head of state or the foreign minister.

Making a Treaty.
Often what will happen is a document is drafted, redrafted, translated, and
redrafted again. It helps to know which text youre talking about. So what you do
is adopt the text.
You initial the document, or sign it ad referendum.
This doesnt make it binding, it just means this is the text we were talking
about.
Thats smart, because it makes it easier to go forward during the
negotiations.
Articles 9 & 10 of the Vienna Convention on the Law of Treaties
adoption of a text is not an expression of intent to be bound.
The agreement should definitely say when it goes into force; how long it remains
in force; and how it may be extended, amended and terminated.
But, if you neglect to include such language, the Convention fills in the
blanks.
Do it yourself, because the default provisions may be contrary to the
needs of your country.
Accession (Article 15).
Accession is the acceptance by one nation of a treaty already concluded
between other states.
The third nation can formally enter into the treaty, becoming a
party to it. (The consent of the original parties is required.)
The consent of a state to be bound by a treaty is expressed by accession
when:
The treaty provides that such consent may be expressed by that
state by means of accession;
It is otherwise established that the negotiating states were agreed
that such consent may be expressed by that state by means of
accession; or
All the parties have subsequently agreed that such consent may
be expressed by that state by means of accession.
While awaiting signature, you cannot do things that are contrary to the object of
the agreement, unless you REPUDIATE the agreement.
Unless you repudiate the agreement, while youre waiting for signature
you comply with the agreement as if it was signed.
Reservations.
A reservation is a unilateral statement by a state, excluding or varying the
legal effect of certain provisions of the treaty as they are applied to that
state.
The U.S. Senate loves to make reservations to treaties. (We agree so

long as this clause doesnt mean we have to . . .)
We have made reservations, for example, in human rights
treaties, because our Bill of Rights permits free speech (treaties
forbid hate speech). And also because we still want the death
penalty.
Some treaties expressly forbid reservations. (The Law of the Sea
Convention is an example.)
Reservations are then impermissible. You cant make them.
Unless the agreement forbids reservations, they are permissible.
Reservations are always impermissible if they go to the very heart of the
agreement.
Some reservations are permissible, but would be objectionable to the
other signatory states.
Reservations have the effect of turning one agreement into many different
agreements.
They must be in writing.
They must be communicated to the other parties.
They are only binding on the other parties if the other parties
accept the reservation.
Acceptance will happen by default if they dont reply
within 12 months.
Suppose there is a treaty signed by countries A, B, C, and D. A makes a

reservation on one part of it, say Article III.
B is okay with it. Fine, there is a treaty between A & B, including
the reservation.
C opposes the reservation. There is no agreement between A &
C as to Article III. Theres only a partial agreement.
D says the reservation is intolerable, and that A is not a party as
far as D is concerned. There is no agreement at all between A &
D.
Between B, C, and D, there is an agreement.
Because of the hodgepodge this creates, the trend has been to forbid
reservations in multilateral agreements.
It ought to have a dispute-settlement clause as well.

Best to negotiate out any problems between the parties, rather than going
to a third-party arbitrator. (Sometimes, however, an arbitrator is
preferable.)
Observance of Agreements.
International law is not an excuse for the non-observance of an agreement. Even

if by doing so you would violate your own laws or international law, you still have
to comply with agreements or be held liable for the result of your noncompliance.
Interpretation of Agreements.
Use the ordinary meaning of words, in light of the context and purpose of the
agreement. Article 31.
Take context not only from the surrounding text, but also from actions and
failures to act after the agreement was made.
Failure to object to potential breaches makes them okay.
If you want the agreement to be interpreted a certain way, either get in
there are enforce it, or make your objections known.
Be consistent.
Preparatory documents and discussions can be used to help interpret an
agreement, but only when the Article 31 rule doesnt give you any useful
interpretation.
Stick to the agreement itself first (text and context). Only if it remains
ambiguous do you go to other sources.
With plurilingual texts, you have to go through the same steps.
Jesse Laws Case (United States v. Great Britain, Special Arbitration 1921)
Neither party individually interprets treaties. Nor is it up to the courts of either
party to interpret treaties.
Both parties must make an interpretation, for it to be authentic and
binding.
Amendments and Modifications.
Always write in your agreements that amendment and modifications must be in
writing. Otherwise, youll have a nightmare to deal with when it gets amended
orally.
Also, make the original parties do it.
Invalidity of Treaties.
Articles 46 - 53 list things that can invalidate a treaty. None of these automatically
invalidate it, they simply give the other side cause to invalidate it.
Ultra Vires treaties You cant excuse nonperformance just because
entering the treaty was in violation of your internal laws (your internal laws
did not give you authority to enter into the treaty), unless the violation was
manifest to any other state. (This has never happened.)
Ultra vires means an act beyond your authority.
A violation would be manifest if it would be objectively evident to

any state conducting itself in the matter in accordance with
normal practice and in good faith.
Specific Restrictions on Authority to Express the Consent of a State.

If the negotiators authority to sign it has been limited by a specific
restriction, his failure to observe that restriction may not be
invoked as invalidating the consent expressed by him .
The exception is when the restriction was notified to the other
negotiating states prior to his expressing his consent.
Error.
Error invalidates a treaty if the error relates to a fact or situation
which was presumed to exist as of the time the treaty was
concluded, and if the presumption formed an essential basis of
the states consent to the treaty.
Error is not an excuse if you contributed to the error, or you
should have known of it.
An error relating only to the wording of the text doesnt invalidate
the treaty. Instead you go to Article 79 (Correcting errors).
Fraud.
If you were induced to conclude a treaty by the fraudulent conduct
of another negotiating state, then you may invoke the fraud to
invalidate the treaty.
Bible is full of international agreements, and frauds. The Israelis
amazingly admitted to being duped in Joshua 9. The Israeli army
was conquering and liquidating the whole region, and anybody on
the territory was fair game so far as they were concerned.
Joshua was not making any treaties with neighbors. The
Gibeonites lived on the other side of the hill, and didnt want to be
crushed. So they got together a negotiating team and made them
look like theyd made a long journey dressed in old ragged
clothes, carried moldy food. They met up with Joshua and
claimed they were from far away, and wanted a peace treaty.
Joshua made a peace treaty, and three days later came upon the
Gibeonites, and he couldnt conquer them because of his treaty.
Joshua needed a good lawyer. He had God as a lawyer, not bad,
but he didnt consult him.
Corruption.
If your consent was procured through the corruption of your
representative, directly or indirectly, by another negotiating state,
then you can invoke that corruption to invalidate the treaty.
Coercion Automatically Void.

If your consent was procured by the coercion of your
representative through acts or threats directed against you, then
the treaty is invalid.
If your consent was procured by the threat or use of force in
violation of the principles of international law embodied in the
U.N. Charter, then the treaty is void.
Conflicts with a Preemptory Norm of International Law.

A treaty is void if it conflicts with a pre-empting norm of general
international law.
Breach.
The breach has to be material. It depends on the object/purpose of the
agreement.
You cant just automatically renounce an agreement because the other
side breached. Breach only gives you grounds to revoke. And you may
only be able to revoke part of the treaty.
India v. Pakistan (I.C.J. 1972) An example of states trying to wriggle

out of a dispute-resolution clause.
A plane was hijacked in India, and landed in Pakistan. India
claimed that Pakistan was behind it, or at least supported it. In
return, India suspended all flights that would have flown over
Pakistan or landed there. But there was a treaty saying they
couldnt do that.
The treaty said that the ICJ would make binding settlement of
disputes.
India said there was no need to go to the ICJ, however, because
Pakistan had also violated the agreement. Because the two
parties mutually breached the agreement, it must be void, so they
didnt need to abide by its dispute-resolution clause.
India was wrong. Thats total chutzpah, you cant do that. So
they were bound by the dispute-resolution clause.
Radical Change of Circumstances.

Termination of a treaty is okay if the circumstances have fundamentally
changed. Article 62 spells out the narrow circumstances where this is
okay: The change has to be material, unforeseen, and has to radically
change the performance of the agreement.
XI.
HUMAN RIGHTS
Basics.
There are several sources of human rights.
Bilateral agreements establishing substantive human rights.
Bilateral agreements establishing procedural human rights (how to
enforce the substantive rights).
Multilateral conventions establishing substantive human rights.
Multilateral conventions establishing procedural human rights.
Some provisions of these conventions and treaties (especially those
which are fundamental norms) are also customary international law. So
even if a state isnt a signatory to a certain treaty it may still be obliged to
abide by its provisions.
First look to see if there is a bilateral agreement. There may be diplomatic

protection of nationals, there may be human rights protections.
If that isnt adequate, look to see if the states signed on to a multilateral
convention that deals with the rights at stake.
What you think people are entitled to is not necessarily the same as what
international law says people are entitled to.
When the government is involved in violence, torture, etc., rather than mere
individual evils, it is a higher level of evil.
It corrupts the whole state, by creating a bureaucracy to administer it and
to inflict it. Corrupts even innocent people.
The exact same evils committed by the Nazi state are still being done
worldwide.
Human rights are not bestowed by individual states on their people.

States cannot dictate what human rights their people have and dont
have.
The Universal Declaration of Human Rights states that every human
being is born with rights. Nobody gives them to you.
Also the International Covenant of Civil and Criminal Rights.
The rights derive from the dignity of the human person.
Law is what makes the difference between the despots whims and
justice.
Universal, by the way, means universal.

Once, there was a time when countries could say dont impose your
western ideals on us. But that was before practically everybody got
together and agreed to these human rights.
Now if a country says dont impose your western morals on us, you point
to the Universal Declaration of Human Rights and respond you signed
this beforehand. You helped write it. These arent western ideals, these
are universal. So obey them.
These rights have been articulated in convention after convention after
convention, by almost every country. Many states have been cajoled or
compelled into agreeing to these conventions, and there still remain a
small handful of renegade states.
Not every bad thing is a violation of international law.

You need to know whether a particular evil is covered by customary
international law, or by a bilateral/multilateral agreement.
You also need to know what the law provides.
Some U.S. Mechanisms Related to Human Rights.
22 U.S.C. 1732 Release of U.S. Citizens Imprisoned in Foreign Countries.
When U.S. citizen is imprisoned abroad, the President (State
Department) must demand the reasons for that imprisonment.
If the reasons are unjust, he must request the release of the citizen.
If that demand is not met, then he should try to get him out, preferably by
means other than an act of war.
The President is only required, however, to inquire.
Often a single source of information is not enough.
America is not required to come to your aid.

We do it a lot anyway, but many other countries couldnt care less
about the fate of their citizens abroad.
Some governments are notorious for not caring about the
treatment of their citizens abroad.
But the United States will at the very least inquire as to the
reasons for your imprisonment.
To sue for a remedy in a U.S. court for human rights violations, the best basis is
the Alien Tort Statute.
Oldie but goodie, but only applies to non-nationals, remember. Aliens
hurting aliens.
You sue the torturer as an individual.
If you dont know who the torturer was, youre out of luck.
You cannot sue a foreign state in U.S. courts for human rights
violations. The Foreign Sovereign Immunities Act prevents that.
There is no exception for torture, only for commercial activities.
Torture Victim Protection Act.

Anybody can sue under this one. Citizens too.
The torturer is liable for civil damages.
Dont forget about international agreements, which set further protections and
rights.
The United States is party to a lot of bilateral agreements that do this.
Treaties of Friendship, of Navigation, and of Commerce are usually what
establish certain guaranteed rights and the enforcement procedures.
When you draft such a treaty, do make sure you include both substantive
and procedural rights.
Corporations really need such treaties, to protect their rights. Especially
property rights. Their property rights are often at risk in foreign countries.
Responsibility for Injury to Aliens.

Property rights have never really been codified in any human rights
conventions. (Because the world cannot agree on what are and are not
property rights.)
So a corporation should get the United States to make an agreement with
the foreign country, ensuring the protection of your property rights.
Make sure this is a bilateral agreement between the two
governments. Merely putting such a clause in a contract between
your company and the foreign state is not enough to protect you.
Its not an international agreement, recall, unless both parties are
states.
Otherwise, you wind up suffering through the cold reality of
litigating disputes in a foreign court, and all the U.S. can do on
your behalf is whine a bit.
Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States v. Italy)

(I.C.J. 1989).
Raytheons assets were seized by Italy. Raytheon now couldnt
pay off its creditors, and it requested United States diplomatic
protection.
It just so happened that there was a treaty between the United
States and Italy protecting the property rights of corporations
doing business in these countries.
Procedural Point Before you even go into the tribunal, you
must show that you have exhausted all local remedies.
Otherwise, your case is going to get thrown out of court.
Not ripe enough.
A good lawyer will make sure that you did exhaust your
remedies. Good lawyers know the procedural
requirements.
There are a couple of exceptions to this rule.
The burden is on the defendant state, however, to show that there
were remedies that you failed to employ.
You also must have made a good-faith effort to comply with the
law.
Raytheons lawyers did attempt to litigate the matter in the local
Italian courts. Of course, the local jurists ruled against them, so
they then went on to the international level.
They asked the United States to sue Italy on their behalf, for
violating the agreement.
Italy claimed that local remedies had not been exhausted;
Raytheon could have appealed, in some arcane fashion.
Raytheon responded that this was ludicrous. How many courts
did they have to look for?
The I.C.J. ruled that, once Raytheon made the attempt to use
local remedies, the burden was on Italy to show that there was
another remedy available. And Italy did not do that to the
satisfaction of the court (it really was pretty arcane).
Claim of Finnish Shipowners (Finland v. Great Britain) (Arbitration 1934).

Ships, owned by Finnish nationals, were used by Great Britain
during war. Some of the ships were lost, and Great Britain never
compensated the Finnish owners.
Finland, the state, sued in British courts and lost.
Then Finland took the claims to an independent sole arbitrator,
claiming that the local remedies had been exhausted.
Britain argued that arbitration was precluded, because Finland
could have appealed. Finland replied that an appeal would not be
a true recourse, because the issue would no longer be an issue of
fact but of law. So an appeal would not be an effective remedy in
itself.
The arbitrator held that there is no obligation to exhaust local
remedies if, as here, they would be ineffective or illusory.
This is still the rule. And its important, since the U.S. has the
same legal system.
If your opportunity to be heard means youll be dead if
you show up, then the local remedy would be illusory, so
you arent required to use it before going to the
international courts.
If the machinery simply doesnt exist to handle your case,
then local remedies would be ineffective, so go
international. You are exempt from the requirement to
exhaust local remedies.
If it would be pointless to use local remedies, then go

international.
If the local courts say they dont have jurisdiction, then go
international.
The Calvo Doctrine (Latin American view on responsibility for injury to

aliens).
Like much of the world, Latin American countries have a deepseated feeling that foreigners only have as many rights as locals.
So corporations are made to sign contracts where the corporation
waives diplomatic protection.
This is odd, as it is the corporations state, rather than the
corporation, that has the right to assert diplomatic
protection.
So usually such provisions will not be given much weight
by international tribunals.
However, when the corporation didnt make
good-faith efforts to obey local law, then the
international tribunal is likely to rule against the
corporation.
Standing for Diplomatic Protection.

You need to be a national of the country asserting diplomatic
protection.
Use the Nottebohm standard to determine whether one is a
national or not. (Genuine intent, etc.)
In pleadings for a human-rights case, you must attribute the violation to

the state, not an individual.
Any state official counts. His acts may be attributable to the state.
Was The State Involved?
For there to be a human-rights violation, the harm must have been inflicted by the
state.
Getting mugged in an alley doesnt count.
Government conduct frequently can hurt you without being considered a
human-rights violation. Taxes, bureaucratic nitwittery, currency
devaluations, conduct reasonably necessary in an emergency, etc.
However, even conduct that would not ordinarily be illegal will still
be a violation if it involves unreasonable discrimination.
William T. Way Claim (United States v. Mexico) (General Claims Commission

1928).
A local Mexican sheriff issued a bad warrant, for the arrest of an American
(warrant was facially void under Mexican law for failure to state a
charge). The bad warrant was based on a personal grievance he had
against the American, and directed the armed officers to use suitable
means to bring him in. The American was shot and killed during the
arrest. The United States sued Mexico on behalf of the Americans family.
Even this personal vendetta by the sheriff was considered conduct
attributable to the state. Even a lowly official is still an official.
Gross mistreatment in connection with arrest & imprisonment is not
tolerated under international law.
The United States always immediately accepts responsibility for
the actions/inaction of local officials, in order to maintain this
precedent.
Substantive Bases of Responsibility.
Restatement (Third) 711: State Responsibility for Injury to Nationals of Other
States A state is responsible for injury to a national of another state caused by
an official act or omission that violates:
A human right that a state is obliged to respect for all persons subject to
its authority.
A personal right that a state is obliged to respect for foreigners.
A right to property or another economic interest that a state must respect
for any persons.
B.E. Chattin Claim (United States v. Mexico) (Claims Commission 1927) An

American was subjected to a Mexican kangaroo court. He was seized without
being notified of the charges, neither his family nor anybody else was told of this,
there was no habeas corpus, no opportunity to confront his accuser, no
opportunity to interview the witnesses against him, no oaths were taken. He was
given a 5-minute hearing (the court merely read the paperwork), and was
sentenced to two years in a Mexican prison. (He escaped after 11 months.)
International standards werent violated by any of this, however. Such
standards didnt exist yet.
So this case held that certain proceedings had to be required:
Regularity of court proceedings.
Proper investigations.
Confrontation.
Informing the accused of all charges against him.
No undue delay.
Hearings in open court must be more than a mere formality.
There was direct governmental responsibility for the injury to the
American, so he was awarded $5,000.

(The U.S. had claimed $50,000 on his behalf, but because he
was able to escape the damages were reduced.)
Before WWII, nobody could sue their own country for violations of human rights.
Only after Hitlers Germany did the nations realize that there was a need for
universal rights in addition to diplomatic protection. The real full-blown recognition
came with the Nuremburg Charter.
The Nuremburg Charter was not the victors beating up on the losers. It
was the result of the nations of the world agreeing that certain acts are
crimes against humanity, and cannot be tolerated.
The definition of these crimes against humanity, enumerated in the
Nuremburg Charter, are what led to the creation of the U.N.
SUBSTANTIVE HUMAN RIGHTS.
U.N. Charter Article 55 The U.N. shall promote:
Higher standards of living, full employment, and conditions of economic
and social progress and development.
Solutions of international economic, social, health, and related problems.
International cultural and educational cooperation.
Universal respect for, and observance of, human rights and fundamental
freedoms for all, without distinction as to race, sex, language, or religion.
Great, but thats just a goal, not an obligation. Furthermore, its
really vague.
This isnt really a binding obligation.
Universal Declaration on Human Rights.

Merely a non-binding declaration when the U.N. passed it in 1948, over
time this has acquired the status of law.
Need to be specific about this. At first this was just a bunch of
goals, not rights. They only became legal rights over time.
There is a division between civil/political rights on the one hand,
and economic/social/cultural rights on the other hand.
Even today, the economic/social/cultural rights are still only
goals. They are not obligations.
All were concerned with here, then, are the civil/political rights.
Civil & Political Rights.
Codified in the Covenant on Civil and Political Rights, to which
almost every state is a signatory.
China, Singapore, and a couple others are conspicuously
absent.
Two of the U.D.H.R. rights did not get codified:

Property rights (Art. 17).
Right to asylum in other countries, from
persecution (Art. 14).
The civil/political rights no longer apply only to signatories of the
U.D.H.R. They are not customary norms of international law.
Rights apply to all human beings, without regard to race,
sex, religion, language, place of origin, property, etc.
Right to life, liberty & security of person.
No slavery or servitude.
No torture.
No cruel, inhuman, or degrading treatment or
punishment.
Right to recognition everywhere as a person before the
law.
Right to equal protection of the law, including equal
protection against discrimination.
Right to effective remedy by competent tribunals for acts
violating the fundamental rights granted by constitution or
by law.
No arbitrary arrest, detention, or exile.
Right to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.
Right of accused to be presumed innocent until proved
guilt according to law, in a public trial at which he has had
all the guarantees necessary for his defense.
Cannot find you guilty for something that wasnt a crime
when you did it. Cant impose greater penalties than
were applicable at the time you committed the offense.
No arbitrary interference with privacy, family, home, or
correspondence.
No attacks upon honor and reputation, and Right to state
protection against such attacks. (The U.S. hasnt gone
along with this, because of 1st Amendment.)
Right to freedom of movement and residence anywhere
in the state.
Rights to leave any country, including ones own, and to
return to ones own country.
Right to a nationality.
No arbitrary deprivation of nationality, nor denial of the
right to change nationality.
Right to marry and start a family without limitation due to
race, nationality, or religion.
No marriage without free and full consent of the spouses.

Right to state protection of the family as the fundamental
group unit of society.
Right to free thought, conscience, and religion. This
includes freedom to change religions, and freedom either
alone or with others, in public or private, to manifest ones
religion in teaching, practice, worship, and observance.
Right to freedom of opinion and expression. This
includes freedom to hold opinions without interference,
and to seek, receive, and impart information and ideas
through any media and regardless of frontiers.
Right to peaceful assembly and association.
Cant compel someone to belong to an association.
Right to take part in the government of his country,
directly or through freely-chosen representatives.
Right to equal access to public service in ones country.
Right to expression of the peoples will as the basis of
authority of government, expressed in periodic and
genuine elections with universal suffrage and secret ballot
or other free voting method.
States who argue that this is eurocentric hooey" are wrong. Everybody
voted on the U.D.H.R., except for 8 states. And none of the 8 states that
abstained are around any more, except Saudi Arabia. Every corner of the
globe was represented and had a say in the formulation of these rights.
This is truly a universal declaration.
International Convention on Civil and Political Rights Realistic,

designed for application in the real world.
If a country declares a state of emergency, then it must tell other
countries (Art. 4). And even in a state of emergency certain rights
are still inviolable (Art. 7).
This is not just a rule of customary international law. These are
fundamental norms of international law.
Even dissenting states are bound by these norms.
There are no exemptions.
Torture is a violation of fundamental norms.

Cruel, inhuman, and degrading, however, are open to
local variation. Cases are still developing the standard.
Tyrer, 26 Eur. Ct. H.R. 14-17 (1978) A 15-yearold British citizen living on the Isle of Man
assaulted a schoolmate. Under Manx law, he
was sentenced to 3 strokes of a birch branch on
his ass. He was sore, but not cut. (This wasnt

caning, which can cripple, disfigure, or kill, and
which often results in genital mutilation.) The
state was involved in the beating.
The U.K. was party to the European
Convention of Fundamental Rights and
Procedure, which said no torture, cruel/
inhuman, or degrading treatment.
This wasnt torture, nor was it cruel or
unusual treatment.
Was it degrading? The state was
involved, there was a six-month delay
between the sentence and its imposition,
it was public in nature, it was govtimposed assault by one person on
another, it was done via official
procedures. So yes, it was degrading.
Parents can do it, but strangers cannot.
Especially not in the name of the state.
This is not new. It was 1978. Wasn't
even brought up during the debate over
the caning of that kid in Singapore back
in the early 1990s. The civilized
countries of the world had already long
since gotten together and said this was a
human rights violation.
Ireland v. United Kingdom, 25 Eur. Ct. H.R. 65-67

(1978) England was going all-out to get
information from the IRA, and the police were
using severe interrogation techniques, including
sleep deprivation, food deprivation, white noise,
always-standing, always-hooded, etc.
This wasnt torture torture is
aggravated and deliberate but it was
certainly degrading treatment.
Soering v. United States, 161 Eur. Ct. H.R. 11

(1987) This is the case of Jens Soering, a
German citizen and U.Va. student, who with his
girlfriend killed her parents. Soering fled to the
U.K., and the U.S. asked for extradition.
You cannot extradite to a country that
subjects people to torture or to cruel,
inhuman or degrading treatment.
He could have gone to death row in
Virginia, so the U.K. refused.
The problem wasnt the fact that
he was subject to the death

penalty. Both the U.S. and the
U.K. had the death penalty. The
problem was Virginias
Mecklenburg death-row facility (a
favorite target of the ACLU),
where it takes 6 - 8 years to
await punishment.
The Commission held that the wait on
death row was unacceptable.
Confinement itself is bad enough, but the
psychological effects and contact with
other death-row types would be too
degrading for this kid, so the U.K. was
not required to extradite him to the U.S.
The price people are willing to pay for law & order varies
from state to state. Some are more tolerant of pain and
degradation than others.
Torture is always too far, though.
The deterrent effect of a certain treatment cannot be the

only determining factor. Dignity of life is also important.
Art. 6 leaves open the possibility of a death penalty.

You just cant arbitrarily be deprived of life, thats all.
Article 8, cant be held in slavery.

Article 11, cant go to jail for debt/contractual breach.
The biggies of Art. 14 are the fundamental rights enumerated in
the next section.
Without these, is breaks down.
FUNDAMENTAL HUMAN-RIGHTS VIOLATIONS.
According to Restatement (Third) 702, these are:
Genocide.
Slavery & slave trade.
Murdering or disappearing individuals.
Torture.
Cruel, inhuman or degrading treatment or punishment.
Prolonged arbitrary detention.
Systematic racial discrimination.

Consistent patterns of gross violations of internationally-recognized
human rights.
More and more conventions are out there, precisely defining these terms and
specifying how to enforce them.
Human Rights Procedure:
Is the country a party to the International Covenant on Civil and Politic Rights?
Are they a party to the covenant, or are they merely signatories?
If merely a signatory, then the country is required only to submit
progress reports on compliance every 5 years, to the International
Human Rights Committee. (Committee, not commission.)
All parties to the covenant can complain to the Committee about the
practices of a party country.
You can complain, not only on behalf of your own nationals, but
even on behalf of citizens of the other country.
All parties can assert claims on behalf of victims.
If the state signed Optional Protocol # 1, then individuals within its
jurisdiction can petition the Committee, regardless of their nationality.
This is a big deal.
The highest court of a country is no longer your last resort. In
fact, you can even bypass the local courts and go straight to the
Committee for redress of human-rights grievances.
What do you do if an American is tortured by a foreign government?
Is there a treaty on point between the United States and the other country?
If yes, then look to see what substantive rights are defined. If such rights
were violated, then look for procedural mechanisms in the treaty to
enforce them.
If no treaty between us and them, you now can intervene with a U.N. force for
humanitarian reasons. More on that under Use of Force below.
For a long time, if there was no treaty, then you couldnt do anything.
And a foreigner being tortured by his own country had no recourse at all.
After WWII, the U.D.H.R. spelled out human rights, which were later
codified in the I.C.C.P.R., which has been implemented by local
conventions. These provide substantive and procedural rights.
Article 40 All states must make reports on their compliance.
No state wants to look bad on human rights, no matter
how tough they act.
If theyre bothered enough, theyll quit the violations just

to stop the pickets and protests. True.
Publicity is the first step towards correction. Publicity is
the bane of human-rights-violating countries.
Article 41 Experts sit on a committee. Any country can take up
the case of an Iranian being tortured by the Iranian government,
for example, and bring the case before the committee.
But that is only if Iran had already made the Article 41
declaration.
If a state has signed Optional Protocol # 1, then the individual
himself could sue the sovereign for human rights violations.
You need to look at each human-rights convention youre concerned

about to see what procedural mechanisms it establishes.
If it merely defines rights, thats not much help if it doesnt say
how those rights are to be enforced.
So you have a 2-pronged search. Look for substantive
definitions, and then look for the procedures which make them
real.
U.N. procedures may be available to both the U.S. citizen being tortured in Iran,
as well as to the Iranian citizen being tortured there.
In the Economic and Social Council of the U.N. [ECOSOC], there is a
Commission (not a committee) that reports on human-rights violations.
ECOSOC and the Human Rights Commission have provisions for
individuals to request the U.N. to investigate individual human rights
violations, under Resolution 1503.
Or, if there are widespread & systematic violations, you can have a
Resolution 1235 hearing, where the violating country is made to suffer by
all other countries by a vote of disapproval.
If the violating country has signed Article 41, then the U.N. can make onsite investigations.
Iran has never signed Article 41, so all that can happen is that the
other member states vote their disapproval.
China is a signatory, but every year it pours a staggering amount
of resources into avoiding on-site investigations.
Tyrants do fear them. Following on-site investigations,
governments have been known to fall and be replaced. On more
than one occasion.
Again, the violating country cannot argue that its treatment of people is a cultural
or religious thing, and should therefore be respected and left alone. These are
universal norms, codified and signed by all sorts of countries of all cultures and
religions. This is not just western idealism.
The rights themselves are evolving, as are the enforcement procedures

that make them real.
Now that the United States is a party to the I.C.C.P.R., we may start to
see charges against us brought before the Commission. It already
happened to Canada in the Lovelace case.
Suspension of Human Rights.
Lawless Case (Eur. Ct. of Hum. R. 1961) Talks about how certain rights can be
suspended.
This includes due process & fair trial rights.
The concepts of due process and fair trial are still evolving.
The sorts of permissible restrictions on such rights, however, are limited.
When you suspend human rights, you cant just wash your hands
of the rights.
And some rights can never be suspended or derogated.
Freedom from torture, and the other fundamental jus cogens
rights, can never be suspended.
Duplication of Claims.
You cant simultaneously appeal to the European Court of Human Rights, and to
the Commission, or to someone else. You can only bring your claim before a
single tribunal.
If there is duplication, then all of the courts will throw your case out.
Youd better choose wisely, because the rights and procedures are different in
each tribunal.
XII.
SETTLING DISPUTES PEACEFULLY

The first rule on the Use of Force is not to use it, but rather to resolve your differences in a
peaceful manner. So the first thing to do is everything short of force.
It used to be that the use of force was one of many acceptable means to resolve a
dispute with a neighboring country. But after the horrific slaughter of WWI wiped
out an entire generation of European men, slaughter beyond understanding, war
was seen as undesirable. The League of Nations was set up to prevent future
wars, but because the U.S. didnt participate the League of Nations failed (also
because, despite its lofty goals, the League started selectively treating different
aggressors differently). These are the same problems which the U.N. may face.
But the League never used the mechanisms that did exist, and the world paid a
horrible price for it when Italy, Germany, and Japan started getting away with their
aggression.
When the use of force is an issue, first ask why no other recourse was available.
The big rule is in Article 2, paragraph 3 of the U.N. Charter:

All members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.
Also, all members shall refrain from the use of force against the territorial integrity
of another state contrary to the purpose of the U.N.
You can only do it for self-defense or as part of a collective enforcement
action.
Settling Disputes Peacefully.
Article 33, paragraph 1 of the U.N. Charter says:
The parties to any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security, shall first of all seek
a solution by negotiation, inquiry, conciliation, arbitration, judicial
settlement, resort to regional agencies/arrangements, or other peaceful
means of their own choice.
Were dealing with disputes, as opposed to disagreements.
A dispute is not just a difference in views, nor does a sense of
injury mean that there is a dispute.
A dispute requires a disagreement on a point of law a conflict
of legal views or on a point of fact.
Its not a dispute unless the resolution would have a practical
effect on the relations of the parties. It cant be moot.
Its a good idea, when drafting a document about a
disagreement, to refer to it as a disagreement rather
than a dispute. Dispute is a technical term that should
only be used in the proper sense. If you call it that, then
that might be what you wind up having.
There is an obligation, under customary international law, to settle disputes by

peaceful means.
Adjudication and arbitration are at the far end of the spectrum.

These are the most expensive and time-consuming methods available.
Going to court should be the last resort.
First, try negotiation.

Agreements can specify the procedures for the parties to resolve
disputes.
Negotiation is the State Departments preferred means of dispute
resolution written into international agreements.
You cant go to some court every single time a disagreement pops up.
Note that an obligation to negotiate means you have an obligation to

negotiate in good faith.
You actually have to make the attempt.
The manner in which you participate in the negotiation can be
used against you, so do it in good faith.
Second, try good offices, mediation, conciliation, and inquiry.

Good offices and Mediation usually merge together.
A respected third party helps the two sides reach a mutuallyagreeable resolution of the problem.
Conciliation.
A settlement is proposed only.
Not the result of arbitration.
Just a recommendation. It isnt binding.
Inquiry.
The process of establishing the factual basis on which the
dispute-resolution process will rely in figuring out what to do.
Basically means coming up with an official version of the facts, so
you can get to work fixing the problem.
Third, try arbitration.

Unlike conciliation, this is usually binding on the parties.
The parties propose their solutions, and the arbitrator decides which one
is best.
The arbitrator doesnt come up with a third solution, even if it would be
best. Thats what you do in mediation.
Last, try courts.

All the procedural requirements must be satisfied. Have to have standing,
the case must be ripe, cant be moot, no duplication, etc.
The sides argue what the official version of the facts should be, and the
court decides that.
The sides argue what the law should be, and the court decides that.
The court applies the law to the facts and decides what the outcome
should be.
Dispute Settlement through the United Nations and Other International Organizations.
The U.N. settles disputes using the following methods:
Preventive Diplomacy.
Ease tensions before they result in conflict. Or, if conflict breaks

out, act swiftly to contain it and resolve its underlying causes.
This can be done by the Secretary-General personally, or through
staff or agencies or programs, or by the Security Counsel or the
General Assembly, or by regional organizations (like NATO) in
cooperation with the U.N.
This requires measures to create confidence. It needs early
warning, based on good intelligence and fact-finding. It may also
involve preventive deployment of troops, and sometimes may
require demilitarized zones.
Examples of Measures to Build Confidence.
Systematic exchange of military missions.
Formation of regional or subregional riskreduction centers.
Arrangements for the free flow of information,
including the monitoring of regional arms
agreements.
Fact-Finding.
Prevention requires timely and accurate
information, as well as an understanding of
developments and global trends based on sound
analysis.
Given the economic and social roots of many
potential conflicts, the U.N. needs info on
economic and social trends in addition to political
developments that may lead to dangerous
tensions.
A request by a state for a U.N. fact-finding
mission on its territory should be considered
without undue delay.
Contact with member states should be
maintained to keep up the flow of info.
Formal fact-finding can be mandated by the
Security Counsel or by the General Assembly.
They can send a mission or a special envoy. The
missions presence alone may sometimes defuse
a situation.
Peacemaking.
Mediation and negotiation are the U.N.s methods here.
Mediation and negotiation can be undertaken by an individual
designated by the Security Counsel, the General Assembly, or the
Secretary-General.
The individual is usually a distinguished statesman.
His personal prestige and experience can encourage the
parties to enter serious negotiations.
There are lots of people willing to serve in this capacity.
You could also take your dispute to a regional organization which would facilitate a
resolution of the dispute.
Some of these organizations have good records here, others are still
working on it.
Organizations which have had active roles:
OEA/OAS (Organization of American States).
OAU (Organization of African Unity).
The Arab League.
CSCE (The Conference on Security and Cooperation in Europe).
ASEAN (The Association of South-East Asian States).
NATO.
The conflicts in Yugoslavia have been dealt with by joint
U.N.-E.C. mediators.
The settlement of the civil war in El Salvador was
assisted by joint OAS-U.N. representatives.
The conflict in Somalia got help in conciliation efforts from
the U.N., the OAU, the League of Arab States, and the
Organization of the Islamic Conference.
Problems sometimes lead to the parties preferring the U.N. over regional
organizations.
Regional bodies sometimes have a conflict of interests.
They often lack the resources that the U.N. has.
They often lack the experience that the U.N. has.
International Arbitration.
You need to set down the ground rules first. These are not set under international
law.
What law will be applied.
What the scope of the decision will be.
What will be the means of determining the facts.
What the procedures will be.
These ground rules can be screwed up big time, so be careful.
A treaty between the U.S. and the U.S.S.R. after WWII
contained an arbitration document, drafted by the United
States, which said that arbitration would only happen
after the representatives were chosen. So the Soviets
never picked any representatives, thus arbitration could
never take place. So there was never any resolution of

the dispute under the treaty, and the Iron Curtain
descended for 50 years. It was bad drafting on our part,
and bad faith on theirs, but it still happened.
Arbitration can only reach one of two decisions. Either X is right, or Y is right.
If the arbitrator reaches a third decision, then it is a nullity.
This is what happened in the Chamizal Tract case.
Examples of Arbitration Rules:

The most active arbitration tribunal in the 1990s was the Iran-United
States Claims Tribunal in the Hague, with jurisdiction over claims of the
citizens of one country against the other state. It was governed by the
rules of UNCITRAL (the U.N. Commission on International Trade Law).
If you say so in an international agreement, you can have these
same rules apply to the resolution of any disputes under the
agreement.
More and more countries are signing on to the New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
An arbitration clause in a contract with a foreign state ensures
that there will be a forum to adjudicate any dispute that may arise
under the contract.
Such a clause will also ensure that any award rendered in such a
dispute will be enforceable virtually anywhere in the world.
In this respect, awards entitled to recognition and
enforcement under the New York Convention enjoy more
effective enforcement than other awards or judgments,
including those of the International Court of Justice.
FORMAL ADJUDICATION THE INTERNATIONAL COURT OF JUSTICE.
The ICJ is an organ of the U.N., with 15 judges, sitting at The Hague.
Every state that has signed on to the U.N. Charter has also agreed to the
rules of the ICJ.
That doesnt mean they have assented to ICJ jurisdiction, only
that they agree to its rules.
ICJ decisions dont bind any nations apart from the parties to the
particular dispute.
And they only bind those parties with regard to that particular
dispute.
However, some ICJ decisions are so well-reasoned that they get
cited a lot as precedent and have become customary international

law binding international law.
Only states have standing before the ICJ for a contentious case.
Individuals and companies do not have standing.
In addition to its dispute-resolution authority, the ICJ can also issue

advisory opinions.
Only specified international organizations, under U.N. Charter
Article 96, can request advisory opinions.
Of the 15 or so organizations so authorized, the most
common requestors are the General Assembly and the
Security Council.
States cannot request advisory opinions.
Advisory opinions are not binding on anybody.
They may contain ideas, however, that go on to become
customary international law and therefore become
binding on everyone.
The ICJ may have only heard 200 cases or so. But the mere threat of an
ICJ case is often enough to reach a settlement.
For a third party of any sort, including the ICJ, to issue a decision binding on a
state, that state must have first consented to the third partys jurisdiction.
Thus, the ICJ only has jurisdiction if the party states consented to that
jurisdiction.
Consent can be express, or it can be implied, but the first thing
you have to do is find out whether it has been given.
There are only 3 ways for the ICJ to get compulsory jurisdiction.
1. State submits an optional clause declaration.
State declares that it recognizes the courts jurisdiction as
compulsory in all legal disputes concerning:
The interpretation of a treaty.
Any question of international law.
The existence of any fact which, if established,
would constitute a breach of an international
obligation.
The nature or extent of the reparation to be made
for the breach of an international obligation.
These are reciprocal. When you submit this declaration,
youre saying sue me and we go to the ICJ and submit to
its decision, but only if I get to sue you too.

This is a common way for states to come within the ICJs
jurisdiction. 60 states now have done this (about a third
of the world), and all of the northern European countries
do this.
Examples.
Declaration of Guinea-Bissau (1989): The
Republic of Guinea-Bissau accepts as
compulsory ipso facto and without special
agreement, in relation to any other State
accepting the same obligation, the jurisdiction of
the Court in all legal disputes referred to in Article
36, paragraph 2, of the Statute thereof. This
declaration will remain in force until six months
following the date on which the Government of
Guinea-Bissea makes known its intention of
terminating it.
Thats beautiful, but not good enough for the
United States. So we wrote at the end of ours
(1946): This declaration shall remain in force for a
period of five years and thereafter until the
expiration of six months after notice may be given
to terminate this declaration.
Thats stupid. Many years later Reagan
was confronted with Nicaraguan claims
because we were mining their harbor.
We tried to drop out of the ICJ, but four
days later Nicaragua filed a declaration.
We had actively imposed the 6-month
period on ourselves, so we were subject
to ICJ jurisdiction. Bad drafting. (We
had been trying to lead the way and get
other states to do the same thing, to
avoid hit-and-run dropping jurisdiction
(get jurisdiction to sue, then drop
jurisdiction right after you win).
The U.K. tried a different tack (1969). It accepts
jurisdiction over all disputes except:
Any dispute which the United Kingdom
--has agreed with the other Party
to Parties thereto to settle by
some other method of peaceful
settlement, or
--has already submitted to
arbitration by agreement with any
State which had not at the time
of submission accepted the
compulsory jurisdiction of the
ICJ;
Disputes with the government of any
other country which is a Member of the

Commonwealth with regard to situations
or facts existing before 1 January 1969;
Disputes in respect of which any other
Party to the dispute has accepted the
compulsory jurisdiction of the ICJ only in
relation to or for the purpose of the
dispute; or where the acceptance of the
Courts compulsory jurisdiction on behalf
of any other Party to the dispute was
deposited or ratified less than twelve
months prior to the filing of the
application bringing the dispute before
the Court.
Oh, thats clever. Thats what the U.S.
tried to do, but this one works.
Indias clause excludes disputes relating to or
connected with facts or situations of hostilities,
armed conflicts, individual or collective actions
taken in self-defense, resistance to aggression,
fulfillment of obligations imposed by international
bodies, and other similar or related acts,
measures or situations in which India is, has
been, or may in the future be involved.
So no dispute in Kashmir will ever be in
front of the ICJ. . . that lawyer sure
earned his fee!
2. You and the other state refer the dispute to the ICJ.
This is just an ad hoc referral by the parties.
This, too, is common.
3. The international agreement between the parties spells out that

any disputes under the agreement will be decided by the ICJ.
More and more international agreements say this.
This also works if the primary settler decides you can
appeal its decision to the ICJ.
Admissibility of the Case.

Is there standing? Is the case moot? Even though the ICJ has
jurisdiction, the case may not be justiciable.
Standing.
Meaningful local remedies must have been exhausted first.
Mootness.
Nuclear Tests Case (Australia v. France) (ICJ 1974).
There was jurisdiction, but the ICJ couldnt go to the

merits, because of a critical failing in the pleadings:
Whether or not there was an actual legal dispute.
The case must involve a real legal dispute.
Here, there was no dispute any more, because France
had already come forward and said they would cease
testing. So it was moot.
Note that France never admitted that they were violating
international law, so that issue was never reached.
Aegean Sea Continental Shelf Case (Greece v. Turkey) (1976).

Turkey was dropping explosives all over the continental
shelf in the Aegean, trying to get seismic readings in
search of oil. Greece got upset.
Greece wanted the ICJ to indicate interim measures,
i.e., issue an injunction to stop the Turks from continuing
this action.
The ICJ held that there must be a risk of irreparable
prejudice for it to issue an injunction.
The action must be necessary to preserve the
issue before the court.
The standard for irreparable prejudice here was whether
Turkey could make reparations for the damage if it was
ultimately found to have been bad. If reparations
wouldnt fix it, then an injunction would be proper.
Case Concerning United States Diplomatic And Consular Staff in

Tehran (United States v. Iran) (1979).
Here, irreparable injury would be hostage-taking and
execution of Americans. We had to protect these
Americans and return them. The irreparable harm and
injury was ongoing.
ICJ and SECURITY COUNCIL ACTIONS.

After Pan Am flight 103 was blown up over Lockerbie Scotland (the
altimeter bomb went off sooner than planned because of a change in the
flight, it was supposed to go off over the ocean so no pieces would be
found) we found out who did it by looking at the pieces. The United
States asked Libya to extradite the bad guys, and Libya refused.
We still havent gone all the way to Chapter 7 collective use of
force under the U.N. Charter. Instead, the Security Council has
imposed sanctions, which are still there.
Libya said okay, we can try them or we can extradite them, so
well try them ourselves. Then they asked the ICJ to tell the
Security Council to end the sanctions.
The ICJ refused. When the Security Council has taken action,
the ICJ will not interfere.
If the Security council is still debating though, then the
ICJ will get involved. (Thats what happened in the
Greece v. Turkey dispute.)
XIII.
THE USE OF FORCE
Unilateral use of force is important to understand.

Intro.
Up until World War I, war was seen as the best of everything. It was glorious, to
be longed for. It was to be entered into for the slightest provocation. The carnage
of WWI, however, which wiped out an entire European generation, was
unbelievable. There is still a pall over the land as a result of this conflict, even
more so than from WWII. After WWI the nations tried to get their act together, but
it didnt work. War, however, was no longer seen as the best of everything. After
WWII, the U.N. was established to resolve state-vs.-state conflicts. Its actually
done a really good job. Most bloodshed nowadays is intramural ethnic cleansing
or civil war. Following WWII, acts of aggression came to be seen as the supreme
crime, embodying all other crimes.
Before WWI, there were 4 kinds of force where rules were established. (There
was no prohibition against the use of force, mind you, it was natural.)
Retorsion An unfriendly act by one state against another state, in
response to a perceived offense. Acts which would not violate
international law, in response to acts that may or may not have violated
international law.
Slapping an embargo on bananas, limiting the number of migrs
from that country, radio broadcasts, military maneuvers, etc. are
examples.
Reprisal A response that does violate international law, in reaction to
an act that violated international law. An act of retaliation, not selfdefense (theres a big difference).
On October 19, 1914, a party of Germans had crossed into
Angola to discuss with the Portuguese authorities the importation
of food supplies into German Southwest Africa. Due to an
interpreters screwup, a misunderstanding arose. Any excuse for
violence was all that was needed back then, and a Portuguese
officer seized the bridle of a German officials horse, and the
German struck him while a German officer drew his pistol. The
Portuguese officer ordered his men to fire, and the German
official and two officers were killed. The German interpreter and a
remaining German soldier were interned. In reprisal, German
troops attacked and destroyed Portuguese forts and posts in
Angola.
After WWI, the question arose as to whether this had been an
appropriate reprisal. An arbitration panel was convened.
The arbitrators stated that the deaths of the German official and
the two German officers were not the consequence of an act
contrary to international law on the part of the Portuguese

authorities.
The sine qua non of the right to exercise reprisals is a
motive furnished by a preliminary act contrary to
international law.
Even had such an act happened, the German argument
that the reprisals were justified would have been rejected
anyway because reprisals are only permissible when they
have been preceded by an unsatisfied demand.
The use of force would only be justified by necessity.
Reprisals totally out of proportion with the act motivating
them would be illegal.
Three requirements, therefore:

There must have been a violation of international law.
You must have made a demand which was not complied
with.
Your response must be proportionate to the harm you
suffered.
By the way, the U.S. has never renounced its ability to conduct
reprisals. We never do it, nor do we say its okay for anybody
else to do it, but weve kept the option open.
We say, for example, that we will respond in kind to a
nuclear attack.
This will probably be something that must be dealt with,
so be sure to go through the analysis.
Intervention State intervenes in the affairs of another state.

This is not justified any more, under the U.N. Charter.
Self-Defense This was the other option.

Self-defense lives on. See below.
After WWI, the League of Nations was established to ensure safety. The states
signed the Kellogg-Briand Pact of 1928 which is still in force today.
The parties condemned recourse to war for the solution of international
controversies, and renounced it as an instrument of national policy in their
relations with one another.
The use of force was prohibited.
This is the treaty which was used at Nuremburg, and which Ribbentrop
was accused of violating, and for which he went to the gallows.
United Nations Charter (1945).

The first words are: We the peoples of the United Nations determined to
save succeeding generations from the scourge of war, which twice in our
lifetime has brought untold sorrow to mankind . . . .
The first purpose of the U.N. is to maintain international peace and
security, and to that end: to take effective collective measures for the
prevention and removal of threats to the peace, and for the suppression of
acts of aggression or other breaches of the peace, and to bring about by
peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace.
Acts of aggression isnt defined anywhere in the Charter.
They left it undefined on purpose. If they made a list of things
that are aggression, then anything not on the list might not count.
Didnt want to leave an opening for aggressors.
Indirect aggression, however, has not found favor as an act of
aggression here.
General Assembly Resolution 3314 (1974) Everybody agrees
that aggression includes:
The invasion or attack by the armed forces of a state of
the territory of another state; or any military occupation,
however temporary, resulting from such an invasion or
attack; or any annexation by the use of force of the
territory of another state or part thereof.
Bombardment by the armed forces of a state against the
territory of another state or the use of any weapons by a
state against the territory of another state.
The blockade of the ports or coasts of a state by the
armed forces of another state.
An attack by the armed forces of a state on the land, sea,
or air forces, marine and air fleets of another state.
The use of armed forces of one state which are within the
territory of another state with the agreement of the
receiving state, in contravention of the conditions
provided for in the agreement or any extension of their
presence in such territory beyond the termination of the
agreement.
The action of a state in allowing its territory, which it has
placed at the disposal of another state, to be used by that
other state for perpetrating an act of aggression against a
third state.
This is why nobody would let us fly over their
territory en route to bombing the shit out of
Muammar Khaddafi. They were unsure as to
whether that would count as an act of aggression
on our part.
The sending by or on behalf of a state of armed bands,

groups, irregulars, or mercenaries, which carry out acts of
armed force against another state of such gravity as to
amount to the acts listed above, or its substantial
involvement therein. Youre just as guilty as if you sent
your own army to do it.
It may be an armed attack when you send in
armed bands or mercenaries to stage an attack,
but only if you sent them in such a way that their
actions were directed and controlled by you.
Merely giving them the arms and the
cash and the training isnt enough.
It may still be illegal, but it isnt use of
force.
This is not an exhaustive list, and the Security Council
may determine that other acts constitute aggression
under the provisions of the Charter.
Not everything counts as a use of force. Ideological acts, leafletdropping, radio broadcasts, etc., dont count.
It is a fundamental norm of international law that you do not have the right to
engage in acts of aggression or in unlawful use of force.
Analysis for All Use of Force Questions:
Did the states try to resolve it peacefully?
Did they abide by the U.N. Charter?
If they did resort to the use of force, was it self-defense? Or was it collective
action?
Two kinds of self-defense: U.N. Charter self defense, and preemptive selfdefense under customary international law.
If not self-defense or a collective action under the Charter, then the force
was illegal.
No matter what the reason for your use of force, was it necessary?
Unless you can prove a pre-existing customary norm of international law permits
it, you can only unilaterally use force under the U.N. Charter.
SELF-DEFENSE.
Article 51 Nothing in the U.N. Charter is to be construed so as to impair the
inherent right (pre-existing the U.N.) of self defense against armed attack.
Does that mean an armed attack must have occurred against your
country? No, the collective use of force provisions of the Charter permit
states to aid other states in defending themselves against aggression.
An armed attack is not a mere threat of force, nor do all acts of

aggression count.
The other side may be engaging in an illegal use of force, but it
may still not be an armed attack. You cant do anything in self
defense.
Troops are piling up on the other side of the border. Is it a
preliminary to an imminent attack? If so, strike. But if it is just an
exercise, wait.
For more on what counts as an armed attack, see the Nicaragua case
below. Its not the same as an act of aggression.
If youre subject to an armed attack, you may use force to repel them and
stop it.
You have to state that you are under an armed attack. You must
immediately report this to the Security Council.
You must promptly report your response actions to the Security Council.
Gotta be necessary.
Gotta be proportionate.
The Caroline (1906) Most famous case in international law Preemptive selfdefense (not in the U.N. Charter, but customary international law).
We had a bunch of nasty battles with Canada in the War of 1812. The
result of the war was a continuing hostility between us and them for many
years. We were always trying to take over parts of Canada afterwards,
and the border between Lake Erie and Lake Ontario was heavily
militarized. Definitely a charged atmosphere. And Canada was the big
power then; we were small fry.
Hearing of a planned United States incursion across the border, the
Canadians crossed first, grabbed the ship The Caroline, killed everyone
on board, set the ship completely aflame, and sent it over Niagara Falls.
Side note When the U.S. blows something up, as in Desert
Storm, we say we blew it up and killed people. When the British
blew something up and killed a bunch of people, they only said
targets were set alight.
As a result of this action, the U.S. Secretary of State, Daniel Webster, and
his British counterpart Lord Ashburton, had an ongoing correspondence
about what constituted self-defense. This ended up with the little country
being picked on telling the British in 1842:
The President sees with pleasure that your Lordship fully admits
those great principles of public law, applicable to cases of this
kind, which this government has expressed; and that on your part,
as on ours, respect for the inviolable character of the territory of
independent states is the most essential foundation of
civilization. And while it is admitted on both sides that there are
exceptions to this rule, he is gratified to find that your Lordship
admits that such exceptions must come within the limitations
stated and the terms used in a former communication from this
department to the British plenipotentiary here. Undoubtedly it is
just, that, while it is admitted that exceptions growing out of the

great law of self-defense do exist, those exceptions should be
confined to cases in which the necessity of that self-defense is
instant, overwhelming, and leaving no choice of means, and no
moment of deliberation.
The necessity must be immediate.
The necessity must be overwhelming.
There must be no other choice.
There must be no time to deliberate.
It should also be proportional. (This comes from an
earlier letter. Here, killing everyone, burning the ship, and
sending it over the falls was not proportional.)
This case keeps coming up over and over, throughout history, on the
question of whether anticipatory self-defense is proper. The criteria listed
are the criteria that get cited.
The Nazis went out of their way to make it look like Poland had
started it, so as to justify their invasion. They even dressed up
Polish prisoners in German uniforms, shot them and filmed it, and
blamed it on Poland. The Nuremburg tribunal, however, did not
buy it.
In the Cuban Missile Crisis, the United States went out of its way
to say its actions were not self-defense, but merely a quarantine
of Cuba on the high seas to keep the missiles out.
A blockade is a use of force, but it is less intrusive than
other kinds.
The United States proposed this in the U.N., and it was
representatives from Ghana (who, unlike ours, had been
well-educated in international law) who stood up and
cited the Caroline case, asking is this emergency instant,
overwhelming, leaving no choice of means, and no
moment for deliberation?
When the Israelis bombed Iraqs nuclear reactor in 1981
(because it could have been capable of making weapons-grade
plutonium), that also led to lengthy discussions of whether the
standards for preemptive self-defense attacks had been met.
Of course, the act had been done by then.
One side effect of this was for Iraq to put its reactors
underground, under hardened shelters. Every time we
come up with a cool bomb that can punch through layer
after layer, and can count how many levels its gone down
before exploding at the right one, they come up with
something to stop it.
Non-Charter Uses of Force that are Permitted by Customary International Law.
Preemptive self-defense.
See above.
Retrieving your nationals.

You go into another country with your armed forces to get your nationals
and get out.
This is usually done unilaterally, and its not part of the U.N.
Charter, but everybody supports it.
The use of your armed forces can only be for the exclusive, narrowlytailored purpose of pulling out your nationals.
This can be troublesome when you go in to extract your nationals
and wind up changing the government, taking over, setting up a
continuing military presence, etc. (you know, like we did in
Panama and Grenada).
Israel had some people in trouble in Uganda. Before they
extracted them, they took out the entire Ugandan air force on the
ground. It was a similar situation to the U.S. and Grenada/
Panama, and they similarly got lukewarm support for their
actions.
INTERVENTION.
Humanitarian Intervention.
Unilateral intervention for humanitarian purposes is not much supported.
This is especially true now that the U.N. sets up multilateral collective
intervention even for internal problems, if they are widespread
humanitarian problems.
The multilateral stuff is okay. Thats different from looking at another
country, saying they need our kind of government over there, and going
over to help them get it. Thats what the U.N. was set up to prevent,
remember?
Intervention to Effect Changes.
Intervention to clean up the other guys system is just bad. It violates
sovereignty.
Intervention Against Terrorism.

Prior to 9/11, there was one case where this has happened the U.S.
strike against Libya after the Libya-sponsored bombing of a German disco
where American servicemen were killed.
This attack was not well-received, but neither was it universally
condemned.
Its hard to attribute terrorist acts to a state.
The response must be calculated to solve the particular terrorism
problem.
The response must be narrowly tailored to its purpose. Dont go blasting

everything, just the terrorist stuff.
The response must be proportionate. If they only killed one of yours,
dont go blowing up cities.
Intervention in Civil Wars.

Do states have the right to intervene when the rebels invite them? When
either side invites them?
In the Nicaragua case (below), the ICJ didnt say whether states have a
right to intervene on behalf of the ruling government.
It didnt prohibit it, though.
Previous rules of international law may make you a belligerent,
however.
However, the ICJ did specifically state that you cannot intervene in other
countries civil wars on behalf of the opposition.
Cant do this even if you were requested to do so.
Older rule was similar. (A big reason why France waited until
there was a colonial victory before aiding us against England in
our revolution and they still came in too soon; also one of the
reasons why England stayed out of our Civil War.)
This whole area is unresolved, however, so we need another ICJ
decision.
Especially now that most fighting is intramural civil strife and
ethnic cleansing.
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States)
(ICJ 1986).
The United States still disputes the facts in this case, as well as the actual
outcome, but we do like much of the legal holding, and we are now citing big parts
of it in other cases (such as the right to as many weapons as you want).
The U.S. was displeased with the Sandinistas until they were voted out (in the first
free election). Until then, there was some real tension. The U.S.S.R. and Cuba
were accused of assisting the Sandinistas, who were alleged to have committed
acts of destruction against Honduras and Costa Rica.
The Contras were trying to revolt, and the U.S. was alleged to have assisted the
revolution. We were accused of unauthorized overflights, mining the harbor,
training rebels at Camp Perry (the CIA training camp that we dont admit exists).
[Four categories of violations: (1) Violations of sovereignty. (2) Illegal
interventions. (3) Illegal uses of force. (4) Illegal uses of force which
justified an Article 51 self-defense response.]
Had Ollie North consulted anybody, he would have known that mining the
harbor and not telling anyone is a big-time violation of international law.
As are unauthorized overflights.
What about intervening on behalf of the rebels? See above.
The United States sole justification for its action was collective self-defense under
Article 51.
The court held that there is no such thing as a right of collective armed
response to acts which do not constitute an armed attack.
States do have a right of collective self-defense only if they are under
armed attack. So even though Nicaragua may have been guilty of odious
violations of international law, absent an armed attack there was no right
of collective self-defense.
So, in order to justify the U.S.s actions, the ICJ had to find an armed
attack by Nicaragua against Honduras or Costa Rica.
The U.S. had difficulty establishing this, because we didnt argue
the case! Thats right, we disputed the ICJs jurisdiction, so we
didnt even send a lawyer to argue for us. So the only version of
the facts that the ICJ had to work with was Nicaraguas version.
Thus, the ICJ never saw the photos, never saw any of the
evidence of Nicaraguas armed attacks. So its attacks on
Honduras, its shipments to El Salvador, and its attacks on Costa
Rica were not regarded as armed attacks for Article 51 purposes.
Did supplying arms, equipment, and training to the Contras count as an armed
attack by the United States against Nicaragua?
No. The United States support of the Contras, as well as the Nicaraguan
support of El Salvadorian rebels, might be violations of international law,
and they might be uses of force, but they are not armed attacks justifying
self-defense.
Even presuming that the supply of arms to the opposition in El Salvador
could be treated as imputable to the government of Nicaragua, to justify
invocation of the right of collective self-defense in customary international
law, it would have to be equated with an armed attack by Nicaragua on El
Salvador.
The ICJ was unable to consider that, in customary international
law, the provision of arms to the opposition in another state
constitutes an armed attack on that state. Even at a time when
the arms flow was at its peak, and again presuming the
participation of the Nicaraguan government, that would still not
constitute an armed attack.
It might have been illegal intervention, it might have been use of
force, but it wasnt an armed attack for self-defense purposes.
It may be an armed attack when you send in armed bands or mercenaries to

stage an attack, but only if you sent them in such a way that their actions were
directed and controlled by you.
Merely giving them the arms and the cash and the training isnt enough.
It may still be illegal, but it isnt use of force.
To make an armed response in self-defense under Article 51, you must state that
you are under an armed attack. You must immediately report this fact to the
Security Council. And you must also promptly report your own actions in
response.
Here, none of these states announced that they were victims of armed
attacks. Nobody ever asked the United States to come help them.
Nobody ever told the U.N. they were under attack.
The United States did not obey international law here. We have learned
our lesson, too.
So when Iraq invaded Kuwait, Kuwait and Saudi Arabia begged
us to intervene, and we said put it in writing first. An immediate
record was established before the Security Council.
Nicaragua claimed that it was the victim of indirect aggression (namely, the
embargo, our support of the Contras, and our military maneuvers in Honduras).
The ICJ held that the maneuvers were not use of force.
Neither the embargo nor giving money to the Contras were uses of force.
Supplying weapons might have been use of force, however, but
economic measures of intervention were not a violation of
international law. If you dont want to trade with someone, thats
fine.
Now. . . prohibiting other countries from trading with a state might
be a problem.
NECESSITY AND PROPORTIONALITY.
Even presuming that Nicaragua engaged in armed attacks on Honduras
and Costa Rica, that we were formally invited down there, and that we
had notified the U.N., Honduras has nevertheless already crushed the
rebellion a year or so earlier.
There was no necessity.
If you say youre using force against another country, no matter
what the reason, the use of force must be necessary.
Ask this for every particular act. If a particular act was not
necessary, then it was illegal.
No necessity, so the United States had failed to abide by
this standard, as well.
All uses of force must be proportional.

Iraqi gunners are shooting at you. You need to destroy them. To
do so, you do not take out a dam upriver and drown a million
people.
This is not a new standard. Its been around at least since the
Caroline case, and even it said this is nothing new.
Its always when we do things halfway that Americans get killed. Like in Somalia, where
we took out most of our forces and left just a few there to make the political statement that
were still there, without enough armor and support to protect those who were there.
As has been noted by the terrorists themselves, the American habit of pulling out
emboldened Al Qaeda and others to more numerous and harmful attacks on
American interests, culminating in 9/11.
Its the half-hearted stuff, the warm fuzzy idea that sending Americans somewhere
will somehow make things better, that gets people killed. During the period from
1979 through the late 1990s, the US had about 500 KIA. (During that same time,
there were about 15,000 American soldiers killed in all, from jeeps turning over to
any other reason.)
Manuel Noriega made a big mistake by declaring war on the United States.
Had he not declared war, a lot of s*** might not have hit that fan.
George Bush sent a communication to the Speaker of the House detailing the
justification for the invasion of Panama:
On December 15, 1989, at the instigation of Manuel Noriega, the
illegitimate Panamanian National Assembly declared that a state of war
existed between the Republic of Panama and the United States. At the
same time, Noriega gave a highly inflammatory anti-American speech. A
series of vicious and brutal acts directed at U.S. personnel and
dependents followed these events.
On December 16, 1989, a U.S. Marine officer was killed without
justification by Panama Defense Forces (PDF) personnel. Other
elements of the PDF beat a U.S. Naval officer and unlawfully detained,
physically abused, and threatened the officers wife. These acts of
violence are directly attributable to Noriegas dictatorship, which created a
climate of aggression that places American lives and interests in peril.
These and other events over the past two years have made it clear that
the lives and welfare of American citizens in Panama were increasingly at
risk, and that the continued safe operation of the Panama Canal and the
integrity of the Canal Treaties would be in serious jeopardy if such
lawlessness were allowed to continue.
[. . .] The deployment of U.S. Forces is an exercise of the right of selfdefense recognized in Article 51 of the United Nations Charter and was
necessary to protect American lives in imminent danger and to fulfill our
responsibilities under the Panama Canal Treaties. [. . .]
We did not actually invoke self-defense, however.
We rarely do so under Article 51. The only times weve done so were in
the Nicaragua case, which we lost, and the bombing of Libya.
WAR POWERS RESOLUTION.
This is still law.
This resolution governs the commitment of U.S. forces to any activity, be it the use
of force, or just international peacekeeping.

Need:
Declaration of War by the U.S. Congress.
Specific statutes authorizing the use of our forces.
Actual national emergency created by an attack on U.S. territory or on our
armed forces.
Before 9/11, none of these things had happened. So how did the U.S. do
everything it did?
1543 The President has to submit a report within 48 hours of action.
If President doesnt withdraw first, then he has 60 days to get Congress
consent or else he must then withdraw the forces. 1544(b).
Only have to leave after 60 days, and the 60-day period doesnt start to
run until the letter is sent to Congress, and the letter isnt always required.
The letter always comes within 48 hours, but it also always says
the report is consistent with the W.P.R, not that it is in
compliance with it.
Bush did ask for Congressional support of the intervention against Iraq in
1991, because we were facing a battle-hardened army, the fourth-largest
in the world, with mint-condition Soviet equipment.
The tension between Congress and the President on declaring war is a
healthy tension. War is the last thing you want to get involved in.
COLLECTIVE USE OF FORCE.
IN PROGRESS...TO BE COMPLETED.
"LAWFARE"
The term "lawfare" was coined by Maj. Gen. Charles Dunlap, Deputy Judge Advocate
General for the United States Air Force. The -fare suffix is meant to imply warfare, not
welfare. The word simply refers to the use of law and legal process as a weapon in
modern warfare, to either achieve a military objective or to deny an objective to the enemy.
Lawfare tends to be used as a weapon against countries and societies where the
rule of law is strong. It is most commonly used in asymmetrical warfare, by
guerrillas and terrorists who seek to affect public perception abroad and gain a
moral advantage.
Most people are familiar with the concept, if not with the term itself. One
commonly-understood example is the use of human shields the
placement of civilians at military targets to deter attack with the fear that
the death of innocents would be ruled unlawful, at least in the court of
public perception. Much as with propaganda, perception is the key to
lawfare.
Groups also use the rule-of-law countries own courts to stifle the
dissemination of information that would hurt their objectives, to stifle
criticism, and to gain sympathy while painting the rule-of-law countries as

evil.
It is used by governments as well. For example, after four months of
bitter opposition from lawyers and the judiciary in Pakistan, Pervez
Musharraf declared a state of emergency in late 2007, suspending the
nations constitution, blacking out the media, and arresting many. The
lawyers and judges had been sharply criticizing him for failing to control
the terrorists, who had taken over even civilized resort areas of the
country. Musharraf acted to preserve his control of the country.
During his speech declaring martial law, Musharraf switched to
English and made an appeal to American ears, blaming the
lawyers of being on the side of the terrorists, and citing principles
of preserving the union and the precedent of Abraham Lincolns
suspension of Habeas corpus during the Civil War. Musharrafs
aide later confirmed to international lawyer Scott Horton that this
message was intended for the U.S. government, to ensure that
the U.S. would continue to support him, knowing that lawyers are
not well-regarded in the U.S.
Ultimately, the ploy did not work, and Musharraf stepped down.
But it was a clear attempt to appeal to law mis-stating it and
mis-applying it, to be sure in the hopes of affecting Western
opinion.
The concept is often mis-used by those who claim that there is too much law, and
that the application of law to military matters is a bad thing that hamstrings
commanders in the field. The fact of the matter is that lawfare is out there; it
happens. It is not inherently good or bad. Guerrillas, terrorists and their backers
are already using it with some degree of success. It might be wiser for such critics
to take it into account, and use it effectively themselves, rather than wish it didnt
exist.
Despite the widespread use of lawfare in asymmetrical conflicts going back at least as far
as the Vietnam Conflict, western military commanders have only recently begun to accept
the grim reality that they must bring lawyers with them to the battle.
Before they can give useful advice to commanders usually in real time, without
any chance for review, and without any do-overs military lawyers must have an
understanding of how military operations work. To prevent the killing of noncombatants in a fluid enemy compound, for example, they need to know how
minute fusing changes can affect the destruction caused by a particular bomb.
The military wants to avoid killing the wrong people, but it doesnt want the enemy
to escape because of that.
Typically, lawfare is waged by those from societies without a strong rule of law, against
those who do have a strong rule of law. This takes advantage of the fact that the citizens
of rule-of-law countries have a sense of justice and fair play that can be manipulated to
achieve enemy ends. Too often, their own governments and militaries are unwilling or
unable to change this.
Words have meaning, and those who wage lawfare are careful to use or release
certain words.
Al Qaeda trains its people to claim torture if captured, because of the
effect of such a claim on westerners.
The meaning of words can be manipulated. Terms of art such as
proportionality, for example, are commonly used improperly to make
western forces appear to be acting unlawfully when in fact they were not.
Proportionality is an international law concept that simply
prohibits superfluous suffering. As described above, you dont
drown a million people to take out a machine gun emplacement.
It is commonly mis-used, however, to say a military should not
use more effective weapons than those used by the enemy. How
you kill an enemy fighter is not the issue, its whether youre killing
far too many other people to take him out.
It is also mis-used to say collateral damage is per se illegal. This
explains the common use of human shields and hiding military
personnel and equipment among civilian women and children,
and in hospitals and schools. Collateral damage is an expected
an unavoidable consequence of warfare, and avoiding it at all
costs is a losing proposition. Those who aim to minimize it, of
course, are those whose societal standards open them up to
criticism when it does happen.
These uses of the word fit its colloquial meaning of the word, but
dramatically distort the legal meaning, for the purpose of making
rule-of-law forces appear to be the bad guys.
You can mis-use words yourself, giving an advantage to the enemy.
Jihadist, for example, is the wrong word to use when attacking
islamist terrorists. In Islam, the word jihadist has strong
connotations of goodness and proper behavior. Calling someone
a jihadist confers on them real religious legitimacy. The proper
word to use would be mufsidun, which means evildoer.
In 2008, the local sheikhs and tribal leaders in Iraq began using
the word mufsidun when describing terrorism, with real results.
Their people began opposing and punishing terrorist behavior,
and generally began acting like terrorism was wrong and bad.
Even with the significant progress under the militarys surge
strategy, this single conceptual change was considered the
biggest change on the ground in 2008. (This is one of the few
actual examples of the U.S. itself successfully using lawfare in
that conflict.)
A lawfare battle will be lost by ceding the ground to the enemy, or by ignoring the
other commonly-understood principles of war, such as unity of effort and the
principle of the offensive. The battlefield is real, and the stakes are the high as
any other.
If you let the enemy control the terms or the message, you are losing.
If you stay on the defensive, so youre only reacting to the enemys legal
ploys or inaccurate reporting, then you are losing.
Legal Jihad or Soft Jihad is an example of the practice of using the courts of a
rule-of-law enemy to achieve military objectives against that enemy.
Terrorists and their supporters use western courts as a battleground to
attack the free flow of information, especially information prejudicial to
their interests. Typically, lawsuits are filed to silence and punish legitimate
criticism, and even objective reporting and neutral commentary.
(Essentially, it is the use of western law to subvert western legal principles
such as free speech and civil rights.)
It can be extremely effective, even if the underlying claims are meritless,

because publishers and corporations want to avoid the expense and bad
publicity of such cases, and individuals often cannot afford the expense of
defending such actions. So to make the cases go away, they often simply
capitulate, make an apology and retract the offending materials.
Typically, when a defendant decides to defend itself, these
actions tend to be withdrawn during the discovery phase, when
the plaintiffs would be required to disclose information supporting
their claims. This supports the common belief that such actions
are brought as a kind of extortion or intimidation.
Meritless though they may be, these actions have a significant chilling
effect on free speech. There has been a wave of self-censorship in the
media and publishing worlds in recent years. Books, journals, even video
games are unilaterally pulled from the market to avoid litigation.
There is an even greater effect outside the U.S., in the courts of Canada,
the U.K. and Europe, where they dont have the same free-speech
protections. Hate-speech laws, liberal libel laws, and even criminalization
of causing offense, make lawsuits there not only more common, but more
likely to result in a win for the soft jihadists. Even the U.N. passes
resolutions banning criticism of Islam (62/145, passed in 2007 and 2008).
The courts are also used to litigate military detention. This litigation is as much a
battleground for lawfare as any other, and there are deep divisions over whether it
should even be happening.
Litigation is, of course, the preferred method of dispute resolution in the
U.S. But there has long been a recognition that the courts should stay out
of policy and military decisionmaking, as judges are neither beholden to
the voters for the consequences of such decisions, nor possessed of the
expertise required to make such decisions.
So, for example, in 1948 the U.S. Supreme Court held in Chicago &
Southern Air Lines v. Waterman S.S. Corp. that the courts cannot review
Executive intelligence actions the courts do not (and should not) have
access to the secret information underlying such actions, and lack the
expertise to know what to do with such information even if they had it.
333 U.S. 103, 111.
The FISA court tries to address that by channeling intel
surveillance matters to one court, so at least the judges dont
have to re-invent the wheel every time a wiretap application
comes in.
Some further object that judges and courts can only increase civil rights,
not take them away. So by allowing the courts to review claims of
wartime prisoners, they are granted rights they did not have before, and
can only get more rights as time goes on.
The U.S. government, under the G.W. Bush administration, actually took
the lead in increasing this court involvement, in an attempt to stay on the
right side of public perception. All it did, however, was give another forum
to its enemies to wage lawfare against it.
[1]
But Tito, a Croat, didnt like the Serbs. So the borders were crazy, with the Serbs scattered all over and a
hodgepodge of peoples everywhere. For a brief period after independence, the border agreement was
there, but then the ethnic cleansing began. The result was three increasingly purged states. Nobody
enforced the original plan of regulating the borders, and resulting in the Dayton accord with different
borders based on the intervening battles.
[2]
Visitors to Saudi Arabia in the 1970s and 80s, for example, were repeatedly warned never to report a
crime, because you would be jailed until the culprit was caught and convicted.

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Nothing on this page constitutes legal advice.

XI. Human Rights

Corporations and Individuals

THE SOURCES OF INTERNATIONAL LAW

General practices of states, accepted as if they were law.

Followed not out of habit or expediency, but because considered law.

Fourth, look to general principles common to mature legal systems.

CUSTOMARY INTERNATIONAL LAW

requirement (opinio juris).

Whenever considering whether something is custom, ask the following:

The Paquete Habana (1900)

Asylum Case (1950)

Law. Under it, states can do anything they want

Mere uniformity of external regularity never justifies a conclusion of normativity.

OPINIO JURIS North Sea Continental Shelf Cases (1969)

Nicaragua v. U.S. (1986).

TREATIES, GENERAL PRINCIPLES, AND OTHER SOURCES OF INTERNATIONAL LAW

General Principles of Law and Equity.

Meuse case, Netherlands v. Belgium (1937).

Corfu Channel case, United Kingdom v. Albania (1949).

The ICJ held that elementary considerations of humanity are binding

Back to Contents2007-2010 Nathaniel Burney

Communications between the agencies are not fantastic.)

THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW

We are bound to international agreements, even though our convoluted municipal

Only treaties are.

The Constitution refers to international law in Article I 8: Congress has

Murray v. Schooner Charming Betsy (1804) An act of Congress is

legislature, between the feds and the states.

Treaty international law.

Missouri v. Holland (1920) Conflict between a treaty and state law.

Reid v. Covert (1957) If a treaty is contrary to the Constitution, then the

Foster & Elam v. Neilson (1829) A treaty is equivalent to a legislative

Self-executing treaties vs. Non-self-executing treaties.

Fujii v. California (1950) A California statute forbade aliens ineligible for

is self-executing, then it is binding even if it hasnt yet been implemented

Whitney v. Robertson (1888) In the event of a conflict of a treaty with

Charlton v. Kelly (1913) A breach of a treaty by one party makes the

United States v. Belmont, 301 U.S. 324 (1937) The Soviets

Purely Executive Powers, versus Shared Powers.

Apply this analysis to conflicts in foreign affairs:

This is clearly a shared power commerce and trade.

More on the 4 requirements:

all foreign-affairs power to Switzerland, yet it is still a state.

There has to be a government in charge, for there to be recognition.

(Proposed) FIVE ADDITIONAL CRITERIA FOR RECOGNITION, developed

Recognition isnt guaranteed, even if it would be okay.

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Standards for Recognition of Governments:

recognition of governments. Being the de facto government is

What is the status of a government during the murky period of nonrecognition?

be to hold that within the rules of international law a revolution

Nonrecognized governments can engage in acts that will be recognized by United

Salimoff, read in conjunction with Tinoco, also means that successors of

Upright v. Mercury Business Machines, New York appellate division 1961

A foreign government in exile is not a de facto government. It may be de jure,

It can be treated as a de jure government, however. The Polish

There is also a middle course, a right of minorities to be themselves without being

Sovereignty over Land, Sea, and Air.

Legal Status of Eastern Greenland Case (1933).

continuously asserting its rights, and nobody had

NON-STATE ENTITIES: ORGANIZATIONS, CORPORATIONS and INDIVIDUALS

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