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International Law Outline

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					                                              INTERNATIONAL LAW OUTLINE

   I.   THE NATURE OF INTERNATIONAL LAW
           A. McCann illustrates an international legal rule made by a treaty, adjudicated by international court & enforced by a
              regional international legal system
                   1. International law when appropriate can override national authority
                   2. Issues of choice of law and whose law applies

            B. Filartiga illustrates a customary or fundamental international legal norm adjudicated by a municipal ie domestic
               court & enforced by the ordinary mechanism of the domestic legal system\
                    1. First Congress established original district court jurisdiction over all causes of action where an alien sues
                        for a tort only committed in violation of the law of nations
                              a. If person is tortured w/I our borders federal jurisdiction is provided by this rule

                     2. Elements:
                            a. alien
                            b. for a tort
                            c. in violation of international law
                            d. normally would involve someone with color of authority b/c in int’l law , law applies to some
                                 official
                     3. After the action was brought
                            a. Fed crt of appeals 2nd circuit
                                      i. There was SMJ
                                      ii. Court decided there was cause of action that torture was violation of international law –
                                           what sources did they go to look for this – the court looked at UN charter
                            b. where there is no treaty, & no controlling executive act or legislative at then must resort to
                                 international law
                            c. as source of Int law will look to customs and usage but strongest sources is what the state
                                 department says the rule is
                            d. No torture its jus cogens but its so important that it’s preemptory norm
                            e. Int’l law incorporates national law – if all states do it then it becomes jus cogens so can’t violate it
                                 since it’s a rule everyone recognizes


   II. TREATIES
          A. Sources of International Law
                 1. International law is composed of various types of law such as Environmental law, Law of the Sea, Law of
                     Common spaces
                 2. International law lacks an effective judiciary so states need to consent to the states for the judicidary to
                     follow
                 3. there is no effective executive force to force the losing side to comply with International obligations

            B. Treaty Sampler
                   1. Treaties – are international agreements, K’s between 2 or more countries. They can be executive
                       agreements or treaties , Treaties try to change the sovereignty of nations by limiting or decreasing their
                       sovereign rights

                     2. The Peace of Westphalia
                            a. Created the notion of Territorial Sovereignty – that other states should not interferes with
                                 sovereign activity
                     3. Treaty of Paris
                            a. Recognition by UK of the US as an independent sovereign nation
                     4. Cession of Alaska
                            a. US bought Alaska from Russia
                            b. Difference between executive agreemtns & treaties
                                     i. Executive agreement – non congressional approval
                                     ii. Treaty- Congress 2/3rds need to vote to have pass
                     5. Kellogg-Briand Pact
                            a. Renunciation of war as means of settling disputes after WWI
                            b. Not customary international law
                                     i. Only applied to countries who were signatories ie Uk, US, France
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                    6. Vienna Convention
                           a. A state may when signing, ratifying a treaty, to make certain reservations unless those reservations
                               are prohibited by the treaty or is incompatible with the purpose of the treaty
                           b.

           C. The Law of Treaties
                  1. Treaties play the same role as K’s play in municipal law
                         a. If govnt changes in one state, its treaties are still binding
                         b. A state can’t use internal law as a defense for not following treaty obligations , not unless its
                              obvious to the other party
                         c. A later treaty trumps older treaty
                         d. Treaty is invalid if
                                   i. Fraud, illegality coercion or unconscionability involved
                                   ii. Can terminate if there is material breach

                    2. How to interpret a Treaty – Eastern Airlines
                          a. Sup court determined that you would look to the purpose & og intent of the treaty and they way it
                               had been interpreted in practice not the literal translation
                                             1. So perfect translation may not be consistent with the above

                    3. Binding States Greenland
                           a. State was bound by the statements of its diplomats
                           b. Press officer may not bind you where are diplomat may

   III. CUSTOMS & THE NON-CONSENSUAL SOURCES OF INTERNATIONAL LAW
           A. Customary International Law
                  1. Paquete Habana
                         a. The manner of determining rules of customary international law
                                  i. Based on evidence of jurists & commentators having researched subjects
                         b. The way in which customary international law is incorporated into municipal law of the US
                                  i. International law is part of US law
                         c. The proper relationship between the US courts and the executive branch in legal matters of
                             international relations
                                  i. Where there is no treaty & no controlling executive or legislative act or judicial decision,
                                       courts must resort to customs & usage of civilized nations
                         d. Holding
                                  i. Court ruled that, under the law of nations, in each case the capture was unlawful and
                                       without probable cause. It was a rule of international law that coast fishing vessels,
                                       pursuing their vocation of catching and bringing in fresh fish, were exempt, with their
                                       cargoes and crews, from capture as prize of war. Although not reduced to treaty or
                                       statutory law, courts were obligated to take notice of and give effect to that rule
                                  ii. So International law can override state law

                    2. The Asylum Case
                           a. Regional international law is not customary law , the burden of proof is on the country asserting
                               international principals. Must site to some treaty sources
                    3. The Lotus Case
                           a. Party seeking to show conflict/ violation of international law has the burden of proof
                                    i. Must prove there is a rule of customary law restricting the other states indepdencnce
                                    ii. Can’t exercise jurisdiction if it interferes w/ another states international rights
                                    iii.
                    4. Texaco Mixed international arbitration – in determining customary international law
                           a. What tribunal handled this case – arbitrator
                           b. What is the issue in this case- whether libya could take the property of Texaco w/o any
                               compensation
                           c. Whether you owe compensation and how do you measure it
                           d. What did the arbitrator decide – they could legally nationalize as long as it was appropriate
                                    i. B/c of sovereignty they would be able to do this
                                    ii. They can do so but thye have to pay soeme tupe of compensation
                           e. Remedy in this case-
                                    i. Forced some type of comp
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                            f.Why did Libya agree to do this
                                    i. b/c they were trying to better their commercial relationship with the rest of Europe
                          g. Article 2 provided:
                                    i. Every state has & shall exercise … sovereignty
                                    ii. Each state has right to nationalize … transfer ownership of foreign property
                                    iii. any conflict should be determined according to domestic law of the nationalizing state
           B. General Principles of Law
                 1. General Principal
                          a. When treaties or customs don’t provide a definite rule involving international law, the judge or
                              trier of fact may look to non consensual sources
                 2. The Am & S Case
                          a. This involves attorney client privilege
                          b. What was the issue:
                                    i. To determine the common law b/c there was no rule on this , they looked to al the
                                         involved countries laws to determine what the lowest common denominator was
                          c. The decision: what the min that all the states agree on, the did this b/c
                                    i. They didn’t look to the treaty so we would have to assume that all the countries assume
                                         that they would all agree to some form of privilege b/c they all have these rules
                          d. Which documents are privileged and which ones aren’t:
                                    i. In house counsel treated as low level employees
                                    ii. Outside counsel has the privilege

           C. Natural Law & Jus Cogens
                  1. US v. Smith
                  2. Prosecutor v. Furundzija
                  3. The Michael Dominguez Case
           D. Equity
                  1. Where sources of International law come from
                  2. Cayuga
                         a. What is the issue- does the treaty apply to Canadian Indians since they don’t reside in NY
                                   i. Court applies principles of fairness and equity
                         b. Where do they get this principle of equity from – according to general and universally recognized
                             principles and interest of justice
                         c. What did the treaty say?
                                   i. it will be construed with the general principles of law
                  3. Meuse case
                         a. What happened? Netherlands govnt has asked court to determine that filling canal with water if
                             violation of treaty, the Belgian govnt has asked thecourt to say no its not in violation b/c the canal
                             is treated same as another one
                         b. What is the issue: one who cheats can’t complain about another who does the same – the legal
                             principle of equity is what this is based on
                         c. Equity will always be a general principle that will apply

                    4. The North Sea Continental Shelf Case
                           a. The issue – asking court what principles to apply to division of the land
                           b. Asking court to apply the Geneva convention law of the sea – which provides for
                           c. The court decided that the parties must agree in terms of equity ho to divide – they must do it in
                               an equitable manner



   A. Chex case
         a. International law is different than national law, many concepts are from civil law
         b. Once two states enter into agreement to solve a problem they are married so they must not act unilaterally anymore
                  i. Even though the other was breaching the second side could not act unilaterally




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   IV. INTERNATIONAL & MUNICIPAL LAW
          A. Dualism & Monism
                  1. Dualist – relationship between international law & municipal law
                          a. view that any national or international legal system is separate and secrete entity, have power to
                              determine the effect of any outside law
                          b. Municipal law can’t impose itself on the international legal system
                                   i. A state can’t rely on its own domestic law in order to repudiate an international legal
                                        obligation
                  2. Monist - relationship between international & national law
                          a. view is that international legal order & all national legal orders are part of a single universal legal
                              order in which international law has a certain supremacy
          B. Treatise & the Constitution
                  1. Treatise in US Law
                          a. Art II (2): the President of the US is granted the
                                   i. Power, by & with the Advice and consent of the Senate to make Treaties as long as 2/3’s
                                        of the Senators present concur
                          b. Art III (2): Judicial power of the US is extended to:
                                   i. All cases in law & equity arising under the Constitution, the law of the Us and Treaties
                                        made or which shall be made under their authority
                          c. Art IV (2): Constitution & the laws of the US which must be made … and all treatise made or
                              which shall be made, under the authority of the US – must be the supreme law of the land
                                   i. Judges in every state shall be bound by them …
                          d. Art I (10): No State shall enter into any Treaty, Alliance or Confederation
                  2. Foster& Elam
                          a. P claims a piece of land was granted to them in 1804 by the Spanish governor, D claims that that
                              land had been seceded to France before the grant, so grant is void
                          b. In 1819 the Spanish-American amity Treaty was signed where Spain ceded to the US sovereignty
                              over West FL & any grants made by the Spanish govnt before 1818 should be ratified &
                              confirmed to the persons who are in possession of it now
                          c. the court held that the language doesn’t say that all grants of land before that day should be valid,
                              so this language of ratification & confirmation which are promised m/b passed by legislature first
                          d. Crt held that this treaty was not self executing
                                   i. A treaty in the US is considered to be the law of the land and should be regarded same as
                                        an act by legislature when ever its self executing, but when it provides parties to act then
                                        the legislature must act before it becomes a rule for the court to follow
          C. Self Executing treaty provisions are binding on the States
                  1. Whether a part of a treaty is self-executing & invalidates state law- must be determined on case-by-case
                     basis
                          a. Self-executing treaties b/c of the Supremacy clause of Art 6 are binding on the states of the US
                  2. Asakura v. City of Seattle
                          a. City ordinance prohibited issuing of pawn license to aliens. P claimed it violated 1911 Treaty
                              between Japan & the US which allowed Jap citizens to “carry on a trade & reside in the US.”
                          b. Held that the treaty was self executing w/o any help from legislature, state or national that it will
                              be applied & given effect by the courts
                                   i. Crt held pawnbroker was a trade w/I definition of the treaty so city ordinance violated the
                                        treaty
                  3. Sei Fujii v. CA
                          a. P claimed UN Charter invalidated a state law which barred aliens from owning land.
                          b. State Crt held that the preamble & article of the charter weren’t self executing because they just
                              stated general purpose & didn’t impose legal obligations to the individual member nations nor
                              created rights in private persons
                          c. The Charter was not meant be a rule of law. Even though member nations were obligated to
                              promote respect & human rights, that future legislative action would be necessary to accomplish
                              the declared objectives
                  4. Missouri v. Holland
                          a. Crt hinted that it might be Constitutionally possible for Congress to enact laws pursuant to
                              international agreements which would otherwise infringe on sovereign power of States.
                          b. US Fed migratory bird statues were struck down b/c they would impinge on the States 10 th
                              Amendment rights & thus unconstitutional. Later US negotiated treaty with Canada for similar
                              regulation which Congress approved & President ratified. On appeal court upheld the
                              constitutionality of the fed statue.
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                            c.   Crt held that the treaty implementing legislation had to do with national interest which could be
                                 protected only by national action in conjunction with another power
                                      i. However the court stated that no treaty provision would be allied by the US courts if
                                          there were in violation of the US Constitution

                    5. Crosby v. National Foreign Trade Council
                           a. Issue: whether MA restricting authority of agencies from purchasing goods & serv’s from
                               companies doing business in Burma is invalid under the Supremacy Clause of the US? Yes, it is
                               invalid
                                   i. This was done after the US had placed sanctions on Burma
                           b. Held: Court held that congress had clearly intended for the act to provide the President w/ flexible
                               & effective authority over economic situations in Burma ie to limit economic pressure to a specific
                               range not cut it off all together which is what the State is doing & thus in conflict.
                                   i. Fundamental principle of Constitution is that Congress has the power to preempt state
                                        law
                                   ii. Even w/o an express provision for preemption there are 2 situations where state law must
                                        yield to congressional Act
                                             1. When Congress intends federal law to “occupy the field”, then state law is
                                                  preempted
                                             2. Even if Congress has not occupied the field, state law is preempted to the extent
                                                  that it conflicts with a federal statute

           D. Conflict between Treaties & Statues
                  1. By the Constitution a treaty is placed on the same footing & made of like obligation, with an act of
                       legislation”
                            a. Both are supreme law of the land
                  2. When the two relate to the same object the courts will try and reconcile the provisions
                            a. if not possible, then the one that came later in time controls either the Statute or Treaty
                                      i. “by the Constitution a treaty is placed on the same footing &
                            b. Even though a treaty provision might no longer have force in the US courts, it may still be legally
                                 binding in the international legal system
                  3. Legislative silence is not enough to abrogate a treaty.
                            a. Also where both Congress & the President agree that a treaty is still in force the courts won’t
                                 challenge the treaty’s validity or enforceability b/c they owe great deference to those political
                                 branches
                  4. Treaty given 2 meanings
                            a. First “Treaty” in Art II(2) that requires the advice & consent of the Senate AND
                            b. Second there is a “treaty” in Art VI(2) , that along with the Constitution & US law is given
                                 supremacy
                  5. Whitney v. Robertson
                            a. A Treaty between the US & Hawaii stated that various articles would be imported to the US from
                                 Hawaii duty free. The plaintiffs tried to use this treaty to argue that sugars impoted from San
                                 Domingo s/also be duty free even though not included in the treaty. However P’s relied on a an
                                 earlier dated treaty between US & Dominican Republic which stated that imports from their
                                 country s/n charged more than that of other countries. The court held that b/c the Hawaiian treaty
                                 was passed after the Dominican one & there was a conflict between the two the later one must
                                 control ie Hawaii, so P’s lost
                  6. US v. Belmont
                            a. The US sought to recover funds deposited with Belmonts bank (NY)by private Russian company
                                 later nationalized by the Soviet Union. These funds were included in amounts assigned by Soviet
                                 govnt to the US in an executive agreement to help satisfy outstanding claims of private Americans
                                 against the Soviet Union.
                                      i. Since the executive agreement hadn’t been approved by the Senate there were objections.
                            b. Court held that an International compact isn’t always a treaty which requires the participation of
                                 the Senate. However though it wasn’t a treaty requiring ratification by the Senate it was a
                                 compact negotiated proclaimed under the authority of the President & as such was a treaty w/I the
                                 meaning of the ACT. The external powers of the US are to be exercised w/o regard to state law or
                                 policies b/c the complete power over international affaris is in the national govnt & can’t be
                                 subject to interference on the part of the states.
                  7. US v. Curtis- Wright

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                              A joint resolution of Congress authorized the President to declare the sale of arms to certain
                             a.
                              countries illegal.
                                   i. Though the President initially issued a proclamation that declared that sales to Bolivia
                                         were unlawful, the President later revoked his proclamation.
                                   ii. D’s sold arms to Bolivia before the revocation of the proclamation, and demurred to the
                                         charges against them on the ground that the revocation of the proclamation precluded
                                         their prosecution.
                                   iii. Held revocation only stopped the jnt resolution from being enforced against sales to
                                         Bolivia in the future.
                          b. The President had broad discretion to determine the benefit of enforcing a joint resolution on
                              international relations. The power to make decisions regarding international affairs was vested in
                              the President, especially in areas that could lead to embarrassment of or security issues for the
                              nation.
                          c. Court held that the power of the President or Congress to make international agreements outside of
                              the boundaries of Art II is not unconstitutional. Court found the grant of powers not in the
                              Constitution but in the law of nations
                  8. Dames & Moore v. Regan
                          a. Dames & Moore filed an action against the Government of Iran and Iranian banks, seeking money
                              owed for services performed. SJ granted but President Regan signed an executive agreement w/
                              Iran to release American hostages in exchange for forgiveness of Iranian debts & terminate
                              litigation.
                          b. Court upheld the Presidential action to suspend Iranian claims & to transfer the assets
                                   i. As to the assets the court found the Presidends power from Congressional authorization
                                         granted in the Trade with Enemy Act
                                   ii. As to the suspending the claims though these had nothing to do with the assets being held
                                         the court held that Congress implicitly consented to that practice by creating procedure to
                                         implement future settlement agreements thorough the Settlement of Claims Act.
                          c. However even w/o Congressional consent the President does have some power to enter into
                              executive agreements w/o obtaining advice & consent of the Senate b/c the Presidential power
                              extends to settlements of mutual claims btw foreign nations and the US, especially when its
                              necessary for continued amity btw those countries
           E. The law of Nations in American Law
                  1. Law of Nations
                          a. In common law countries like the US, international law that originates from sources other than
                              treaties is considered a special type of common law such as customary international law, general
                              principles of law & jus cogens
                                   i. In the US the Law of Nations predated the Constitution & the Supremacy Clause
                          b. A criminal statute may define a crime by explicitly incorporating the law of nations
                          c. The Sup Ct has held that Congress intended the 1789 Alien Tort Statute to provide another
                              avenue, w/o Congressional act, of redress for international violations committed by individuals
                          d. US courts don’t usually treat customary international law , general principles of law, judicial
                              decision & opinions as sources of international law as would the international court;
                                   i. however the courts collect evidence from all these sources & establish some rule of
                                         international common law
                          e. Also US courts are more likely to apply international law to disputes of vertical relations –those
                              between individuals & states, than those involving horizontal relations- those between States
                          f. Jurisdiction in US courts based on the Foreign Sovereign Immunities Act
                                   i. Foreign Sovereign Immunities Act does not provides the sole basis for suing foreign
                                         govnts
                                   ii. The Alien Tort statute could also be used
                  2. Charming Betsy
                          a. American law includes international law – however this isn’t a rule that must follow
                                   i. Thus an act of congress should never be construed to violate the law of nations
                          b. If congress manifests intention that it doesn’t want to follow international law then Courts must
                              accordingly rule

                    3. Respublica v. Longchamps
                           a. Chief Justice of Pennsylvania held that an assault on the French consul general in Phili was “an
                               infraction of the law of Nations. This law in its full extent is a part of the law of this State & is to
                               be collected from the practice of different Nations”. Thus based on this LongChamps was
                               subjected to a fine & imprisonment
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                  4. Amerada Hess v. Argentine Republic – relationship btw the law of nations & minicpal law
                        a. An oil tank belonging Hess was bombed by, the Argentine Republic while delivering goods.
                        b. Held that Argentina was signatory to various agreements from Law of Sea Convention to the
                            Geneva Conventions of the High Seas as to treatment of neutral ships during war time. Thus
                            Argentina had violated international law by attacking a neutral ship in international waters w/o
                            proper cause or suspicion or investigation.

                  5. PLO case
                          a. Was terrorist org and required closing of all offices in the US
                          b. Court held that the office of UN in NY didn’t have to be closed
                                   i. There was insufficient proof that congress didn’t want that to be an exception
                  6. Political Question note 5
                          a. court won’t rule because the question is politically charged where it might be an infringement on
                               one of the other branches of govnt
                          b. second reasons is because there are no judicial standards for determining the right policies or the
                               question
                          c. third reason- should only have one foreign policy question or should have only one position
                          d. cant have different policies of ex what is the real Russian govnt

                  7. US Alvarez-Machain
                        a. Mexican citizen was indicted for murdering DEA agent abroad & was kidnapped & flown to the
                             US. He argues to dismiss indictment b/c he was abducted in violation of the extradition treaty btw
                             US & Mexico.
                        b. Issue 1: Whether it was in violation of the US Mexico treaty to forcibly abduct Mexican citizen?
                                  i. The court construed the treaty and concluded that there were no express provisions
                                       concerning obligations to refrain from forcible abductions, or the consequences under the
                                       treaty if such abduction occurred.
                                  ii. The court concluded that the language of the treaty, in the context of its history, did not
                                       support the finding that the treaty prohibited abductions outside of its terms.
                        c. Issue 2: whether the Treaty s/b interpreted to include an implied term prohibiting prosecutions by
                             means other than those provided in the Treaty
                                  i. D argued abductions are prohibited by “customary international law”
                                  ii. Nor did the court find that the treaty should be interpreted so as to include an implied
                                       term prohibiting prosecution, where a defendant's presence was obtained by means other
                                       than those established by the treaty
                        d. Court responds stating that US has jurdx over D for violations of US criminal laws & abductions
                             are legal in the US
                                  i. Also D didn’t argue that the international laws should be applied here only that they
                                       should be used as a basis for interpreting the treaty
                                  ii. The court noted that the violation of any principle of international law did not constitute a
                                       violation of the treaty
                        e. Note: This was treatching the charming Betsy Canon by interpreting a treaty to avoid conflict with
                             a local alw

                  8. Saso v. Alvarez Machain
                         a. ATS
                                   i. The DC’s 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 US.
                         b. FTCA
                                   i. Authorizes suit for personal injury caused by negligent or wrongful act or omission of
                                        any employee of the Government while acting w/I the scope of his office/ employment
                                             1. Statute makes US liable for torts
                         c. Federal grand jury had indicted P for the torture & murder of Salazar & a warrant was issued for
                              his arrest. DEA hired Mexican nationals to bring Alvarez to the US
                                   i. Once in the US he moved to dimiss the indictment because his seizure was in violation of
                                        the extradition treaty between the US & Mexico . DC granted the motion
                                   ii. Then he sued the DEA the US & person involved in this abduction
                                             1. He wanted damages from the US under the Federal Torts Claims Act

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                                            2. Alleging false arrest by Sosa the Mexican operative under the Alien Tort Statute
                                                 for violating the law of nations
                        d. 9th circuit said arrests were torts in violation of international law and the DEA had no authority to
                             arrest or detain P in mexico so the US was liable to him under CA tort law
                        e. Sup court reversed each of these counts
                                  i. The United States Supreme Court held, that neither the FTCA nor the ATS provided a
                                       remedy for the alien.
                                  ii. P claimed that the government's control of the abduction in the United States prevented
                                       application of the FTCA exception for claims arising in a foreign country,
                                  iii. But the court held that the exception applied since the alleged harm occurred in Mexico,
                                       regardless of whether conduct in the United States was a proximate cause of the harm.
                                  iv. Further, while the jurisdictional scope of the ATS extended to recognition of limited
                                       claims for violations of the law of nations, the alien's brief illegal detention prior to his
                                       transfer to lawful authorities did not amount to a violation of a well defined norm of
                                       customary international law
                                  v.
   V. INTERNATIONAL COURTS & TRIBUNALS
         A. Public International Arbitration
                1. The Alabama Arbitration
                        a. 5 Judge tribunal empowered by UK & US consisting of reps from Great Britain, Italy, Switzerland
                             & Brazil to decide whether Britain had violated international law when it allowed British
                             companies to build warships for the Confederacy during the American Civial war
                        b. the tribunal held that the Britian owed the US a duty to prevent private parties from supplying the
                             southern rebels but had also failed to observe their international obligation to remain neutral
                                  i. that they had failed their duties under a treaty between their countries
                        c. Note: This case stands for that fact that it was possible for powerful states to arbitrate important
                             disputes & avoid war.

                             d.   What incentive did UK have to arbitrate?
                                     i. They wanted to help the Confederacy because of vested interest in cotton AND
                                     ii. To have good relations in the future

                     2. Permanent Court of Arbitration
                           a. Founded by the 1899 Hague Peace Conference, the PCA was the worlds first permanent &
                               universal court of arbitration
                           b. It Requires its parties to use their best efforts to insure the pacific settlement of international
                               differences
                                    i. States are first to rely on mediation to settle their disagreements – informal diplomatic
                                         procedures
                                    ii. But if this is unsuccessful then Convention provided for establishing an international
                                         commission which would look at the facts impartially & issue non binding reports
                                    iii. The Convention established the Permanent Court of Arbitration from which states could
                                         designate specific arbitrators to sit ad hoc tribunals & hear cases submitted voluntarily
                                         by states & render legally binding awards
                           c. Since the establishment of the ICJ, the PCA is rarely used
                           d. Benefits of Arbitration
                                    i. Party’s choice of the tribunal is the most important distinction between arbitration &
                                         adjudication
                                    ii. Arbitrators can sometimes be less bound that judges would be to apply strict ruel of law
                                         however not always the case
                           e. Dogger Bank Case
                                    i. A PCA commission of inquiry composed of admirals from 5 countries navies held that
                                         the Russian fleet attacking on English vessels mistaken them for Japanese torpedo boats,
                                         was not justifiable & Russia agreed to pay compensatory damages.
                                              1. Remedy was to admit fault & pay damages
                                    ii. Note: this case was one of famous decisions from the Hague PCA




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                   3. Types of International Arbitration
                         a. Public International Arbitration
                                   i. Rainbow Warrior case
                                           1. French secret service sank the Rainbow Warrior while in a New Zealand harbor.
                                               France demanded the release of its 2 agents from jail & New Zealand wanted
                                               compensation . The asked the UN to mediate which fined F & required NZ to
                                               transfer prisoners to Hao for 3 years then to France but France violated &
                                               removed them before the end of that period. Under their og bilateral Arbitration
                                               agreement NZ invoked a clause authorizing further arbitrations arising out of the
                                               og dispute unilaterally
                                                    1. Tribunal found that France was in material breach of its obligations to
                                                         NZ Captain b/c F didn’t try to obtain NZ consent in removing him for
                                                         purposes of seeing his urgently dying father
                                                    2. Tribunal found that F was not in breach of obligations to NZ for
                                                         removing the Captain b/c of medical condition requiring immediate
                                                         removal hence unless there was an immediate & formal denial by NZ a
                                                         grant w/h/b implied on the circumstances b/c unable to get verifation no
                                                         one at fault
                                           2. Issue: whether material breaches of treaty obligations has been committed
                                           3. GR: The customary law of treaties per the Vienna Convention states that
                                               “every treaty in force is binding on the parties to it & must be performed by
                                               them in good faith
                                                    1. Exemption: Circumstances of Distress Exist
                                                             a. In case of extreme urgency involving elementary
                                                                  humanitarian considerations affecting the active organs of the
                                                                  State may exclude wrongfulness
                                           4. State Responsibility principles also apply: any violation by a State of any
                                               obligation (whether K or tort) gives rise to State responsibility & the duty to
                                               reparation

                            b.   Private – Commercial International arbitration
                                     i. Those between private litigants
                                             1. ie Scherk (Ch 12)
                            c.   Mixed International Arbitration
                                     i. Those between a state & private litigant
                                             1. ie Texaco/ Libya

           B. The International Court OF JUSTICE
                  1. Contentious v Advisory Jurisdiction of the International Court
                          a. Statute of International Court of Justice Article 36,
                                  i. Article 36(1)
                                           1. The court has jurisdiction over all cases which parties refer to it AND
                                                   1. this is done by special agreement called compromise between parties
                                           2. The court has judx over matters specially provided for in the Charter of the UN
                                              or treaties & conventions in force.
                                                   1. Modern treaties contain compromissory clause providing for dispute
                                                        resolution by the ICJ

                                     ii.   36(2) Allows parties to this Statute (States) to declare that they are submitting to the
                                           Court’s compulsory jurisdiction w/o any agreement
                                               1. ipso facto jurisdiction – declaration that you submit yourself to the jurisdiction
                                                    of the court where other party has done the same for legal disputes concerning:
                                                         1. Interpretation of treaty
                                                         2. Any question of International Law
                                                         3. Existence of a fact if established would be a breach of an international
                                                             obligation or
                                                         4. Nature or extent of reparation t/b made for breach of international
                                                             obligation
                                               2. Note: this is based on some resolution they have agreed t/b bound by to got to
                                                    court , where there is a real issue

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                                   iii. 65 Court may give advisory opinion on any legal question at the request by anybody
                                        authorized by the UN Charter to do so
                                             1. In writing
                                             2. Exact statement of question to be answered And
                                             3. Include all documents likely to shed light on the question
                                                     1. Note: Advisory opinions are not binding
                                                     2. Reference – special agreement they have by protocol


                          b.   Charter of the UN Article 96
                                  i. The General Assembly or Security Council may request the ICJ to give an advisory
                                       opinon on any legal question
                                  ii. Other orgs authorized by the UN may also request ICJ for advisory opinion on legal
                                       questions arising w/I the scope of their activities

                  2. Compulsory/ Ipso Facto v Reference Jurisdiction of the ICJ
                        a. 36(2) of UN charter grant general compulsory jurisdiction to ICJ which is limited to those
                           disputes where both parties have accepted article 36(2)
                               i. Note: States that have not accepted or withdrawn their acceptance of Article 36(2) are
                                    still often parties to the international conventions vesting 36(1) compulsory jrdx to the
                                    ICJ
                               ii. Note: individual treaties can state the disputes w/ settled in the ICJ
                        b. Reference jurisdiction is where through protocol signed by two parties they agree to go to the ICJ

                  3. Contentious Cases at the International Court
                        a. Minquiers & Exrehos Case
                                 i. France and United Kingdom were trying to get hold of the Minquires islands for fishing
                                      purposes. UK got it b/c they established history of jrdx & control over the islands
                                      whereas France c/offer no such proof. Here consent was given after the dispute arose &
                                      both countries agreed to settle in court.
                                           1. Factors court looked at to determine issue of alienation of property
                                                   1. proof of title
                                                   2. records
                                                   3. physical proof of people living there
                                 ii. Function of the court in dispute resolution
                                           1. Jurisdiction in this case Contentious because making decision not just advisory
                                              is reference ( special agreement they had)
                                           2. Compromise- agreement to submit case to somebody here it was arbitration to
                                              the ICJ
                                           3. This is a contentious jurisdiction submission ebcasue there is actual issue at law
                                 iii. Why did they use the court to resolve the issue?
                                           1. To avoid nationalism, avoid trade being affected & to avoid failed diplomatic
                                              relations
                                           2. Advantage of having to decide that someone gets it is that there is some
                                              resolution that they can take away have the issue resolved

                          b.   Hamdan v. Rumsfeld
                          c.   Diplomatic & Consular Staff
                                   i. US alleging Iran govnt was supporting the groups holding US diplomats as hostages
                                       brought Iran to the ICJ based on Article 36(1) compulsory jrdx in two multi lateral
                                       agreements : the Vienna Conventions & Amity agreement between the two States & thus
                                       consent was given before the dispute arose
                                            1. Issue: this was contentious jurisdiction and was reference because they had
                                                 Treaty of Amity which provided that ICJ would take jurisdiction
                                   ii. Since Iran had refused to appear in court the ICJ must first determine whether there is
                                       Jurisdiction based on Article 53 ie some treaty that both agreed to & thus conferring judx
                                            1. Vienann Convention and the protocols which state that if there is a dispute the
                                                 ICJ decides
                                                     1. Dispute here under the Vienna Convention – 1963 Convention which
                                                          accords privileges & immunities to consular personnel of US

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                                                            consulates in Iran & 1961 guaranteeing the inviolability of premises of
                                                            the embassies
                                                       2. Amity treaty that they are both parties to promote friendly relations by
                                                            ensuring protection & security of their nationals in each other’s
                                                            territory
                                   iii. Jursidiction question
                                             1. Court has jurisdiction over matters concerning diplomatic & consular premises
                                                  even if the dispute in front of it has other aspects apart from whats in the
                                                  complaint
                                             2. the letter by Iran is not enough in stating the points on which the court shouldn’t
                                                  take jurisdiction over the case
                                   iv. Basis of Jurisdition
                                             1. Court has jurisdiction over the case because both Iran and the US are parites to
                                                  the Vienna convetion and Iran has not made any efforts to claim that the Vienna
                                                  conventions or protocols don’t apply to the two countries
                                             2. US also claims violation by Iran under the Treat of Amity & Economic Reltions
                                                  and Consular rights of 1955 the purpose of which is to promote friendly
                                                  relations between the two countries- again Iran has not made any claims that the
                                                  treaty was not in force on the date of the Embasy Attacks
                                   v. Holding : Court concluded that the initiation of the attacks can’t be said to be started by
                                        the Iranian govnt however they can’t escape liability completely they had obligations
                                        under the Vieanna convention and other international rules to ensure the protection of the
                                        US embasy and Consulates
                                             1. The inaction of the Iranian govnermtn consitituted clear violations of their
                                                  obligations to the US under the Vienna Convention
                                             2. They didn’t take appropriate steps to ensure the safety of US persons
                                             3. US won the case and as a result the US later withdrew from Ipso Facto
                                                  jurisdiction. Court issued provisional relief at first to release those hostages

                          d.   Malawi
                                  i. Malawi govnt submitting to the jurisdiction of ICJ via ipso facto jurisdictions agreeing to
                                      the issues listed under 36(1) to be litigated in ICJ but made reservations to certain things:
                                      matters essential to domestic judx, belligerent military occupation


                  4. Advisory Opinions at the International Court
                        a. Lack of consent by one interested State may render the advisory opinion incompatible with Courts
                            character such as in circumstances:
                                i. Giving a reply would have the effect of circumventing the principal that a State is not
                                     obligated to allow disputes to be submitted to judicial settlement w/o its consent
                        b. Opinion won’t be incompatible where
                                i. There is a legal controversy which didn’t arise independently in bilateral relations
                                          1. ie in Western Sahara the issue was brought up during General Assembly
                                              proceedings
                        c. Opinion may be given even where one State has not consented where the advisory opinion will not
                            have any affect to the rights of that State in regards to the issue.

                          d.   Advisory Opinion of Western Sahara
                          e.   Basis for the request According to Article 65 of the Statute the court may give advisory opinion as
                               to any legal Question by some authorized by the UN charter
                                    i. Ct held that the request was made according to the Art 96 of UN charter which allows the
                                         General Aseembly to ask the court for advisory opinions on legal matters
                                    ii. Crt holds that mixed questions of law and fact are legal questions under the Art 96,
                                         Although under Art 65 the court has discretion to decline to answer
                                    iii. Court holds that the purpose for the General assembly requesting an advisory opinion in
                                         order so that it may exercise its functions in determining the Colonization issues

                                   iv. Facts: Request was made by General Assembly for advisory opinion to determine
                                       whether Western Sahara at the time of colonization by Spain was terra nullius. Morocco
                                       wanted to go to ICJ after General Assembly stated that Spain was not in possession of

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                                          the Western Sahara for purposes of its proper function as to decolonization of territories..
                                          Spain did not want to submit to judx.
                                      v. 1st Legal Question posed were to determine rights of Morocco over the land during times
                                          of colonization not today, whether it was land belonging to not one Terra nullius.
                                                1. Legal Answer The court held that it had judx to settle the issue would not affect
                                                    the rights of Spain who is the administering power but the question will help
                                                    them accelerate the decolonization process of the territory
                                                2. Determination that land is “terra nullius” at the time of colonization by Spain
                                                    would be possible only if it were established that at that time the territory
                                                    belonged to no-on in the sense that it was open to acquisition through the legal
                                                    process of occupation
                                                         1. land was inhabited by tribes or people w/ social & political orgs thus
                                                              not terra nullius
                                      vi. 2nd legal question if answer to 1 is no then must decide what the legal ties were between
                                          Morocco and Mauritania
                                                1. Legal Answer At the time Of Spain’s colonization legal ties did exist between
                                                    Morocco and Western Sahara but no such ties existed between Muratania and
                                                    Western Sahara
                                                2. Legal Ties- means the ties that existed between the people who actually may
                                                    have been found in Western Sahara


                     5. Chambers at the International Court
                           a. Statute of the International Court of Justice Article 26
                                   i. The court may form one or more chambers composed of 3 or more judges as determined
                                       by the Court for dealing with particular category of cases dealing with cases relating to
                                             1. labor and
                                             2. transit & communication

                             b.   Elsi Case
                                       i. Secretary of State of the US filed an application to the ICJ for proceedings against Italy
                                            claiming that Italy violated international legal obligations under the FCN Treaty by
                                            taking over the ELSI plant to liquidating their assets
                                                 1. The US also requested pursuant to Article 26 of the Statute that the dispute be
                                                     resolved by a Chamber of the Court Italy Agreed
                                       ii. Did the treaty state that US or Italy wouldn’t confiscate property
                                                 1. Treaty said the two countries could run their companies in each others state, and
                                                     this implies that they couldn’t confiscate their property
                                       iii. Court didn’t find a violation of the treaty by Italy because the facts were weak
                                       iv. Why did the State department take still take this case
                                                 1. They wanted a shot at perhaps winning their case
                                                 2. Or it could be that they wanted to show that they were still taking cases to the
                                                     ICJ


   VI. INDIVIDUALS & INTERNATIONAL LAW
          A. Individuals as Objects of International Law
                 1. State Protection & State Responsibility
                          a. Limitations
                                  i. Individuals may not be protected by their national states where national links are not
                                       genuine
                                  ii. For corporations, international law authorizes the national state [state of incorporation] of
                                       the company to make a claim not ie home of principal stockholders
                                  iii. State protection doctrine allows a state to protect its nationals, although a state has not
                                       obligation to represent the claims of its nationals.
                          b. International Court insists that a private party be protected only by a state in which he has a
                             genuine Link
                                  i. Nottebohm: ICJ concluded that there was an absence of any bond of attachment between
                                       Nottebohm & Liechtenstein, the protecting state, and refused to allow the state to sue on
                                       his behalf for Guatemala refusing to admit him. Ct held Gutemala was not obligated to
                                       accept his nationality
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                                     ii.  He had business & permanent place of abode in Guatemala only reason was naturalized
                                          in Liechtenstein was b/c his Germany (his country) was at war, but no such ties with
                                          Liechtenstein
                            c.   Test for nationality
                                     i. Genuiness of connections : Strong factual ties between the person & the State
                                               1. Habitual residence
                                               2. Center of his interest
                                               3. Family ties
                                               4. Participation in public life
                                               5. whether you’ve become wedded with its traditions, interests , way of life or of
                                                    assuming obligations other than fiscal obligations
                                     ii. Its up to the state to determine how each person can become a national, however its
                                          international law that determines whether a State is entitled to exercise protection & to
                                          seize the court
                                     iii. In order to be able to invoke nationality against another State, nationality must
                                          correspond with the factual situation.


                    2. Siege Social
                           a. Barcelona Traction Case – Issue: whether Belguim had standing to represent Barcelona Traction
                                    i. ICJ held that a company incorporated in Canada could not be protected in a court action
                                        by Belgium, the home of its principal stockholders, because the general rule of
                                        international law authorizes the national State of the company alone to make a claim. The
                                        Court found that Belgium lacked jus standi to exercise diplomatic protection of
                                        shareholders in a Canadian company with respect to measures taken against that company
                                        in Spain.
                                    ii. It operated in Spain but was mostly owned by Belgiums

                                     iii. GR: When a state admits into its territory foreign investments or foreign nationals, it is
                                          bound to extend to them the protection of the law & assume obligations concerning their
                                          treatment
                                     iv. Genuine Connections for Corporations
                                               1. Siege Social - where the headquarters of the company are (though not enough)
                                               2. where activities for the assets are
                                               3. Where its incorporated

           B. International Human Rights Law
                   1. Rules of public international law should apply to individuals
                           a. Article 55 of UN Charter supports this:
                                     i. The Peoples of the UN are determined to reaffirm faith in fundamental human rights
                                     ii. UN shall promote universal respect for & observance of human rights & fundamenatla
                                         freedoms of all w/o distinction to race, sex, language or religion
                           b. Article 228 Treaty of Versailles
                                     i. The principal of International Law which in some siutatiosn protects the representative
                                         State can’t be applied to acts which are condemned as criminal by international law.
                                         Person acting can’t shelter themselves behind their official position in order to be freed
                                         from punishment
                   2. The Nuremberg Judgment After WWII the Allies UK, US , France and Soviets entered into an
                      agreement establishing a Tribunal to try War criminals , part of the agreement was that the tribunal would
                      try and punish Nazi individuals who had under Article 6 of the Charter committed crimes against piece ,
                      war crimes or war against humanity, they also had the power to declare any group or organization that
                      harbored such individuals as a criminal organization
                           a. D’s argued that they couldn’t be punished w/o there being pre-existing law
                           b. However the court held that these individuals working for the German government would have
                                known about some of the Treatise that Germany was a part and thus must have known that they
                                were acting in defiance of international law
                   3. The court held that the Kellog-Briant Pact which was binding on 63 nations including Germany declared
                      that these signatories were bound to promote the welfare of mankind
                           a. Court also held that international law imposes duties on individuals as well as states and just these
                                individuals violated international law can’t be immune because they were acting under the
                                authority of their State
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                         b. Its not a defense that a soldier has been ordered to kill and torture
           C. UN & Human Rights
                  1. UN drafted: Universal Declaration of Human rights - Sets forth rights
                         a. Right to life, liberty & security of persons
                         b. Equal protection of the law
                         c. Right To fair trial
                         d. Right ot owne property
                         e. Right to freedom of thought, conscience and religtion
                                  i. Note: its not binding as international obligation though can be cited as evidence of
                                       customary international law of human rights
                  2. Damian Thomas v Jamaica
                         a. Human Rights Committee established article 28 of the International Covenant on Civil & Political
                             Rights & Jamaica became a party to the Optional Protocal
                                  i. The Committee found that the State party has failed to discharge its obligations under the
                                       Covenant with respect to Damian for keeping him in an adult prisoner while he was still a
                                       minor
                                  ii. By becoming a party to the Committee the State recognized the competence of the
                                       Committee to determine whether there was a violation of the Covenant
                                  iii. Violations found:
                                             1. State has failed to provide Damian with such measures of protection as are
                                                 required by his status as a minor
                                  iv. Remedy:
                                             1. to be placed in juvenile facility & be compensated
           D. European Human Rights Law
                  1. European Convention on Human Rights enumerates substantive rights & has enforcement mechanism
                         a. To ensure observance of the engagements undertake by the High Contracting Parties the
                             Convention establishes European Court of Human Rights
                         b. Article 33 of the Convention States are authorized to go to the ICJ regarding any alleged breach of
                             the provisions of the Convention by another High Contracting Party
                                  i. This means that there is no Nottebohm or Barcelona Traction requirement that an
                                       individual be protected only by the individuals national state
                         c. Article 10
                                  i. Everyone has the right to freedom of expression : holding opinions, receive & impart info
                                       w/o interference by public authority
                                             1. States can require licensing
                                  ii. The Exercise of these freedoms may be subject to formalities & conditions or
                                       restrictions… that are necessary in the interest on national security.. public safety to
                                       prevent crime, to protect health & moral to prevent disclosure of info received in
                                       confidence or for maintaining the authority & impartiality of the judiciary
                  2. Sunday Times Case
                         a. Injunction was sought against Sunday Times from publishing articles about research done on a
                             birth defect drug that victims were suing the producer for.
                         b. The case went all the way up to the House of Lords (highest court in England) Sunday times lost
                             but appealed to the European Court of Human Rights
                                  i. Able to do so b/c UK had accepted both right of individuals to petition the Commission
                                       and to the jurisdiction of the European Court of Human Rights
                                  ii. The Commission decided that British govnt had infringed on the Sunday Times right to
                                       freedom of expression under article 10 of the Convention
                                             1. The interference of enjoinging the printing of the article didn’t correspond to a
                                                 social need sufficiently important to outweigh the public interest in freedom of
                                                 expression.
                  3. Soering Case
                         a. Soering was detained in England pending extradition to the US for murders in VA. Request was
                             made for extradition to the US from UK under Extradition Treaty. P argued that extradition w/give
                             rise to breach under the treaty which proscribed “subjecting persons to torture or inhumane
                             treatment or punishment”, since he would subjected to the “death row phenomenon”
                         b. Extradition would be violating article 3 of the treaty
                                  i. Factors court looks at to determine what amounts to inhumate or degrading treatment or
                                       punishment : all circumstances of the case
                                             1. Nature & context of treatment or punishment
                                                     1. here sex abuse
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                                                2. Manner & method of its execution
                                                        1.
                                                3. Duration
                                                        1. w/b waiting for 6-8 years
                                                4. Physical or mental effects
                                                5. sex, age, state of health of victim
                                                        1. at time of killing was 18 & had mental impairment
           E. International Criminal Law
                   1. International Criminal Court was established in Rome by 160 Countries
           F. Law of the Sea
                   1. Territorial Sea extends out 12 nautical miles
                   2. Contiguous Sea- is 24 nautical miles out
                   3. Exclusive Economic Zone – out 200 miles from state coast
                   4. High Seas
           G. North Sea case dealing with
                   1. UN law of the Sea I and II
                   2. Equidistance rule was jus cogens

   VII. STATES & INTERNATIONAL LAW
           A. Rights & Duties of State s
                  1. As result of their sovereignty states are entitled to international rights & legal duties such as the right to
                      legal equality
                  2. Other rights
                           a. Sovereign state are entitled to make international law in conventional & customary forms and
                               establish international organizations & tribunals
                           b. They may decide when international law will be incorporated into municipal law & may
                               sometimes escape jurisdictional reach of foreign courts & laws
                           c. Sovereign states are allowed to defend themselves, to recognize other states and to participate in
                               international regimes
                           d. They are bound to carry out their international duties whether those obligations are to States or
                               private parties
                           e. States may not violate international human rights law no matter whether the duty is owed to aliens
                               or nations
                  3. Self-Defense, Intervention & Integrity
                           a. Sovereign state is entitled to protect its territorial integrity
                           b. No state has the right to intervene in the internal or external affairs of another
                                    i. Exceptions:
                                               1. its not illegal intervention to send armed forces into a foreign state in order to
                                                   support a foreign govnt already in power when the foreign govnt requests
                                                   outside assistance
                                               2. Right to intervene on behalf of insurgents if the rebels are deemed to be
                                                   democratic & fighting against a repressive regime
                  4. Recognition & Succession of States & govnt
                           a. In international law the recognition of a state is the act by which one state acknowledges that other
                               state posses the essential elements of sovereign statehood.
                                    i. Even though a state may recognize another state it doesn’t have to maintain diplomatic
                                         relations with it.
                           b. Distinction between De Jure & De Facto recognition
                                    i. De Jure - Govnts recognized to be constitutionally & rightfully in power
                                    ii. De Facto - those govnts simply in control of a state in practice

                             c.   Constitutive Theory
                                      i. State doesn’t exist as a subject of international law until it has been recognized by other
                                           states participating in international relations
                             d.   Declaratory Theory
                                      i. A state recognized by another state, basically recognizes that the other state has real
                                           existence & that state is already a subject of international law
                             e.   Who is Subject to international law
                                      i. STATES not their GOVNT’s are subjects of international law
                                      ii. So long as the state remains the same a succession of govnts doesn’t affect the state’s
                                           international legal rights & duties
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                             f. When does Succession of govnt/state occur:
                                    i. Where a states territory & population remain the same more or less, a new political party
                                        in power or a new constitution in place merely indicates a succession of govnt
                                             1. Implies continuity of the State
                                    ii. Succession of state occurs where there is a discontinuity in the states existence
                           g. States bound by agreements
                                    i. Successor states are not bound by the international agreements of their predecessors
                                        except in territorial agreements
                                             1. Successor states may choose to keep some treaties in force rather than begin
                                                 with an absolutely clean slate
                                             2. they are responsible for may of their predecessor obligations to private parties
                    5. 3 kinds of Non-State Actors
                           a. Intergovernmental International Organizations
                           b. Private persons
                                    i. Individual
                                    ii. Corporations
                           c. International Non-Governmental Organizations

           B. Elements of a State : A state is an entity that has defined territory & permanent population under the control of its
              own government, and that engages in or has capacity to engage in formal relations with other such entities

                    1. Objective elements (Motevido)
                          a. Permanent Population
                          b. Defined Territory
                          c. Government
                          d. Capacity to enter into relations with the other states
                    2. Subjective Elements
                          a. Political considerations
                                    i. Political existence of a state is independent of recognition of other states
                          b. Criminality
                          c. Fore to change borders or seize state
                          d. State distinguished from govnt for recognition effective control of terriotyr and general
                               support of population
                                    i. States are judicially equal enjoy the same rights & have equal capacity in their exercise
                                    ii. The powers it has depends on its existence as a person under international law
                          e. Legality of its coming into power & recognition by other nations
                                    i. Recognition of a state may be express or tacit
                                    ii. Recognizing a state means that the State who recognizes accepts that the new state has
                                         rights & duties determined by international law
                                              1. Recognition is unconditional & irrevocable
                                    iii. Recognition of other nations is the best evidence of birth, existence & continuity of
                                         succession of a govnt however not where there is strong evidence to the contrary as
                                         supported by international law
                                              1. The govnt is effectively in control of the territory & has general support of the
                                                  population ie De Facto
                                                       1. no revolution, power is fully established & peaceably carried out, new
                                                            constitution, no other govnts asserted power in the country for the
                                                            relevant time period
                                              2. Successor can’t repudiate its contracts however there are exceptions for newly
                                                  independent states who have a Clean Slate Tinoco
                                    iv. If not fully defacto govnt , any claims asserted by the old govnt won’t pass to the new
                                         govnt – if neither one is recognized Greek Church
                                              1. TFSC dissolved & formed TRNC but the non-turkish world never recognized
                                                  either one & only regarded Republic of Cyprus as the legitimate govnt, so the
                                                  Decreees by TFSC divesting the Church of its titles of mosaics were held to be
                                                  invalid.
                                    v. No state has the right to intervene in the internal or external affairs of another
                                    vi. EU
                                              1. States can’t unilaterally acceded to the UN charter



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                                              2. According to the Article 4 of the UN Charter peace loving states that accept the
                                                   Charters obligations & are able & willing to carry out those obligations may be
                                                   admitted by action of the UN Security Council & General Assembly
           C. 2 Types of De Facto Governments : in determining legality of coming into power & recognition by other
              states
                   1. First kind of De Facto govnt
                           a. Exists after it has expelled the regular authority from power & public offices & has established its
                                own functionaries in its place- so as to represent in fac the sovereignty of the nation
                           b. This kind possesses rightful authority
                   2. Second kind of De Facto govnt
                           a. It exists where a portion of the inhabitants of a country have separated themselves from the parent
                                State and established an independent govnt
                           b. The validity of its acts both against the parent State & its citizens depends on its ultimate success
                           c. If its successful in being recognized its cats from the start of its existence are upheld as those of an
                                independent nation
                                     i. Longevity of control doesn’t necessarily mean “ultimate success”
                                     ii. Factors as to whether there has been ultimate success
                                              1. did the new portion completely supplant the other republic & its officers
                                              2. are they recognized by others
           D. Federal Subject Matter Jurisdiction via “ Alien Tort Act”
                   1. Federal SMJ exists where
                           a. The alien sues
                           b. For a tort
                           c. Committed in violation of the law of nations ie international law
                                     i. Genocide & war crimes are violations of international law that may give rise to the ATA
                                     ii. However torture & summary execution when not performed in the course of genocide or
                                         war crimes are proscribed by international law only when committed by state official
                                         under color of law
                                              1. A private individual acts under color of law when he acts together with state
                                                   officials or with significant state aid
                                              2. The question is whether the person purporting to use official power has
                                                   exceeded internationally recognized standards of civilized conduct

                    2. Kadic
                          a.      Citizens of Bosnia-Herzegovina formerly republic of Yogoslavia sued the leader of Bosnia-Serb
                                  forces in US DC
                             b.   Court held that SMJ existed under the ATA & found Karadzic liable for genocide, & war crimes
                                  against humanity in his private capacity & for other violations in his capacity as a state actor even
                                  though the US did not recognize Srbska.
                             c.   Must first establish whether Kardazic’s regime satisfies criteria of state for purposes of
                                  international law requiring state action. Held that it does meets criteria of state & alternativesly he
                                  acted in concert w/ former Yugoslovia

           E. New States and Customary International law
                  1. New states are bound by customary international law
                  2. Republic of Croatia
                          a. Republic of Croatia wasn’t the funds from the National Bank of Socialist Federal Repuglic of
                              Yugoslavia SFRY since they are the successor state. While the rights & obligations of the banking
                              contract are to be judged under the place of establishment of the credit institution ie Austria; but
                              the question whether the assets invested by the National Bank as an independent legal entity
                              constituted State property are t/b considered according to domestic law of SFRY
                                   i. The Bank of SFRY is a “socialized legal person”
                                             1. it was appointed by the Federal Parliament preformed activities in political
                                                 dependence, it had no political autonomy
                                   ii. These factors show that the assets of the Bank formed part of State property of the SFRY
                                       & because it no longer exists must be distributed among successor States
                          b. Under customary international law, in the case of “dismembratio” Vienna Convention holds that
                              property must be passed to successor States in “equitable proportions”
           F. Succession
                  1. 1978 Vienna Convention on Succession of States
                  2. Newly independent states “Clean Slate”
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                     3. But for Territorial Obligations Exception

   I.   INTERNATIONAL ORGANIZATIONS, PEOPLES & NGO’S
           A. International Organizations:
                   1. The League of Nations - formed in 1919 after WWI
                          a. It was the first general association of states concerned w/ social welfare issues, dispute settlement,
                              the development of international law and promotion of peace
                          b. US senate refused to consent to the ratification of the treaty
                          c. The league of nations fell apart as WWII began
                   2. United Nations – successor to the League of Nations after its collapse in 1930’s
                          a. Allies in WWII decided to create the UN Charter or agreement created the UN
                          b. UN charter was signed in June 1945 after WWII, by 50 states in San Francisco
                          c. Since the League couldn’t avert WWII, it was hoped that UN could prevent WWIII by addressing
                              wider range of international economic & social issues & by giving its officials independent power
                          d. 6 Principal Organs of the UN
                                   i. General Assembly – composed of every member of the UN
                                             1. Has authority to discuss any question w/I the scope of the present Charter
                                             2. Has unlimited authority to make recommendations as to matters which Security
                                                 Council is exercising its functions
                                             3. Has right to consider & approve the budge of the Org
                                             4. Each member state gets one vote except on important questions 2/3 vote of the
                                                 members present & voting is required
                                   ii. Security Council – 15 members w/5 permanent members: China, France, Russia, UK &
                                        US ; other 10 are elected for 2 yr terms
                                             1. Each member gets 1 vote, 9 votes required to pass a measure
                                             2. Primary responsibility is to maintain international peace & security
                                   iii. Economic & Social Council
                                   iv. Trusteeship Council
                                   v. International Court of Justice
                                   vi. Secretariat
                                   vii. And such subsidiary organs as may be found necessary




            B. International Personality
                    1. Does an intergovernmental organization (the UN) have “international personality” of its own or are its
                       powers limited to those expressly delegated by its member states in the organizations charter?
                             a. It is an international person which is not the same thing as being a State
                             b. It is subject to international law & capable of having international rights & duties & has rights to
                                  bringing international claims
                             c. Its rights and duties depend on its purpose & functions as specified or implied in documens &
                                  developed in practice
                    2. Is it international law or municipal law that answers this question?
                             a. International law govners if the breach is based on obligation by the Member who has breached its
                                  obligations
                    3. What was the capacity of the UN to bring an international claim for reparations when a UN agent was
                       injured due to the responsibility of a state?
                             a. Under international law Organizations must be deemed to have powers which even though not
                                  expressly provided in the Charter but are conferred as by necessity b/c those functions are
                                  essential to the performance of its duties
                             b. UN has the capacity to bring an international calim against one of its Members which have caused
                                  injury to it by breach of their international obligations
                    4. Could the UN itself bring the claim or must the agents state pursue the claim?
                             a. The UN could ask the responsible State to remedy its default specifically it can ask the State for
                                  damages that default has caused to its agent
                             b. By asking for reparation based on injury suffered by its agent the Organization is NOT
                                  representing the agent but is asserting ITS OWN RIGHT – to establish that respect for
                                  undertakings entered into towards the Org



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                    5. Repartation Case
                          a. After Palestine Israel divide UN observers were assassinated by Irsaelis
                          b. UN General Assembly asks ICJ for advisory opinion whether UN could bring a claim against a de
                              jure or defacto govnt in order to obtain reparation for damages caused to the (a) UN and (b) to the
                              victim?
                          c. Held Yes, where agent of the UN in performing his duties is injured either by a Member State or a
                              Non-Member State, the UN has the capacity to bring an international claim against the
                              responsible de jure or de facto govnt in order to receive reparation as to the damage caused to the
                              UN or to the Victim

           C. Self-Determination & Peoples
                   1. Self Determination refers to the rights of groups as opposed to rights of individuals
                                    i. This may come up when a state is moving from de facto to de jure
                           b. In the absence of express provision in international treaties, the right of disposing national territory
                               is an essential attribute of the sovereignty of every State
                                    i. Positive international law doesn’t recognize the right of national groups to separate
                                         themselves from the State
                           c. The right to grant or refuse the right to a portion of a population is determined by each sovereign
                               State

                    2. State of Finland
                           a. Finland was originally considered as a province of Russian but later Finish Diet established a
                                govnt causing Finland to become an independent State. The issue was whether the Aaland Islands
                                which were part of Finland during Russian rule were incorporated de jure in the state of Finland.
                                The court considered the fact that the inhabitants of the island were mainly Swedish & wanted t/b
                                considered part of Sweden.
                           b. Issue: whether it should be left to the jurisdiction of Finland to determine if the Island should be
                                considered part of Finland. This is an international issue b/c it not only involves Finland but also
                                Sweden
                                    i. This is not a situation of oppressed minority or gross misbehavior against minority
                           c. This is a question for the League of Nations to decide
                           d. Court held that even though Self-Determination is an important concept however other principles
                                governing the formation of States must also be considered.
                           e. Here its appropriate that a compromise is reached and a grant of liberty to minorities is necessary

                    3. Limits on determining Self-Determination Reference Re Seccession of Quebec
                          a. Quebec wanted to succeed from Canada, but Canada’s constitution opposed unilateral secession.
                               Court notes the differences between the right of internal and external self determination and holds
                               that Quebec’s population can’t secede because it can’t be said that they were denied access to
                               govnt internally.
                          b. Issue: Can Quebec Secede from Canada
                          c. Holding & Rule: The International right to self determination only allows external self
                               determination in situations where people were under
                                    i. colonial rule,
                                    ii. where they were oppressed by foreigners or
                                    iii. where a definable group which were denied meaningful access to govnt to pursue their
                                         political, economic, social and cultural development.
                                              1. In these 3 situations the people are entitled to right to external self determination
                                                   because they have been denied the ability to exert internally their right to self
                                                   determination

                             d.   Secession at International Law
                                      i. International law does not grant parts of sovereign states the legal right to secede
                                          unilaterally from their parent state

                             e.   Absence of a Specific Prohibition
                                     i. International law does allow unilateral secession but also doesn’t explicitly deny that
                                         right
                                     ii. Exceptional circumstances must exist to allow secession under the right of people to self
                                         determination those mentioned for external self determination

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                             f.   International recognition of People to self determination
                                      i. GR International Law regulate conduct of nation states
                                      ii. In some specific circumstances it also recognizes “rights” entities other than nation state
                                          – such as the right to self-determination of “peoples”
                                               1. Peoples – portion of population of an existing state
                                                        1. Doesn’t necessarily mean entire states population

                             g.   Self-Determination either Internal or External
                                       i. Right to self determination is fulfilled either through :
                                       ii. Internal self-determination - people’s pursuit of its political, economic, social and
                                            cultural development w/I the framework of the existing state
                                       iii. External self-determination – right arises only in extreme cases which may be right to
                                            secede. It means right to:
                                                 1. establishing a sovereign & independent state,
                                                 2. the free association or integration with an independent sate or
                                                 3. emergency into any other political status freely determined by a people
                                                          1. all of these are ways to implement right to self determination

                                                4. External right to self determination given to 3 types of peoples
                                                       1. Those under colonial rule,
                                                       2. Those under foreign occupation, or
                                                       3. People who are blocked from meaningful exercise of the right to self
                                                           determination internally as a last resort can exercise secession

                                      iv. Right limited by treats to existing states’ territorial integrity
                                              1. the exercise of self determination must be limited to prevent threats to an
                                                  existing states territorial integrity or stability of relations between sovereign
                                                  states

                                      v.   Restriction once granted self determination
                                               1. Once a state affirms a people’s right to determine political, economic, social and
                                                    cultural issues doesn’t meant that they are authorized to do anything to impair
                                                    the territorial integrity or political unity of sovereign & independent States who
                                                    are in compliance with equal rights

   II. INTERNATIONAL LAW & THE USE OF FORCE
          A. Definitions
                 1. Jus in bello
                         a. Rules about the conduct of hostilities
                         b. It is also international humanitarian law addressing the treatment that states and their armed forces
                             to be provide to combatants, civilians and prisoners during armed conflict
                 2. Jus ad bellum
                         a. Rules on when it is legal to use force

           B. Protecting civilians & combatants from Hague Peace Conference
                  1. 4 Geneva Conventions detained protections due to:
                           a. the wounded and sick in armed forces in the field
                           b. wounded, sick and shipwrecked members of the armed forces at sea
                           c. prisoners of war and
                           d. civilians in time of war
                  2. Common Article 2(3) of 1949 Geneva Convention states that conventions apply even between parties
                      involved in the conflict even if one of the belligerents is not a party to the Convention
                  3. Essence of this is to agree to be accountable for international humanitarian law

                    4. International court of justice 2 Cardinal Principles
                           a. States must never make civilians the object of attack & must never use weapons that are incapable
                               of distinguishing between civilian & military targets
                           b. Its prohibited to use weapons causing them such harm or uselessly aggravating their suffering




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           C. Differences between Human rights & the Law of war
                   1. The Law of war [humanitarian law] unlike human rights allows or tolerates the killing & wounding of
                      innocent people not directly participating in an armed conflict
                           a. It limits the appeal rights of detainees
                           b. It allows limitations of freedom of expression & assembly

                   2. Human rights law protect physical integrity & human dignity in ALL circumstances
                            a. Protect governed from their governments
                            b. No one may be deprived of life except if by judgment of court
           D. Role of the Military Lawyer
                   1. Military Lawyers provide technical advice that commanders rely on in solving complex problems during
                       military commissions
                   2. Protocol I, Article 82: imposes affirmative obligation to provide legal advisors to military forces for
                       those party to the Protocol
                            a. The high contracting parties at all times must ensure that legal advisors are available when
                                necessary to advise military commanders
                   3. Duties of lawyers
                            a. Draft, train, disseminate, inspect & enforce the Rules of Engagement & command policies that
                                provide a link between classroom & the field
                            b. Negotiator – the must negotiate legal norms
                            c. Enforcer – they must enforce the substantive body of the norms through criminal investigations &
                                prosecutions
                            d. Reporter – they advise commanders on proper application of humanitarian law & have vested
                                interest in ensuing that those norms are respected & implemented in the future
                                     i. the must be engaged in all levels
           E. Differences between Combatants, POW’s
                   1. International humanitarian law distinguishes “Lawful” combatants from other combatants and civilians
                            a. Belligerent Persons – those participating in hostilities who are not lawful combatants – lack the
                                privileges that armed forces of a State get to engage in warfare with immunity from liability under
                                national or international law
                            b. Prisoner of War- a lawful combatant is entitled to POW status when captured meaning they get
                                the full protections of the 3rd 1949 Geneva Convention Relative ot the Treatment of POW’s

                                     i.    POW’s according to Geneva Convention include
                                              1. members of armed forces of a Party to an international armed conflict as well as
                                                 members of militias or volunteer corps forming part of such armed forces once
                                                 they have fallen into enemy hands OR
                                              2. members of other militia & other volunteer corps including those of organized
                                                 resistance movements who operate under a command structure a fixed
                                                 distinctive sign recognized at a distance, carry arms openly & conduct their
                                                 operations in accordance with the laws & customs of war

                                     ii.Any doubt at to their status Article 5 Geneva Conventions
                                             1. any doubt as to whether persons have committed a belligerent act & having
                                                  fallen into the hand of the enemy, belong to any of the categories of POW’s such
                                                  persons shall enjoy protections of the present convention until their time as their
                                                  status has been determined by a competent tribunal
                                   iii. Protections:
                                             1. right to be released w/o delay at the end of active hostilities
                                             2. right not to be interrogated w/o consent
                                             3. right not be subjected to torture or coercion to get into
                                             4. right not to be subjected to any unpleasant or disadvantageous treatment of any
                                                  kind for failure to answer questions
                                             5. right to be tried for an offence “only by a military court” offering “essential
                                                  guarantees of independence & impartiality”
                    2. Hamdi v. Rumsfeld
                    3. US held Hamdi a US citizen as enemy combatant because they feared that he had been helping the
                       Taliban. Hamdi’s father filed a habeas corpus petition claiming that Hamdi was being detained illegally
                           a. US 4th circuit held detention was legal , Hamdi appealed the US Sup Ct
                    4. Issue: whether he could be detained as a POW

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                    5. Holding: Court held that Congress had authorized Hamdi’s detention through the AUMF even though it
                       didn’t use specific language of detention.
                            a. Detention is necessary and appropriate force because in order to prevent a combatant from
                                 returning to the field he must be kept in captivity.
                            b. Hamdi further objected that Congress didn’t allow for indefinite detentions.
                    6. The court held that it’s an established principle of the law of war that detention may not last longer than
                       active hostilities & that indefinite detention for interrogation purposes is not authorized by the AUMF
                       explicitly.
                    7. Determination of the President is final as to your status as combatant
                    8. However by Congress granting necessary and appropriate force to be used , this includes the authority to
                       detain for a duration of the relevant conflict
                    9. Since active combat operations are ongoing against the Taliban the US may detain individual for the
                       duration that these hostilities go on & so long as those individuals are determined to be Taliban combatants
                       who engaged in an armed conflict against the US. Thus detentions are necessary and appropriate force &
                       thus authorized by the AMUF – Authorization for Use of Military Force
                            a. AUMF authorized President to use “all necessary and appropriate force” against “nations, orgs, or
                                 person associated with Sept 11th 2001 terrorist attacks.”
                   10. Note: Even if AUMF didn’t exist, Under the article 2 powers of the President the President could hold him

           F. Factors in the Existence of Armed Conflict
                  1. When Does Armed Conflict Exist?
                           a. Armed conflict exists whenever there is armed force between States or between governmental
                                authorities & organized armed groups or between these groups w/I a State
                  2. When does International humanitarian law apply?
                           a. It applies from the initiation of such armed conflict & extends beyond the cessation of hostilities
                                until the general conflict has ended & peace is reached OR
                           b. If internal conflict –where peaceful settlement is achieved
                  3. Where does International humanitarian law apply?
                           a. It applies in the territory of the warring States or
                           b. If internal conflict – the entire territory under the control of a party whether or not actual combat
                                takes place there
                  4. Tadic Case
                  5. During hostilities in Yugoslovia crimes Tadic had committed certain crimes and was arguing that there
                      wasn’t any armed conflict either internal or international He argued that according to the Geneva
                      conventions article 3 which allowed for prosecutions of persons who had violated the laws/customs of war
                      or those responsible for specific crimes against humanity, that he couldn’t be prosecuted unless there was
                      an actual armed conflict. He argued that in his town there was not such conflict where the crimes had
                      occurred
                  6. Issue: Whether there was an armed conflict under international law.
                  7. International Tribunal for Yugoslovia held that the crimes in Yugoslavia were committed during armed
                      conflict. Those conflicts had both internal & external aspects.
                           a. Factors: see above what is considered existence of armed conflict
                           b. See paragraph 69 of case
                  8. Held that the violations entail individual criminal responsibility regardless of whether they were
                      committed internally or in international armed conflict
           G. Traditional Limits on Resort to Force
                  1. Self Defense Elements
                  2. Naulilaa Case
                           a. Portugal claimed damages after Germans attacked their outposts in Naulilla in response to
                                Portugese killing three Germans.
                           b. First Arbiters determined that the aggression was not legal reprisal because of lack of demand
                                &proportionality of the attacks
                           c. The damages to be compensated depend on whether they are immediate damages caused by the
                                German attacks for which they are held fully liable or other damages
                  3. The Caroline Dispute
                           a. The Caroline was a privately owned American ship which was docked in a US port & was
                                attacked by the British




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           H. Reprisal
                   1. What is it? It’s an act of self help on the part of an injured state after an unsatisfied demand , so injured
                       states is responding to an act contrary to the law of nations ie an intentionally wrongful act
                            a. Reprisal doesn’t need to use force it could be detentions of foreign vessls or seizures of vessles or
                                  cargo in the high seas
                            b. Right to take reprisal is provided by there being a prior act contrary to the law of nations
                   2. Elements of Reprisal
                            a. Illegal act by other
                            b. Reprisal is Only appropriate after unsatisfied demand
                            c. There must be prompt response
                            d. Response must be proportionate between the reprisal and the offense
           I. Self Defense
                   1. What is it? is legality of a states use of force in self defense against an armed attack violating territorial
                       integrity, there is an invasion or attack or military occupation, however temporary
                   2. Unless a state has received UN Security Council authorization it must meet 4 conditions in order to
                       engage in self defense
                            a. The defending state must be victim of a significant armed attack
                            b. The armed attack must either be underway or victim of attack must have clear & convincing
                                  evidence of more planned attackes
                            c. Defending state’s target must be responsible for the significant armed attack in profess
                            d. Force used by the defending state must be necessary for the purpose of defense and it must be
                                  proportional to the injury threatened
                                      i. Necessary means the force to be used must be necessary to accomplish a reasonale
                                           military objective
                   3. Elements
                            a. Self defense must be necessay
                            b. There exists no neutral territory
                            c. The response must be proportionate and
                            d. It must be prompt

   III. INTERNATIONAL LAW, THE ENVIRONMENT & COMMON SPACES
           A. State Responsibility & the Development of International Environmental Law
                   1. Environmental law 3 principals
                          a. 15 rio declaration – just because the science isn’t clear isn’t reason not to take precautionary
                              measures
                          b. consequence of doing it & being wrong – cleaner environment
                          c. Consequences of not doing anything & being wrong – catastrophic effect of end of earth
                          d. Clinical method Take the safest course to achieve the min objectives
           B.
                   1. Trail Smelter Case
                          a. Canadian company was emitting pollution into air in Washington. Case was brought before a US/
                              Canadian tribunal which found there was not international case dealing with environmental
                              pollution. So Ct looked into the US Supreme court regarding US/others as to pollution
                          b. Why didn’t bring suit in Canada? Nationality bias or it may be permitted under their laws
                          c. Issue: Whether Canada was legally responsible for the nuisance caused
                          d. Decision: Found there was Canadian responsibility for using their territory to do damage on other
                              territory
                          e. What law did they use ot determine?
                                   i. What sup court say its power under eh Constitution equally applies to the extraordinary
                                        power granted to the Tribunal under the Convention
                                   ii. The Comprimis allowed for the legal systems of the two countries to be looked at

                             f.Rule: under principles of international law as well as the law of the US, no state has the right to
                               use or permit the use of territory in such a manner to cause injury by fumes in or to territory of
                               another
                    2. Stockholm Declaration on the Human Environment
                           a. Principal 6 In order to prevent irreversible damage to ecosystems states have a duty not to pollute
                           b. Principal 21 States according to he UN Charger have a sovereign right to exploit their own
                               resources pursuant to their own environmental policies & have the responsibility to ensure that
                               activities w/I their jurisdiction does not cause damage to the environment of other States or areas
                               beyond the limits of national jurisdiction
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           C. International Common Spaces
                   1. The Antarctic Treaty -
                          a. Countries can agree to use area for peaceful purpose, that no one will assert a new claim against it
                          b. Its in the best interest of all mankind for Antarctica to counties to be used exclusively for peaceful
                              purpose and not to become the scene of international discord


   IV. THE LAW OF THE SEA
          A. The High Seas
                 1. The high seas have traditionally been regarded as international common spaces open to all vesels and
                    subjects to the sovereignty of no state
          B. The Continental Shelf, Fisheries Zone & the Exclusive Economic Zone
                 1. The Truman Proclamation
                 2. UN Convention of the Law of the Sea

   V. INTERNATIONAL CONFLICT OF LAWS
         A. Principles of Jurisdiction
                1. The Territorial Principal : American Banana Co v. United Fruit
                         a. Imposing strict territorial limits on State jurisdiction
                         b. Crt refused to apply federal antitrust laws to monopolistic activities overseas of one US company
                             injuring another in the US domestic market
                         c. Held: no state had the right to extend its legislative or judicial power into the territory of a foreign
                             state expect with consent of the foreign state
                                  i. GR: determining whether an act is lawful or not must be determined by the law of the
                                       country where the act is don’t
                         d. Today the principal of territorial jurisdiction is universally accepted but its no longer thought of as
                             constituting the exclusive basis for asserting state jurisdiction authority

                     2. The Effects Principle: US v. Aluminum Co of America
                            a. The effects principal is a form of extraterritorial jurisdiction
                                     i. The premise is that a state has jurisdiction over extraterritorial conduct when that conduct
                                          has an effect within its territory
                            b. Canadian firm Alum Ltd participated in a cartel based in Switzerland restricting imports to the US.
                                Court held that since the companies in the cartel had intended to affect US commerce & since they
                                had affected US imports, Limited’ activities were properly w/I regulatory reach ie legislative
                                jurisdiction of the US
                                     i. Any state may impose liabilities even on persons no w/I its allegiance, for conduct
                                          outside its borders that has consequences w/I its borders which the state reprehends and
                                          where these liabilities are ordinarily recognized by other states
                            c. Did congress intend to attach liability to outside the US to people who don’t hav allegiance to su
                            d. Conclusion; overcame presumption that no extraterritorial jurisdiction
                                     i. The effects doctrine:

           B. Resolving Conflicts of Jurisdiction
                  1. The Balancing Test: Timberlane Lumber Co v. Bank of America
                          a. Case dealt with the extraterritorial application of US antitrust laws
                          b. Question asked: whether the interest of the US including the magnitude of the effect on American
                              foreign commerce is sufficiently strong vis-à-vis those of other nations to justify asserting
                              extraterritorial authority
                          c. Anti trust requirement for jurisdiction: The balancing test
                                   i. Anti trust laws required there there be some effect actual or intended on American
                                        foreign commerce before federal courts may legitimately exercise SMJ under those
                                        statutes
                                   ii. There must be a greater showing of burden or restraint to show that the effect is
                                        sufficiently large to present a cognizable injury to the P and thus a civilian violation of
                                        antitrust laws
                                   iii. Must determine whether the interest of and links to the US – including the magnitude of
                                        the effect on American foreign commerce – are sufficiently strong compared to those of
                                        other nations to justify an assertion of extraterritorial authority



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                    2. International Comity
                           a. GR: It is generally agreed that there are principles of international comity that should guide state
                               and judges in moderating assertions of jurisdiction
                                   i. “Comity” is deference given by one nations courts to the courts and laws of another state
                           b. Comity defined by Guyot
                                   i. It is the recognition which one nation allows within its territory to the legislative,
                                       executive or judicial acts of another nation, having due regard both to international duty
                                       and convenience, and to the rights of its own citizens or of persons who are under the
                                       protections of its laws

                            c.   Hartford Fire Co v. CA
                                    i. Question: whether US antitrust law applied to activities of London reinsures who
                                         allegedly promoted an illegal restriction ( illegal under US Law) to the terms of
                                         commercial general liability insurance policies available in the US
                                    ii. Held: court held that international comity didn’t counsel against exercising jurisdiction in
                                         the US & thus court didn’t have to decide whether to defer to UK laws or its own laws
                                         because there was no true conflict between the domestic and foreign law, because since
                                         British law allowed the activities which are illegal in the US, Britian didn’t order the
                                         London reinsures to violate US antitrust law

           C. Foreign Sovereign Immunities Act of 1976
                  1. States that Foreign states are immune from the jurisdiction of the courts of the US except they are not
                      immune from
                          a. Its has waived immunity
                          b. Action is based on commercial activity carried on in the US by a foreign state
                          c. Property taken in violation of international law
                          d. Right to property in the US which are acquired by gift or succession or real-estate




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