International Law Outline Professor Epps Fall 2006 Sources of International Law: What is international law?  A system of customary laws, from which a structure of treaty-made law was constructed, mainly in the past 2 generations. o Classically there have been 2 divisions of IL: 1. Public International Law:  "The legal relationship between 2 states"  Began to develop after WWII; human rights concerns added the concept of the individual and certain groups into the scope of IL.  Resulting in a radical expansion of what was under the scope of IL.  UN was enacted during this during as a result.  Genocide then became an international crime. This meant that every person in the world had an obligation to not exercise genocide. 2. Private International Law:  Covers international business transactions and the legal method which they are subjected to.  The World Trade Organization  Transnational Taxation  Law of treaties  International jurisdiction  Which state's laws are applied  Enforcement of certain judgments  What brought on the development of IL? o The necessity for IL arose in the context of increased international:  Trade  Communication  Immigration  Conflict Is there an international legislature which creates International Laws? o No. o In the "UN General Assembly" each country gets one vote (regardless of size/population)  These resolutions difficult to make mandatory; they usually aren't. o Closest thing to a law would be "custom"  1  Is there an international executive? o Not really. o The UN has the power to impose mandatory sanctions against nation states.  At first only voluntary sanctions were imposed; now mandatory sanctions are imposed.  However, these sanctions take a long time to operate; they effectiveness is questionable. o The "UN peacekeeper's" role"  They can only come in once the conflict has already ended.  Traditionally, the whole state must be in agreement. o No UN Army exists. Is there an international judiciary?  Yes, the International Court of Justice.  Under development; still rudimentary.  Can only hear disputes between sovereign sates; not between individuals. What are some dispute settlement mechanisms of the ICJ?  World trade organization  International center of investment disputes  Various other forms of arbitration.   Custom:     A consistent legal practice in which states engage out of sense of legal obligation. Widespread repetition by states of similar international acts over long periods of time Act must be done by a significant number of states, and cannot be rejected by a significant number of states. o For example: Universal prohibitions such as those against slavery and genocide are customs. Different from treaty law (consisting of explicit agreements) because nothing is formally written/ explicit. o However, many treaties are attempts to codify existing customary law. Note: If, over a long period of time, there are a significant number of general assembly resolutions on a particular issue and a super-majority consistently votes for/against it. These consistent votes must be used as evidence of custom, thereby indicative of international law.  Custom may arise out of: 2 1. Opinio Juris:  Behavior done out of a sense of legal obligation  Subjective element of international law; refers to beliefs 2. Jus cogens:  Fundamental ideas "cognitively" thought of as law  Unbeatable  States are not free to pass contrary legislation on these types of customary laws  Ex: Prohibitions against  War crimes  Genocide  Torture crimes against humanity  Piracy  Slavery Paquete Habana:  Custom: A fishing boat cannot be captured as a prize of war o The court found this as a custom by going back through the centuries, and numerous states and finding separate, but similar examples.  Why are states obliged to follow custom?  States would be wary of passing their own laws to override international customs because:  Would be seen as an "outlaw"  As a result, other states may restrict or eliminate activates such as trade with outlaw nation. 2 elements needed for custom: 1. Consistent practice of states 2. Engaged in out of sense of legal obligation State Practice:  Evidence for/against opinio juris: o Can usually be established by many states' practice  However, the fact that states consistently abstain from the act does not necessarily show a rule of customary law.  Ex: The fact that no nuclear weapons have been used since 1945 does not render their use illegal on the basis of customary obligation.  The necessary opinio juris is lacking North Sea Continental Shelf Cases:  Argued that equidistance principle should be applied when dividing up the shelf  Reasoning: Many countries, both counties party to the treaty and not, were abiding by the equidistance principle. o Need to have Opinio Juris 3 Abiding by the provisions in the treaty Out of a sense of legal obligation o The court did not know which one it was, therefore the court held that this was not sufficient proof of opinio juris   Treaties:    Binding agreement under international law entered into by states and international organizations The willing states assume obligations among themselves A party that fails to live up to their obligation under the treaty can be liable under international law for that breach. How can non-parties become bound by a treaty? 1. By expressing the law found within the treaty as customary  They have engaged in it consistently  Out of a sense of legal obligation or 2. After the treaty is made, states immediately change their behavior so it conforms to the treaty; even though they are not parties to the treaty.  Even though they did not sign this treaty, they clearly see the value of the legislation therein, and conform their behavior to emulate the parties which have signed. Scholarly Writings:  ICJ is somewhat wary of citing scholars of their own, or similar, legal system o Reasoning: They do not want to be accused of only drawing from their culture  However: o The ICJ has asked scholars especially learned in a particular matter for an opinion on an issue which they cannot resolve on their own. "Soft Law"  A principle which could develop into law eventually, but that presently, does not have any binding force.  Somewhat "weaker" than the binding force of traditional law o Agreements reached between parties which never officially become "hard" or "enforceable" law o Non-treaty obligations (which are therefore unenforceable). o Resolutions of various international organizations  The resolutions of the UN General Assembly = soft law o Codes of conduct/guidelines between various states  In the beginning, people will state the "soft law" as if it is "hard law", hoping that with enough supporters and enough repetition it will be strengthened into really becoming "hard international law". o If people do not support it, the issue will die out. 4  Ex: "The death penalty is prohibited by international human rights law" Title to territory:  International law, unlike the US, has no system of officially registering real property. Rules for resolving territorial disputes: 1. Discovery  Can only give inchoate (undeveloped/ primary) title 2. Contiguity  Cannot establish title on its own under international law 3. Peaceful and continuous display of sovereignty  If a states exercises this type of sovereignty in an "open and notorious" fashion after another country has already "discovered" the territory; their title will be deemed better than the country who only discovered (but never exercised power). Island of Palmas Case:  In order to determine whether the US or the Netherlands has title to Palmas, the court looked for acts which demonstrated sovereignty o Netherlands:  Negotiated fees and taxes  Made treaties with the occupying tribes  The court applied "intertemporal law" o Meaning the court had to use the law that existed at whatever time the fact the party is relying on (to demonstrate sovereignty) occurred  Ex: In order to determine whether the treaty a party is relying on as evidence was valid, the law of that time period (here the 1600's) must be applied.  Right by discovery: o US claimed they acquired title from Spain (the original discoverers) through the Treaty of Paris. o However, the court held that Spain held an "inchoate (vague, undeveloped) title" to Palmas because they failed to "exercise authority" over the island, post-discovery. o Therefore, Spain never had any good title to pass on to the US.  Rule:  The discoverer has to exercise some kind of authority on the territory in order to acquire good title, even if the act is as simple as planting a flag on a beach. Contiguity: o US claimed that this land was closer to the Philippines than to the Dutch territory of Indonesia.  5 o US attempted to apply the principle of "terra firma" which states:  "the nearest continent or island of considerable size gives title to the land in dispute"  Court held that mere proximity was not a valid claim to title in the international community because it would lead to arbitrary (random, unreasonable) results.  Peaceful and continuous display of sovereignty: o Netherlands' primary contention was that it had exercised authority on the Island since 1677. o The Netherlands showed that the East India Trading Company (controlled by the Dutch crown) had:  Negotiated treaties with the local princes of the island since the 1700's  Required the practice of Protestantism  Denied other nationals on the island o All of these acts constituted what the court viewed as a peaceful and continuous exercise of control over the island. Terra Nullius:  "no man's land".  Land that has not had any form of ownership exercised upon it  2 ways that land may be classified as terra nullius: 1. There are no people there. Or 2. There are sparsely populated people who are spread out across the land without social or political organization. Clipperton Case:  Set out that mere discovery had to be accompanied by "effective occupation" in order to claim good title to land  "Effective occupation":  Prescience in the territory  Governmental structure  Capable of enforcing laws  Rule: What kind of actions you have to take to acquire title will depend on the characteristics of the land you are trying to claim.  Ex: If the land is very isolated and unpopulated, you wont have to exercise as many acts of sovereignty then if it was densely populated.  Ex: Western Sahara Case Colonized peoples:  The ICJ has held that colonized peoples, such as tribes who had functioning social/political organization prior to the foreign state's 6 colonization; have the right to throw out that foreign power and rule themselves.  Reasoning: That territory was not terra nullius to begin with, therefore good title was never acquired through colonization. Advisory Opinions on Territorial Disputes:  Article 96  Can be any legal question  Framed in terms of law  Raise problems of international law  Cannot ask the Court to pronounce on existing rights and obligations.  Has to be requested by a specially authorized agent of the UN  Ex: In the Western Sahara Case, Spain refused to consent to the jurisdiction of the ICJ, so Mauritania and Morocco asked for the ICJ's advisory opinion as to whether or not the Western Sahara was terra nullius or not to begin with. Use of Force in Disputes:  UN Charter Article 2, paragraph 4 o States cannot settle disputes by force  Exceptions: Security Counsel authorizes use of force when… o Article 51:  Allows you to use force for self-defense if an armed attack occurs. o Article 42:  Only other legal basis other than self-defense  Use of force to  "maintain international peace and security pursuant to its responsibilities under Chapter VII of the UN Charter"  Actions by air, sea, or land forces necessary to maintain international peace and security.  Ex: Demonstrations, blockades.  These articles make up the entirety of the law concerning states using force on one another. o In every modern instance when force has been used, that state has tried to make its reasoning "fit" into one of the above categories; usually by claiming threat/ self-defense. o See Report on Falkland Islands, 1985 Cession:  Surrendering of a territory to another country by treaty  Very unlikely to happen in modern times Outer Space:  Not subject to title/ ownership 7 Uti Possidetis:  Whatever you owned at the beginning of a conflict, remains yours after the conflict. o Unless you have given it away by some other means, such as treaty.  Colonies which are trying to break off from the rest of the country often try to invoke this rule. o However international community does not appear ready/willing to support the separation of these colonies. State Jurisdiction:   A state's power to exercise jurisdiction is subject to limitations A state has there types of jurisdiction: 1. Legislative: Power to enact laws that affect whatever issue is in contention 2. Adjudicative: Power to subject someone to the court system within your jurisdiction. 3. Executive: Power to enforce the laws The Lotus Case:  Issue was whether Turkey had jurisdiction over the French office who was in watch at the time of the boat's collision.  France claimed: Since the collision occurred at high seas, only the flag state had exclusive jurisdiction over the matter. o Court rejected stating: There is no rule stating this in IL.  State will be allowed to do whatever it wants within its own territory  Rule: o Basically, you don’t have to prove that you CAN do something under IL, the opposing party has to prove that you CANT do something under IL. General nature of IL; as expressed in The Lotus Case:  States are essentially free to do whatever they want.  IL only constrains them in relatively few areas by means of: o Custom, or o Treaty  Generally: "We will let you do what you want, unless we have already stated that you can't." Basis for State Jurisdiction:  When determining international jurisdiction, a principle similar to "minimum contacts" in applied.  In order for a state to exercise jurisdiction there must be one or more of these bases: 1. Territorial  The crime was committed within the territory of the country attempting jurisdiction 8 2. Nationality  The D is a national of the country attempting jurisdiction 3. Passive Personality  The victim(s) are nationals of the country attempting jurisdiction 4. Protective/ Universal  Jurisdiction allowed for crimes committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, etc.  Reasoning: The crime considered is a crime against all people, which any state is therefore authorized to punish.  Only in very limited circumstances Effects doctrine:  An activity occurs outside of a state causing certain effects within the states o A man standing in Canada shots a bullet across the border, killing someone in the US. o A state cannot exercise jurisdiction in another state, unless they are given explicit permission to do so by that state. Basis for jurisdiction: Nationality Basis:  No matter where you travel, you will always be subject to the law of your nation. o As a US citizen in another country you will always be subject to:  The entire US tax code  Treason  Registration of the draft o Note: very few US laws stick with a citizen when they travel outside the US  IL does not contain a double jeopardy provision  Therefore, you can be tried in a foreign country and tried in your own country again for the same crime.  States hesitate to assert jurisdiction in other countries because: o It may be unfair to D since witnesses/evidence/ etc. is readily available in the other country, and may not be still available if you wait to try him at home. Passive Personality Basis:  Jurisdiction arises because the victim of the harm is a citizen of that state. o Very controversial. o All of the activity would have occurred outside of the state.  Usually only acceptable when asserted in hijacking/terrorist cases. o Reasoning: Fear that these people might be able to evade all jurisdictions. 9 Protective Principle Basis:  Jurisdiction is allowed because the vital interests of a state are threatened. o Foreigners copying a state's currency are subject to the jurisdiction of that state.  This type of activity threatens the vital interest of a state  A nation extending the scope of its law beyond its borders to protect the rights and property of its citizens. o A gun shot from Canada that kills a person in the US may properly be prosecuted in the United States. o A hacker from a foreign who attacks a computer of the US government, situated in the US, violates US law; the US should have the authority to protect itself from such attacks. …most controversial, least likely to be invoked… Universal Jurisdiction:  This jurisdiction is invoked because the crimes pose a threat to all nations  We do not need to apply a "minimum contacts" test here  Crimes considered so severe, the we do not want the perpetrators to "fall through the cracks" of jurisdiction. o Crimes against humanity o Genocide o War crimes o Piracy  Very few states have ever asserted a full measure of universal jurisdiction, the ICJ is wary of making a person subject to jurisdiction anywhere in the world. Eichmann:  Israel kidnapped a Nazi residing in Argentina at time of capture.  D claimed: he had been brought into jurisdiction illegally, thereby defeating the court's jurisdiction o Ct. held that the only Argentina's rights were violated, therefore this claim has to be brought by Argentina, not Eichmann. o An individual cannot step into the shoes of the nation to make this claim.  Defendant argues (1): o Has been brought into jurisdiction illegally and that defeats jurisdiction of the court  Court says this is not a valid defense.  Only Argentina's rights were violated, therefore only Argentina would have a claim against Israel.  Since this has already been resolved, this is not valid claim.  Eichmann cant step into Argentina's shoes and try to do this  Defendant argues (2): o Israel was not in existence at the time of D's crimes, therefore eliminating any basis for jurisdiction. 10 o None of the traditional basis for jurisdiction hold up  So the court looks to universal jurisdiction  The link between the crimes perpetrated against the Jews and the state of Israel creates the link necessary for universal  Their fundamental interests were substantially threatened HYPO:  What other countries could have asserted jurisdiction in this case? o Territorial: Germany, Poland, the Netherlands: any of the states in Europe affected by Nazi crimes. State Immunity: These rules concern the protection which a state is given from being sued in the courts of other states.  The rules relate to legal proceeding in the courts of another state, not in the state's own courts.  Originally o Based on the idea that the "state is above the law" o However, no sovereign state can exercise jurisdiction over another, because all sovereigns are equal.  Modern: o Now there are exceptions to the rules of state immunity:  A state can be sued when the dispute arises from a commercial transaction  Entered into by a state or some other non-sovereign activity of a Generally:  States may be able to get jurisdiction if the activities are "private", that is, they have limited or no connection to the government's activities: o Common, day-to-day contractual obligations to render services. Trade, commerce. v.  Governmental: Somehow connected to the government of the state, or to the benefit/protection of the state as a whole. o States will often try to force their activity to fit within this category in order to claim immunity, Schooner Exchange: (1812)  The US could not assert jurisdiction over the boat because it was part of the French navy. o Rule: o Restricted foreign sovereign immunity:  Non-governmental activities do not have immunity  BUT the sovereign does retain immunity for governmental activities  11  The boat constitutes a part of the military force of France, and is therefore under the direct and immediate control of the sovereign: the US can't touch it. FSIA 1976:  Foreign Sovereign Immunities Act  Sets the limitations on how a foreign sovereigns nations (or its agents, instrumentalities or subdivisions) may be sued in the U.S. courts.  It is the only way to bring a lawsuit against a foreign sovereign in the US.  Provisions are considered a matter of SMJ. o If the Act's requirements are not met, the court cannot hear the claim in he first place. Provisions of FSIA:  Burden of proof is initially on the D to establish: 1. That they represent the authority of a foreign state  Therefore, sovereign immunity should prevent them from being sued. 2. Then prove that one of the Act's exceptions to immunity apply  Aside from the explicit waiver of sovereign immunity, the exceptions all relate to the nature of the conduct for which the sovereign is being sued.  Commercial acts: Acts that duplicate those that a private citizen could undertake  Buying/selling of products/services  FSIA: Excludes acts or expropriation, terrorism and torture from immunity.  Note: In making the commercial/private act distinction, the courts look to the nature of the act itself, rather than the purpose expressed by the sovereign. o Ex:  Operation of fee based transportation system: Most likely held to be a commercial act, even if started to create a public service. Anyone private citizen could presumably drive a cab, and charge for it.  Imposing fines for parking tickets: Private act; only the government can do this, even if it was undertaken by the government only to raise revenue. Diplomatic Immunity:  A form of legal immunity, a policy between governments, which ensures that diplomats are given safe passage and are not susceptible to lawsuit/ prosecution under the host country's laws.  Agreed to as a matter of international law at the Vienna Convention, though it's IL history dates back much farther.  Possible for the official's home country to waive immunity o Tends to only happen when person has committed a grave crime which is unconnected with their diplomatic role, or has been a witness to such a crime. 12 o Alternatively, home country may chose to prosecute the individual themselves. Incumbent v. Former Diplomats:  Incumbents: o Total immunity  Former diplomats: o Immunity for any act they committed while holding their position. Pinochet:  Spain indicts Pinochet (former Chilean President) while in UK for medical treatment.  Spain claims jurisdiction due to the severity of the crimes D was accused of: o Torture/ Conspiracy to torture o Kidnapping/abduction o Murder o Gross violations of human rights  The court held that Pinochet, as a former head of state was immune from all of the crimes, except torture.  Immunity from the rest of the crimes given because: o Diplomats are completely immune from jurisdiction while in the state they are serving. o A diplomat will be granted immunity if he can show that their actions were "official acts"  The prosecution (Spain) had the burden of showing/ disproving the murders committed by Pinochet were unofficial acts.  Immunity not given for torture because: o Torture, by definition, cannot be carried out by a state actor. o The court therefore mandates that a head of state should not be given immunity for this act. Extradition:  In order for a person to be extradited o The crime has to be illegal in both states.  Torture was illegal in both states due to the Torture Convention:  The Torture Convention is what gave UK the right to prosecute people who had committed torture anywhere in the world once they set foot in Britain. o If the requesting country was in a similar situation, they could also assert jurisdiction  "shoe on the other foot" provision  Therefore, UK could get Pinochet if Spain had him.  Only starting in 1988 that Spain was in a position to assert this.  The US only asks the question about whether the basic elements of the crime for which the fugitive will be tried are roughly the same as a crime in the US. NOTE: The US does not abide by this 'other foot' provision 13 o Ex: We have Nazis currently residing in the US; but we have no statute which allows us to prosecute for genocide which occurs outside of the US. o No 2nd step provision for satisfying criminality; US only has the 1st step. Functional Immunity:  Any person who in performing an act of state commits a criminal offence is immune from prosecution  Continues even after the person ceases to perform acts of a state  Recent cases (Pinochet, Arrest Warrant Case) show that while this may be a defense for local/domestic crimes, it is not a defense against international law crimes: o Crimes against humanity o War crimes o Genocide o Torture  Reasons for why immunity is not available as a defense to IL crimes: o The above listed crimes can never be 'acts of state' o The jus cogens nature of IL crimes cannot become eroded by immunity  IE: We cannot let it become acceptable to torture by letting our heads of state do so without any form of punishment. Vienna Convention on Diplomatic Relations:  How broad is the scope of diplomatic immunity? o States are not obligated to enter into relations regarding immunity with other states if they do not wish to do so.  However states usually are eager to do so because of reciprocal motivations such as trade  Why grant diplomatic immunity at all? o Without immunity it would be too easy for states to charge a head of state and arrest them and use them as a bargaining chip to obtain what they want from other states. o States fear this scenario, so they grant the immunity in order to get it for themselves.  What if an ambassador murders someone while serving as an ambassador abroad? o This is a rare scenario. o The host state would ask the sending state to waive immunity so the ambassador could be tried in the country where the act was committed.  NOTE: The diplomat cannot waive the immunity; only his sending country can. US v. Iran:  Iranian students seized the United States Embassy in Tehran, holding 52 hostages for 444 days.  Us tried to negotiate with Iran for the release of the hostages. 14       In response to Iran's unwillingness to negotiate the US froze 12 billion dollars of Iranian assets, stopped accepting passports, and ceased all trade, including oil, with Iran. The US decided to litigate in the ICJ because: o They saw the conflict as a direct violation of international law o They could use the ICJ as a way to publicly demonstrate the wrongdoings of Iran and its blatant violation of international law The ICJ obtained jurisdiction based on Iran's violation of 2 international treaties regarding diplomatic immunity, to with both states were members. o Iran did not accept the ICJ's jurisdiction and therefore they were not represented in the court's proceedings.  According to ICJ statutes, the court can proceed with the case as long as it notifies & gives Iran an opportunity to respond Held: Iran was to be in violation of the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. The violations were due to Iran's failure, encouragement and toleration of activities of the persons that seized the US Embassy. o Focus: Violation of diplomatic immunity  1961 Convention on Diplomatic Relations, Article 22:  Protects not only the diplomats themselves, but also the embassy.  Iran not only violated by entering the premises, but by failing to protect the premises, as called for in Article 22.  Iran failed to live up to obligations under the treaty by 1. Allowing the seizure 2. Not taking the appropriate measures to turn the Embassy back over to the US Ways for a receiving state to get out of granting diplomatic immunity: o A diplomat does not enjoy the freedom of diplomatic immunity if:  Legal issues arise form real estate the diplomat owns in the receiving state  Cases where the diplomat is involved in commercial, professional or other private activity not related to their official function as a diplomat. o Iran never put forward any evidence or statements to the ICJ showing the hostages were being held under one of these exceptions. Under the Vienna Convention, if you think a diplomat has violated your laws you have only 1 remedy: o Force diplomat to leave and break diplomatic relations  Cannot hold a diplomat hostage because you believe the nation they are from has violated your state's general rights. Iran argued: o US interference in Iran's internal affairs justified the embassy & consulate seizures:   15  Failed, UN did not accept this argument.  If Iran had a claim against the US they had to bring it to an international forum in order to raise the issue  States may not use diplomats in this way; diplomats are given immunity explicitly for this type of situation. Classic Definition of a State: 1. Permanent population  The state only needs to maintain a "core" population in order to satisfy this requirement 2. Territory  The scope of a state's territory on has to be generally accepted by other states 3. Government  Some body of government that represents some semblance of control over the nation 4. Capacity to enter into international relations with other states  International law does not say a state must do this in order for its statehood/government to be recognized.  If other states fail to enter into relations with the entity, it does not nullify its statehood. Self-Determination and Succession: Self-determination o A concept of principle, wherein a people or nation have the right to statehood o And that such a state has an equal right to sovereignty  Always followed by "…of peoples"  Has never been clearly defined, except in very limited contexts  In international law a colony entity may cut itself off from the governing power when: 1. It is a colony 2. It has the right to separate itself and be ruled independently.  In many cases self-determination is invoked where there is an ethnic or religious minority within a specific geographic area seeking independence from a majority to escape prejudice of persecution. o However, the right to self-determination has been most effectively employed in the decolonization movement.  International law does not license any other types of secession, aside from colonies.  However, it does not automatically treat them as illegal either.  Nation states have approached self-determination cautiously due to the perceived risk of constant fragmentation. 16 Secession is to determined on a case-by-case basis.  Primary concern is maintaining "territorial integrity"  Territorial integrity is a principle that states that notion-states should not attempt to promote secessionist movements or border changes in other nation states.  Methods of self-determination: o Range from:  Sovereignty referendum  Quebec in Canada  Armed struggle  Tamil Tigers in Sri Lanka  In more "politically advanced" states, there is less chance of a violent reaction to people who may wish to secede. o Other times self-determination has been recognized/ allowed:  East Timor  Pakistan/Bangladesh o Many people believe that any group of definable people within a state have an inherent right to secede Quebec:  ICJ stated that in order to secede you has to show abuses inflicted on you by the rest of the territorial state o Abuses:  You cant fully participate in the political process  Or in all aspects of the political right of the entire territory  You are forced out of the political process entirely and you are without representation  IL was forced to develop these standards because otherwise it would be up to the sovereign states; who are the one with territory to lose.  "effectivity principle" o Like the concept of adverse possession o After enough time has passed, the law gives you certain rights to/within your own territory.  If you are able to exert control for long enough and gain recognition fro the international community, international law may treat you as a sovereign nation.  Quebec argued: o Had a right to self-determination under the Charter of the United Nations  Can succeeded under this given the constant majority of the Quebec peoples o Since there is no international law barring separation then by convention there must be an implied right to do so. o Main Argument:  The doctrine of effectivity gave them authority to secede.  Recognition of a new state by other countries validates their separation.  17  Court's ruling: o Under the Canadian constitution, right to secession was not legal. o However, should a referendum decide in favor of independence, the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession."  Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal. o The Court held that :  Quebec could not, despite a clear referendum result in its favor, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation.  The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law. Rule: A state whose government represents  All of the people/peoples resident within its territory  On a basis of equality and without discrimination  And respects the principles of self-determination within its own internal arrangements … is entitled to the protection of it territorial integrity, under international law o Under international law the right to secede was meant for peoples under a colonial rule or foreign occupation.  Therefore:  So long as the people within this microcosm can still meaningfully exercise their right to self-determination within an existing nation state, there is no right secede unilaterally. o  State Responsibility:  States' obligation of due care owed to persons and aliens within their jurisdictions o State must first exhaust their own local remedies  If this fails to settle the dispute you may then go to your own country's government and ask them to take up the issue on an international level o Like US attempted to do in US v. Iran:  Attempt to enter into negotiations with the other state  If this fails, bring the problem to/ enter into negotiations at the international level. In order for a state to represent an individual at an international level: 1. The person must be a citizen of that state 2. The person must a citizen when the claim is filed 3. Must overcome the "Nottebohm hurdle" (Liechtenstein v. Guatemala) 18   In order to get the benefits of the citizenship you are trying to claim, you need to show proof that you have endured the burdens of that citizenship  Put forward evidence of action which demonstrate your allegiance to the country you are claiming citizenship.  Ways to become a citizen in the US: o Birth o Marriage o Green card obtained/maintained for 5 years; then apply for citizenship o Congress has the power to waive all of the normal requirements and simply make the person of their choosing a citizen  Many countries have retained their right to do this and this is what is basically done in Liechtenstein v. Guatemala Dual Citizenship:  Old rule: o Person with dual citizenship cannot bring a claim against any country of which they are a citizen.  Modern Trend: o Determine what the person's "dominant citizenship" o Person can bring their claim as long as it is not against the country which is their "dominant citizenship"  Note: This rule only applies in the international forum; a person may still have a viable claim against their own country at a national level. Liechtenstein v. Guatemala: “The Nottebohm Case”  Country of Liechtenstein claimed restitution/compensation from the government of Guatemala on the ground that Guatemala had violated international law in its actions towards Friedrich Nottebohm.  Court held that Liechtenstein's claim was inadmissible on grounds relating to Nottebohm's nationality.  Nottebohm was originally a citizen of Germany. After the beginning of WWII, he visited Europe, obtained Liechtenstein nationality, and returned to Guatemala soon after.  In Guatemala, he resumed his former business activities until he was removed as a result of war measure in 1943.  Rule: o In international law, the nationality of a person to a state is only recognized when it represents a genuine connection between the individual and the state granting nationality. 19 o It is the bond of nationality between the individual and the state alone which confers right on that state to put forward an international claim on the person's behalf.  Hold: o Nottebohm's nationality was not based on any genuine prior link with Liechtenstein o The sole object of his naturalization with Liechtenstein was to enable him to acquire neutral status in war time. o Nottebohm never really broke his ties with Germany; he never took on the burdens of being a citizen of Liechtenstein at all, but still wanted to confer the benefit of its neutral citizenship.  For these reasons, Liechtenstein was not entitled to take up Nottebohm's case and put forward an international claim on his behalf against Guatemala. Arbitration and Judicial Settlement of Disputes: If 2 states have a dispute which they cannot settle diplomatically international law given them considerable control over the determination of who settles the agreement. General Assembly:  Violations by members of the UN may be raised by the aggrieved state in the General Assembly for debate.  The General Assembly cannot make binding resolutions  It can, however, authorize the use of force if there have been breaches of the Peace of Air Acts of Aggression, provided that the Security Counsel, knowing of these breaches, has failed to act.  The legal significance of this type of resolution is unclear, since the General Assembly cannot issue binding resolutions. Security Council:  Can pass resolutions under Chapter V! of the UN Charter to recommend "Pacific Resolution of Disputes."  Such resolutions are not binding under international law, though the usually are expressive of the council's convictions.  In rare cases, the Security Council can pass legally binding resolutions which can be followed up with economic sanctions, military action, and similar uses of force though the auspices of the UN. International Court of Justice (ICJ):  Upon mutual consent states can submit disputes for arbitration by the International Court of justice, located in the Hague, Netherlands.  All members of the UN are parties of the ICJ.  HOWEVER, this does not mean that the ICJ has jurisdiction over all of the members of the UN. 20     ONLY means that the UN members may, if they choose to do so, submit their issue to the ICJ for dispute settlement  If they chose to do this, they have a treaty obligation to follow the resolution the ICJ comes up with.  Article 103: UN Charter obligations trump any international agreements.  Article 95: States may entrust their disagreements to some other tribunal if they chose to do so. The ICJ can't demand to hear it instead. Judgments given by the Court are binding,  However, it possesses no means for enforcing its rulings. The Court may give an advisory opinion on any legal question at the request of whatever person/state who is authorized in or in accordance with the Charter of the United Nations to make such a request.  Some of the advisory cases brought before the court have been controversial with respect to the Court's jurisdiction and competence. Decisions made though other means of arbitration may be binding or nonbinding depending on the nature of the arbitration agreement.  Where as decisions from contentious cases argued before the ICJ are always binding on the involved states. On highly complicated matters, ICJ cases can stretch on for years and can generally involved thousands of pages of pleadings, evidence and the world's leading specialist public, international lawyers.  Other means:  Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee. o International Covenant on Civil and Political Rights is one such treaty that adheres to this. ICJ’s jurisdiction over states:  All members of the UN are parties to the ICJ.  THIS DOES NOT MEAN that the ICJ automatically has jurisdiction over the members of the UN, however. Article 36 of the UN Charter confers jurisdiction to the ICJ over states when… 1. 2 states have a dispute which they mutually agree to bring to the ICJ for settlement.  They draw up a small agreement ( a "compromise") which states that they agree to submit the particular dispute to the ICJ for its resolution AND agree the abide by the ICJ"S decision. Any dispute about matters listed within the UN Charter 2. 21 TRICK!  There are actually no matters listed within the UN Charter which would confer automatic jurisdiction.  Why does this exist then?  When the charter was first drawn up it look as if some might be included.  However, the were never added in and this provision was never deleted; its irrelevant. 3. Matters specially provided for in treaties and conventions; currently in force.  As opposed to overturned or outdated treaties or conventions  Genocide Convention has a clause within it stating that disputes arising under this treaty will be resolved by the ICJ.  Acts as a kind of automatic submission to jurisdiction of the ICJ. Norwegian Loans Case:  France wished to cash-in bonds, the value of which was being disputed by Norway.  Although both countries had already accepted compulsory jurisdiction of the ICJ the court held that it did NOT have jurisdiction o Reasoning:  The bonds were essentially a national (internal) problem of France  France had a "self-governing" clause (similar to that of the US)  France brought the case against Norway, who did not have a "selfgoverning" clause by invoking  "reciprocity"  This means Norway is entitled and gets every benefit that France does.  Norway's rights become a mirror-image of France's  Reciprocity is concerned with the rights AND the limitations.  A nation cannot invoke reciprocity for the sole purpose of getting out of what they are bound to in their own treaty.  IE: They cant invoke it in order to override their own terms of their own, original declaration.  (see Nicaragua v. United States)  ICJ agrees.  Since these are now 2 countries dealing with national problems, the ICJ lacks jurisdiction.  Holding: " In accordance with the condition of reciprocity Norway, equally with France, was entitled to except from the compulsory jurisdiction of the  22 Court disputes understood by Norway to be essentially within its national jurisdiction." Cons of submitting to compulsory jurisdiction of a court:  Only 1/3 of nations within the UN have accepted compulsory jurisdiction o Developing nations have often declined claiming the ICJ was based in favor of rich/white countries.  However, since the Nicaragua case many developing nations have begun brining cases to the ICJ.  HYPO: o If you don't accept compulsory jurisdiction yourself (as a state) and you attempt to bring another country in front of the ICJ  Every and any time you go in front of the ICJ you will be dragging a "reluctant respondent" in front of the court  The reluctant respondent can then do exactly what Norway did, and claim it’s a domestic problem and that they are therefore not compelled to submit to ICJ jurisdiction.  Non-reluctant respondents:  Will only be the states who are sure they will win. Nicaragua v. United States:  1986  ICJ ruled that the US had violated international law by supporting Contra guerillas in their war against Nicaraguan government and by mining Nicaragua's harbors.  ICJ ruled in Nicaragua's favor but the US refused to abide by the Court's decision, on the basis that the court erred on finding jurisdiction to hear the case. o US then withdrew its declaration of accepting the Court's compulsory jurisdiction.  ICJ stated that US has been involved in the "unlawful use of force" Nicaragua claimed accepting jurisdiction through: o Their former acceptance of jurisdiction under the Permanent Court, N wanted the old acceptances to roll-over and become and acceptance of jurisdiction under the (new) ICJ.  US rebuttal:  N is not a party to the new ICJ treaty because they never ratified it.  Even though the ICJ agreed that N had never specifically ratified this treaty: o The ICJ held that they jurisdiction was valid under the "roll-over"  Reasoning:  N had been listed for several decades as having accepted the compulsory jurisdiction and had never made any indication that they did not accept the compulsory jurisdiction. 23   The Court chose to translate the charter by the more expansive reading n French.  Under the French translation:  N had "potential" to sign and ratify the compulsory jurisdiction.  When the ICJ came into existence, that potential had not yet expired  Therefore, the potential was allowed to rollover Why did the US attempt to withdraw compulsory jurisdiction fail?: o The US sent in their partial withdrawal of jurisdiction on April 6,1984; 3 days before N filed suit. o Problem: There was a 6-month termination clause in the US compulsory jurisdiction provision.  US tried to defeat this by claiming reciprocity (Norwegian Loans Case); since Nicaragua did not have a compulsory jurisdiction/ 6month notice of termination clause, US should be able to withdraw immediately too. ICJ rejects this argument:  When US filed on April 6, 1984 there was NO SUIT YET filed by Nicaragua, so there is no one to have reciprocity.  So what about 3 days later? Can the US claim reciprocity then?  ICJ says no again:  Problem with the US argument is the fact that N did not have a "notice of termination clause" does not mean that immediate withdrawal is permissible.  When states do not have a "notice of termination" clause, the ICJ will supply a standard themselves:  The state must give reasonable notice that they are withdrawing.  Therefore, lack of such a clause does not mean that states can just withdraw immediately  The ICJ did not consider 3 days to be "reasonable notice" Why does the ICJ seem to be trying to hard to find N's jurisdiction valid? o South America's countries were considered, for the most part, "developing nations" o The ICJ had been criticized as favoring wealthy & white states. o This case marked a turning point for the ICJ; after this case lots of other developing countries began using the ICJ for dispute settlement.  24 Judicial Settlement of Disputes:   Article 41: o The court has the power to provide an injunction if the state will suffer irreparable harm  Provisional Measures Mechanism  Court may only apply these in urgent/grave situations  The Security Counsel is given enforcement powers in order to give effect to the decisions of the court.  Provisional Measures do not fall under Article 94; the decisions are therefore not binding. Article 36: Vienna Convention on Consular Relations o Foreigners arrested abroad have the right to contact their nation's consulate o The arresting state is also obligated to notify D's country of his arrest and subsequent holding  A violation of this right will enable his host country to seek remedy LaGrand Case:  2 German brothers convicted and sentenced to death in the United States.  Right before the 2nd brother was to be executed; Germany brings a claim against the US to the ICJ. o ICJ had jurisdiction over both countries. o ICJ has a "compliance clause" (both countries must comply with ICJ jurisdiction) for any issue arising under the Convention. o ICJ issued an order against the US, stating that they were in violation of Article 41  US reply:  They are not obligated to comply with the order. Provisional measures are not binding upon the countries they are issued against.  Claimed the "procedural default rule": If a matter is not brought up (objected to) in the original trial, it may not be brought up after trial/later. All legal arguments must be set forth in the original case o Do individuals get rights under treaties?  If the treaty intends to confer these rights upon an individual, the individual may get the rights.  This turns on treaty interpretation  However, it was the state's violation of the obligation to inform D of his Vienna Convention rights  Treaties are agreements between sovereign states  Holding: o The ICJ issued a provisional measure stating that the US had to review and reconsider both D's convictions and sentences.  US does not do this. 25  US is not a party to the Vienna Convention, although we believe that much of the convention is (codified) customary international law. "Judicial Supremacy" in International Law:  Undoubtedly, the ICJ does not possess powers of judicial review or appeal in respect to the decision made by other organs of the UN.  The question of the validity or conformity with the Charter of Security Counsel resolutions does not meet the required criteria for a request of an advisory opinion.  However, in the exercise of its judicial function and because objections have been made; the ICJ will consider the objections before determining any legal consequence arising from the resolutions. Lockerbie Case:  Libya v. UK & US o Libya files suit against UK and US for applying duress to Libya in order to make them stand trial for the Scottish plane crash. o Libya had received a Security Counsel Resolution ordering them to hand over the 2 persons believed to be responsible. o The marked the first time the Security Counsel had ever issued measures demanding that a nation hand over persons. o Had the case made it to trial, Libya would have argued that the Security Counsel had acted outside of their power. o The case was filed with the ICJ, followed by an attempt by the UK seeking to shut down the court's review of the Security Counsel's resolutions to Libya.  The ICJ, however, declined to issue any provisional measures because Article 103 says that the Vienna Convention's obligations under the charter prevail over any other treaty the country might be a party to. o Problem: Here we have 2 organs of the United Nation dealing with the same issue: o This case had the potential to become the Marbury v. Madison of International Law. NOTE:   The states of the world are generally skeptical towards the notion of "judicial supremacy". The US's employment of judicial supremacy ("judicial review") is not typical. Treaties:  International agreement between 2 or more states in written form o This is how a treaty in defined within the context of the Vienna Convention  General definition within International Law is much broader 26  Treaties (in general IL) can be made and contained within a single instrument or in more than 1 instrument or writing, collectively taken as the treaty.  Vienna Convention: o States that treaties between other states can be binding; however they don’t fall within the Vienna Convention law of treaties o This law of treaties will only deal with written form, but this does not mean that other forms are not binding, they just don’t fall within the Vienna Convention's law of treaties.  There can also be written agreements which are not treaties because they are not intended to be governed by international law. How treaties are created in the US:  The President ratifies treaties o The senate does not ratify treaties, they give advice and consent after review of the proposed treaty. o Treaty then returns to the executive office where the President either ratifies it or not.  He is not obligated to ratify. Executive Agreements:  The President may into an executive agreement on his own on behalf of the United States.  Certain agreements are historically only reviewed and ratified by the President o Postal agreements  Likewise, certain agreements historically go to the senate o Extradition treaties Termination of Treaties in the United States:  Nothing in the constitution about how to terminate treaties o Almost all treaties have their own termination provision  However, some like The Human Rights Treaties, do not.  In the United States, we still don’t know who had this power to terminate. o Note: Getting out of an obligation (termination) can be equally important as entering into one (ratification) Legal Status of Eastern Greenland Case:  Ilhen, the Norwegian Foreign Minister made the following declaration: o "The Norwegian government would not make any difficulty concerning the Danish claim to Greenland; in exchange for Denmark not objecting to Norway's claim to Spitzenberg. o This declaration was considered binding because Ilhen appeared to be placing himself in a position to bind Norway; he was in such a position 27 and such a situation, that Denmark reasonably believed that he was in a position to bind Norway.  Rule: o Oral statements can be binding if made by governmental officials, provided that the other state might reasonably expect that the official had the intent and authority to bind his own state.  Hold: o Court found the statement insufficient to support the conclusion that Norway recognized Denmark's claim to Greenland. o However, the Court did find it sufficient to bind Norway from doing anything to interfere with Denmark's claim.  Note: The Norwegian Minister's statement was binding on his own country's promise not to interfere.  ICJ: "Binding upon the country of which the foreign minister belongs." Nuclear Tests Case:  Several countries banded together and asked the ICJ for a declaration stating that "the testing of nuclear weapons was contrary to international law."  France's prime minister made a series of unilateral announcements stating that: o France is going to be stopping the nuclear weapon testing, and from that point on, nuclear weapon tests would only continue underground.  There were several different officials re-stating this, in a number of different public forums.  But this is not despositive; any one of these public statements would have been enough to make the singular, unilateral statement binding.  France was involved in diplomatic negotiations when the statement was made, there was no 'quid pro quo' in issue. o Hold: The ICJ ruled that these unilateral statements were indeed binding on France o Rule: The ICJ stated that because this "unilateral statement" was binding upon the country who made it; the states hearing and accepting the statement as truth do not need to make any kind of acceptance, response or reaction in order for this statement to take effect.   The ICJ then dismissed the claim against France by Australia and New Zealand; dismissing the case as moot.  ICJ said that the suit was "without object" because France had already been stopped from nuclear testing by their own merit.  AU and NZ had a problem with the dismissal because France still had no judgment entered against them; no judgment stating that they were in violation of the law of the their own making. The ICJ was able to hear this case because all of the countries involved had previously submitted to the compulsory jurisdiction of the court. 28  France promptly withdrew its compulsory jurisdiction after this case was decided; just in the case the issue should ever arise again. The ICJ ruled in this manner because it was wary about entering such a landmark judgment banning the use of nuclear weapons. o Reservations to Treaties:    Articles 19-23 "Reservation" defined: o A unilateral statement, however phrased or named, made by a State, when signing or approving a treaty, where it attempt to exclude or modify the legal effect of certain provisions in their application to their own State.  There can be no reservation to bilateral treaties for the simple reason that there are only 2 parties.  If these 2 parties fail to agree on any provision, then there is no agreement at all on that provision since there is no third, fourth party etc. to obtain agreement with.  You could simply eliminate the provision the country didn’t agree with. A party can not add a reservation once it has already joined the treaty, such negotiations have to take place before they ratify the treaty. What was the general type of reservation in the Genocide Convention Treaty?:  Because some states did not want to submit to the authority of the ICJ, they were ratifying the entire treaty, but putting in reservation to Article 9 which controlled the compulsory jurisdiction of the ICJ.  Before this case was decided all of the states who were party to the treaty had to consent to accept the reservation of the "rebel state" to the particular article.  If any of the party states decided to say no to the reservation (for any reason or for no reason at all), the party did not get the reservation they wanted.  The denied party then had 2 options: 1. Sign the treaty, even though they did not get the reservation 2. Not sign and not be a party to the treaty. Modern rule in International Law towards treaty reservations:  In the interest of encouraging the largest number of states to join treaties, a new and more permissive rule has emerged. o While some treaties still expressly forbid any reservations, they are now generally permitted as long as they are not inconsistent with the goals and purposes of the treaty as a whole. 29 When a state limits its treaty obligations through reservations, other states party to that treaty have the option to: 1. Accept those reservations  If the state accepts them (or fails to act at all), both the reserving state and the accepting state are relieved of the reserved legal obligation as concerns their legal obligations to each other.  Accepting the reservation does not change the accepting state's legal obligations as concerns other parties to the treaty. 2. Object to them  The parts of the treaty affected by the reservation drop out completely and no longer create any legal obligations on the reserving and accepting state.  Only as concerns each other. 3. Object and oppose them.  There are no legal obligations under that treaty between those two state parties whatsoever.  The objecting and opposing state essentially refuses to acknowledge the reserving state is a party to the treaty at all. Reservations: The Objective Standard  The reserving party can still be considered a party to the treaty as long as the reservation they have chosen does not violate the central object and purpose of the treaty. o If it does not violate the object/purpose then the reserving state can still be a party to the treaty, assuming that at least some of the states are allowing it.  Assuming not all of the other party states aren't objecting  Note: If you do nothing to show your objecting towards the reserving state for 12 months, you will be treated as having accepted the reservation. Vienna Convention art. 20(5). o However, if the reservation violates the main object/purpose of the treaty then it is not allowed.  Example: o The object and purpose of the Genocide Convention was to get as many states as possible to participate in the treaty. o If states who wanted reservations as to Article 9 (compulsory jurisdiction of ICJ) were automatically excluded from the Convention, it would detract from the principle the whole convention was based upon.  Opposing view:  The enforcement mechanism (being compelled to appear in front of the ICJ) is what will make this treaty work. Especially since treaty enforcement is so weak within international law. o Court's reasoning:  If you tell a reserving state that they will get "blackballed" or thrown out of the convention; no one will sign. The Convention's 30  purposes are better served by signing on as many countries as possible and allowing them to make the reservation However, the court notes that this standard is very fact-sensitive and will depend upon the particular circumstances of each individual case. Reservation Clauses:  Clause within the treaty itself which states that you can make reservations to the treaty o May list which parts/articles have this option  If the treaty has one of these reservation clauses, the reservations will be allowed regardless of whether any states object to it.  Most modern treaties contain these clauses; but some don't. o Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)  Provides that men and women must be treated equally  Many Muslim counties did not want to ratify this and sought to make reservations against the parts of the treaty which were in contradiction to Muslim law. What obligations does a country who has signed a treaty, but not yet ratified it, have?  You not obligated by the specific provisions and laws contained within the treaty, but you do have an obligation to not commit any acts which undermine the object and purpose of the treaty. Entry into Force:  Most modern treaties specify how and when a treaty enters into force. o Usually upon the ratification of a specific number of states  Example: UNCLOS (law of the sea) states that the treaty will enter into force "one year after the deposit of the 16th ratification"  If the treaty does not specify how & when it will enter into force then it will occur "as soon as consent to be bound by the treaty has been established for all the negotiating states." Pacta Sunt Servanda:  States are obligated to abide by the provisions of the treaty the have ratified. o Vienna Convention, Article 27.  A "good faith" basis of treaties that means that a party to the treaty cannot invoke provisions of its own domestic law as justification for a failure to perform.  No way to get out of being bound by this treaty. o The only exception this is if the treaty somehow violates jus cogens (preemptory norms of general international law).  Similar to the concept of contract illegality. o Note:  Human rights treaties continue to apply during wartime/armed conflict; unless there is a more specific rule to be applied. 31  IE: Protection/right of children during armed conflict Interpretation of Treaties:  Crucial question in treaty interpretation is to what extent extrinsic evidence may be introduced to aid in the interpretation of the document.  There are 2 schools of interpretation which emerged during the Vienna Convention: 1. Concentration on the meaning of the text:  The treaties are so meticulously drafted that by the time the text is written, ambiguities will have already been eliminated.  The text will, in fact, reflect the intention of the parties.  Severely restricts looking o evidence outside the 4 corners of the document itself.  Most prevalent view. 2. Focus on the intention of the parties:  Much more open to allowing the introduction of a broad array of evidence that might aid in the interpretation of the treaty so as to reflect the parties' true intent. Remedy of violation of treaty: General Rule:  Put the parties in the position they were before they entered into a contract (rescission).  Equitable remedy. Vienna Convention, Article 31:  Interpret the text as it is written.  If that doesn’t work, go to Article 32. Vienna Convention, Article 32  You may look to supplementary means of interpretation (outside sources) when the ordinary meaning method leaves the meaning "ambiguous or obscure"  Or, when the ordinary meaning method leads to an "absurd or unreasonable" result. o Possible secondary sources:  Preparatory works ("travaux preparatoires") Mexico v. United States: 2004  Mexico files suit against The United States alleging violations of the Vienna Convention on Consular Relations. o Such violations included 52 cases where the US violated Article 36 of the Convention by: 1. Failing to notify the country of the arrested person is a national. 2. Failing to inform the arrested person of his right to contact his nation's consulate"  The Court held that Article 36 is intended to convey rights to the individual.  The meaning of "without delay": o Mexico: Wanted it to be interpreted as "immediately" 32    ICJ: Held that the country must inform the arrested person of his right as soon as they know, or should know, that the person is a foreign national. The purpose of informing the foreign national of his rights is: o Connecting the D with people who speak his language and understand the laws, so that they can then accurately explain the severity of the situation to him and what his options are; thereby allowing him to accurately defend his case. o This consular right does not apply in death penalty cases; only in criminal or civil cases. Mexico claims: o Mexican citizens have rights at an international level which the US violated in both Article 36 and 52 of the Vienna Convention on consular relations. o Mexico claims an "interdependence of rights" exists between the nation and the individual.  The only way to appreciate the violation of rights against the individual is to look to the violation of rights of the country.  Court agrees.  The ICJ did not allow the United States government to claim that they could not enforce these provisions under the “procedural default” rule.  The U.S. (or any state) that signs on to a treaty, they are not at liberty to say that they will agree to do something and claim later that it is impossible to do so.  A state can never claim that its internal law will not let it abide by the treaty; a state cannot raise internal law to get out of foreign obligations. Remedy of the ICJ: o A form of standard rescission remedy:  Mexico wanted every piece of evidence that had been acquired after the US' violations to be inadmissible.  This was not the remedy granted. o The Court ruled that the US courts must provide review and reconsideration of the both the convictions and the sentences of the criminal defendants by taking into consideration the violations of the rights set forth in the treaty.  Look to whether the failure to give these Vienna Convention rights had a causal effect on the particular case in question.  Problem: There is no real way to determine what would have happened if counsel had been notified right away. o Optional Protocol Provision: Vienna Convention  If any party to this has a problem of interpretation of something in the treaty, they can bring it to the court. o 300 treaties that have dispute settlement provisions 33 Optional Protocol Provision: Vienna Convention:  ICJ can hear disputes between countries who are parties to the Optional Protocol Provision of the Vienna Convention on Consular Relations.  Including cases brought by state son behalf of people detained in foreign countries who have been denied access to their country's consular officials.  300 treaties in existence have these "dispute settlement" provisions When a state should no longer be bound by a treaty:  Error  Fraud  Corruption o A treaty can become void & terminate if a newly developed preemptory norm comes into existence after the treaty was made  The thing necessary for carrying out the treaty is destroyed; the treaty is void and state is no longer bound o The tangible thing actually disappears o Like doctrine of impossibility of performance doctrine in contract law  EX: Your state has promised to maintain a dam; a sever storm destroys the dam; obviously state can no longer live up to obligation of the treaty. o Note: All treaties have an implied clause that states "this treaty binds assuming things stay as they are". UK v. Iceland: Fisheries Case  Iceland claimed that they were entitled to more nautical miles than the 1961 "Exchange of Notes" treaty originally allotted them  Claimed certain changes (the waters had become more exploited than originally predicted) had occurred releasing their obligation to the original 12 miles.  Also claimed that in recent years, other states had claimed more than 12 miles; saying they bound themselves to something they shouldn’t have to be bound by.  Iceland did not want to submit to the jurisdiction the ICJ to resolve this.  However there was a clause in the treaty which stated that any disputes were to be brought to the ICJ o ICJ: Held that a country may not just make a "unilateral declaration of fundamental change of circumstances".  If the ICJ had allowed Iceland to do so, any country who wanted to be released from their treaty obligation could simply declare, on their own, that there had been a fundamental change of circumstances.  Standard applied:  In order for a change of circumstance to be considered so fundamental that it allows termination of the treaty: 34  The change must have increased the burden of performing the obligations so much that they are essentially different from the burdens the state originally undertook. The change of circumstance doctrine also requires that the parties never contemplated that such a change may occur; here the parties did contemplate such a change by including the jurisdictional clause. State succession to Treaties:  Deals with the question of what happens to a state's obligations under a treaty when the state 1. Ceases to exist 2. Becomes a new entity 3. Separates from part of its territory 4. Acquires more territory 5. Declares independence from a former ruler 6. Somehow evolves into a different entity  Hotly disputed question in international law. o Examples:  Reunification of the 2 Germanys  Disintegration of former Yugoslavia  Break up of the Soviet Union  The Vienna Convention on the Succession of States in Respect of Treaties was signed in 1978 and entered into force in 1996. However the problem is that it has only received a small number of ratifications.  There are 2 competing views on this issue: o Clean Slate Theory:  Allows a new entity to start on a "clean slate" and adopt only those former treaties that it wishes to be bound by and reject the others.  Does not apply to  Boundary treaties (Article 11)  Treaties relating to use of/restrictions upon territory that another state use for (foreign) military bases on the new entity's land (Article 12)  Vienna Convention largely adapted the clean slate approach with some exceptions. o Continuity Theory:  Holds the new entity to the same treaty obligations that attached to the old entity  Notice of continuity  The way that a treaty comes into existence determines whether it is allowed to continue or not  Complex because there is much disagreement as to which treaties should be allowed to continue 35 The Court laid out the 3 possible means of escaping treaty obligation in this significant case: Hungary v. Slovakia:  Treaty was concerning the rights of the dam  Hungary argued her right to terminate based on several theories including: 1. Supervening impossibility of performance:  Due to supervening changes in the environment, the project the economically sound project they had in mind at the time of creation could no longer be executed  ICJ rejects this argument:  The treaty itself included a means for negotiating and adjusting the itself to suit changing circumstances.  The Court was not convinced that adjusting the plans to suit the environmental changes was a total impossibility. 2. Fundamental change of circumstances:  Political and economic climates had changed; making it implausible to fulfill the treaty.  ICJ rejected this argument:  In order for the changes to be fundamental to the object/purpose of treaty; they would have had to have been fundamental to making the agreement itself.  Political and economic circumstances of the state were never a consideration when this treaty was formed.  For this argument to work, the effect of the political/economic change must radically transform the extent of the obligations to be fulfilled under the treaty. 3. Material breach:  Hungary:  Claimed that they should be released from their obligation under the treaty due to the fact that Slovakia had already implemented "Variant C" (a new system of water diversion); thereby committing a material breach and releasing Hungary from any and all obligations.  ICJ: rejected this argument:  Hungary's timeline is wrong.  Hungary violated before Variant C had been implemented.  Slovakia:  Claimed Variant C was a lawful counter-measure against Hungary's violation. 36   Variant C was a response to Hungary not keeping with the previously agreed upon policies. This is a "retorsion"  Retorsions v. reprisals o Retorsions:  Unfriendly measures  Lawful counter measure (not prohibited by international law)  Can be malicious or ill-willed; but not illegal o Reprisals:  A use of force as self-help  Justified by necessity  Must be directly proportionate to the offense committed against the state  Must be preceded by an unsatisfied, justified demand  Ex: Termination of a treaty would normally be held as an illegal act. However, if the other state already committed an illegal act against you, your termination is not illegal.  Note:  The Vienna Convention had a notification procedure:  You notify the other country, setting out what you feel they have done to commit a material breach, and supply how you them to resolve this breach.  If they fail to respond within 3 months, you may then go to mandatory settlement by the Court. Law of the Sea:   Considered one of the most successful branches of international law because its provisions have been widely accepted by the international community There is mandatory dispute settlement within the law of the sea o However, there are several different choices of forum; the state gets to chose which one they wish to use. UNCLOS (United Nations Convention on the Law of the Sea):  Opened for signature in Jamaica in 1982  155 states signed the Convention  The US, a major participant in all of the preliminary conferences refused to sign o Mostly because of its objections to the regime created for deep seabed mining  Had required number of states for ratification in on 11/16/1994 o However, most of the developed/industrialized states had initially refused to ratify the Convention. Prior to UNCLOS, law of the sea was divided into: 37 1. Internal Waters:  Water that lies within a state  Lakes, rivers and bays  The coastal state exercises exclusive jurisdiction over these waters  May exclude other nations if it wishes to do so 2. Territorial Waters:  The strip of water that lies on the landward side of the baseline from which the territorial sea is measured (usually the low-water line along the coast)  Bay and ports are controlled by the coastal state and form part of the state's internal waters.  Also controlled by the coastal state (along with the internal waters)  These waters determined the economic zones.  Most states have agreed that foreign ships have a right to innocent passage though the territorial seas.  Some states argued that military vessels need to gain permission before entering their territorial seas, or they had no right of passage.  BAYS  It was agreed that the waters within a bay are internal waters, but the basic problem that the UNCLOS drafters faced was what exactly constituted a bay.  The coastal states always want to define as much water as possible as within their jurisdiction.  So the tendency was to try and define even large, shallow indentations of the coastlines as bays; thereby allowing them to claim them as internal waters.  The problem is that under this theory, France and Spain would claim the whole Bay of Biscay, between the two of them  Similarly, Mexico and the US could claim the entire Gulf of Mexico  Obviously, such all-inclusive claims would be unacceptable.  Ships on high sea were generally only subject to the jurisdiction of the flag state.  However, the Lotus case contradicts this theory.  The high seas were "mare liberum"; open to all states  Could not be claimed the way land and territorial waters could be. Regimes of the Sea after UNCLOS: 1. Internal waters 2. Territorial sea  Maximum breath of the territorial water is 12 nautical miles  Article 3 38 3. The contiguous zone  Extends 12 miles from the end of the territorial sea  (traditionally, ends 24 miles from baseline)  Article 3 4. The Exclusive Economic Zone  250 miles from the end of the contiguous zone, consists of the continental shelf  Article 3 5. The continental shelf 6. The high seas Anglo-Norwegian Fisheries Case:  Norway has a unusual/ unique coastline because it is very jagged/ indents in some places, juts out in others.  For hundreds of years fishermen from the UK has been fishing off the coast of Norway. o Issue: Where the baseline should begin (baseline + 4 miles = Norway's territorial sea)  The consensus was:  The baseline should start at the line connecting the mouth of the fjords (narrow inlets of water between jutting out pieces on land). Norway's territorial sea was to extend out 4 miles from that point.  Norway's claim:  Wanted the baseline to be drawn as a line connecting the small outer coastal islands.  Britain's rebuttal:  They are infringing on our right to fish as we have for years.  UK was an objector. Claiming Norway was infringing on what should be the high seas. o Hold:  For Norway. In 1951 the outer laying islands were used to construct a baseline.  Norway succeeded by showing the Court:  A major dependency upon the economic necessity of fishing in their coastal waters  And a bay closing limit  Article 10: Test for determining bays: 1. The line which closes the mouth of the bay cannot be longer than 24 miles across 2. The surface volume must be as great as the semi-circle  This ensures that small coastal mediums are not counted as bays 39   If the body meet all of these requirements then you can close it off and claim it as internal waters. This is important because if a state can claim a body of water as bay, its baseline can begin after its close-off point; as opposed to having to include it within the 4 miles. International Straits: 1. Generally a small strip of water between 2 areas of land 2. For the strait to be considered international, it has to connect to the high sea  There has to be no other way around it  It must have been used, even if seldom, for international navigation.  International straits as defined above give warships a right of innocent passage, without having to give them permission. o As long as there is no act of aggression on the part of the warship.  If the ICJ had chosen to expanded territorial sea to 12 nautical miles, over 100 international straits would have been completely "gobbled up" as territorial seas. o Solution:  ICJ created something called "transit passage"  Applies only to straits used for international navigation for getting to one part of the high seas (or economic zone) to another.  Ships get s right to pass through these places, even though its entirely made up of territorial sea.  Slightly different from regular innocent passage. Corfu Channel Case:  1946  Britain claimed that while 2 of her military cruiser were passing near the Albanian coast, Albania fired at them.  Britain argued: o The water they were in was an international strait; therefore all ships, military or otherwise, have the right of innocent (safe) passage.  Problem: o 1/2 of the states (the Eastern Block), which included Albania, took the position that warships needed permission to pass through the territorial seas of other countries. o The other half (Western Block), England principally, disagreed.  They stated that warships had the right to pass through the territorial sea as long as they did so only for non-aggressive purposes.  ICJ: o Sidestepped the entire debate by stating that the Corfu channel was not only territorial sea, but also an international strait. o Never clearly defines what innocent passage is, but indicates that Britain was clearly, non-innocent. 40    The British were going back into the channel, by their own admission, to sweep for mines. The Court said that the British were in violation of Albania's sovereignty because they were essentially coming into the channel in order to find something and remove it; not allowed. Therefore, Britain was not innocent in its passage. Rights of the coastal state's territorial sea:  They may exercise type of sovereignty over it.  They may stop planes from flying above it, just as if it was an extension of their land.  However, the Court has held that ship still have the right of innocent passage through the country's territorial sea. Contiguous Zone:  For centuries, coastal states have asserted the right to exercise jurisdiction in the waters off their coasts in order to ensure their security and protect any interests they considered vital.  1958; Convention on the Territorial Sea: o Included a provision permitting coastal states to exercise control necessary to prevent violations of its customs, fiscal, immigration or sanitary regulations in an area contiguous to its territorial sea. But it could not extend 12 miles (or more) past the baselines. o Article 24  Gives the coastal state authority for up to 24 nautical miles off its coast; BUT for very specific/ limited reasons. o States have the right to do what is necessary in order to prevent crimes in their territorial sea. Exclusive Economic Zone: o Article 55 o 200 nautical miles from the baseline o Gives the coastal state the right to all of the economic resources within it. o Other countries will have the right to stay there, but not to extract anything from the water Enforcement of Rights within the Exclusive Economic Zone:  Coastal states may take measures which include:  Boarding  Inspection  Arrest  Judicial proceedings  As necessary to ensure compliance.  Article 73(1) Foreign State's Rights:  41 All states are guaranteed the rights of navigation in and flight over the exclusive economic zone and the laying of submarine cables and pipeline (so long as they are compatible with the convention) o Areas of the EEZ may also be leased out to other states  Article 58(1) Continental Shelf:  Term used to describe the sloping sledge covered by water that projects from coastline of many states.  The breadth varies considerably, sometimes only projecting a few miles, sometimes extending hundreds of miles.  The International Law Commission drafted the Convention on the Continental Shelf which was signed in 1958 and entered into force in 1964. The 1982 Convention builds on the 1958 Convention and defines the continental shelf. Measuring the Continental Shelf:  Coastal state gets all of the rights out to 200 miles  When the self projects out between 200 and 350 miles there are wealth sharing provisions for resources harvested  No state can claim the continental shelf beyond 350 miles. Jurisdiction within the territorial sea:  The territorial state has jurisdiction o Over foreign merchant vessels in internal waters o Over crimes committed on board such vessels  This jurisdiction is concurrent with that of the flag state  Foreign ships that enter in distress may not be subject to the jurisdiction of the coastal state Wildenhus's Case:  1887  A Belgian national who committed a crime on board a Belgian ship is subject to US jurisdiction. o The accused committed a murder below decks while the Belgian ship was in a US port.  RULE: o Generally, the jurisdiction of the coastal state is not exercised unless the offence:  Disturbs the peace, dignity or tranquility of the port.  The treaty between the US and Belgium granted each state jurisdiction necessary to maintain order on board merchant vessels located in internal waters. "Peace of the Port" Doctrine:  This doctrine developed due to the fact that nations want to attract foreign vessels to their ports. However, local jurisdictions do not want to clog up their courts and waste their time adjudicating the petty disputes of the crew and passengers of these foreign ships. o 42  So a whole series of bilateral treaties were enacted. United States fundamentally said: o Belgian is allowed to retain jurisdiction over anything that happens on board the vessel while it is in our waters; UNLESS it disturbs the peace of the port.  The act of murder did this.  Killing disturbed the peace of the US port Regina v. Anderson:  Anderson, a US citizen, committed a crime aboard a ship which was on a French river o Held:  Anderson was subject to UK jurisdiction because the ship was an English ship/ registered to the UK.  A ship while sails flying a nation’s flag is considered to be a “floating island” of that territory and therefore subject top the jurisdiction of that nation.  Therefore the murder was treated as if it was committed on British soil and is not subject to French jurisdiction unless the master of the vessel wishes to invoke the law of the territory where the ship was located at the time of the offense.  Note: France could have attempted to assert jurisdiction based on passive personality, but this is high unlikely to occur based on the type of crime allegedly committed. General Rule for Foreign Ships: o A foreign ship is treated like a floating island of the nation state even where such ship is in the territorial water of another state. o Therefore, it is the nation state of whom the vessel belongs that may exercise jurisdiction. o UNLESS the master of the ship wished instead to invoke the law of the territory of where the ship was at the time of the offense.  Rule for Merchant Trade Ships: o When a merchant vessel of a one state enters the port of another state for the purpose of trade, it automatically subjects itself to the law of the place to which it goes. o UNLESS by treaty or other means the countries have come to a different agreement. The High Seas:  Open to everyone but do have some limitations:  Cannot engage in: o Piracy o Criminal acts o Slavery  States are permitted to: o Run cables  43 o Set up various platforms Ship Nationality:  Every ship must have a nationality  The ship and its registered country must have a "genuine link" o The sufficient link requirement is similar to the Nottebohm hurdle  "Stateless Vessel" o Improperly registered vessels o Subject to jurisdiction of all states  If the US Coast Guard sees an unregistered ship which they think is carrying cocaine they can arrest the ship and subject it to US laws.  The arrest and jurisdiction would still be valid even if the ship was not bringing the drugs into the US. The simple fact that the vessel was unregistered makes it fair game for any arresting country. Hot Pursuit:  Article 111: the Right of Hot Pursuit  This rule modifies the old rule of jurisdiction within the Exclusive Economic Zone  Example #1: o The United States Coast Guard is chasing a French vessel suspected of transporting drugs, when it enters the high seas.  Under the old rule:  Once a vessel gets into the high seas, ONLY the flag state of that water had the right to jurisdiction over the French ship.  Under Article 111: The Right to Hot Pursuit  If the pursuit starts before the vessel reaches the high seas and is uninterrupted; the rule of hot pursuit allows them to continue to chase after them  Note:  The vessel has to be in violation of the principles for which the zone it is in was established.  Example #2: o The US Coast Guard wanted to chase a US registered vessel suspected of drug trafficking once it has entered the high seas.  Permitted. The US can chase the vessel beyond territorial sea because they are ours to chase; they don’t not have immunity from their own state of registration once they are on the high seas. The Rules of Hot Pursuit: 1. The violation that makes you start chasing the ship, must be a violation in the place you start chasing from!  Ex:  In the EEC the violation would have to be against the economic interests; like fishing without permission. 44 In the contagious zone, the violation would have to be for something like sanitation. 2. The right of hot pursuit is terminated as soon as the ship enters into the territorial sea of its own state or a 3rd state.  The ship then ceases to be in that "quasi- no man's land" position and falls within the definitive jurisdiction of some other state. 3. Hot pursuit may be exercised only by warships or military aircraft or other ships/aircraft which are clearly marked and identifiable as being a part of the government and authorized to that effect.  In other words, the ship being chased needs to be able to identify the chasing ships/aircraft as a part of the government; they need to be marked as such. 4. If the chased ship is arrested outside of the territorial sea by a state which did not meet the above requirements; it shall be compensated for any loss or damage resulting from the illegal arrest. . The Saiga Case or St. Vincent and the Grenadines v. Guinea:  International Tribunal for the Law of the Sea, 1999.  The Saiga was an oil tanker o Owned in 1 country o Managed in another country o Leased to another county o Had a crew hailing from yet another country.  The Saiga was off the coast of South Africa when it was attacked within the exclusive economic zone of Guinea.  The Saiga was accused of "bunkering", the transportation of fuel.  Guinea attacked because they wanted to be paid for the use of their EEZ.  HOWEVER, UNCLOS does not prohibit the act of bunkering. Therefore, the Saiga was not participating in any illegal activities. o Guinea was mad because the Saiga had set up this sort of "floating gas station". People were buying gas from this little floating station instead of paying Guinea's port fees and buying gas for the Guinean price including Guinean taxes.  Guinea stormed the boat and arrested the crew using firearms in a non-violent situation. This constituted excessive force not only because the Saiga's actions were not even illegal in nature, but also because Guinea had not even been threatened!  So the Saiga went to court to recover for the damages which occurred due to this unjustified attack by Guinea.  Issue: o Whether Grenadine & St. Vincent (the Caribbean state to which the vessel is claiming registration), really has the right to try the case for the Saiga. o This case focus a lot on whether there was proper registration: 1. Registration Issue:  The ship was registered in St. Vincent through "provisional recording".  45      Provisional registrations are subject to expiration and the Saiga's registration had, in fact, expired. However, St. Vincent & Grenadine acted in a way which was indicative of proper registration. ICH seemed willing to step into the shoes of the state/ take the state's view as to whether the Saiga was registered or not.  Grenadine stated that the Saiga had not been deleted from the list of registered vessels, despite the fact that the provisional registration had expired.  St. Vincent and Grenadine had also not allowed any other country to exercise jurisdiction over the vessel. If the Saiga had been determined to be unregistered, it would be a stateless vessel; and Guinea could have done anything (legal) that they wanted because they would have no "home state" to protect it. HOLD:  The ICJ determined that in certain situations (such as this one), unregistered ships may still be deemed registered.  This is somewhat troubling because it seems to complete negate the necessity of having a properly registered vessel. 2. Genuine Link Issue:  Guinea had to prove that the Saiga lacked the necessary "genuine link" to St. Vincent which would allow them to assert proper jurisdiction.  HOLD:  The ICJ concluded that the genuine link requirement had been met through the vessel's constructive registration.   They are selling oil, this brought them to the attention of the Guinean authority o They has set up a little gas station of sorts o Doing this meant that those people weren't going to Guinea for gas, not paying port entry fees, and not pay Guinea money for the gas! Authorities arrested the crew of the boat, the used firearms to do so. o Guinea authorities used excessive force at a time where they had not been threatened with force at all!  However, the vessels provisional registration had expired. Can they represent them at an international level anyways?  Problem was that with list that ST Vincent gave never mentioned actually subjecting them to their laws.  The vessel had never been near ST Vincent. All they had done was send them the registration fee  BUT the court let ST Vincent represent because they said it "didn’t allow any other country to exercise the jurisdiction"  This decision seems to completely throw out the idea of having to properly register and have that genuine connection. 46    Guinea claimed: o They had a right to attack because they have a right to protect themselves from activity which negatively impacts their exclusive economic zone.  ICJ: This is true, however you only have a right to protect yourself from other countries taking away or damaging resources found inside your water.  It says nothing about Guinea having a right of passage, so the Saiga's act of selling something does not violate. o Our customs zone is being violated by the Saiga's act of selling.  ICJ: There is no customs zone beyond 200 nautical miles. You only retain an exclusive economic zone (see above). Hold for Grenadine and St. Vincent: o The holding country must promptly release the ship and it s crew once judgment has been met. o Damages:  Reparations were ordered for all of the harm caused Notes: o The Court never deliberated on Guinea's claim of hot pursuit because once it had been determined that Saiga had never committed a violation, Guinea's argument became moot; they never had the right to begin chasing them in the first place. o Use of force:  Once you have the right to use force to defend your state's interests the force must be both:  Necessary  Proportionate  To the wrong against you  To the belief that the opposing side will attack/counter with equal or greater force Jurisdiction on the High Seas:  Articles 95-97 o Lay out the guidelines for immunity on the high seas  Article 97: o Grants immunity to the master or servicemen of ship in the vent of a collision on the high seas. o EXCEPT  In the flag state of the high sea in question  The state that the master or serviceman is a national o No arrest or detention can be made by anyone but the flag state.  This case effectively reverses the Lotus case. Piracy: Articles 101-110  When a private ship/crew commits a criminal act against another ship on the seas  The acts must be for private ends 47   There must be at least 2 ships involved There must be an "intent to plunder another ship" for a reason other than political/military motivation. o Example that would probably not meet the requirements of piracy:  Storming a ship from the shore for political ends. "Right of Visit":  The right of a warship to detain & search a private vessel belonging to a foreign vessel.  Times of peace: o Right can usually only be exercised within the territorial waters and usually only as a means of keeping peace. Generally only in cases of suspected piracy, violations of fishing regulation, or interference with telephone cables.  Wartime: o A belligerent state may search neutral vessels on the high seas in order to capture the property of their enemies or to seize contraband bound for enemy ports. o Forcible resistance to search allows the warship attack or destroy the vessel or its cargo, or to capture them as a prize.  Articles 109 and 110 seems to give "right of visit" a.k.a "right of search" to the following types of situations: 1. Trafficking drugs 2. Unauthorized broadcasting of radio, music, talk, etc. 3. A ship without a nationality, or a ship of the same nationality as the visiting ship The Deep Sea Bed:  Was originally going to be a wealth-sharing system owned by all states and regulated by an authority which was to be created to control the distribution of wealth.  "Belongs to everyone, and no one." o This was a clause which was difficult for many to finally adhere to for 1994 ratification.  Developing states: o Very much in favor of deep-sea bed mining  Wanted to create an international entity which would control the distribution/use of the mining.  Whatever a state took from the mining would be deposited into a wealth-sharing system; where it would then be divided up.  Functioned on a system of "parallel access" 1. You must first obtain a license to mine the deep-sea bed. 2. The state then picks 2 areas and develops site development plans for both of them. Authorities will then determine which one they will keep and give you the other one. 48  A state who wanted to be part of the deep-sea bed mining would have to come up with 2 site development plans: 1 to be carried out by your state and one to be used by the regulating authority for their own use.  You did not know at the time of creation which one your state would get to "keep"; so you were basically doing double the work for someone else. Developed/ industrialized states: o Did not agree with the developing nations' plans for deep-sea bed mining. o They wanted to separate deep-sea bed mining from the rest of the convention.  Problem: You CANNOT make reservations to UNCLOS convention. Developing nations prevailed: o The mining was pooled. o However, as the developing nations gained more power they started to get bold an threaten the industrialized nations:  "If you mine outside of the setup of the deep-sea bed regime; we will freeze all of your assets"  This worked because it is common for an industrialized country to have some of their assets in a developing country; but not vice-versa. o Downfall of the plan:  The metals market dropped making it no longer economically feasible to keep mining the deep-sea bed.   Law of the Sea: Dispute Settlement  Articles 286-289  Under UNCLOS you had the choice of opting for one of the provided mechanisms o ICJ o International Tribunal for the Law of the Sea (ITLOS) o A specialized arbitral tribunal  If the dispute is with a state who has opted for a different mechanism; there are articles which govern how to resolve this.  The parties can also mutually agree on using the other party's chosen mechanism OR using a third mechanism.  UNCLOS contains mandatory dispute settlement mechanisms for disputes that arise out of the application or interpretation of the Convention. 49 International Environmental Law: Sources of International Environmental Law: 1. International agreements:  Treaties  1000 in existence; no other area of law has generated such a large body of conventions on one specific topic.  Most deal directly with 1 specific environmental issue; only a few go to environmental protection in general.  Conventions  International legal instruments  Protocols  Mini-agreements that hang off the main treaty.  Give a lot more "space"; by allowing the exact details to be determined at a later time; they allow for scientific progress to update the details  Much easier to generate than a treaty and can enter into force very quickly.  Covenants 2. Customary international law  General and consistent practice of the states, followed out of a sense of legal obligation. 3. General principles of law 4. Other sources  Court decisions (case law) -- see Trail v. Smelter  Resolutions  Declaration  Doctrine, etc. Rule of International Nuisance: o No state has the right to cause injury/damage to another state. o Generally, a state may not participate in an act that has negative effects on another state. Corfu Channel Case: o UK filed for the loss of lives and damages caused by the mine explosions that came from within Albania's territorial sea; this particular area was a place where vessels have a right to sail without coastal permission. o The ICJ was not willing to impute knowledge of the mines to Albania merely because the explosions occurred in their territorial sea, HOWEVER:  The Court held that Albania was responsible for the explosions because they were the only ones actually exercising control over the area; they had to know have known.  Court looked to the fact that Albania had 2 command posts out there; so they had to have knowledge of the mines' existence.  50 State responsibilty: o A state has a duty to other states to prevent injurious acts caused by its own individuals.  Can't allow citizens in your state do doing anything which may have a negative impact on another state. Trail v. Smelter: o This case established the standard for state responsibilty. o The smelter was not in violation of Canadian lay, but the sulfurous fumes were traveling down the coast and causing damage in the state of WA. o The Court had jurisdiction over this case because Canada and US were both parties to a treaty.  Standard applied by the ICJ in this case:  A state owes a duty to other states to prevent injurious acts caused by its individuals.  This case is significant because it showed the ICJ creating ground- breaking norms for the first time.  Since there was no rule in IL which spoke directly to this issue; the ICJ looked to analogous US Supreme Court cases in order to establish precedent. Declarations and Treaty Law:  UN conferences on the environment were taken as "soft law" o The conclusions made at these conferences were not intended to be binding law right away, but rather with the hope that they someday would be become binding through their manifestation as custom. o The UN held conferences on the following issues of environmental concern:  Hazardous waste  Atmosphere; Ozone and Climate  Nature; Flora, fauna & other resources  Nuclear Fallout  Implementation:  Environmental law required a 2-step process of implementation: 1. Creation of the norm 2. Creation of an enforcement mechanism to instill the norm. Standard of Care:  The standard of care each state owes to the international community has often been described as "due diligence". o HOWEVER, in recent times, many have stated that a strict liability standard should be applied in the case of ultra hazardous activities:  Strict liability: 51   Under this standard states are liable for damage caused by their activities; regardless of whether they exercised due diligence or not. Some conventions now apply strict liability for possession/use of nuclear materials & participation in other hazardous activities. Advisory Opinion on the Legality of Nuclear Weapons: 1996  The Court never resolved the crucial question of when the use of these weapons would be permissible. o However, the obvious answer would be that their use, if permissible, could only be within the context of self-defense.  Court states: o Long term effects could be taken into consideration and self-defense does not relieve a state from any and all liability. o The Court does not specifically state the weapons may not be used due to their detrimental effect on the environment; but there is an obvious trend in that direction.  While existing international law (relating to the protection of the environment) does not specifically prohibit the use of nuclear weapons; it does indicate that environmental factors and effects must be taken into consideration. o Custom dictates that the Court looks to see whether the use of nuclear force is proportional. International Human Rights: Human rights are conceptualized based on inherent human dignity; retaining the individual's universal and inalienable character. Divisions of Rights: 1. Negative Rights:  Rights that go against the government  Tell the government that they may not do certain things to individuals  US 8th Amendment: No cruel & unusual punishment 2. Positive Rights:  Against the government  The individual has rights to do certain things which the government may not restrict  The right to free education 3. Group rights against the government:  A person gets this by being a party to a group  The right of self-determination, race, religion, etc. 4. Individual obligations to society and other persons   The greatest tasks of the human rights movement have been to: 1. Establish the norms 52 2. Create enforcement mechanisms both at the international level and at the domestic level  Developments of methodologies to enforce the norms are what human rights conventions are all about. The Universal Declaration of Human Rights: (UDHR)  A declaration adopted by the United Nations General Assembly in 1948.  Outlines the organization's view on the human rights guaranteed to all people.  The declaration does not form part of formal international law, but it is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles.  Many of the rights listed in this declaration started out as "soft law", however, over time many have now become established rights.  There are a total of 30 articles outlining people's human rights, but the most important principles declared are considered to be the following: The right to...  Life, liberty and security of person.  Article 3  An education.  Employment, paid holidays, protection against unemployment and social security.  Participate fully in cultural life.  Freedom from torture, or cruel, inhumane treatment or punishment.  Article 5  Freedom of thought, conscience and religion.  Freedom of expression and opinion. Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty:  Adopted in 1989; entered into force in 1991  Only 50 parties to this protocol, although roughly half of the states have abolished the death penalty or allow it only for military crimes or crimes of a very serious nature directed at the security of the state.  The objective of this protocol is the abolition of the death penalty.  Key provisions: o Reservations regarding abolishing the death penalty are not allowed  Except in those cases where the death penalty pertains to military crimes committed during wartime. o Countries are asked to document and describe the steps they have taken to put this protocol into effect in their reports to the Human Rights Committee. o Gives countries that are parties to the Covenant the option of recognizing the Human Rights Committee as qualified to receive and examine 53 communication from individual people about issues related to the provisions of the protocol. Article 6:  Every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrarily deprived of life. Rule of Law and Standard:  There is a requirement that this right shall be protected by law and that no one shall be arbitrarily deprived of his life  The Law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a state. Guerrero v. Columbia:  The police deliberately and intentionally killed 7 people who were suspects in a kidnapping.  They never gave them any opportunity to surrender and denied them any kind of due process under the law.  Guerrero was one of the 7 killed. o Committee's view:  The actions of the police which resulted in Ms. Guerrero's death was disproportionate to the requirements of law enforcement in the circumstances of the case.  She was arbitrarily deprived of her life contrary to Article 6  Because the police action can be made justifiable under Columbian law, the right to life was not adequately protected as is required by Article6(1). Disappearance and the Right to Life:  "forced or involuntary disappearance of a person is a crime against humanity that strikes against the fundamental rights of the human individual"  General Assembly of the Organization of American States (OAS),  OAS's member states adopted an Inter-American Convention on the Forced Disappearance of Persons in 1994, as a means of preventing and punishing the forced disappearance of persons in our hemisphere.   A "disappeared" person refers to a missing person whose disappearance has been engineered by the state authorities. o A.k.a: "forced" or "involuntary" disappearances. The Human Right Committee has stated: o States should take specific and effective measures to prevent the disappearance of individuals.  The frequent act of disappearing individuals often leads to the arbitrary deprivation of life 54 o States should establish effective facilities and procedures to thoroughly investigate cases of missing and disappeared persons in circumstances which may involve a violation of human rights  Burden of proof in cases of disappeared persons: o The burden is switched to the State  This is because if the State really is the one who caused the forced disappearance; they have the power to both conceal and destroy any evidence of the disappearance  It is unjust to say that person has failed to produce evidence to support their case when the evidence cannot be obtained without the State's cooperation. o Furthermore, the disappearance can be proved by the victim's counsel through the use of indirect or circumstantial evidence, or through relevant logical inference. Violations of rights related to forced disappearances: 1. Right to personal liberty & well-being 2. Right to proper judicial protection & due process 3. Right to life State's obligation prevent deaths of persons generally or when in state custody: o Detained civilians must, at all times, be treated humanely. o Torture and ill-treatment is absolutely prohibited.  Includes corporal punishment and outrages against personal dignity, in particular humiliation and degrading treatment…and any form of indecent assault.   Filártiga v. Peña-Irala (1980):  Decided by a panel of judges from US Court of Appeals.  Landmark case in both United states law & International law  Set the precedent for U.S. courts to: o Punish non-U.S. citizens (aliens) for tortious acts committed outside the U.S; as long as their acts were in violation of the law of nations, or any treaties to which the United States is a party.  Thus extending the jurisdiction of the United States courts to tortious acts committed around the world.  Analogous to universal jurisdiction  Crime so heinous that the actors are subject to jurisdiction anywhere in the world Facts:  Irala was the Inspector General of Police is Asuncion, Paraguay. 55     In 1976, Joel Filartiga 17-year-old son, Joelito, was kidnapped and tortured to death in retaliation for the political activities of his father. The family brought murder charges against Pena, but he case went nowhere. In 1978, both Pena and Dolly (victim's sister) were living in the US (separately). Dolly filed a civil complaint in the US Courts for her brother's wrongful death by torture, asking for damages in the amount of $10 million USD. o Arguing that Pena's actions had violated: 1. Wrongful death statutes 2. The UN Charter 3. The Universal Declaration of Human Rights 4. The UN Convention Against Torture 5. The American Declaration of the Rights and Duties of Man How the United States obtain jurisdiction in this case?  The dug-up the Alien Tort Statute o An act dating back to 1789: o "The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."  This case interpreted the statute to mean that the United States had jurisdiction over claims for orts committed both within the US and abroad, so long as customary law, or some treaty law to which the US is a party has been violated.  Note: the accused must be in the US in order to be served. o History of the statute:  Created to deal with common [problems from that era like piracy; the US wanted to make sure that pirates could not completely evade jurisdiction. o Recent use:  This statute is frequently used as a means of holding American government, military and corporate leaders responsible in a court of law for human rights abuses committed as a result of their presence in a foreign country.  Regardless of whether the abuses were committed by someone within an American organization, or whether the abuses were created by a group local to the foreign nation, empowered by the presence of the American organization.  Judgment: o The US courts eventually ruled in favor of Filártiga, awarding them over $10 million. o Torture is a violation of international (the law of nations)  How did the Court determine this?  The prohibition of torture by police officials was found in:  Treaties between several different states, including ones the US was not a party to  The municipal laws of various states which explicitly prohibited torture in their statutes. 56 o The US had jurisdiction over the case since the claim was lodged when both parties were inside the US. The Use of Force by States:  War: o o The act of a group organizing itself and attacking another group May be between:  Clans  Tribes  Gangs  Within a nation state (civil war)  Against another state(s) (interstate war)  The Laws of War (or Law of Armed Conflict (LOAC)) are generally divided into 2 categories: 1. Jus Ad Bellum  Law concerning allowable justifications for the use of armed force  Describes when it is permissible for a state to use armed force against another state.  The customary laws are found in:  Art. 2(4)  Art. 51  Art. 42  None of which apply to civil war. 2. Jus In Bello  Law concerning acceptable practices while engaged in war  Regulates the conduct of the armed force used by one state against another  These laws will apply regardless of whether you were justified to use the armed force to begin with (under jus ad bellum)  Geneva Conventions  Mostly apply to inter-state conflict  But do encompass some rules applicable to civil wars Coercive measures not amounting to armed force: o  Retorsion  Not nice, but still legal.  An unfriendly, but not illegal retaliatory action(s), taken by 1 state against another in response to actions that are regarded as hostile, unfriendly, or not in keeping with the policy aims of the responding states.  May take a variety of forms.  For example a retorsion may: 57      Consist of breaking off trade or diplomatic relations or imposing embargos on the export/import of good to/from the offending state Nationals of offending state may be denied entry visas Vessels may be denied entry to port Aircraft may be denied fly-over rights May even go as far as the massing of troops near the offending state's border  However, a large troop ,maneuver may cross-over and constitute an illegal threat of force. o   Reprisal  2 types: 1. Reprisals not involving the use of armed force:  Often called "counter-measures", in order to be distinguished from… 2. Reprisals involving the use of force:  Considered unlawful during times of peace  If the "prior illegal action" of the other state amounted to an armed attack, the prior action would trigger the right to self-defense  BUT, not all armed illegal activities amount to an armed attack which gives rise to right of self-defense. (see Nicaragua) A limited and deliberate violation of the law of war intended to punish the enemy for breaking the laws of war. To be legally justified:  Can only be directed against the party who is committing the original violation  Must be a "last resort"  Only after having given formal notice of the planned reprisal  Must be proportionate to the original violation  Purpose of the reprisal must be to persuade the original violator to comply with legally accepted behavior in the future  The reprisal must not continue after the original illegal behavior ends. Right of self-defense: The Caroline Incident:  A correspondence between the United States and Britain indicating agreement on rules of necessity and proportionality.  A US ship on the US side of the Niagara River was giving supplies to rebels in Canada, at the same time the British were trying to implement insurgents in Canada. 58   The British entered US port, set fire to a ship and sent it over Niagara Falls, resulting in the death of many Americans. British claimed: o They were acting in self-defense and out of necessity. The issue that arose of out of this case was whether the action was really necessary and proportional. o The British said it had to be done at night when the men were asleep and that there was no way to discriminate between the innocent and the guilty people on-board. o The US disagreed claiming no existence of necessity. o Customary Law of Self-Defense:  A state may use armed force in response to the use of armed for against it, so long as the use of such responsive force is necessary and proportional to the force used against it.  If there exists a way which obviates the use of such responsive force, then such alternative will negate the use of self-defense. o If there is a way to respond without employing self-defense; you have to use this. o Otherwise YOU will be the one acting illegally. Nicaragua Case (Merits):  Nicaragua's claim against US: o US was providing aid to the contras living in El Salvador, (who were in opposition to the Nicaraguan government). o Claimed a violation of Article 2(4); specifically, through the use of force.  United State's Claim: o Their acts were permitted under the charter as acts of self-defense upon El Salvador. o Collective Self-Defense Argument:  Article 51  Collective self-defense is allowed if one of your allies is attacked and you are exercising self-defense on behalf of this ally.  EL Salvador had the right to protect themselves (self-defense) from Nicaragua's actions.  Nicaragua was accused of either (1) Sending the weapon over themselves, or (2) Allowing the activity to go on, unchecked.  (compare this case to the US’s attack on Afghanistan after 9-11)  ICJ rejects this argument:  El Salvador never requested help form the US  El Salvador are in the best position to know whether or not they needed help.  The act of the US attacking Nicaragua could be the exact opposite of what the "alleged offended" nation wants 59  Note that these 3rd party nations that come in under collateral self-defense are always developed nations;  More likely than not, they have some other ulterior motive in mind in attacking the offending nation.  Court held that "cross border armed activity from Nicaragua to El Salvador" did not constitute an armed attack; thereby failing to invoke right to self-defense. These are the guidelines the Court used when deciding that N's activities did not constitute and armed attack:  Not all uses of force amount to an armed attack giving rise to self defense  The threat here was not IMMINENT  Imminent: impending and usually unavoidable war  So what does qualify as an "armed attack"?  We don't really know.  Have to just weigh out the circumstances on a case-by-case basis and make your argument from there. What is the official procedure for Collective Self-Defense? 1. State A would have to be under armed attack by State B 2. State A would then have to notify the Security Council of the circumstances of the attack(s) and request the assistance of State C.  This is the ONLY WAY to obtain the right of collective self-defense under customary law Note what would happen if these stringent rules for invoking Collective Self-Defense did not exist… 1. The would be an authorized use of force against other states, even though Article 2, Section 4 of the UN Charter (considered a preemptory norm which may not be violated/jus cogens) bars the threat of use of force against any state.  ((don’t forget that Article 51 does clearly permit the use of self-defense however)) 2. The powerful states would scan the entire world, making the unilateral decision of determining who has suffered an armed attack and intervene  Additionally, it is not hard to imagine that a powerful country can prey on any indication of an armed attack in order to justify the use of self-defense on a country for their own motives. Forceful Counter-Measures:  A third party state may not use forceful countermeasures on behalf of another state.  Counter-measures are self-help responses to the illegal use of force not amounting to an armed attack. o Collective Counter-Measures? 60  There is no such t