I.

INTERNATIONAL LAW – The Beginning

a. In 1994, Justice Blackmun of the U.S. Supreme Court observed with regard to international law:
i. International law is now pervasive and central to what happens internationally, nationally and even
locally. The barrier between international and national law is crumbling.
1. The challenge before us is to make clear that transnational law has become central to the
concerns of the community
b. Trend Towards Transnationalism
i. The disintegration of the Soviet Union in the early 1990s
ii. The end of the Cold War coupled with an accelerating movement toward global economic integration and
political cooperation
iii. States have increasingly moved to embrace both democratic forms of government and privatized free
market economies
iv. The coming of the computerized information age
v. The increasing need for global responses to major problems
vi. Countless state and non-state actors involved in global issues
vii. The increase in migration of individuals and business
c. The Nature of Transnational Law
i. Transnational law represents the intersection of numerous doctrine:
1. Public International Law – Law governing interactions between states and international
organizations. Finds its source from treaties and custom.
2. Private International Law – Law governing foreign transactions of individuals and corporations.
Increasingly, individuals seek to bring claims to state created international courts (i.e., McCann).
Often poses the question of which country’s domestic law governs.
3. Comparative Law – Examining law of other nations when approaching issues of domestic law. It
is not binding, however it is persuasive. The U.S. Supreme Court has engaged comparative law
when assessing three distinct controversial issues: affirmative action, the death penalty, and
same-sex marriage.
d. Challenges of Transnational Law
i. Supreme Court Justice Gray in 1899 in the Paquette Habana Case observed:
1. International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations. [175 U.S. 677,700]
ii. The Controversy
1. The justices of the U.S. Supreme Court are divided on the importance of transnational law:
a. Roper v. Simmons
i. Majority – Justice Kennedy, for the majority, held that while un-adopted
international law was not controlling, it was instructive for the Supreme Court’s
interpretation of the Constitution.
ii. Dissent – Justice Scalia held that the Court should “cease putting forth
foreigners’ views as part of the reasoned basis of its decisions.” Furthermore,
Justice Scalia felt that it was “out of hand.”
e. Fundamental Concerns of International Law
i. The primary concern of international law is nation-to-nation relations; however, there are several
implications slowing improvement of these relations.
1. The difficulty of establishing mutually agreed upon rules;
2. Political overtones
3. Trade consequences
4. The difficulty of enforcement 1 or rules, norms and customs
 General Schema of International Law
Legal Relations of
States
Public Law

II. INTERNATIONAL LAW SAMPLER Political Interactions

a. McCann v. United Kingdom
(’95 ECHR) International Law
i. Significance: Govern of Foriegn
Trans. (Indiv. &
Applied Intl. Treaty
Corp.)
(adj. by
Private Law
International Court
Intl. Economy &
enforced by arrangements btwn
regional Nat'l legal systems
international legal
system)
1. Facts: As early as beginning of 1988 UK and Spain knew of IRA plans for a terrorist attack on
Gibraltar – during the changing of the guard ceremony – by detonating a car bomb brought over
the border. Suspects McCann, Farrell and Savage were witnessed by Detective Constable Viagas
in a car park on March 6, 1988, they has been identified by the Security Services at that time.
McCann and Farrell crossed the border March 6, but were not arrested. McCann and Farrell
were killed by British soldiers on March 6, 1988. They were shot in the back, possibly after being
warned to stop. The killing was a result of the soldiers thinking the suspects were about to
detonate bombs – [intention to kill to stop threat of detonating bombs]. The British military did
find an explosive device hidden in a car rented by Farrell.
2. Procedure: The Gibraltar Inquest jury returned a verdict that the killings were lawful. The
families of decedents commenced an action in the High Court, Northern Ireland. The UK govt.
issued certificates stating that the proceedings were excluded b/c Crown was not liable for
actions taken outside of UK and N. Ireland. Judicial review turned down – no reasonable
prospects of success. Decedents’ families submitted complaints to European Commission of
Human Rights – the Commission reported that there was no violation of Article 2. Families move
to the ECHR.
3. Issue: (1) Whether the anti-terrorist op. as a whole was controlled and organized in respect to
the requirements of Article 2 of the European Convention of Human Rights; and (2) whether the
information and instructions given to the soldiers which, in effect, rendered inevitable the use of
lethal force, took adequately into consideration the right to life of the three suspects.
4. Holding: there was a breach of the convention; the force used was not absolutely necessary.
5. Reasoning: Because the authorities decided not to prevent the suspects from travelling into
Gibraltar, failed to make sufficient allowances for the possibility that their intelligence
assessments might be erroneous, and because of the authorities automatic recourse to lethal
force, the Court was not persuaded that the killing of the three terrorists constituted the use of
force which was no more than absolutely necessary in defense of persons from unlawful violence
within the meaning of Article 2(2)(a) of the Convention.
6. DISSENT: The inquest jury listened to 79 witnesses, and so their opinion of a lawful killing should
be highly valued. The use of force did not exceed what was absolutely necessary. Don’t forget
the benefits of hindsight.
7. Notes: European Convention of Human Rights is a result of post WWII politics. Countries get
together to support human rights. This is a court of last resort.  Only hears a case once
domestic courts have rejected.
ii. European Human Rights Convention. Article 2
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 1. (1) Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. (2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:
a. (a) In defense of any person from unlawful violence;
b. (b) In order to effect a lawful arrest or to prevent escape of a person lawfully detained;
c. (c) In action lawfully taken for the purpose of quelling a riot or insurrection.
b. Filartiga v. Pena-Irala
i. Significance: Municipal adjudication of customary law (enforced by domestic legal system)
1. Facts: Dr. Filartiga is an outspoken political activist who vocally opposes the Paraguay govt. His
son was taken by Inspector General Pena-Irala with the help of the police. The inspector is a
govt. official, thus, the state can be held liable for his actions through agency. In Paraguay, Dr.
commenced an action and had gotten nowhere for four years; his attorney was arrested, beaten,
and disbarred. Another man eventually came forward and admitted to killing his son in the heat
of passion. The Dr.’s daughter was in the U.S. on political asylum and heard that Pena-Irala was
in New York. She lodged a civil complaint in U.S. courts, brought forth by the Center for
Constitutional Rights, for her brother's wrongful death by torture, asking for damages in the
amount of $10 million. After an initial district court dismissal citing precedents that limited the
function of international law to relations between states, on appeal, the circuit ruled that
freedom from torture was guaranteed under customary international law.  The appellants argued
that Peña's actions had violated wrongful death statutes, the United Nations Charter,
the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of
Man, and other customary international law. Petitioner claimed the U.S. courts had jurisdiction
to hear the case under the Alien Tort Statute.
a. The Alien Tort Act – “The district court shall have original jurisdiction over any civil
action by an alien for a tort only, committed in violation of the law of nations or a treaty
of the US.”
2. Issue: Whether the conduct alleged violated the Law of Nations.
3. Holding: deliberate torture perpetrated under color of official authority violates universally
accepted norms of international law.
4. Reasoning: It is clear and unambiguous that international law confers fundamental rights upon
all people vis-à-vis their own government. These fundamental rights include the right to be free
from torture.
a. Ascertaining the Law of Nations
i. Jurists;
ii. Usage;
iii. Judicial Opinions
iv. Opinions of publicists
5. UN Charter – Aspirational, non-binding, aspirational document. It represents what we spire for
the world and can still be used to evidence custom.
a. Jus Cogens - natural, fundamental, universal law. Differs from customary law. Would
say things like torture, piracy, slavery are fundamental wrongs
6. Should the U.S. be a World Police, Trying Foreign Citizens in the U.S.?
a. The international rules against torture don’t necessarily rely on state custom, so the intl.
community should be able to agree that torture violates the law of nations.
i. Certain heinous crimes give any tribunal jurisdiction because of the principle of
jus cogens

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 1. Jus Cogens – a higher norm. Those rules of international law of such
fundamental importance that derogation from them is prohibited.
Applies to:
a. Use/threat of force
b. Genocide
c. Slave trade
d. Piracy
e. Terrorism and taking of hostages
ii. Customary International Law v. Jus Cogens
1. Customary international law depends on state practice. Since state
practice can change, the customary law can change.
2. Jus Cogens does NOT depend on state practice. It cannot be changed,
because it relies on a belief in natural law, or a deep conviction, shared
among civilized states, that certain things are simply not permissible.
7. Comparison of The McCann and Filartiga Cases
a. Both – Show that international law is not exclusively the domain of nation-to-nation
relations; also used by individuals seeking to push nation states to do something.
i. McCann – Is a case in which the families are compensated, even though they
are using international hard law in an international court. In terms of
effectiveness, they use Article 2 in a foreign court to get paid back home.
ii. Filartiga – Is a case in which a municipal court applying American law to deal
with an alien, but foreigner doesn't get paid. Some have questioned the Alien
Tort Statute's effectiveness, but the response is that the statute is about more
than just compensation.

III. THE EUROPEAN UNION

a. Nature of the EU
i. 27 Member States
ii. Economic Union
iii. Aims at creating an internal market in which goods and services can be traded easily
b. Internal Market
i. Prohibition Of Customs Duties
1. i.e., if there is a German company shipping to a French company, there cannot be any custom
duties
ii. Prohibition Of Quantitative Restrictions
1. i.e., Belgium could not say that there is a maximum of 50,000 BMWs that can be imported from
Germany every year
iii. Prohibition Of Measures Having An Equivalent Effect
1. Rules that are equally applicable to domestic and foreign producers/sellers but put a higher
burden on the importer due to additional work it has to complete to make the product
marketable (e.g., packaging, presentation, composition of products)
2. Up to the Euro. Ct. of Justice to determine what measures of equivalent effect are
a. i.e., in Belgium there is Dutch (in northern part) and French (in southern part) spoken in
the country. Things labeled should be in the language in the part of the country where
they are brought in the market. So if you want to sell a beer in the northern part of the
country, it should be in Dutch. If someone wants to import a German beer, it must also
be in that language. So there is a cost on the distributor to create a marketable product
in Belgium. This is a measure having an equivalent effect.
iv. General Good Exception
1. Restrictions of free trade 4can be justified
 a. i.e., certain things must be in Dutch or French; creates a restriction to free trade
because of the higher cost in marketing. These costs are justified if they meet the 4
standards here.
i. General good (e.g., for the benefit of public health)
ii. Non discriminatory: must apply to domestic producers and other member
producers in the same way
iii. Necessary: must be necessary to reach the goal (e.g., if you want to prescribe a
certain warning on the label, that might be necessary to ensure that person
won't become a victim of the product)
iv. Proportionate: it may not be possible to reach the same goal with a measure
that restricts free trade less.
c. Internal Market And Differences In The Law
i. Another restriction of free trade: differences in the law (27 different legal systems)
ii. Consumer Law
1. Restrictions of the internal market result from differences between the legislation of the Member
States
a. Consumers are afraid not to be able to invoke their own law
b. Professionals are afraid to be confronted with the law of another state
iii. How to solve the problem:
1. Harmonize/unify the rules, one of the major tasks of the Euro. Union
d. Harmonization
i. Regulations
1. Something that is directly applicable into the member state
2. If a regulation is enacted in the union it will automatically apply in all member states
a. i.e., regulation with regard to protection of airline passengers
ii. Directives
1. Require implementation
2. Binding after implementation
3. Member states must ensure that those goals are met. So it's binding, but must be transposed.
a. i.e., French and German laws are similar because they transposed the same Euro.
directive
4. A directive does not have direct effect. It must be implemented by legislation.
e. Recommendations
i. Do not have to be transposed
ii. Not binding; guidelines given by the Euro. Commission
f. European Court of Justice
i. Role of the Euro Court of Justice
1. Interpreting Euro Legislation
a. National judges can ask questions to the Court
b. So a national judge before deciding a case, can ask the Court what a provision in a
directive precisely means
i. i.e., Unfair contract terms state that contractual terms which create a
significant imbalance between obligations from consumer to professional and
null and void. At a certain point a national judge asked the Court whether he
had the possibility to invoke the nullity of a term on his own motion, which the
Court affirmed.
2. Solving issues with regard to implementation of the Directives
a. A member state might not correctly implement a directive

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 b. In such a situation the Commission can launch a procedure against that member state in
the Court of Justice and litigate whether the member state correctly or incorrectly
implemented the directive
g. Harmonization Techniques
i. Maximum harmonization
1. No possibility to incorporate more stringent provisions
2. The law is the same in all member states
a. i.e., the seller no longer fears he will be confronted with additional consumer protection
laws because the laws are all the same
3. Difficulties and drawbacks:
a. Not possible to harmonize completely
b. Use of open norms
c. Lack of sanctions - if you look at Euro directives, you can see that they do not contain
real sanctions, so if something goes wrong (e.g., the professional doesn't meet his
obligations imposed by the directive), it is up to the member states to determine which
sanction applies.
d. It remains necessary to employ rules of private international law
e. Harmonization can lead to less protection for consumers of certain member states
ii. Minimum harmonization
1. The directive sets the minimum (e.g., the minimum level of protection consumers should get in
every member state of the union; member states can offer more protection)
2. Possibility to incorporate more stringent provisions
3. Compatible with the Internal Market
4. Rome 1 Regulation (contracts after December 17, 2009)
a. Specific rule on consumer transactions
i. Seller employs his activity within the consumers states
ii. Seller directs his activity towards the territory of the consumer's state
iii. If there is no choice of law, the law of the seller/professional's country applies
1. Such a choice of law cannot deprive the consumer of the protection
offered to him by his own legal system
2. This rule only applies if the seller has either employed his activity
within the consumer state or directed such activity to the consumer
state
b. General rules on private international law
h. Techniques used in consumer protection laws
i. Past: mainly minimum harmonization
1. Unfair contract terms Directive
2. Directive on sales outside the seller's premises
3. Distance selling Directive
4. Consumer sale Directive
ii. More recently: maximum harmonization
1. Unfair commercial Practices Directive
2. Distance selling of financial services Directive
3. Consumer Credit Directive: the creditor must warn the consumer
4. Proposal of a Directive on consumer rights
i. Protections afforded to European Consumers
i. Information requirements
ii. Protection from unfair terms
iii. Right to withdraw from the contract
iv. Concept of a consumer: physical person6 acting for purposes falling outside his trade
IV. INDIVIDUALS AND INTERNATIONAL LAW
a. 19th and Early 20th Century – individuals were viewed as objects of international law; thus, they had no
international legal rights, nor duties. (Objectivist View)
i. Objectivists View –there was State protection and responsibility for Individuals.
1. Issue – since individuals cannot bring claims to international courts on their own behalf, it leaves
nationals open to abuse by their own states, because it is impractical to conceive of a state
protecting its own nationals against itself in international law.
a. Positivist Theory – states make the law, and their citizens are objects of which the states
make agreements regarding.
ii. Subjectivist View – Individuals are responsible for themselves; thus, they have international legal rights
and duties. Individuals have the ability to bring claims to international courts.
b. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. N.Y. 1995)
i. Facts: Croat and Muslim citizens of Bosnia-Herzegovina alleged that Karadzic, one of the three presidents
of the Bosnian-Serb republic, personally planned and ordered a campaign of murder, rape, forced
impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnian
Muslims and Bosnian Croats. In 1993, Karadzic was admitted to the U.S. on three separate occasions as
an invitee of the UN and had been served with process during two of these three visits, while physically
present in Manhattan. In the District Court, Karadzic moved for dismissal of both actions on the grounds
of insufficient service of process, lack of personal jurisdiction, lack of subject-matter jurisdiction, and non-
justiciability of plaintiffs’ claims. Without notice or a hearing, the District Court by-passed the issues
briefed by the parties and dismissed both actions for lack of subject-matter jurisdiction.
ii. Procedure: Both actions had dismissed by the Fed Dist. Ct. of the Southern Dist. Of NY for lack of subject
matter jurisdiction. The District Courts reasoning: the court might be deprived of jurisdiction if the
executive branch were to recognize Karadzic as the head of state of a friendly nation. This consideration
was not dispositive but it "militates against this Court exercising jurisdiction." Regarding the issue of SMJ
under the Alien Tort Act, the Court concluded that they do not have SMJ, because "acts committed by
non-state actors do not violate the law of nations" and "[t]he current Bosnian-Serb warring military
faction does not constitute a recognized state." The Court did not consider the alternative claim that
Karadzic acted under color of law by acting in concert with the Serbian Republic of the former Yugoslavia,
a recognized nation. It was also found that the apparent absence of state action barred plaintiffs' claim
under the Torture Victim Act, which expressly requires that an individual defendant act "under actual or
apparent authority, or color of law, of any foreign nation," Torture Victim Act õ 2(a). With respect to
plaintiffs' further claim that the Law of Nations, as incorporated into federal common law, gives rise to an
implied cause of action over which the Court would have jurisdiction pursuant to section 1331, the Judge
found that the law of nations does not give rise to implied rights of action absent specific Congressional
authorization, and that, in any event, such an implied right of action would not lie in the absence of state
action.
iii. Issue: Whether the Alien Tort Claim Act can be applied to non-state actors.
iv. Holding: Yes, it can. Karadzic may be found liable for genocide, war crimes, and crimes against humanity
in his private capacity and he can also be held liable for other violations in his capacity as a state actor.
v. Reasoning: The alien tort claim act confers jurisdiction to U.S. courts when an alien sues; for a tort; which
was committed in violation of the law of nations. The law of nations does not confine itself to state
action, it extends to certain offenses that everyone in the world is offended by. Hostis humani – offenses
that are the enemy to all mankind (i.e., acts of piracy). Genocide, war crimes, torture, and summary
execution were against intl. law and defendant could have been liable as a private individual. Although
defendant's foreign territory was not recognized as a formal state, it had the trappings of a state,
including sovereignty over people and land. As a result, defendant may have been liable because he was
the leader of a de facto government and was acting under color of law when the atrocities occurred. §
2(a) of the Torture Victim Protection 7 Act of 1991 provided for subject matter jurisdiction through the
 Alien Tort Claim Act. Even though defendant was a United Nations invitee in the United States, defendant
was not immune from service of process. Plaintiffs' claims were not a non-justiciable political question
because of the nature of the claim.

vi. Three Claims Made

1. Genocide – After WWII there was a broad consensus that genocide is a crime under international
law. The result… Convention on the Prevention and Punishment of the Crime of Genocide.
a. Convention on the Prevention and Punishment of the Crime of Genocide
i. Article 2 …, genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as
such:
1. (a) Killing members of the group;
2. (b) Causing serious bodily or mental harm to members of the group;
3. (c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
4. (d) Imposing measures intended to prevent births within the group;
5. (e) Forcibly transferring children of the group to another group.
2. War Crimes; relevance of Geneva Conventions – In the case of armed conflict not of an
international character occurring in the territory of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a minimum, the following provisions:
a. (1) Persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed 'hors de combat' by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without
any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or
any other similar criteria.
b. To this end, the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:
i. (a) Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
ii. (b) Taking of hostages;
iii. (c) Outrages upon personal dignity, in particular humiliating and degrading
treatment;
iv. (d) The passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples.
3. Inflicting Death, torture & degrading treatment – Torture and summary execution, when not
perpetrated in the course of genocide or war crimes are proscribed by international law only
when committed by state officials or under color of law.
a. A State has a defined territory and a permanent population, under the control of its own
government, and that engaged in or has the capacity to engage in, formal relations with
other such entities. Rest. 3rd.
c. Individuals As Objects Of International Law
i. The Nottebohm Case
1. Facts: Nottebohm was born in Germany, and was a German citizen. He lived in Guatemala for
almost 40 years and conducted a prosperous business there, yet he never became a citizen. In
1939, he applied to become a citizen of Liechtenstein. The application was approved even though
a requirement was that he be a resident there for at least 3 years. The approval was granted due
to exceptional circumstances.
8 He returned to Guatemala on his Liechtenstein passport and
 informed the local government of his change of nationality. When he tried to re-enter
Guatemala in 1943, he was refused entry as an enemy alien since Guatemalan authorities did not
recognize his naturalization and regarded him as a German (enemy alien because of WWII).
Liechtenstein offered Nottebohm protection against the government of Guatemala and sued
Guatemala in the International Court of Justice. However, the government of Guatemala argued
that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law.
2. Issue: Whether the conferment of the Lichtenstein citizenship is contrary to int'l law, and if
Lichtenstein's claim on behalf of Nottebohm is admissible in court.
3. Holding: The court held that Nottebohm did not gain Lichtenstein citizenship for the purposes of
intl. law, and held that claims by Lichtenstein were inadmissible.
4. Reasoning: Although the Court stated that it is the sovereign right of all states to determine its
own citizens and criteria for becoming one in municipal law, such a process would have to be
scrutinized on the international community in questions of diplomatic protection. The Court
upheld the principle of effective nationality, where the national must prove a meaningful
connection to the state in question. The connection is gauged on: habitual residency, family ties,
participation in public life, attachment shown towards country, and other links to the state. This
principle was previously applied only in cases of dual nationality to determine which nationality
should be used in a given case.
a. Relations with Germany – Nottebohm always retained connections with family in
Germany and there was nothing to indicate a desire to sever ties with the German Govt.
b. Relations with Guatemala – He lived in Guatemala for 34 years and maintained a
prosperous business there. Family members have asserted Nottebohm's desire to make
Guatemala his indefinite residence.
c. Relations with Lichtenstein – He had no settled abode, no prolonged residency, nor an
intention of settling there, no allegation of economic interests or activities.
Naturalization was not asked for to become a member of Lichtenstein's population, but
rather transfer citizenship from Germany (an enemy of the State) to a neutral State
without any actual ties to Lichtenstein.
5. Conclusion – Guatemala is therefore under no obligation to recognize a nationality granted
under such circumstances. Plaintiff cannot extend protection to Nottebohm and its claim is
inadmissible.
a. Genuine link test – a legal bond having as its basis a social fact of attachment, a genuine
connection of existence, interests and sentiments.
i. Plaintiff is doing this not for Nottebohm, but for themselves to make sure that
they have weight in the international community (Objectivist approach)
ii. The Barcelona Traction Case (Barcelona Traction, Light & Power Co. v. Spain, 1970 I.C.J. 3)
1. Facts: Barcelona Traction was a corporation that controlled light and power utilities in Spain and
was incorporated in Toronto, (Canada). In 1948, there was adjudication in bankruptcy in Spain of
Barcelona Traction. Its object was to seek reparation for damage alleged by Belgium to have
been sustained by Belgian nationals, shareholders in the company. The Belgian Government
contended that after the WWI Barcelona Traction share capital came to be very largely held by
alleged Belgian nationals, but the Spanish Government maintained that the Belgian nationality of
the shareholders was not proven and that the Belgian govt. lacked capacity to submit any claim
in respect of wrongs done to the Canadian Company. In order to bring a claim in respect of the
breach of an obligation, a State must establish its right to do so. A wrong done to a company
might cause prejudice to its shareholders, but does not mean that the shareholders have a valid
claim.
2. Issue: Whether the Belgian Government has the right to protect the corporation against Spain in
the ICJ.
3. Holding: No, Belgium’s claim 9 is rejected.
 4. Reasoning: The act complained of must be aimed at the direct rights of the shareholder or from a
treaty or special agreement between Spain and Belgium, which was not the case here.
However, there are special circumstances where this general rule doesn't apply, such as if the
company ceased to exist or if the State protecting the company lacked the capacity to take
action. It was clear that the plaintiff company had not ceased to exist and the right of diplomatic
protection of a corporate entity is to the State under the laws of which it is incorporated and
whose territory it has its registered offices. Plaintiff was incorporated in Canada and was
protected by Canadian Government; even if the Government decided not to represent plaintiff, it
still had the capacity to do so and therefore another State could not take over.
5. The Belgian Government's argument – seems to infer that holding a single share versus 90% of
the shares would allow the same protection. Such a rule would create chaos, especially for
international organizations where shares often change hands. The Court is not of the opinion
that just standi (recognized rights) is conferred on the Belgian Government.
iii. Nottebohm v. Barcelona Traction
1. Both cases employ the doctrine of state protection and state responsibility to determine
nationality (objectivist view). It is nationality which triggers the flow of rights and diplomatic
protection at international law. See Nottebohm.
a. The genuine link test – if Nottebohm is a citizen of Germany, then Barcelona Traction
should be a citizen of Belgium.
i. The Barcelona Court employed the genuine connection test rather than the
genuine link test, because the connection test is slightly more flexible.
ii. Barcelona Court Objectivist Regarding Nationality – A state may exercise
diplomatic protection by whatever means and to whatever extent it thinks fit
for it is its own right that the State is asserting. Should the natural or legal
persons on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law.
1. This case provides another example of the traditional theory that
individuals are objects, not subjects, of international law.
2. Justiciability – asks the question of what the judiciary's proper role is in these types of matters.
a. The Role Of The Court
i. Is there a political question implicating the Political Questions Doctrine?
1. Political questions are often implicated by legal cases
2. Just because foreign relations are implicated by judicial decision
making, does not render a matter non-justiciable. Courts should not
hide just because it might touch on the other two prongs (Executive
and the other one).
ii. Act of State
1. If the decision of the Court will be too much of interference, they
should not accept or pursue the case.
d. Individuals as Subjects of International Law
i. Positivists view
1. International law as a set of rules with the states as its subjects, and municipal law is a state’s set
of rules with individuals as its subjects. [Mark W. Janis, “Individuals as Subjects of Intl. Law”]
ii. The Nuremberg Judgment, 6 F.R.D. 69 (1946)
1. Parties: U.S., the French Republic, the United Kingdom of Great Britain and Northern Ireland, and
the Union of Soviet Social Republics v. Hermann Wilhelm Goering, Rudolf Hess, Joachim von
Ribbentrop, [and 24 Other Named Defendants]
2. Facts: Before the Nuremberg Trial, the doctrine of state responsibility, as examined in
Nottebohm and Barcelona Traction, afforded individuals partial protection under international
law; however, this was only 10provided they were effectively protected by their own state. These
 doctrines did not assist individuals being abused by their own governments. After WWII, the US,
Britain, the Soviet Union, and France engaged in negotiations regarding how to punish the Nazi
leadership. Eventually, representatives from the nine occupied countries met in London to draft
the Inter-Allied Resolution on German War Crimes. At the meetings
in Tehran (1943), Yalta (1945) and Potsdam (1945), the three major wartime powers, the United
States, the Soviet Union and the United Kingdom, agreed on the format of punishment for those
responsible for war crimes during World War II. The legal basis for the trial was established by
the Nuremberg Charter, issued on August 8, 1945, which restricted the trial to "punishment of
the major war criminals of the European Axis countries." Some 200 German war crimes
defendants were tried at Nuremberg, and 1,600 others were tried under the traditional channels
of military justice. The legal basis for the jurisdiction of the court was that defined by
the Instrument of Surrender of Germany, political authority for Germany had been transferred to
the Allied Control Council, which having sovereign power over Germany could choose to punish
violations of international law and the laws of war. Because the court was limited to violations of
the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of
war on September 3, 1939. The Tribunal was invested with power to try and punish persons who
had committed crimes against peace, war crimes, and crimes against humanity as defined in the
Charter.
3. Defendants Argue – it is uncivilized to apply these laws to them because it is ex post facto.
4. The Courts Response – “To assert that it is unjust to punish those who in defiance of treaties and
assurances have attached neighboring states without warning is obviously untrue, for in such
circumstances the attacker must know that he is doing wrong, and sa far from it being unjust to
punish him, it would be unjust if his wrong were allowed to go unpunished.”
5. Classic Subjectivist View
a. International Law Imposes duties and obligations on individuals as well as on States.
Criminals cannot hide behind their official positions in order to be sheltered from
punishment. The true test is whether moral choice was in fact possible.
i. "Just following orders" defense does not bar people from punishment, but can
be used to mitigate punishment
ii. "The fact that the defendant acted pursuant to orders of his Government or of
a superior shall not free him from responsibility…"
b. The Court tells us that there can not only be enemy states, but enemy individuals.
International law must apply to individuals for it to be enforced, since crimes against
international law are committed by men.
i. The precedent used for this is the Treaty of Versailles.
6. Nuremberg Charter Provisions
a. Article 6 – The Tribunal established by the Agreement referred to in Article 1 hereof for
the trial and punishment of the major war criminals of the European Axis countries shall
have the power to try and punish persons who, acting in the interests of the European
Axis countries, whether as individuals or as members of organizations, committed any of
the following crimes.
 The following acts, or any of them, are crimes coming within the jurisdiction of the
Tribunal for which there shall be individual responsibility:
i. (a) Crimes against Peace…
ii. (b) War Crimes: namely, violations of the laws or customs of war.  Such
violations shall include, but not …
iii. (c) Crimes against Humanity: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian
population, before or during the war,14 or persecutions on political, racial, or
religious11
grounds in execution of or in connection with any crime within the
 jurisdiction of the Tribunal, whether or not in violation of domestic law of the
country where perpetrated.

b. Kellogg-Briand Pact (Pact of Paris) – Germany, Italy, and Japan were signatories
i. Article I – The High Contracting Parties solemnly declare in the names of their
respective peoples that they condemn recourse to war for the solution of
international controversies, and renounce it, as an instrument of national policy
in their relations with one another.
ii. Article II – The High Contracting Parties agree that the settlement or solution of
all disputes or conflicts of whatever nature or of whatever origin they may be,
which may arise among them, shall never be sought except by pacific means.
c. Living Tree Approach – The law of war is to be found not only in treaties (e.g., Kellogg
pact), but in the customs and practices of states which gradually obtained universal
recognition and from the general principles of justice applied by jurists and practiced by
military courts. This law is not static, but by continual adaptation follows the needs of a
changing world."

V. INTERNATIONAL HUMAN RIGHTS LAW

a. Human Rights and the United Nations
i. Evidencing the roots of International Human Rights:
1. The 1948 Universal Declaration of Human Rights
a. Document of the UN, General Assembly
b. Jeffersonian origins
c. Akin to French Declaration of the Rights of Man and Citizen; & U.S. Bill of Rights
d. U.S. Bill of Rights
i. Transforms substantive norms of HR Law from National to International.
ii. See appendix
e. The creation of the UN in 1945 signaled; “the internationalization of human rights and
the humanization of international law”
b. Damian Thomas v. Jamaica (UN Human Rights Committee)
i. Facts: Damian Thomas was 15 when he was arrested for 2 murders. He was in a jail among adults, which is
against the International Covenant on Civil and Political Rights, and was not represented by counsel. In
1996, when Thomas was 16, he contacted the UN Human Rights Committee regarding his situation.
Thomas later alleged that, while in detention, he was systematically beaten by wardens. The State of
Jamaica was informed of the brutalization of Thomas and did not refute the allegations. Jamaica,
promised to investigate, but never gave any feedback to UN Committee. Because Jamaica had signed on
to the optional protocol, the state had a duty to investigate; however, the allegations were communicated
to UN after Jamaica denounced the protocol, rendering the claims of brutalization inadmissible. Thomas’
claim for being imprisoned among adults remained admissible. Jamaica never refuted the allegations, but
refused to cooperate. Jamaica’s failure to act was in violation of Article 25 of the ICCPR (protection as
required by his status as a minor)
ii. Holding: Jamaica has failed to discharge its obligations under the Covenant (ICCPR). As such, Jamaica is
obliged to provide an effective remedy pursuant to Article 2, ¶ 3(a) of the Covenant: (1) Remove him to a
juvenile correctional facility; (2) Compensation; (3) Take future-oriented corrective actions.
iii. Reasoning: Although Jamaica had denounced the optional protocol, this case was submitted to UN before
Jamaica's revocation. Therefore, according to covenant, Jamaica is under an obligation to Thomas to put
him in a juvenile institution, and compensating him for placing him with adults while still a minor. Since
Jamaica had signed on to the optional protocol, they recognized that the Committee was competent to
12
 determine whether there was a violation of the covenant. The UN Human Rights Committee requested
for Jamaica to give them info within 90 days on what measures they took to correct this matter.

1. International Covenant on Civil and Political Rights

a. Article 10
i. (1) All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
ii. (2)(a) Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment appropriate
to their status as unconvicted persons;
iii. (2)(b) Accused juvenile persons shall be separated from adults and brought as
speedily as possible for adjudication.
iv. (3) The penitentiary system shall comprise treatment of prisoners the essential
aim of which shall be their reformation and social rehabilitation. Juvenile
offenders shall be segregated from adults and be accorded treatment
appropriate to their age and legal status.
b. Article 2
i. (1) Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind, such
as race, colour, [sic] sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
ii. (3) Each State Party to the present Covenant undertakes:
1. (a)To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity;
2. Optional Protocol to the ICCPR, Article 12
a. (1) Any State Party may denounce the present Protocol at any time by written
notification addressed to the Secretary-General of the United Nations. Denunciation
shall take effect three months after the date of receipt of the notification by the
Secretary-General.
b. (2) Denunciation shall be without prejudice to the continued application of the
provisions of the present Protocol to any communication submitted under article 2
before the effective date of denunciation.

VI. EUROPEAN HUMAN RIGHTS LAW

a. The Sunday Times Case, 2 EHRR 245, 26 APRIL 1979 (European Court of Human Rights)
i. Facts: Distillers marketed a drug, a sedative given to pregnant women. It was discovered that it led to
deformities in the fetus, and was subsequently taken off the market. There was a suit against Distillers by
389 plaintiffs, and they were in the midst of settling. The Sunday Times then decided to publish
information on Distiller's actions prior to the public discovery of how harmful the drug was, and in that
article, promised another article the next week detailing facts, which would strongly indicate Distiller's
negligence. Distiller filed a formal complaint to the attorney general seeking an injunction against
publishing of the article. The Queen’s Bench District court granted the injunction, on the reasoning that "it
might prevent the due and impartial administration of justice by affecting and prejudicing the mind of the
tribunal itself, by affecting witnesses who were to be called or by prejudicing the free choice and conduct
of a party to the litigation." The Times
13 appealed, and the Court of Appeals discharged the injunction.
 Court said that public interest outweighed the potential prejudice to the party, and the law did not
prevent comment when litigation was dormant. Then, on another appeal, the House of Lords reinstated
the injunction finding that freedom of speech shouldn’t be infringed, but it could not be allowed where
there could be real prejudice to the administration of justice, and also importantly, the case was not
dormant, but still active. Lord Reid says the publication should be postponed for the time being in light of
the circumstances. Times then applied to the European Commission on Human Rights to discharge the
injunction, claiming in constituted a breach of Article 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms.
1. Article 10 - Freedom of Expression. Also says it's subject to "such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a democratic society…. for
maintaining the authority and impartiality of the judiciary." There was interference by public
authorities (the injunction)
ii. Issue: Whether the interference was prescribed by law; for legitimate aims; and necessary in a democratic
society.
iii. Holding: The interference complained of did not correspond to a sufficiently pressing social need. The
injunction would have been valid only if it appeared to be absolutely certain its restraint would have
prevented a threat to the “authority of the judiciary.” Thus the European Court of Human Rights finds a
violation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
While the mass media must not overstep its bounds in the interests of the administration of justice, it is
important for them to impart information concerning matters that come before the courts for public
interest. The media has the right to give such information and the public has the right to receive it.
1. In this case, the families of the victims had a large interest in knowing all of the underlying facts
and possible solutions. The article might have served as a brake on speculative and
unenlightened decision by bringing certain facts to light.
b. Convention for the Protection of Human Rights and Fundamental Freedom (amended by Proto. No. 11)
i. Article 10 – Freedom of expression
1. (1) Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the judiciary.
c. The Soering Case, 11 Eur. Ct. H.R. (ser. A) (1989)
i. Procedure: Defendant was indicted by Circuit Court of Bedford County. He filed a Petition for Habeas
Corpus with the Divisional Court, who subsequently denied his request. He then petitioned the Home
Secretary who also denied the request. The defendant then filed a claim with the European Commission
of Human Rights who found against him. The case was settled in the European Court of Human Rights.
ii. Facts: German national, living in the US, committed a double murder in the US and fled to Europe in
October of 1985. Soering was arrested in England on 30 April 1986 on charges of check fraud. Six weeks
later a grand jury of the Circuit Court of Bedford County indicted Soering with the capital murder, as well
as the separate non-capital murders. The US requested extradition, based on the 1972 Extradition Treaty.
A warrant was issued under Section 8 of the Extradition Act 1870 for the arrest of Soering, and he
was committed to await the Home Secretary's order to extradite him to the United States. Soering filed a
petition for habeas corpus with the Divisional Court, and requested permission for judicial review of the
decision to commit him, arguing that the Extradition Act 1870 did not authorize extradition for a capital
charge. He also cited Article IV of 14
the US-UK Extradition Treaty, which provides that an extradition
 request for an offence carrying the death penalty can be refused if the requesting country has not given
"assurances [...] that the death penalty will not be carried out." An assurance had indeed been provided in
this case by the Commonwealth Attorney of Bedford County, but Soering contended that this was
worthless. Lord Justice Lloyd in the Divisional Court admitted that the assurance "leaves something to be
desired", but refused the request for judicial review, stating that as the Home Secretary had not yet
accepted the assurance and Soering's request was therefore premature. Soering appealed to the House
of Lords who rejected his claim. He then petitioned the Home Secretary without success. The Home
Secretary later authorized extradition. Anticipating this outcome, Soering had already filed a claim with
the European Commission of Human Rights, asserting that he would face inhuman and degrading
treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) were he to be
extradited to the US, it being likely that the death penalty would be applied in his case. Soering's
arguments that the use by a non-Convention State of the death penalty would engage the right to life
were novel, in that Article 2(1) of the Convention expressly permits the use of the death penalty, and
Article 3 had never been interpreted to bring the death penalty, per se, within the prohibition of
"inhuman or degrading treatment or punishment." The ECHR requested that no extradition take place
pending the deliverance of its judgment.
iii. Issue: Whether Article 3 of the ECHR is applicable when the adverse consequences of extradition are
suffered outside the jurisdiction of the extraditing state as a result of treatment or punishment
administered in the receiving state.
iv. Holding: The European Court of Human Rights handed down a unanimous opinion in which it affirmed the
Commission's conclusion that Article 3 could be engaged by the extradition process, and the extraditing
state could be responsible for the breach where it is aware of a real risk that the person may be subject to
inhuman or degrading treatment.  However, the Court concluded that the Convention does allow for the
death penalty’s use in certain circumstances and that Article 3 could not stand in the way of the
extradition of a suspect simply because they might be subject to the death penalty. However, even if the
actual extradition itself would not breach Article 3, other factors could violate Article 3. In approaching
this question, the Court had to determine whether there was a "real risk" of Soering being executed. The
Court did not give much weight to US authorities’ assurance that the death penalty would not be used.
The Court concluded that the "death row phenomenon" did breach Article 3. The Court concluded that,
having regard to the very long period of time spent on death row in such extreme conditions, with the
ever present and mounting anguish of awaiting execution of the death penalty, and to the personal
circumstances of the applicant, especially his age and mental state at the time of the offense, the
applicant's extradition to the United States would expose him to a real risk of treatment going beyond the
threshold set by Article 3. A further consideration of relevance is that in the particular instance the
legitimate purpose of extradition could be achieved by another means [extradition or deportation to
Germany], which would not involve suffering of such exceptional intensity or duration.
v. Result: the UK government sought further assurances from the US regarding the use of the death penalty
before extraditing Soering to Virginia, where he was tried and convicted for the first degree murder of the
Haysoms. The court sentenced him to two consecutive life terms. He is serving his sentence at
the Brunswick Correctional Center.
1. Significance – Soering v. United Kingdom is important in four respects:
a. It enlarges the scope of a state's responsibility for breaches of the Convention. A
signatory State must now consider consequences of returning an individual to a third
country where he might face treatment that breaches the Convention. Regardless of ill-
treatment being beyond its control or giving of assurance.
b. Expanded the obligation to all States. Not only are signatories liable for consequences
of extradition suffered outside their jurisdiction, but this jurisdiction implicitly extends
to actions in non-signatory States. The Convention also overrides agreements concluded
with such States.
15
 c. The rationale of the Court's judgment applies equally to  deportation cases, where
other articles of the Convention may apply, such as Article 6 (right to a fair trial).
d. The Court's approach to the death penalty may reduce its use by non-signatory States
that seek to extradite suspects from signatory States. The decision makes it difficult, if
not impossible, for the US and other capital punishment countries to extradite suspects
on capital charges from signatory States.
d. The European Convention On Human Rights
i. Article 1 – The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.
ii. Article 2 – Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime for which
this penalty is provided by law.
iii. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
1. (a) In defense of any person from unlawful violence;
2. (b) In order to effect a lawful arrest or to prevent escape of a person lawfully detained;
3. (c) In action lawfully taken for the purpose of quelling a riot or insurrection.
iv. Article 3 – No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
e. Convention Against Torture And Other Cruel, Inhuman, or Degrading Treatment Or Punishment
i. Article 3 – (1) No State Party shall expel, return or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture.
ii. (2) For the purpose of determining whether there are such grounds, the competent authorities shall take
into account all relevant considerations including, where applicable, the existence in the State concerned
of a consistent pattern of gross, flagrant or mass violations of human rights.
f. International Covenant on Civil and Political Rights
i. Article 6 – Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
ii. In countries which have not abolished the death penalty, sentence of death may be imposed only for the
most serious crimes in accordance with the law in force at the time of the commission of the crime and
not contrary to the provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment
rendered by a competent court…
iii. (5) Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age
and shall not be carried out on pregnant women.

VII. INTERNATIONAL CRIMINAL LAW

a. International Criminal Prosecutions – Structure of the Court System

Domestic Ct.
Territorial &
National Jurisdiction
National Courts
Domestic Ct.
Universal Jurisdiction
International
Tribunals
International Exercising Universal
Criminal Jurisdiction Domestic
Prosecutions Courts
Hybrid Courts 16

Civilian Special
International Military National Civilian
b. National Courts Domestic Courts
i. Territorial Jurisdiction and National Jurisdiction – Nation-state exercises its own territorial jurisdiction
over matters that occur within its borders
1. Good because of physical proximity, access to evidence, the investigation, an avenue for the
healing of the offenses
2. Bad because that same proximity could bring bias; those within the region will be more likely
than not to be subjective rather than objective in deliberation
ii. Universal Jurisdiction – Jurisdiction over what we (as a community of nations) feel are universal wrongs
1. There are crimes that are so universally abhorrent, that any jurisdiction can exercise jurisdiction
because that crime is so offensive that the reach of one nation into another should be allowed
2. Prerequisites:
a. Before a nation-state can exercise universal jurisdiction, this offense did not take place
within its territory, and probably did not take its national(s) as a victim or offender, the
State still needs legislation allowing its courts to reach outside of its territories
b. There must be a prosecutor or judge (some cases a victim) that decided to initiate this
case; criticism that such power is unchecked
3. Universal Jurisdiction in the US – there is a Constitutional foundation for the prosecution of
international crimes. Article I of the US Constitution grants Congress the power to define and
punish offenses against the Law of Nations. We need legislation for a State court to criminalize
and international wrong.
iii. The Pinochet Case – Movement Towards Universal Jurisdiction
1. Facts: General Augusto Pinochet, the head of the military dictatorship that ruled Chile from 1973
to 1990, was responsible for numerous human rights violations, a number of which committed as
part of Operation Condor, an illegal effort to suppress political opponents in Chile and abroad in
coordination with foreign intelligence agencies. Pinochet was also accused of embezzlement of
government funds, the illegal drug trade and illegal arms trade. While in London for medical
treatment and alleged arms trading, Pinochet was arrested under an international arrest warrant
issued by Judge Baltasar Garzón of Spain. The Chilean government opposed Pinochet’s arrest,
extradition to Spain, and trial. The trial commenced in the House of Lords, the highest court of
the UK. Pinochet argued that he had immunity as a former head of state under the State
Immunity Act of 1978; however, the Lords rejected this argument holding that some
international crimes, such as torture, would not be protected by former head-of-state immunity.
The Lords, however, decided that Pinochet could only be prosecuted for crimes committed after
1988, the date during which the UK implemented legislation for the UN Convention against
Torture  in the  Criminal Justice Act 1988. The former UK Prime Minister and the US President
Bush called upon the British government to release Pinochet and allowed for his return to Chile,
rather than extradite Pinochet to Spain. The UN High Commissioner of Human Rights and
Amnesty International demanded Pinochet’s extradition to Spain. Concerns over Pinochet’s
health led to medical tests conducted by the Home Secretary Jack Straw. Despite the protests of
legal and medical experts from several countries, Straw finally ruled to set Pinochet free and
authorize his free return to Chile. There had been a series of cases brought against Pinochet
which resulted in house arrest. Shortly thereafter, Pinochet died in Chile.

17
 2. Significance: This case marks the first time that several European judges applied the principle of
universal jurisdiction, declaring themselves competent to judge crimes committed by former
heads of state, despite local amnesty laws.
iv. Issues Regarding the Exercise of Universal Jurisdiction
1. Nationalism v. Internationalism – States policing nationals of other states for crimes that did not
occur within their territory v. the International Courts policing.
2. Legitimacy and Proximity – The exercising state, does not have evidence or witnesses within its
territory, thus rending the investigation much more difficult and perhaps any judgment less
legitimate.
3. Political and Diplomatic – universal jurisdiction justifies a unilateral act of wanton disregard of
the sovereignty of a nation or the freedom of an individual connected to the pursuit of a
vendetta or other ulterior motives, with the obvious assumption that the person or state thus
disenfranchised is not in a position to bring swift (possibly violent and massive) retaliation to the
state applying universal jurisdiction.
a. Impeding Foreign Relations – this form of prosecutory meddling provides a significant
risk of tarnishing state-to-state relations. The concern in cases of this nature is
justiciability (the ability of the subject matter to be evaluated by the court)
v. Subsidiarity Doctrine – a limit on the exercise of universal jurisdiction. Uninvolved third-party countries
should exercise jurisdiction over crimes subject to universal jurisdiction only if criminal prosecution by
primarily competent states, or an international court, is not ensured or cannot be ensured.
vi. Role of Domestic Courts
1. Domestic Courts Include:
i. Military Tribunals
ii. Civilian National Courts
iii. Special Civilian Courts
b. Jurisdiction If:
i. Territorial
ii. National commits a crime against humanity in foreign state (extraterritorial
jurisdiction)
iii. Foreigner harms a national outside of territory
iv. Treaty: “Try-or-Expedite”
1. Akin to the Subsidiary Doctrine
2. Jurisdiction over offenders found in their territory, even if none of
those jurisdictional principles applies.
v. Crimes against humanity
2. Military Tribunals
a. Jurisdiction over its own people
b. Incorporates international war crimes
c. Comprehensive war justice system for military personnel
3. Civilian National Courts
a. Regular court of justice for citizens within the territory
b. Jurisdiction over ordinary domestic offenses
4. Special Civilian Courts
a. Basically ad-hoc courts established specifically to try international crimes
b. Justified by the special nature of the crime (i.e., Genocide – 18 U.S.C. §1091)
5. 18 U.S.C. § 1091. Genocide
a. (a) Basic Offense – Whoever, whether in time of peace or in time of war, in a
circumstance described in subsection (d) and with specific intent to destroy, in a whole
or in a substantial part, a national, ethnic, racial, or religious group as such –
(1) Kills members
18 of that group;
 (2) Causes Serious Bodily injury to members of that group
(3) Causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;
(4) Subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) Imposes measures intended to prevent births within the group; or
(6) Transfers by force children of the group to another group;
Or attempts to do so, shall be punished as provided in subsection (b).
c. International Tribunals
i. Nuremberg Tribunals
1. International Tribunal for the Former Yugoslavia (ICTY) –In the early 1990s, there had been
violent flair ups in Slovenia, Croatia, Bosnia, and Herzegovina. The chronology of the wars in the
former Yugoslavia was completed with armed conflicts in Kosovo and the Former Yugoslav
Republic of Macedonia. In response, the United Nations established the ICTY to prosecute the
serious crimes committed during these wars, and to try their perpetrators. The tribunal is an ad
hoc court of the UN which is located in The Hague, Netherlands.
a. Establishment – 1993, Resolution 808 (according to Nelson) or 827 (according to the
ICTY website) of the United Nations Security Council. Generally, there is a treaty process
for the creation of tribunals of this nature, but, due to the urgent need to control the
violent political conflict in Yugoslavia the UN Security Council expedited the process,
only deliberating on a few issues.
b. Subject Matter Jurisdiction – The court has authority over:
i. Grave breaches of the Geneva Conventions,
ii. Violations of the laws or customs of war
iii. Genocide, and
iv. Crime against humanity
2. International Criminal Tribunal for Rwanda (ICTR) – established in 1994 by the United Nations
Security Council under Resolution 955 in order to judge people responsible for the Rwandan
Genocide and other serious violations of the international law in Rwanda.
a. Subject Matter Jurisdiction - The tribunal has jurisdiction over:
i. Genocide, 
ii. Crimes against humanity, and 
iii. War crimes (as defined by Common Art. 3 and Additional Protocol II of
the Geneva Conventions – dealing with war crimes committed during internal
conflicts)
b. Contributions of the ICTY and ICTR – these tribunals allow for the possibility of holding
individuals accountable for horrendous acts against mankind. These tribunals also: (1)
provide legitimacy; (2) aid in the healing of social wounds; (3) maintain records of the
past occurrences; (4) provide accountability; (5) effectively remove criminals; (6) provide
fairness/due process; and precedential value  led to establishment of ICC and hybrid
tribunals.
c. Criticisms – The criticisms of the tribunals include: (1) the high cost of operation; (2) the
length of the trials; (3) the inefficiency (only so many indictments); (4) have not deterred
similar behavior, due to missed educative opportunity within territories in which
atrocities took place; (5) stringent limitations on jurisdictional reach.
d. Hybrid/Mixed Tribunals
i. The hybrid tribunal is one of the latest attempts to seek justice for crimes of mass atrocity. Designed
partly in response to criticisms of the International Criminal Tribunal for the former Yugoslavia (ICTY) and
the International Criminal Tribunal for Rwanda (ICTR), the hybrid model is a system that shares judicial
accountability jointly between the 19 state in which it functions and the United Nations.
 1. Joint cooperation between domestic and international judges, applying the domestic laws
(consistent with international law) of the country in which the crimes have occurred.
2. Often developed in post-conflict situations, such as: Special Court for Sierra Leone; East Timor,
Special Panel for Serious Crimes; Kosovo, foreign judges sat with Kosovo Courts; and the
Extraordinary Chambers in the Courts of Cambodia.
a. These tribunals set the stage for the ICC
e. The International Criminal Court
i. A permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and
the crime of aggression (currently ICC lacks jurisdiction over crimes of aggression).
1. Establishment – The court came into being on 1 July 2002 — the date its founding treaty,
the Rome Statute of the International Criminal Court, entered into force — and it can only
prosecute crimes committed on or after that date. The official seat of the court is in The
Hague, Netherlands, but its proceedings may take place anywhere.
2. Membership – As of March 2010, 111 states are members of the Court, and a further 38
countries have signed but not ratified the Rome Statute. 
a. A number of states, including China, India, Russia and the United States, are critical of
the court and have not joined.
3. Jurisdiction – The ICC is designed to complement existing national judicial systems. It can
exercise its jurisdiction only when national courts are unwilling or unable to investigate or
prosecute such crimes. The ICC can generally exercise jurisdiction only in cases where:
a. The accused is a national of a state party,
b. The alleged crime took place on the territory of a state party, or
c. A situation is referred to the court by the United Nations Security Council.
4. Concerns
a. Legitimacy  Sovereignty – foreign judges dictating trials of serious concern to states
that they have no concept of the socio-political context of.
b. Exceptionalism – Pursuant to US Exceptionalism, you can’t have the US police the world
and be subject to the ICC
5. Benefits
a. Community of Nations
b. Foreign relations – strategic interest convergence
f. The Bashir Case
i. Facts: Omar al-Bashir, the President of Sudan, had been accused by the Chief Prosecutor of the
International Criminal Court, Luis Ocampo, of genocide, crimes against humanity and war crimes
committed since 2003 in Darfur. Bashir was also accused of having “masterminded and implemented” a
plan to destroy the three main ethnic groups, the Fur, Masalit and Zaghawa, with a campaign
of murder, rape and deportation. The arrest warrant, issued on 3/4/09, was supported by NATO,
the Genocide Intervention Network, and Amnesty International. The warrant indicted him on five counts
of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of
war crimes (pillaging and intentionally directing attacks against civilians). The court ruled that there was
insufficient evidence to prosecute him for genocide. Al-Bashir is the first sitting head of state ever
indicted by the ICC. However, the Arab League and the African Union condemned the warrant. Bashir has
since visited Egypt and Qatar; both countries refused to arrest him and surrender him to the ICC upon
arrival. Ocampo and Amnesty International claimed that al-Bashir's plane could be intercepted in
International Airspace; however, Sudan announced that the presidential plane would always be escorted
by fighter jets of the Sudanese Air Force to prevent his arrest. Despite a UN Security Council resolution
which states that Sudan must cooperate with the ICC, Sudan claims that it does not have to execute the
warrant because it does not recognize the ICC and is not a state party to the Rome Statute.
1. Interesting Note – The United States un-signed the Rome Treaty, because, as President Bush
stated, the US system of government
20 is based on the principle that power must never be without
 a check (ironic). Since the ICC was created with a self-initiating prosecutor, answerable to no
state or institution other than the court itself, it ran contrary to American ideals. Furthermore,
the Rome treaty, establishing the ICC, threatens American sovereignty. The court claims the
authority to detain and try American citizens, even though out democratically-elected
representatives have not agreed to be bound by the treaty. (Marc Grossman, American Foreign
Policy and the International Criminal Court).
ii. Rome Statute of the International Criminal Court
1. Article 12. Preconditions To The Exercise Of Jurisdiction
a. (1) A State which becomes a Party to this Statute thereby accepts the jurisdiction of the
Court with respect to the crimes referred to in article 5.
b. (2) In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if
one or more of the following States are Parties to this Statute or have accepted the
jurisdiction of the Court in accordance with paragraph 3:
i. (a) The State on the territory of which the conduct in question occurred or, if
the crime was committed on board a vessel or aircraft, the State of registration
of that vessel or aircraft;
ii. (b) The State of which the person accused of the crime is a national.
2. Article 13. Exercise of Jurisdiction  
a. (1) The Court may exercise its jurisdiction with respect to a crime referred to in article 5
in accordance with the provisions of this Statute if:
i. (a) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by a State Party in accordance with
article 14;
ii. (b) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by the Security Council acting under
Chapter VII of the Charter of the United Nations; or
iii. (c) The Prosecutor has initiated an investigation in respect of such a crime in
accordance with article 15.
3. Article 53. Initiation of an Investigation
a. (1) The Prosecutor shall, having evaluated the information made available to him or her,
initiate an investigation unless he or she determines that there is no reasonable basis to
proceed under this Statute. In deciding whether to initiate an investigation, the
Prosecutor shall consider whether:
i. (a) The information available to the Prosecutor provides a reasonable basis to
believe that a crime within the jurisdiction of the Court has been or is being
committed;
ii. (b) The case is or would be admissible under article 17; and
iii. (c) Taking into account the gravity of the crime and the interests of victims,
there are nonetheless substantial reasons to believe that an investigation
would not serve the interests of justice.
b. If the Prosecutor determines that there is no reasonable basis to proceed and his or her
determination is based solely on subparagraph (c) above, he or she shall inform the Pre-
Trial Chamber.
4. Article 17. Issues of Admissibility
a. (1) Having regard to paragraph 10 of the Preamble and article 1, the Court shall
determine that a case is inadmissible where:
i. (a) The case is being investigated or prosecuted by a State which has
jurisdiction over it, unless the State is unwilling or unable genuinely to carry out
the investigation or prosecution;
21
 ii. (b) The case has been investigated by a State which has jurisdiction over it and
the State has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the State genuinely to
prosecute;
iii. (c) The person concerned has already been tried for conduct which is the
subject of the complaint, and a trial by the Court is not permitted under article
20, paragraph 3;
iv. (d) The case is not of sufficient gravity to justify further action by the Court.
g. International Child Abduction
i. The Goldman Matter
1. The child custody case evolved around application of Hague Convention on the Civil Aspects of
International Child Abduction. Sean Goldman was born in the year 2000 in the United States, to
an American father and Brazilian mother. In 2004, four year old Sean went to Brazil with his
mother for a 2-week vacation. However, his mother refused to return to the United States. The
father David Goldman vowed to have his son back and lawsuits and counter-lawsuits ensued
both in the United States and in Brazil. She eventually filed for and was granted divorce by a
Brazilian court. She then got remarried to a Brazilian lawyer, João Paulo Lins e Silva, in 2007, and
died while giving birth to her new husband’s child in 2008. The Brazilian husband obtained legal
custody for the child from the Brazilian courts and insisted on not returning the boy to his
biological father. Based on a decision of Brazil's Supreme Court, Sean was handed over to his
biological father on December 24, 2009. As of January, 2010, his Brazilian family was hoping to
regain custody. Sean's grandmother Silvana Bianchi has vowed to continue the battle through
the Brazilian courts.
a. Pursuant to the Hague Convention, Justification to Keep Sean in Brazil
i. Sean has spent more time in Brazil than the US
1. Is he settled there? [Article 12(2)]
2. Would removing him be debilitating? [Article 13(1)(b)]
ii. It may be possible to view the biological father’s driving the mother and son to
the airport as consent to removal [Article 13(1)(a)]
1. This is unlikely, he fought it as soon as he realized.
h. The Realities of Child Abduction
i. Unfortunately, this phenomenon has increased over the years because of: (1) bi-cultural relationships, (2)
increased divorce rates, and (3) the ease of international travel
ii. The Hague Convention on the Civil Aspects of International Child Abduction
1. A multilateral treaty developed by the Hague Conference on Private International Law.  The
Convention was drafted to “insure the prompt return of children who have been abducted from
their country of habitual residence or wrongfully retained in a contracting state not their country
of habitual residence.”  The primary intention of the Convention is to preserve whatever status
quo child custody arrangement existed immediately before an alleged wrongful removal or
retention thereby deterring a parent from crossing international boundaries in search of a more
sympathetic court. The Convention applies only to children under the age of 16.
a. Requirements to be Met by an Applicant for Return Order:
i. The child was habitually residing in the other State;
ii. The removal/retention of the child constituted a breach of custody rights; and
iii. The applicant was actually exercising those rights at the time of the wrongful
removal/retention.
b. Focus of Convention – when assessing the reasonableness of returning a child, the
convention examines the length of time the child has been in their new environment;
whether the parent consented to removal/retention; and whether returning the child
would be harmful22to their wellbeing; whether the child objects to being returned.
 2. Article 3 – The removal or the retention of a child is to be considered wrongful where
a. (a) It is in breach of rights of custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the State in which the child was habitually
resident immediately before the removal or retention; and
b. (b) At the time of removal or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the removal or retention.
3. Article 5 – For the purposes of this Convention –
a. (a) "Rights of custody" shall include rights relating to the care of the person of the child
and, in particular, the right to determine the child’s place of residence;
b. (b)"Rights of access" shall include the right to take a child for a limited period of time to
a place other than the child’s habitual residence.
4. Article 7 – Civil Aspects of International Child Abduction
a. To discover the whereabouts of a child who has been wrongfully removed or retained;
b. To prevent further harm to the child or prejudice to interested parties by taking or
causing to be taken provisional measures;
c. To secure the voluntary return of the child or to bring about an amicable resolution of
the issues;
d. To exchange, where desirable, information relating to the social background of the child;
e. To provide information of a general character as to the law of their State in connection
with the application of the Convention; …
5. Article 12 – Time
a. Where a child has been wrongfully removed or retained in terms of Article 3 and, at the
date of the commencement of the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a period of less than one year has
elapsed from the date of the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith.
b. The judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the preceding
paragraph, shall also order the return of the child, unless it is demonstrated that the
child is now settled in its new environment.
6. Article 13 – The Court is not bound to order the return of the child if …
a. (a) The person, institution or other body having the care of the person of the child was
not actually exercising the custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or retention; or
b. (b) There is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.
i. Note on Harm Concept – includes not just physical and psychological harm, but
that the child is transposed to a different culture, language, social system,
which all go into the meaning of 'harm,' since this uproots the child from
his/her existing bonds and relationships.
c. (c) The judicial or administrative authority may also refuse to order the return of the
child if it finds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.
7. In considering the circumstances referred to in this Article, the judicial and administrative
authorities shall take into account the information relating to the social background of the child
provided by the Central Authority or other competent authority of the child’s habitual residence.
i. Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008)
i. Facts: In 1992, Timothy Abbott, a British citizen, married Jacquelyn Abbott, an American citizen, in
England. Their son was born in the United States in 1995, and the family moved to Chile in 2002. In 2003,
Mr. and Mrs. Abbott separated. A 23 Chilean family court granted Mrs. Abbott custody rights and Mr. Abbott
 visitation rights. At Mrs. Abbott’s request, the court issued a ne exeat order, an order prohibiting either
parent from removing their son from Chile without their mutual consent. In August 2005, while some
family court proceedings were still pending, Mrs. Abbott removed her son from Chile without Mr. Abbott’s
consent. Thereafter, Mr. Abbott located his son in Texas. He then sought an order for his son’s return in
the United States District Court for the Western District of Texas. He argued that the Chilean Court’s ne
exeat order and Chile’s statutory ne exeat provision granted him a “right of custody” under the Hague
Convention, and as such, under the Hague Convention, as implemented in the United States by the
International Child Abduction Remedies Act, Mrs. Abbott must return their son to Chile. Conversely, Mrs.
Abbott argues that the ne exeat order merely confers a “right of access,” not a “right of custody.”
Although she admitted to violating the ne exeat order and statute, she denied that the Hague Convention
granted Mr. Abbott a right of return. After a bench trial, the district court found in favor of Mrs. Abbott.
The Fifth Circuit Court of Appeals affirmed. The Supreme Court granted certiorari on June 29, 2009.
ii. Issue: Whether a ne exeat order confers a right of custody to the non-custodial parent under the Hague
Convention on International Child Abduction.
1. “Rights of Custody” Policy Arguments – Apply of Country Law or Universal Definition
a. Universal – Rights of custody should be interpreted in light of the substance of the
rights conferred by the country of habitual residence, not by how the country
technically defined the right. Thus, since a ne exeat order includes the authority to deny
consent to a child moving abroad or place conditions on such a move, it falls within the
definition of rights of custody as defined under the Hague Convention. The US agreed
that the Hague Convention intends to include all possible ways rights of custody can
arise. Thus, the definition of rights of custody in Article 5 is more expansive than rights
in any particular contracting country.
b. Country – rights of custody should be construed according to the laws of the particular
country. Under Article 1 of the Convention, one of the objectives is to make sure the
“rights of custody and of access under the law of one Contracting State are effectively
respected in other Contracting States.” The term “rights of custody” in Article 9 is simply
a way for the Hague Convention to refer to a country’s body of rights.
2. “Rights of Custody” Policy Arguments – Ne exeat an Affirmative Right
a. A ne exeat order gives the holder decision-making power over in which country the child
lives. Thus, it constitutes a right to determine the child’s place of residence and would
be a custody right under the Convention. The US held it as an affirmative ability to
impose conditions on the relocation of a child.
b. Custody rights are affirmative rights in determining a child’s place of residence, and a ne
exeat is not an affirmative right. Chilean Minors Law does not give the father affirmative
authority to decide where the child shall live, and, thus, he does not have custody rights
under the Hague Convention.
3. Intent in Regard to Custody Rights
a. Two delegates who attended the process of drafting the Hague Convention stated that,
the drafters intentionally excluded ne exeat orders from the definition of rights of
custody. See Brief of Amici Curiae Delegates Lawrence H. Stotter and Matti Savolainen,
On The Drafting And Negotiating of The Hague Convention on The Civil Aspects of
International Child Abduction in Support of Respondent at 3. The delegates stated that
the drafters did not intend for ne exeat orders to convert rights of access into rights of
custody. See id. Furthermore, the drafters intended to give different remedies to
violations of custody rights and violations of access rights. See id. On the other hand, the
Permanent Bureau of the Hague Conference on Private International Law (“Permanent
Bureau”) noted there is a preponderance of case law among contracting states that the
combination of access rights with a ne exeat order confers a custody right under the
Convention. See 24 Brief of Permanent Bureau at 18.
VIII. THE SOURCES OF INTERNATIONAL LAW
a. Hierarchy of the Sources in Transnational Law
i. Jus Cogens – Modern form of natural law. A preemptory norm so fundamental that it can invalidate rules
drawn by treaty or custom. A new jus cogens voids and terminates previously existing treaties that
conflict with it.
1. Not conventional int’l law or customary int’l law, which is established through the interactions of
states.
ii. Treaties and Customs – treaties usually trump customs, because they are much more precise. Custom
has force from its reputation.
iii. Equity – general principles of equity are typically used as gap fillers, and thus are arguably lower in rank.
b. Treaty – International agreements are governed by the Vienna Convention on Treaty Law. Under it, States can
agree to anything they want to agree to, unless it violates a preemptory norm.
i. Article 38 of the Statute of the International Court of Justice is a touchstone for international lawyering;
it includes: general principles of law, the opinions of judges and publicists, ex aequo et bono,* natural law,
fundamental norms, jus cogens, equity, and the resolutions of international organizations like the United
Nations also form a part of international law.
1. *ex aequo et bono – Latin for “according to the right and good, or, “from equity and conscience.”
In the context of arbitration, the court will apply this concept, but only with consent of all parties
involved.
2. Types of Treaties; Nature of Agreement
a. Multilateral – establishes rights and obligations between each party and every other
party. Often open to any state.
b. Bilateral – negotiated between two parties (can be more than two states). Duties and
obligations are established in both parties.
i. Contractual (Jews and Romans, Treaty of Paris, Alaska)
ii. Statutory (Westphalia, Kellogg-Briand)
iii. Constitutional (Westphalia, Treaty of Paris)
iv. Aspirational (Westphalia, Kellogg-Briand)
3. Purpose
a. They prove that international law exists
b. Help monitor/discuss the efficacy of international law
i. Benefits to States:
1. Establishes predictability of behavior
2. Strike bargains
3. Set up common rules among or with states
4. Reasons for Complicity of States
a. Continuing attractiveness of the bargain
b. Religious or moral sanctions
c. Ceremony and formality ("I gave my word"). Ties into reputation and image.
d. Personal reputation of national leaders
e. Incorporate treaty norms into State statutes
5. Formation
a. Informal (Hull-Lothian)
b. Formal (Alaska, Kellogg-Briand)
i. Dualism – how domestic law interacts with international law; the process of
treaty making may have a municipal component
ii. The Hull-Lothian Agreement (Contractual Treaty)
1. Formation: informal agreement without internal deliberation, Congress had no say
2. Offer: US would give the UK 25 50 battleships to fend of Nazi invasion
 3. Consideration: To get them, the UK will give the US forts in different islands for naval and air
force bases.
a. Bilateral agreement here.
4. Legality under Int’l law: The Hull-Lothian Agreement was a legal agreement. States can form
treaties concerning agreements over anything that is not contrary to preemptory norms.
5. Legality under Municipal Law: Yes, the necessity may allow for the circumventing of the formal
rules. Still concerns about the circumvention of democratically elected officials.
a. While domestically it could be illegal, internationally it is still effective. (Dualism)
c. Reservations to Treaties
i. Vienna Convention, Article 19 – Formulation of Reservations
1. A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a
reservation unless:
a. (a) the reservation is prohibited by treaty
b. (b) the treaty provides that only specified reservations may be made
c. (c) in cases not falling under (a) or (b) the reservation is incompatible with the object
and purpose of the treaty
ii. The Reservations to the Genocide Convention Case, 1951 I.C.J. 15, 1951 WL 3. (Statutory Treaty)
1. While it has been accepted that no reservation of a State was valid unless it was accepted by all
the contracting parties without exception, the Genocide Convention is more flexible in the
communal acceptance of State reservations. The reason for the Convention from the United
Nations is to condemn and punish genocide "as a crime under international law" involving a
denial of the right to exist for an entire group of persons, contrary to the aims of the UN. Two
consequences from this:
a. The principles underlying the Convention are principles that are recognized by civilized
nations as binding on States, regardless of conventional obligations; and
b. The universal character both of the condemnation of genocide and cooperation
required to end it;
2. It was therefore intended to be universal in scope and apply to as many States as possible,
regardless of minor reservations.
3. Rule: A State that has made and maintained a reservation, which has been objected to by one or
more of the parties to the Convention but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object and purpose of the Convention.
4. Rule: If a party objects to a reservation it finds to be incompatible with the aims of the
Convention, it can consider the reserving State a nonparty to the Convention; likewise, a party
that accepts the reservation as compatible can consider the reserving State a party to the
Convention.
5. Dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read, Hsu Mo:
a. While it is true that the drafters of the Convention desire to include as many States as
possible to become parties, it was not their intention to achieve universality at any price
or compromise. When a common effort is made to promote a great humanitarian
object, every interested State should not seek individual advantage or convenience, but
rather carry out measures of common accord. The primary importance is the
acceptance of common obligations to attain a high objective for all humanity, rather
than acceptance by as many States as possible. Thus it is necessary to apply to the
Convention the existing rule that requires the consent of all parties to any reservation of
a multilateral convention. It would be better to lose a party which insists on objections
than to permit it against the wish of a State(s) that have unconditionally accepted all
the Convention's obligations.
6. Notes: This is an advisory opinion because the UN General Assembly wants the ICJ to give them
a ruling so they know how26 to proceed in the future.
 a. Reservations apply to multiple parties/multilateral agreements. Reservations obviously
are not a concern in bilateral treaties, if they did, there would be no treaty.
b. Fundamental question about reservations to multilateral treaties is whether states
should be allowed to "opt out" of one or more treaty provisions.
iii. Belilos case – Belilos v. Switzerland, 10 E.H.R.R. 466 (1988):
1. Facts: Belilos, a Swiss citizen, took part in a demonstration in the streets of the city of Lausanne.
Permission for the demonstration had not been sought in advance and as a result, the police
department has imposed a fine of 200 Swiss francs. At the trial, Mrs. Belilos’s ex-husband
testified that she had been in a café with him at the time of the demonstration and could not
have taken part. The police board, without Belilos’ presence, handed down it decision. The
decision disregarded her allegations, and held that although Mrs. Belilos did not have an active
role, this was not her first offense, and therefore the fine was reduced. Belilos appealed to the
Criminal Cassation Division of the Vaud Cantonal Court, on the grounds that the board’s actions
where in violation of Art. 6 of the European Convention on Human Rights, which enshrines the
right to a hearing by an independent and impartial tribunal established by law, and that the
reservations made when Switzerland acceded to the Convention did not allow an administrative
authority, where it is an agency of the executive, judge its own case.
2. Issue: Can Switzerland opt out of a section of the treaty, yet still remain a signatory?
3. Holding and Reasoning: The European Court of Human Rights finds that Switzerland's right to
opt out is invalid and that Switzerland needs to give applicant the due process clause it tried to
opt out of. “It necessarily falls to the Committee to determine whether a specific reservation is
compatible with the subject and purpose of the covenant. This is in part because…it is an
inappropriate task for states parties to in relation to human rights treaties, and in part because it
is a task that the Committee cannot avoid in the performance of its functions. …Because of its
special character of a human rights treaty, the compatibility of a reservation with the object and
purpose of the Covenant must be established objectively, by reference to legal principles, and
the Committee is particularly well placed to perform this task.”
d. Treaty Interpretation –treaty interpretation requires the Vienna Convention
i. Vienna Convention, Article 31 – General rule of interpretation
1. (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2. (2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes:
a. Any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
b. Any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to
the treaty.
3. (3) There shall be taken into account, together with the context:
a. Any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
b. Any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
c. Any relevant rules of international law applicable in the relations between the parties.
4. (4) A special meaning shall be given to a term if it is established that the parties so intended.
ii. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991).
1. Significance: The U.S. Supreme Court ruling on a treaty written in French (dualism)
2. Facts: Eastern Airline’s plane began losing altitude after engine failure and the passenger's were
informed that the plane would be ditched in the Atlantic Ocean, but the crew managed to restart
an engine and land the plane27 safely back at Miami International Airport. Respondents, a group of
 passengers on the flight, brought separate complaints against petitioner claiming damages solely
for mental distress. Eastern conceded that it was an "accident" under Article 17 of the Warsaw
Convention, but that damages can only be recovered for a physical injury. The District Court
agreed, but the Court of Appeals reversed, stating that the phrase "lesion corporelle" allowed for
emotional distress.
3. Holding: The Court held that an air carrier cannot be held liable under Article 17 when an
accident has not caused a passenger to suffer death, physical injury, or physical manifestation of
injury. Reversed.
a. The English translation of the Warsaw Convention states that "the carrier shall be liable
for damage sustained in the event of the death or wounding of a passenger or any other
bodily injury suffered by a passenger." So to be liable for passenger injury: (1) there
must be an accident in which (2) the passenger suffered death, wounding, or any other
bodily injury, and (3) the accident took place on board the aircraft or in the course of
operations. The Court found no evidence or materials that indicate that "lesion
corporelle" embraced psychic injury.
i. How the Court Reach Conclusion that Emotional Distress was Excluded
1. Many scholars and judges have seen this case and used it as evidence
that although the US is not a signatory to the Vienna Convention, the
way American courts interpret treaties is consistent with the Vienna
Convention
a. Comparative Legal Analysis – Many jurisdictions didn't
recognize such injury.
i. Teichner (Israel); Eastern (Marshal, US); Ludecke v.
Canadian Pacific Airlines (Can. Supp. Ct. used
textualism)
b. Signatories’ Intent – Drafters couldn't conceive a mental
injury without a physical injury.
c. Policy Reasons – Limit liability of air carriers in order to foster
the growth of the fledgling commercial aviation industry.
4. Three Ways to Articulate the Interpretation of Treaties
a. Broad Israel approach,
b. Intermediate US approach
c. Narrow Canadian approach
e. Treaty Termination
i. Vienna Convention, Article 60 – Termination or suspension of operation
1. (1) A material breach of a bilateral treaty entitles the other to invoke the breach as a ground for
termination
2. (2) [not focusing on]
3. (3) A material breach is:
a. A repudiation of the treaty not sanctioned by the Convention
b. A violation of a provision essential to the accomplishment of the object of the treaty
ii. The Gabcikovo-Nagymaros Project – Hungary v. Slovakia, 1997 I.C.J. 3, 1997 WL 289957.
1. Facts: This case is regarding a treaty entered into by Hungary and Czechoslovakia in 1977. The
treaty included a Gabcikovo-Nagymaros Project, to eliminate flooding, and provide electric
power. Czech came up with its own Variant “C,” because it was convinced that Hungary would
abandon the project, because the Hungarian government suspended work due to public protest
claiming necessity over environmental consequences. Czech implemented Variant C as a result of
Hungary’s suspension of work. Hungary later unilaterally denounced the treaty on May 16, 1992.
2. Hungary’s Defenses
a. Necessity – Court28carves this out because this is dealing more with a State system
 b. Impossibility – Article 61 of Vienna Conv.
i. (1) A party may invoke the impossibility of performing a treaty to terminate if
the impossibility results from the permanent disappearance or destruction of
an object indispensable for the execution of a treaty. **If the impossibility is
temporary, it may suspend the contract.
ii. (2) Impossibility cannot be used if the impossibility is created by a breach from
that party trying to use this as a defense (clean hands doctrine)
c. Change of Circumstances – Article 62 of Vienna Conv.
i. (1) A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not
foreseen by the parties, may not be invoked as a ground for termination unless:
1. (a) the existence of those circumstances constituted an essential basis
of the consent of the parties to be bound by the treaty; and
2. (b) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty; basically morphing
the deal in such a way that the parties would never have consented
ii. (2) a fundamental change may not be grounds to terminate (a) if the treaty
establishes a boundary; or (b) if the fundamental change is the result of a
breach by the party invoking it
3. Issue: Which country breached the treaty agreement first? Does Hungary pose any valid excuses
for noncompliance? When was the treaty terminated?
4. Holding: Both countries breached the treaty; necessity is not a valid excuse; and the treaty was
never terminated
5. Reasoning: The Court decided that: (1) Hungary's suspension and later abandonment were not
justified by necessity. This is because the treaty left room for modification and the
environmental concerns did not amount to necessity because Hungary could show no grave or
imminent peril. (2) Czechoslovakia's implementation of Variant C was an internationally
wrongful act, and that Variant C within the limits of the treaty in question. (3) The treaty does
not contain any provision for termination, so even if a state of necessity does exist it is not
grounds for termination. The Court pointed out that the treaty allowed for renegotiation to
incorporate newly developed environmental laws, and such a provision showed that the treaty
was not final, but rather available for adaptation to emerging norms of international law. Their
implementation requires a mutual willingness to discuss in good faith actual and potential
environmental risks. Treaties can only be terminated through mutual consent. The Court stated
that both sides breached their obligation and that the 1977 Budapest Treaty is still valid.
iii. Policy Behind Courts Decision
1. Neither party had clean hands
2. Might incentivize parties to get out of contracts, even though things are always changing
3. The need for the treaty continues to exist
4. There was an "agreement to agree" and their agreement is a huge deal--carving up the land to
divert a river
5. Rule of Pacta Sunt Servanda – good faith should carry the day.
6. Don't want to incentivize parties to adhere to these doctrines of impossibility or changed
circumstances because it undermines predictability and stability
7. Should not be easy to avoid obligations by claiming they are hard to fulfill at this time
f. Treaty Validity
i. The Eastern Greenland Case
1. Facts: In 1931, the Royal Norwegian Government declared that it had proceeded to occupy
certain Eastern territories in Greenland, which the Danish Government said were subject to the
crown of Denmark. Denmark 29 claimed that during WWI, US and Denmark entered into a treaty
 whereby US would not object to Denmark extending their interests to Greenland. In 1919, after
Denmark, approached Norway with the question of whether they would object to Denmark's
interests in Greenland, Norwegian Minister of Foreign Affairs stated that the Norwegian
Government would not make any difficulties in the settlement of that question. Then Norway
started occupying Greenland.
2. Issue: Does the informal oral articulation made by the Norwegian Minister obligate Norway to
refrain from contesting Danish sovereignty in Greenland?
3. Holding: Yes
4. Reasoning: the court examined Denmark’s reliance, and concluded that a statement of this
nature should not reasonably foster reliance. Instead, the Court examined the surrounding
circumstances to determine intent of the parties. A few days following the Ministers statement,
the Minster told Denmark that it was a pleasure for Norway to recognize Danish sovereignty in
Greenland; therefore, the promise was unconditional and definitive, the parties showed an
intent to be bound. Furthermore, the court binds Norway’s government to the promise via the
agency theory, holding that the reply given by the Minister is binding upon the country to which
the Minister belongs.
5. Conclusion: Norway is under obligation to refrain from contesting Danish sovereignty over
Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland.
a. Validity of Oral Treaty Agreements – The Vienna convention asks treaty to be in
writing, but this was before 1980.

IX. STATES AND INTERNATIONAL LAW

a. The Sovereign State – The notion of the modern state is evolving; the notion of sovereignty has changed overtime.
i. Traditional View of Sovereignty (De Vattel, The Law of Nations)
1. The State as a corporate body and a “moral person,” possessing characteristics of
“independence,” equality, and a “sovereignty” that encompasses the authority to act externally.
ii. Determining Statehood of Entities
1. Declaratory Theory – Where a State has control of a particular territory they should have
sovereignty; does not need recognition by other states.
a. Cyprus case, the territories were not recognized as sovereign states, just the whole
Republic of Cyprus.
b. The manner of formation might be a consideration.
c. We want to see de facto exercises of power, not just overtaking.
2. Constitutive theory – Requires the relative acceptance by other sovereign states. If we demand a
constitutive posture, then we might have an omission of geopolitical importance.
iii. The Tinoco Arbitration
1. Facts: 1917 - Government of Costa Rica [President Alfredo Gonzales] overthrown by Federico
Tinoco. Tinoco assumed power & established new constitution. During his tenure, he: Granted
certain concession to search for oil to a British company Passed legislation issuing certain new
currencies, and British banks [in the course of business] became holders of much of this currency.
1919 - Tinoco retired, left the country – Government collapsed. Old constitution restored and
elections were held. August 22, 1922, government was restored and Acts passed nullifying the
currency laws it had made. The acts invalidated all transactions involved in the previous
agreement. The restored government is a signatory of the treaty of arbitration. Great Britain
brought claims on behalf of two British Corporations: Royal Bank of Canada Central Costa Rica
Petroleum Company. Royal Bank of Canada claimed that Banco Internacional of Costa Rica and
the Government of Costa Rica were indebted to it, proven by the holding of 998 1000 colones
bills. Central Costa Rica Petroleum Company [CCRPC] claimed that it owns the rights to explore
and exploit petroleum reserves in Costa Rica, based on the grant issued by Tinoco. Great
Britain’s argued that the 30
new legislation passed is invalid. The restored government should
 recognize the concessions given to CCRPC and the validity of Tinoco’s currency held by the Royal
Bank of Canada. During the period in question, the Tinoco Government had been a de facto and
de jure government. This lack of sovereignty was supported by the fact that the government was
not opposed in any significant manner. Thus, giving the government legitimacy would mean that
all of the acts assed were valid and its successor has no right to repudiate [annul] them. Costa
Rica Objected. It claimed that any acts carried out by the government were void because the
Tinoco regime violated the Costa Rican constitution. Because Great Britain did not recognize the
Tinoco Government as legitimate, it cannot then turn around and claim agreements with an
illegitimate government as binding.
2. Issue: whether the contracts entered into with the Tinoco regime remained valid in light of the
1922 Law of Nullities.
3. Held: While the failure on the part of Great Britain to recognize Tinoco government was evidence
to be taken into account in deciding on the status of that government, it was not decisive. The
status of the government had to be determined in the light of all evidence. In fact, the Tinoco
government had been a de facto government during the period of its existence. The court then
holds that “the Tinoco government was an actual sovereign government.” The court finds in
favor of the Royal Bank of Canada, but finds the petroleum concession to be a violation of the
1917 Constitution (which means Tinoco could have nullified the agreement as well).
a. Courts argument which is significance to the aspect of International law: Scholarly
writing: Dr. John Basset Moore: “Changes in the government or the international policy
of a state do not as a rule affect its position in international law.” States may change
between forms of government without ceasing to be that state in the eyes of
international law, or in terms of its international obligations. “The principle of the
continuity of states” = “state is bound by engagements entered into by governments
that have ceased to exist; the restored government is generally liable for the acts of the
usurped
i. De facto Sovereignty – a government wherein all the attributes of sovereignty
have, by usurpation, transferred from those who have legally been vested with
them, to others. No legal, but actual.
ii. De jure Sovereignty – the theoretical, legal right to exercise exclusive control
over ones subjects.
4. Tinoco notes:
a. This case is similar to Barcelona Traction, in that, British citizens have shares in RBC.
We shareholders that are angry because they will lose money over a turnover, so the
British government steps in on their behalf.
b. Of course as governments change over, if we allow that change over in government to
nullify everything before it, we would never have a continuous notion of statehood.
iv. The Montevideo Convention, Dec. 26, 1933, 49 Stat. 3097.
1. Convention on Rights and Duties of States - This is a declaratory approach to state sovereignty,
as Article III does not require recognition by other states. There is a politics to state recognition.
We recognize other states with some level of equality.
a. Article I: The state as a person of international law should possess:
i. (a) A permanent population;
ii. (b) A defined territory;
iii. (c) Government; and
iv. (d) Capacity to enter into relations with other states.
b. Article III: States can work towards their wellbeing even before being officially
recognized by other States as independent.
c. Article IV: States are juridically equal, have the same rights, and have equal capacity.
31
 d. Article VI: Recognition means that the recognizing state accepts the recognized state's
rights and duties. It is unconditional and irrevocable.
e. Article VII: Recognition can be express or tacit.

v. Lassa Oppenheim (Pg. 428, note 5)

1. Through recognition only and exclusively, a State becomes an International Person and a subject
of international law. This notion of “civilized” is the basis upon which we should constitutively
recognize other states.
a. This is controversial for a few reasons:
i. At what point does, e.g., Britain, recognize its territorial holdings as "sufficiently
civilized"?
ii. Also, there will be disparities amongst different recognizing State's meanings of
"civilized"
vi. Difference Between Notion Of State And Notion Of Government
1. State is more concrete; deeply rooted; less temporal
2. Government can change within the notion of a state
a. i.e., America does not cease to exist as a sovereign state because we change presidents
ever 4 or 8 years.
vii. Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc.
917 F.2d 278 (7th Cir. 1990), cert. denied, 502 U.S. 941 (1991).
1. Facts: Cyprus was divided by the Green Line between the Turks in the north and the Greeks in
the south. The north Turkish controlled forces were renamed the "Turkish Federated State of
Cyprus" (TRFS) and later the "Turkish Republic of Northern Cyprus" (TRNC), which were
recognized only by Turkey; the rest of the world only recognized Cyprus. In 1976 when invading
forces forced Greeks in the north to flee, the Kanakaria Church was abandoned, with the intent
that the congregation would be re-established when it was safe to do so. The mosaic was still
intact. Churches across the area were looted and destroyed, and the Kanakaria shared that fate.
After the looting of that church, Cyprus took immediate steps to recover them. An unrelated art
dealer, Peg Goldberg, later bought the church mosaic for about $1.1 million. As she was trying to
sell it, a museum employee with ties to Cyprus who was familiar with their lost art, discovered
the mosaics and contacted Cyprus, who requested their return.
2. Goldberg argued that several decrees of the TFSC took title away from the Church for the
mosaics, and asked the court to honor such decrees. One such decree was for abandoned
movable property and stated that all movable property within its borders abandoned by the
owner because of the fighting would come into possession of the TFSC. The other decree stated
that all churches north of the Green Line belonged to the TFSC. Goldberg's claim, if proven, can
at best show that the Church does not have title, but it cannot show that she does have a valid
title. Goldberg is claiming the TFSC and the TRNC should be viewed as the de facto government
north of the Green Line. But, neither the US government, nor any non-Turkish nations, have ever
recognized its legitimacy, so would not do so now. There are two kinds of de facto
governments: (1) one that exists after it has expelled the regular authorities and established its
own operations as the sovereignty of the nation and (2) another that exists where a portion of
the population have separated themselves from the whole State and formed an independent
government. If the new government can be recognized and it is successful, then it can be upheld
as an independent nation, but that is not the case here. The Turks did not completely supplant
the Republic or their officers. The TFSC and the TRNC only acceded to the control of the northern
portion of Cyprus. Affirmed.
32
 3. Cudahy, Circuit Judge, concurring: The 1954 Hague Convention prohibits the destruction or
seizure of cultural property during armed conflict, whether international or civil in nature, and
during periods of belligerent occupation. The attempt of the government north of the Green
Line to divest title from the Church can be considered interference.
a. The judicial branch should attempt to reflect in its decision making the spirit of an
international agreement where the US is a party.

4. Cyprus Notes
a. Replevin – remedy for goods or items that were wrongfully taken
b. Goldberg did not exercise due diligence in this somewhat shady dealing with the
mosaics.
i. Can argue that she was willfully blind concerning their origins.
ii. We are dealing with a domestic, municipal court looking at this international
law. We know that in the US court the law of the unrecognized state is not
accepted as a given. Just because this entity is occupying the North of Cyprus,
does not mean the US will recognize it.
5. Things to Consider
a. Why do we (the US) in this case see such reluctance to recognize this particular state
that took power by force when in Tinoco we did recognize that state? How are the
values and principals different?
i. Internal struggle (Tinoco) vs. External Takeover (Goldberg)
ii. Constitutionalism – The Tinoco government was upholding a constitution that
the former leader was not.
iii. Two kinds of de facto governments:
1. In Tinoco, the government is more legitimate
2. In Goldberg, the government is not even accepted by all its people
3. Norms-Ethnicity/Religion vs. Political
iv. Does it matter that we are dealing with religious artifacts?
v. Concerns about equity
vi. Justiciability
1. While dualism is hit on in Tinoco, we have justiciability here.

X. INTERNATIONAL ORGANIZATIONS, PEOPLES & NONGOVERNMENTAL ORGANIZATIONS

a. International Organization
i. Defined - “international organization” means an organization that is created by an international
agreement and has a membership consisting entirely or principally of states. REST -3 rd- Foreign Law
1. International organizations are treaty-based;
2. Second, the membership of an international organization is exclusively states or other state-
created international organizations;
3. Third, the definition does not apply, ad hoc conferences;
4. Fourth, the definition does not specify that international organizations must be political or
administrative, or that they must be “global” in geographic, in subject matter or in membership
scope
ii. Early IO’s were often designed to develop and administer common standards for specialized and largely
technical matters.
iii. Global IO’s – League of Nations - were slower to develop than specialized IO’s
1. Designed to address broader issues such as social welfare and the use of force
iv. League of Nations
1. Versailles Treaty established the League of Nations
33
 2. Based in Geneva – US and Soviet Union did not sign on. The US Senate refused to consent to the
ratification of the treaty.
3. League made real contributions to int’l law, world health, protection of minorities, and
settlement of int’l disputes from 1920 – 1930
4. The turning point was in 1931 when the Japanese invaded Manchuria and the League was
powerless to stop them.
5. By 1939 – the invasion of Poland by Germany – Poland, France, and Great Britain did not involve
the League in the new world war
6. UN came into existence in June 1945 via the UN charter
v. United Nations – following demise of the League of Nations
1. Consists of – Security Council; ICJ; General Assembly; Economic and Social Council; Secretariat;
Trusteeship Council (now dormant)
a. General Assembly – relate to Texacol/Libya Case
b. Secretary-General’s role – Rainbow Warrior
2. Charter is changed through amendments/practice
a. Articles 108/109 – makes it possible to amend UN Charter
b. Personality
i. The ability of an organization to represent it’s interest, in a State like manner, on the international level
ii. If an organization is recognized as having “personality”, it is an entity capable of availing itself of
obligations incumbent upon its Members – Reparation Case
iii. The Reparation Case
1. Facts: GA recommended Palestine be divided into two states. Two UN observers were there, and
killed by what is assumed to be Israeli fighters.
2. Issue: Whether the UN has the authority to bring an int’l claim against the responsible de jure or
de facto government with a view of obtaining the reparation due in respect of the damage
caused to the UN and its employees
3. Holding: Any implied powers for an international organization should be strictly limited to those
that are necessary to the exercise of powers expressly granted.
a. If the UN doesn’t have an international personality, it would be rendered impotent
b. Court found that UN had international personality but only after this recognition did the
Court find that the UN could bring an int’l claim against a responsible government to
obtain reparations on behalf of a UN employee/his survivors.
4. RELATE TO:
a. Themes: Living Tree Approach (Charter is a growing document); UN; Int’l Personality;
Objective View of Int’l Law
c. Self-determination and Peoples
i. Self-Determination concerns the rights of groups rather than individuals
ii. Key Inquiries:
1. dealing with rights of some groups;
2. to some degree of autonomy;
3. if not complete independence, from some types of external interference;
4. it may deal as well with peoples’ rights to have some say in matters of their internal governance
iii. Aaland Islands Question
1. Issue #1: League of nation was asked to decide whether the inhabitants of the Aaland Islands
should “be authorized to determine…by plebiscite (a referendum/vote) whether the archipelago
should remain under Finish sovereignty or be incorporated in Sweden”
a. The disposal of national territory is primarily a matter to be determined by the sovereign
state; however there are exceptions:
i. League reserved on the question of whether international law would become
relevant34
where a people were abused by a sovereign
 ii. If the state with de facto sovereignty is not definitively constituted
b. Court listed two situations where the principle recognizing the rights of peoples to
determine their political fate
i. Formation of an independent State; and
ii. The choice between two existing states
iii. However, the Court determined that that principle must be brought into line
with that of the protection of minorities which is already provided for in
constitutions and treaties.
c. Court determined that Finland was not a de facto sovereignty and held that “we cannot
expect the islanders to go to an unstable entity to ask for independence”
2. Issue #2: Whether from the standpoint of territorial sovereignty, the Aaland Islands is of a
definite and normal character, or whether it is a transitory/not fully developed?
a. Given their territorial boundaries, historic and cultural background
(race/language/traditions to the Swedish race) the Islands must be recognized.
b. Court refused to leave the question to Finland because they were in a state of chaos and
political transformation.
c. Held that Finland, after transforming itself outside the domain of positive law (the
political transformation) cannot take advantage of positive law to force upon a national
group a political status which the latter refuses to accept.
3. Result: the Islanders become part of Finland but are guaranteed of demilitarization and
autonomy of the Islanders
a. They were granted special status as unique peoples within Finland
b. They did not get full independence; however, their self-determination was expressed
through these negotiations
4. NOTE: There was no mention of self-determination in the Covenant of the League of Nations.
The UN on the other hand explicitly refers to Self-Determination. Article 1(2) of the charter
5. RELATE TO:
a. THEMES: League of Nations, Self-determination; Sovereignty
iv. Reference Re Secession of Quebec
1. Issue: Does int’l law give the National Assembly, legislature or government of Quebec the right
to effect the secession of Quebec from Canada unilaterally?
a. Int’l law does not specifically grant component parts of sovereign stats the legal right to
succeed unilaterally.
i. Does this absence of specific prohibitions granting unilateral succession
implicitly grant permission?
1. No – unilateral secession would be incompatible with the domestic
Constitution, therefore int’l will not allow it absent oppression or not
allowing a peoples access to gov’t.
b. Holding: Int’l Law right to self-determination only generates, at best, a right to external
self-determination ie. in situations of former colonies; where a people is oppressed; or
where a definable group is denied meaningful access to gov’t to pursue their
political/economic/social/cultural development
1. External Self-D = a people’s pursuit of its political, economic, social
and cultural development within the framework of an existing state
2. Internal Self-D = the establishment of a sovereign and independent
state – either integration with an independent state or emergence
into any other political status – freely determined by a people
ii. In those 3 situations, entitlement to Self-D comes from them being denied
ability to exert internally their right to self-D
35
 iii. Here, even if characterized as a “peoples” none of those factors exist and
therefore, under int’l law, Quebec does not possess a right to secede
unilaterally from Canada – Quebec did not meet any of those thresholds
c. Principle of Effectivity – We declare it to be so, so it is. If we govern ourselves
effectively, then we should be recognized
i. Argument was advanced by the amicus curaie – stating that int’l law may not
ground a positive right to unilateral secession for Quebec, but int’l law equally
does not prohibit secession and, in fact, int’l recognition would be conferred on
such a political reality if emerged, via effective control of the territory .
ii. Court says Principle of Effectivity is not applicable to issue 2- whether a right to
unilateral secession exists
2. RELATE TO:
a. Self-Determination; United Nations; Sovereignty; Principle of Effectivity
d. Non-Governmental Organizations
i. Definition
1. NGO’s are created under municipal law rather than by interstate agreement.
2. NGO’s play a role on int’l level by virtue of their activities, but they do not necessarily possess any
official status, nor do they have a mandate for their existence or activities
3. By and large dependant on private contributions and donations
4. Lack international personality but there are hybrid NGO’s ex. Red Cross
a. Red Cross has a mandate, mission, privileges and immunities which most NGO’s do not
have
ii. Geneva Convention – Relating to the Protection of Victims of Int’l Armed Conflicts
1. Protocol 1 of Geneva Convention
a. Gave the International Committee of the Red Cross a mandate to protect the victims of
international and internal armed conflicts

XI. INTERNATIONAL LAW AND MUNICIPAL LAW

a. Self-Execution of Treaties
i. US Constitution, Article VI, § 2 – Supremacy Clause declares treaties to be the law of the land.
1. For a treaty to supersede local laws, it must be self-executing. Otherwise, a legislative act must
be enacted by the legislature into municipal law.
a. Generally, a treaty is self-executing if it appears that the treaty intended to provide a
rule that, standing alone, would be enforceable by the courts.
ii. Foster & Elam v. Neilson
1. Significance: Established the concept of self-executing treaty
a. Facts: The suit is about possession of land in Louisiana. P claimed that the land was
granted by the Spanish Governor. D asserts that there is no title on which P can recover
b/c the territory on which the land is on had been ceded to France, then from France to
the U.S. before the land was granted by the Spanish Governor, and so there was no
authority by the Spanish governor to grant the land. U.S. insisted that by Treaty of St.
Ildefonso, on October 1800, Spain ceded the disputed territory to France, and then
France, by the Treaty of Paris, on April 1803, ceded it to the US. Spain insists that the
cession to France did not include that specific territory.
b. Issue: The array of sources to be used by the US court when deciding who the land
belonged to
c. Holding: It's ok to look at treaties; like legislation.
d. Reasoning: Justice Marshall here establishes that the constitution declares a treaty to
be the law of the land; therefore, it would be equivalent to legislation without the aid of
a legislative provision.
36 The treaty between France and Spain looked at was unclear.
 2. Rule [Self-Executing Treaties] – a treaty operates of itself without the aid of any legislation, state
or national; and it will be applied and given authoritative effect by the courts.
a. Dualist system of law
i. On one hand, the international realm of law - where US has made an
agreement with Spain. Here, may be brought in international court if treaty
provisions say this, and state consented
ii. On the other hand, in the domestic realm - domestically, the treaty doesn’t
become law until it is ratified and implemented domestically.
iii. Asakura v. City of Seattle
1. Significance: displays when a treaty will trump state law; further defines Self-Execution
a. Facts: Asakura, a Japanese citizen, was working as a pawnbroker in Seattle. The city then
passed an ordinance that any person working as a pawnbroker needed to have a license,
and to obtain a license you needed to be a citizen of the U.S. If you worked w/o a
license, you could be punished by a fine or imprisonment. Asakura brought this suit to
retrain the city from enforcing the ordinance against him, b/c he had a lot of money
invested in the business. He argued that it violated a treaty between US and Japan, the
constitution of Washington State, and the due process & equal protection clauses of the
US constitution. Superior Court granted him relief, but on appeal, the Supreme Court of
Washington reversed, and held the ordinance valid. The treaty between the US and
Japan basically said Japanese citizens (& vice versa) could run businesses in the US, or
anything else necessary for trade upon the same terms as native citizens or subjects,
and that they shall receive protection.
b. Issue: Does the ordinance violate the treaty between Japan and the US?
c. Holding: Yes. Reversed
d. Reasoning: US Constitution, the supremacy clause, says that a treaty made under
authority of the US is the supreme law of the land. As long as US doesn’t violate the
constitution, it has the power to make treaties, and for US to be bound. Therefore the
treaty is binding on the state of Washington. The problem here is that Asakura will be
denied equal opportunity to engage in business, which is in violation of the treaty. The
ordinance says that pawnbrokers are regarded as carrying on as a "business." Therefore,
it is in violation of the treaty. Court says this outcome relates only to Japanese subjects,
b/c of the treaty, and not to other aliens. The ordinance was meant to regulate the
business and protect the public against fraudulent and dishonest practices, so it should
be in effect still against other aliens.
2. Rule: Treaty trumps state law because of US constitution Article VI, §2 (Supremacy Clause).
a. Why is this treaty self-executing, while previous one wasn’t?
i. Test: the treaty has effect without Congress needing to pass legislation,
because it only asks that we refrain from discriminating. It doesn’t require for
congress to take any additional steps to affirm it. Therefore, treaty executes
itself. The other treaty explicitly states that it needs to be ratified.
iv. Sei Fuji v. California
1. Significance: displays when a treaty will trump state law; further defines Self-Execution
a. Facts: Sei Fujii is a Japanese alien, and ineligible for US citizenship. He had purchased
land which was escheated to the state (reversion to the state) b/c there is no treaty
between Japan and the US that allows Fujii to own land. P contends that the CA alien
land is trumped by the UN Charter (treaty), and so is invalidated.
b. Issue: When can a treaty supersede local laws which are inconsistent with it?
c. Holding: UN Charter does not supersede CA alien land law (although it was still found
invalid b/c it violated the 14th amendment)
37
 d. Reasoning: A treaty does not automatically supersede local laws which are inconsistent
with it unless the treaty provisions are self-executing. A self-executing treaty operates
w/o the aid of implementing legislation; to have the force and effect of a statute it must
appear that the framers of the treaty intended to prescribe a rule that, standing alone,
would be enforceable in the courts. In determining whether a treaty is self-executing,
courts look at: (1) The intent of the signatory parties as manifested by the language of
the instrument, and (2) if the instrument is uncertain, recourse may be had to the
circumstances surrounding its execution. Court decides the UN Charter is not self-
executing, and therefore doesn’t trump CA alien land law. However, the CA alien land
law was found invalid b/c it violated the 14 amendment.
2. Rule: A treaty does not automatically supersede local laws which are inconsistent with it unless
the treaty provisions are self-executing.
a. Justice Marshall: A treaty is "to be regarded in courts of justice as equivalent to an act
of the Legislature, whenever it operates of itself, without the aid of any legislative
provision. But when the terms of the stipulation import a contract - when either of the
parties engages to perform a particular act, the treaty addresses itself to the political,
not the judicial department; and the Legislature must execute the contract, before it can
become a rule for the court."
i. UN Charter is aspirational, forward-looking in nature, so not self-executing.
Court gives examples of language from self-executing treaties: "national shall
be allowed a term of 3 years in which to sell the property - very definite on
what they want to happen. Some parts of UN charter are very specific, and
have a mandatory aspect to them, so are self-executing; Language of
enforcement: mandatory
v. Missouri v. Holland
1. Significance: speaks to the possibility of a treaty being in violation of the US Constitution
a. Facts: This case is regarding the ability to enforce a treaty - the Migratory Bird Treaty Act
of July 3, 1918 - which protects certain species of endangered birds. The State of
Missouri brought the suit to prevent its enforcement b/c it would be in violation of the
10th Amendment which says, "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states respectively,
or to the people."
b. Issue: Whether the treaty violates the U.S. constitution.
c. Holding: No. Treaty upheld.
d. Reasoning: Court says the treaty does not violate anything in the Constitution, but
maybe it is forbidden by the 10th amendment. State of Missouri claims that it is in the
power of individual states to regulate the killing and sale of such birds, b/c they were in
the state's possession. But a bird is only temporarily in any one state, not permanently
there, so where not in possession of anyone as the State claimed. Court says isn't
enough to just look at the 10th amendment, b/c the supremacy clause (Article VI) gives
power to treaties to supersede state laws. There is a national interest here in the
protection of these birds, and it is not sufficient to rely on the states, so the treaty is
binding.
2. Rule: A treaty cannot violate the US constitution.
a. Which branch of federal gov't has the power? Executive branch - and they have
authority under the Constitution. They have the authority to execute treaties under Art
2, § 2. Since treaty is supreme, congress can implement the treaty
i. Issues: if fed wants to trump state law, all they have to do is create a treaty
with another nation regarding that issue. But this is not that easy…. Doesn’t
say that38
executive party has unlimited power to enter into treaties, it says that
 when it does have power to enact treaties, then I trumps state law. Court says
treaty cannot be valid if it infringes the constitution ○ In terms of supremacy,
the constitution is higher if inconsistent with the treaty. There are limits to the
treaty-making process. Constitution doesn’t say that it constitution trumps
treaties!!! So according to rule of last in time, then the treaty would trump.
You can imply that constitution is highest law in the land ○ Intent of the
framers of the constitution that it be the highest law in the land, b/c it's so hard
to change it. They wouldn't have intended that a treaty could change it so
easily.

vi. Whitney v. Robertson

1. Significance: established the Last In Time Rule
a. Facts: Merchants were importing sugar from San Domingo, and when they arrived at
the custom house in NY, they claimed b/c of the treaty between US & San Domingo, that
the goods should be admitted duty free. The collector at the port refused, and the
merchants were made to pay $21,936 in duties. Merchants then brought this claim to
get back the duties paid. Merchants (P) argued that the treaty between the US and San
Domingo promised to provide most favored nation treatment to imports from San
Domingo. The most favored nation treatment was from a treaty between US and the
Hawaiian Islands, where certain goods, including sugar, were exempt from duty
collection. Collector of the port (D) argued that he treated the goods as dutiable articles
under the acts of Congress.
b. Issue: Whether a treaty supersedes conflicting acts of Congress.
c. Holding: Not necessarily, both are binding. Affirmed for D.
d. Reasoning: Both self-executing treaties and acts of Congress are considered supreme
laws of the land, and both should have effect. Justice Fields says that when they conflict
with each other, "the one last in date will control the other." Since the acts of Congress
were dated last, they control. He also says that if the country with which the treaty is
made is dissatisfied with the action of the US legislative dept, then they may present a
complaint to the executive had of the govt.
2. Rule: In the case of a conflict between a federal statute and a treaty, the one last in date will
control.
3. Notes: Here the act of congress has trumped an earlier treaty.
a. Dualism again – Domestically, we care about checks and balances, that treaty no longer
has any effect; but, in the international realm, this is a problem, b/c we are not honoring
the treaty with Dominican Republic. Domestic vs. international obligations
i. Breaching treaty - can be taken to International Court of Justice, etc.
vii. United States v. Belmont
1. Significance: Court expanded the definition of treaties regarding the Supremacy Clause to
include executive agreements which have not been submitted to the legislature pursuant to
Article II, §2 of the US Constitution.
a. Facts: A Russian corporation had deposited money with a private banker in NY, Belmont.
The money later became property of the Soviet Gov't, b/c of a decree that nationalized
all of the corporation assets, and the Soviet gov't wanted the money. Respondents
(Belmont's executors) refused to pay, b/c the bank deposit was located in NY, and the
decree couldn’t be enforced there, so to them it was still the property of the
corporation, otherwise it would be an act of confiscation. However, there was an
exchange of diplomatic correspondence between the US and the Soviet Union, whose
purpose was to bring about a final settlement of claims between the 2 countries.
However, the Soviet
39 Union would take no steps to enforce any claims against US
 nationals; instead, the US would handle this. So, if the court would allow the US to
handle this, it would be in contrary to NY public policy.
b. Issue: Whether the US can handle this dispute, where the result would be contrary to
NY public policy.
c. Holding: Yes. Reversed, judgment for US.
d. Reasoning: No state policy can prevail against a federal treaty, or the international
compact here. Governmental powers over external affairs are exclusive to the national
gov't. Especially when the treaty required the consent of the senate, where a judicial
authority is invoked, state policies are irrelevant to the inquiry and decision.
2. Rule: The meaning of "treaties" within the supremacy clause includes executive agreements
b. Summary
i. Art. VI, § 2 of the US Constitution provides that any treaty entered into by the US become law of the land.
1. A treaty is only capable of superseding State law when:
a. Enacted by the legislature into municipal law and is consistent with the local laws; or
b. The treaty is self-executing:
i. Generally, a treaty is self-executing if it appears that the treaty intended to
provide a rule that, standing alone, would be enforceable by the courts.
2. Conflicts between Federal law and Treaties
a. Last in Time Rule – when a federal statute and a treaty are in conflict, whichever had
been enacted most recently prevails.
3. Scope of “Treaty” under Supremacy Clause
a. The court had expanded the definition of treaty under Supremacy Clause to include
executive agreements which have not been subject to review of the legislature.

XII. THE INFLUENCE OF TRANSNATIONAL LAW ON NATIONAL LAW

a. Legal Framework and Contextual Factors
i. Partus sequitur ventrem
1. Children born of black women inherited status of their mothers
ii. Abolition of the Atlantic slave trade
iii. American Expansionism
1. Dew, “induced the master to attend to the negros to encourage breeding, and to cause the
greatest number possible to be raised.”
2. “The noblest blood of Virginia runs in the veins of slaves.”
iv. “Rape committed upon a female slave is an offense not recognized by law.”
b. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857)
i. Facts: Dred Scott was held as a slave in Missouri by Dr. John Emerson, an Army doctor. In 1834, Scott
moved with his master to Rock Island in the free state of Illinois and then in 1836 to Fort Snelling in U.S.
territory in part of the 1803 Louisiana Purchase from France, in what later became Minnesota. Here,
slavery had been abolished by the 1820 Missouri Compromise. Also, in 1836 Scott married Harriet, a slave
brought to Fort Snelling by Major Taliaferro, who had sold her to Dr. Emerson. Returning with Harriet and
Dr. Emerson to Missouri in 1838, Scott sued in Missouri state court in 1846 for his freedom and that of his
family (Harriet and their two children, Eliza and Lizzie), succeeding at the trial court in 1850, but losing an
appeal before the Missouri Supreme Court in 1854. In 1853 Dr. Emerson's widow, as part of the
settlement of her husband's estate, sold Dred Scott and his family to her brother, John A. Sanford, a
citizen of New York. Scott then brought suit in 1854 in the U.S. Circuit Court in Missouri “to assert the title
of himself and his family to freedom.” Sanford asserted that the courts had no jurisdiction in the diversity
of the case, because although he, Sanford, was a citizen of New York, Scott was not, as alleged, a citizen of
Missouri, since he was “a negro of African descent: his ancestors were of pure African blood, and who
were brought into this country and sold as negro slaves.”
40
 ii. Issues: (1) Whether slaves are citizens in the sense that they can bring suit for their freedom; (2) whether
the Missouri Compromise, permitting Congress to prohibit slavery in the territories is constitutional.
iii. Holding: (1) No, slaves are not citizens of the US, therefore they cannot bring suit in federal court. Slaves
are personal property and thus cannot be free. (2) The provision of the Missouri Compromise that
permitted Congress to prohibit slavery in the territories is not constitutional.
iv. Reasoning: Justice Taney compared Blacks to Native Americans. He considered "Indians" to be free and
independent, associated in nations or tribes, and governed by their own laws. Therefore, despite the fact
that they are uncivilized, their ability to self-govern renders them as peoples in a political sense.
Therefore we negotiate treaties. Peoples have the right to self determination and self governance. Thus
they were considered "peoples."

1. Taney uses 3 sources as to why blacks could never be citizens:

a. Miscegenation (interracial marriage and sexual relations)
b. The authors of the Constitution never intended to consider blacks as citizens
c. Looks to CT and NH:
i. CT is a liberal state, one would expect liberal and favorable treatment of blacks;
he wants to look to them to see how they treat blacks and if they consider
them a people or not. He argues that even CT held against them. He looks to
the militia in NH. He recognizes that only free white citizens were free to be
part of the militia. So they can't get rights if they don't have responsibilities
since blacks don't have to fight in the military because they don't rise to the
level of being people.
2. The Missouri Compromise – Taney argued that it interfered with one's property rights.
c. Coker v. Georgia, 433 U.S. 584
i. Significance: The ways in which the Justices differ is based on a comparative law assessment, because we
do not have a unified criminal law system; it differs between jurisdictions and states exercising their own
system, thereby necessitating a comparative law assessment once you move state to state. Take the
same logic of the opinion and put it into international sphere.
1. Facts: The defendant escaped from prison and entered the house of the victims (husband and
wife) and robbed the husband and raped the wife. He was comprehended and under Georgia
law, a jury sentenced the defendant to death under the charge of rape.
2. Procedure: The jury was presented with a Georgia statute for rape in which the jury could
consider whether (1) rape was committed by a person with a prior record of conviction for a
capital felony; (2) that the rape was committed while the offender was engaged in the
commission of another capital felony; or (3) the rape was outrageously or wantonly vile horrible
or inhumane. The jury found that the defendant had about 2 previous rape convictions and
murder conviction and he was an escaped convict. Also, he committed the rape while in the
process of committing robbery. So the death penalty was rendered to the defendant. The
defendant appeals and argues that this sentence was “cruel and unusual” under the Eighth
Amendment of the Constitution.
3. Issue: Whether the crime of rape committed by a criminal with past serious criminal record can
be punished by a death sentence?
4. Holding: No
5. Rationale: The court ruled the death sentence was too excessive for the crime of rape. The court
considered the statistics of how states were stepping away from death sentences in rape cases
and used these statistics to back up its ruling. The Court reasoned that death sentence in itself is
not cruel and unusual, but this sentence in a rape case is too disproportionately excessive.
ii. A punishment is excessive and unconstitutional if: (1) it makes no measurable contribution to acceptable
goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and
suffering; or (2) is grossly out of proportion
41 to the severity of the crime.” In the current case, an adult
 woman was raped and even though it was a serious crime, but still it was not as serious as a murder. So
the death sentence was simply too harsh. Sentence reversed.
d. Lawrence v. Texas, 539 U.S. 558
i. Facts: John Geddes Lawrence and Tyron Garner were alleged to have been engaging in consensual anal
sex in Lawrence's apartment when Harris County sheriff's deputy Joseph Quinn entered the unlocked
apartment, with his weapon drawn, arresting the two. Lawrence and Garner were arrested and charged
with violating Texas's anti-sodomy statute, the Texas "Homosexual Conduct" law. The law designated it as
a Class C misdemeanor when someone "engages in deviant sexual intercourse with another individual of
the same sex," prohibiting anal and oral sex between members of the same sex. Lawrence and Garner
were convicted, but exercised their right to a new trial before a Texas Criminal Court, where they asked
the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds,
claiming that the law was unconstitutional since it prohibits sodomy between same-sex couples, but not
heterosexual couples, and also on right to privacy grounds. After the Criminal Court rejected this request,
they filed an appeal. Their arguments were presented to a three-judge panel of the Texas Fourteenth
Court of Appeals on both equal protection and right to privacy grounds. The court ruled in the appellants'
favor, finding that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which
bars discrimination because of sex, race, color, creed, or national origin. The full court, however, voted to
reconsider its decision, upholding the law's constitutionality 7-2 and denying both the substantive due
process and the equal protection arguments.
ii. Issues: (1) Whether the Texas anti-sodomy law unconstitutional under 14 th Amendment equal protection
clause; (2) Whether the law is unconstitutional in regards to its invasion on the right to privacy.
iii. Holding: The Texas law did in fact violate due process guarantees provided by the 14 th Amendment. The
right to privacy provides for adults to engage in private, consensual homosexual activity. This right to
privacy was determined to be encompassed in the word “liberty” within the 14 th Amendment.
iv. Reasoning: The court employs aspects of comparative law including: spatial (place - nation, State, etc.);
temporal (historical)--Justices Renquist and Scalia criticize as cherry picking; and numerical. The court
draws guidance from:
1. Wolfenden Report
a. Report on the committee of homosexual activities and prostitution
b. So the Court looks to the UK here, from where our common law came from
2. Dudgeon v. UK
a. An adult male resident desired to engage in homosexual sex and was repeatedly subject
to police brutality, so brought this case and won
b. Sets the trend for the EU
3. Bowers v. Hardwick (Georgia Case)
a. Notions of wider "civilization," and lack of international following for Bowers
b. Acceptance as "integral part of human freedom in many countries."
c. Also Georgia law did not target homosexuals
4. Scalia's slippery slope argument: If we keep looking elsewhere we are going to lose our moral
footing.
e. Medellin v. Texas, 128 S.Ct. 1346 (2008)
i. Facts: June 24, 1993, José Medellín (an 18-year-old Mexican citizen) and other gang members participated
in the Murder of two girls in Houston. Both girls were killed to prevent them from identifying their
assailants. Medellín strangled one of the girls to death with her own shoelaces. Hours after Medellin's
arrest he admitted to his part in the crime and boasted of having "virgin blood" on his underpants.
Medellin was convicted of the gang rape and murder in Texas and sentenced to death. Medellin appealed
to the Texas Court of Criminal Appeals claiming a violation of his Vienna Convention rights. Article 36 of
the Vienna Convention requires that foreign nationals who are arrested or detained be given notice
"without delay" of their right to have their embassy or consulate notified of that arrest. The Optional
Protocol provides that disputes arising
42 out of the interpretation or application of the Vienna Convention
 "shall lie within the compulsory jurisdiction of the International Court of Justice." The Texas court upheld
his conviction. In 2003, Medellín filed a petition for habeas corpus in United States district court which
denied relief, holding that Medellín's Vienna Convention claim should have been raised at trial (not on
appeal) and he had failed to show prejudice against his case arising from the Vienna Convention violation.
Medellin went to ICJ, which held against the U.S., saying they should have notified Medellin of his rights.
However, The United States withdrew from general ICJ jurisdiction on October 7, 1985. Also in 2003,
Mexico brought suit against the United States in the ICJ, claiming that the United States had failed to
notify 51 defendants (all Mexican citizens accused in state courts of committing crimes in U.S.) of their
Vienna Convention right to notify their consulate. Medellín was one of the 51 Mexican nationals named in
the suit. The following year, the ICJ ruled in Case Concerning Avena and Other Mexican Nationals that the
51 Mexican nationals were entitled to review and reconsideration of their convictions and sentences.
ii. Issues: (1) Are state courts bound by the U.S. Constitution to honor the undisputed international
obligation of the United States, under treaties duly ratified by the President with the advice and consent
of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed? (2) Did the
President of the United States act within his constitutional and statutory foreign affairs authority when he
determined that the states must comply with the United States' treaty obligation to give effect to the
Avena judgment in the cases of the 51 Mexican nationals named in the judgment?
iii. Holding: No and No
iv. Reasoning: Chief Justice Roberts, joined by justices Alito, Kennedy, Scalia and Thomas, wrote for the
majority, holding that: "neither Avena nor the President's Memorandum constitutes directly enforceable
federal law that pre-empts state limitations on the filing of successive habeas petitions.” He concluded
that, while Avena is a binding international obligation of the United States, the question of what legal
effect the Court should give the opinion is a question of domestic law. The relevant treaties in the case --
the Optional Protocol, the U.N. Charter and the ICJ Statute - are non-self-executing and cannot be given
effect as federal law absent implementing legislation. Since Congress has not implemented any of those
treaties through federal statute, the decision of the ICJ under the Optional Protocol must be examined on
its own terms to determine what the intent of the U.S. was on the issue of giving domestic judicial effect
to those decisions. (2) The Court further concluded that the President does not have inherent authority
to enforce ICJ opinions against U.S. states. While the President plays a unique role in resolving foreign
policy disputes that might bear on compliance with an ICJ decision, he can only act in accordance with an
act of Congress and the Constitution. Because the Court already concluded that the treaties at issue were
non-self-executing, it disagreed that the President was acting with implicit congressional approval under
Youngstown category one.
v. Dissent: (Justice Breyer) The Optional Protocol represents a treaty obligation that is self-executing, thus
requiring no further legislative action in order for it to create binding federal law that preempts state law.
Majority's insistence on the "absence or presence of language in a treaty about a provision's self-
execution proves nothing at all," warning that such a requirement may "threaten the application of
provisions in many existing commercial and other treaties and make it more difficult to negotiate new
ones. The language of the relevant treaties supports self-execution in this case; the Optional Protocol
applies to a dispute about the meaning of a treaty provision that is itself self-executing and judicially
enforceable; logic suggests that a ruling about the meaning of treaty text by the dispute settlement body
empowered to hear the dispute is to be binding on the parties; the majority's approach presents serious
practical impediments; the particular judgment at issue here -- a request for "review and reconsideration"
-- is the kind of relief courts are particularly well suited to provide; a court finding of self-execution would
not create any conflict with the other branches; and neither the President nor Congress has expressed
concern with judicial enforcement of Avena, with the President explicitly favoring enforcement of it.
f. Roper v. Simmons, 543 U.S. 551 (2005)
i. Significance: Examines U.S. Supreme Court’s application of Comparative Law
1. Facts: Simmons, at the age of 17, concocted a plan, with a two friends (one dropped out), to
murder Shirley Crook. The 43plan was to commit burglary and murder by breaking and entering,
 tying up a victim, and tossing the victim off a bridge. The two broke into Mrs. Crook's home,
bound her hands and covered her eyes. They drove her to a state park and threw her off a
bridge. Once the case went to trial, the evidence was overwhelming. Simmons had confessed to
the murder, performed a videotaped reenactment at the crime scene, and there was testimony
against him that showed premeditation. The jury returned a guilty verdict. Even
considering mitigating factors (no criminal history and his age) the jury recommended a death
sentence, which the trial court imposed. Simmons first moved for the trial court to set aside the
conviction and sentence, citing, ineffective assistance of counsel. His age, and thus
impulsiveness, along with a troubled background were brought up as issues that Simmons
claimed should have been raised at the sentencing phase. The trial court rejected the motion,
and Simmons appealed. The case worked its way up the court system, with the courts continuing
to uphold the death sentence. However, in light of a 2002 U.S. Supreme Court ruling, in Atkins v.
Virginia, 536 U.S. 304 (2002), that overturned the death penalty for the mentally retarded,
Simmons filed a new petition for state post conviction relief, and the Supreme Court of
Missouri concluded that "a national consensus has developed against the execution of the
mentally retarded" and held that such punishment now violates the 8 th Amendment prohibition
of cruel and unusual punishment. Thus, they sentenced Simmons to life imprisonment without
parole. The State of Missouri appealed the decision to the U.S. Supreme Court, which agreed to
hear the case. (Donald P. Roper, the Superintendent of the correctional facility where Simmons
was held, was a party to the action because it was brought as a petition for a writ of habeas
corpus.)
2. Issue: Whether capital punishment is constitutional, as per the 8 th Amendment, for persons who
were juveniles when their crimes were committed
ii. Holding: Under the "evolving standards of decency" test, the Court held that it was cruel and unusual
punishment to execute a person who was under the age of 18 at the time of the murder.
iii. Reasoning: Writing for the majority, Justice Kennedy cited a body of sociological and scientific
research that found that juveniles have a lack of maturity and sense of responsibility compared to adults.
Adolescents were found to be overrepresented statistically in virtually every category of reckless
behavior. In support of the "national consensus" position, the Court noted the increasing infrequency with
which states were applying capital punishment for juvenile offenders. At the time of the decision, 20
states had the juvenile death penalty on the books, but only six states had executed prisoners for crimes
committed as juveniles since 1989. Only three states had done so in the past 10 years: Oklahoma, Texas,
and Virginia. Furthermore, five of the states that allowed the juvenile death penalty at the time of the
1989 case had since abolished it. The Court also looked to practices in other countries to support the
holding. Between 1990 and the time of the case, the court said, "only seven countries other than the
United States had executed juvenile offenders: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria,
the Democratic Republic of Congo, and China." Since 1990 each of those countries had either abolished
the death penalty for juveniles or made public disavowal of the practice, and that the United States stood
alone in allowing execution of juvenile offenders. The Court also noted that only the United States
and Somalia had not ratified Article 37 of the United Nations Convention on the Rights of the Child (1990),
which expressly prohibits capital punishment for crimes committed by juveniles.
1. Dissents: The dissents put into question whether a “national consensus” had indeed formed
among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty
states (47%) prohibited the execution of juveniles. However, Scalia and Thomas questioned
whether such a consensus was even relevant
iv. Justice Scalia: The appropriate question was not whether there was presently a consensus against the
execution of juveniles, but rather whether the execution of such defendants was considered cruel and
unusual at the point at which the Bill of Rights was ratified. Justice Scalia also objected in general to the
Court's willingness to take guidance from foreign law in interpreting the Constitution; his dissent
questioned not only the relevance 44of foreign law, but also accused the Court of "invoking alien law when
 it agrees with one's own thinking, and ignoring it otherwise," noting that in the case of abortion U.S. laws
are less restrictive than the international norm. Scalia attacked the majority opinion as being
fundamentally anti-democratic. His dissent cited a passage from the Federalist Papers in arguing that the
role of the judiciary in the constitutional scheme is to interpret the law as formulated in democratically
selected legislatures. The Court exists to rule on what the law says, not what it should say, and that it is
for the legislature, acting in the manner prescribed in Article V of the Constitution, to offer amendments
to the Constitution in light of the evolving standard of decency, not for the Court to arbitrarily make de
facto amendments.
v. Justice O’Connor: Expressed concern regarding the establishment of a categorical rule prohibiting the
execution of any juvenile offender. Challenged the Court majority's assertion that there had been a
significant change in society's rejection of the juvenile death penalty. Challenged the majority's opinion
that juveniles could not reliably be classified among the worst offenders and therefore the death penalty
was disproportional to any crime they may commit. Chastised the Court majority for failing to reprimand
the Supreme Court of Missouri for their refusal to follow the Stanford precedent.
vi. Contextual Background: A 1988 Supreme Court decision Thompson v. Oklahoma barred execution of
offenders under the age of 16. In 1989, another case, Stanford v. Kentucky upheld the possibility of capital
punishment for offenders who were 16 or 17 years old when they committed the capital offense. The
same day in 1989, the Supreme Court ruled in the case Penry v. Lynaugh, that it was permissible to
execute the mentally retarded. However, in 2002, that decision was overruled in Atkins v. Virginia, where
the Court held that evolving standards of decency had made the execution of the mentally retarded cruel
and unusual punishment and thus unconstitutional.
1. How does the court determine whether a punishment is cruel or unusual?
a. Evolving standards of decency
i. Pattern among National jurisdictions
ii. Theories of punishment, including principle of proportionality
2. What role did int'l law play in Roper v. Simmons?
a. Looking abroad confirms court's conclusion on what is decent and what is not.
b. Int'l and foreign law is certainly not controlling
c. Looked at UK (shared closest history, so particularly persuasive), also our law derived
from theirs.

XIII. CUSTOM AND THE NON-CONSENUAL SOURCES OF INTERNATIONAL LAW

a. Principles – states in, and by, their international practices may implicitly consent to the creation and application of
international legal rules- in some sense the theory of customary international law is simply an implied side to the
contractual theory that explains why treaties are international law.
i. ICJ, Art. 38 – “International custom, as evidence of a general practice accepted as law” is ranked second
only behind treaties- expressed agreements.
b. Treaties often leave many international topics untouched, and most states are not party to most treaties, which
amplifies their importance.
i. “where there is no treaty and no controlling executive or legislative act or judicial decision, resort MUST
be had to customs and usages of civilized nations, and , as evidence of these, to the works of jurists and
commentators, who by years of labor, research and experience, have made themselves peculiarly well-
acquainted with the subjects which they treat.”  HAS TWO ELEMENTS – State Practice (Objective Element)
and Opinio Juris (Subjective Element)
1. Treaties are the most certain source of international law, BUT:
a. There are many general topics of international law for which treaties have not been
developed (such as on the rules of state responsibility or on head-of-state immunity).
Moreover, even if there does exist a treaty addressing a particular topic, certain states
might not be a party to the treaty and therefore not bound by it.
45
 b. Even if states are bound, treaties typically have certain gaps or ambiguities that require
reference to rules outside the treaty for its application and interpretation….
Consequently the second source of international law is customary international law
c. Customary international law exists when two key requirements are met:
1. A relatively uniform and consistent State Practice regarding a particular matter;
2. A belief among states that such practice is legally compelled (OPINIO JURIS – see below)
ii. STATE PRACTICE, Can take many forms
a. Acts taken by states in their diplomatic relations with one another
b. Acts taken internally by states through their legislatures or courts
c. Acts taken by states before international organizations
d. Even inaction by states when they are confronted by a particular matter.
2. May be ascertained from a wide variety of sources: Treaties, Executive Agreements, Legislation,
Regulations, Court decisions, Speeches/Testimony before national/international bodies,
Proclamations, International Law books, ETC.
3. MUST be UNIFORM and CONSISTENT (But it need not be PERFECT. Ideally, it should be evident
over some extended period of time, rather than a very short period of time.
d. Relevant Cases
i. The Paquette Habana, 175 US 677 (1900)
1. Significance: ascertaining customary international law (at least for the US) requires finding two
elements: (a) a general uniformity of the practice, and (b) opinion juris- a sense of legal
obligation.
a. Facts: Cuban/Spanish ships. She was stopped by the blockading squadron and captured
(they were fishing vessels). Brought to US and sold by auction.
b. Issue: (1) what is the status of the seized fishing vessels? (2) During the course of the
Spanish- American war, are fishing vessels subject to capture and forfeiture as prizes of
war?
c. Holding: Despite the fact that there is no treaty, nor doctrinal rule, of international
“law” on point, customary law provides that these ships, their cargo and crews are
exempt from capture.
d. Reasoning: Customary international law was utilized to fill gaps when there are no
easier, more definite rules available. Court said that int’l law is part of our law, and
when there is no treaty or other governing force, we must look at the customs and
usages of civilized nations. Court also noted that it was the "general policy of the govt to
conduct the war in accordance with the principles of int’l law." By looking at the sources
of the evidence, court finds sufficient to enforce the custom. “By an ancient usage
among civilized nations, beginning centuries ago, and gradually ripening into a rule of
international law, coast fishing vessels, pursuing their vocation of catching and bringing
in fresh fish, having been recognized as exempt, with their cargoes and crews, from
capture as prize of war.” The court then surveyed the historical honoring of this
practice, dating back to King Henry VI. The practice was then surveyed as it pertained to
the US’ participation in the practice. Louis XVI ordering English fisherman not be
captured. US treaty with Prussia, and the practice as stated by Wheaton, “In many
treaties and decrees fishermen catching fish as an article of food are added to the class
of persons whose occupation is not to be disturbed in war.” Court looked at the totality
of the circumstances and writings (history, US law, US practices, other nations’
observation of the practice [France, English, Argentina, German, Dutch, Austrian,
Portuguese, and Italian]) in the jurists’ writings- and concluded that such a customary
practice exists.
e. Exam Relevance
46
 i. Natural law/Universal (jus cogens) or Custom v. Positivist Approach – Unless
what you are clearly dealing with is so universal, so fundamental, use the
positivist approach- but mention debate
ii. Use for a connection to municipal law. Court found that, “International law is
part of our law” and “the general policy of the government is to conduct war in
accordance with the principles of international law” (generally going against an
executive order). Even though there is a requirement of opinion juris this is a
legal fiction which is often ignored. One could argue that custom is nothing
more than repetition.

ii. The Asylum Case (Columbia v. Peru), 1950 I.C.J. 266

1. Significance: Customary law can be regional (however, not in this case).
a. Facts: Failed military rebellion leader in Peru sought political asylum in Columbia, but
Peru refused to allow him to leave. Dispute goes to ICJ, and since there’s no treaty
concerning this, ICJ looks at customary international law.
b. Issue: May a regional custom be established?
c. Holding: Yes, but such a custom is not made out here. The party relying on custom must
prove that it is established in such a manner that it is now binding on the other party
d. Reasoning: Not enough evidence to establish CIL. Peru didn’t sign onto the Montevideo
convention. Also, not many countries at this point had signed on to the convention.
Peru has not acted in a way that showed they practiced this custom. No evidence of
consent to the custom Debate as to what constitutes an objection.
i. The Persistent Objector – If Peru objects persistently, even if custom is very
common, they still wouldn’t be bound (unless it was a natural right). You have
to be a vocal objector; silence = consent; consent is implied unless you object
e. Exam Relevance
i. Issue of Positivist v. Natural (universal) law views on CIL
1. Regional customary international law fits well with the positivist
notion that customary international law is a form of implicit
agreement. Positivist view that custom is merely an implicit treaty.
iii. Pink Asylum (Asylum in the US)
1. Refugee Act of 1980: a successful asylum applicant must establish a “well-founded fear of
persecution on account of” a protected characteristic, which includes “membership in a
particular social group.” Thus an “‘emotional condition is at the heart of the legal definition.’”
a. Four Enumerated Groups: race, nationality, religion, and political opinion. Generally in
Asylum law, one is a member of a protected group or they are not- there is no
qualitative analysis as to how much of a member of the group the person is.
2. In re Soto Vega – The Board of Immigration Appeals (BIA) denied a gay man's application for
asylum because he appeared too stereotypically heterosexual (had a wife). The decision is
representative of a trend in immigration law to equate visibility with the potential for anti-
homosexual persecution.
a. Imports a “visibility test,” which essentially is whether or not you act like a homo or
heterosexual. But visibility is only a means of ascertaining whether persecution occurs
on the basis of a protected characteristic. This test ignores the fact that one’s visibility is
often inversely related to fear If you are more afraid you are going to be less visible.
3. Visibility Test: A visibility requirement (either in domestic violence cases, sexuality asylum cases,
religious persecution cases etc.) is not helpful to asylum seekers as it punishes those who have
symptoms of persecution47 (meaning passing/covering)
 a. As such this “visibility” threshold is inconsistent with a fear-based standard for asylum.
This test promotes homosexuals in acting flamboyant and absurd, for the purposes of
proving their identities as homosexuals. Other groups—acting blacker, poorer, etc.
e. General Exam Implications
i. International Law Hierarchy:
1. TreatiesCustomGeneral Principles and Equity (typically are used as gap-fillers as well, and
thus, arguably, are lower in rank)
2. Jus cogens norms trump other norms - if, of course, you are willing to accept the reality of jus
cogens
ii. Positivist v. Naturalist views on Custom’s role in international law.
iii. Custom’s effect on Municipal courts

XIV. INTERNATIONAL COURTS AND TRIBUNALS

a. Public Arbitration (Between States) – Provides a formal process for obtaining a binding decision without the
greater costs and time associated with the formalities of a traditional judicial resolution.
i. Arbitration can be among states as well as the ICJ. Arbitration process is de-nationalized, thus, there is no
recourse to domestic courts. Public arbitration is set up and controlled by the parties themselves. A
nation’s decision to comply with rulings depends on other factors.
1. Advantages
a. More conclusive than other forms of resolution settlement b/c decisions are binding
b. Parties retain greater control b/c they appoint arbitrators
c. Parties may designate the procedures and laws to be applied
d. Arbitration is less formal and contentious than adjudication
e. Both the proceedings and decisions can be kept confidential
2. Disadvantages
a. If parties don’t specify procedures, the process becomes time-consuming
b. Party finds arbitration to be unfairly conducted  Self-justified non-compliance
c. No authority to conduct discovery or subpoena witnesses
d. The parties themselves pay the cost of the arbitration.
b. Reasons States Use Public Arbitration – Arbitral Tribunals?
i. Provides neutral forum
1. Compared to Private Arbitration – private parties only, the courts of the state where the
arbitration is held generally oversee the arbitration to ensure that there is at least a modicum of
procedural fairness. i.e., Two companies enter into K (“if there is a dispute, resolved by
arbitrator.” The court of state where arbitration is held can oversee the tribunal to make sure it
carries out its functions with procedural fairness.
2. Rulings are generally enforceable through municipal courts.
c. Relevant Cases
i. The Alabama Arbitration
1. Significance: First real establishment of the use of arbitration; used to avoid going to war.
a. Facts: During the American civil war, Confederate ships, that were specifically designed
to intercept American (Union) commerce, were made by the British.
b. Issue: whether Britain had violated international law when it permitted British
companies to build warships for the Confederacy during the American Civil War.
c. Held: Britain violated duty of “active due diligence” to prevent private
companies/parties from supplying arms to the southern rebels
d. Composition: arbitration panel described as ad hoc- five judges, one from each of the
following countries: US, UK, Italy, Switzerland, and Brazil. Was empowered by both US
and Great Britain to decide whether Great Britain had violated international law, by
allowing the ship48
manufactures to sell the Confederacy.
 2. Exam Relevance
a. The influential tradition of public international arbitration in the 19th century provides a
bridge to the establishment of the Permanent Court of Arbitration in 1899 à Permanent
Court of International Justice in 1921 à the International Court of Justice in 1945.
ii. The Dogger Bank Affair Case (Great Britain v. Russia) 1905
1. Significance: the flexibility of tribunal formation, and composition.
a. Facts: Russia shoots UK fishing boats and claims it thought they were torpedo boats.
Russia was at war with Japan and got “intelligence” that Japanese torpedo boats were
disguised as fishing boats. A Russian boat was out on the water looking out for these
vessels, it was foggy and everyone was exhausted and on edge when they spotted a
fishing vessel. They torpedoed the hell out of it only to find out that it was a UK fishing
boat and they had killed innocent fishermen.
b. Why Arbitrate
i. Economic Sanctions/Embargo? Would have hurt international economy and
NOT helped to resolve the conflict at hand.
ii. Use of Force? Costly, makes UK into bullies, war is a ‘messy, cruel and
expensive exercise.’
iii. National Inquiries? Could have appointed a team of experts to look into the
problem, but Different experts can give two conflicting results. Each state
would have probably come up with its own findings.
iv. International Court? There was none.
v. Diplomacy? Too secretive and ‘closed-door’
1. UK wants something public to placate the many British who were
pissed and calling for war.
2. Exam Relevance
a. The Permanent Court of Arbitration, in a way, was “father” to the PCIJ and
“grandfather” to the ICJ.
b. The flexibility of composition- admirals instead of lawyers for the judges.
iii. The Rainbow Warrior
1. Significance: Displays the concept of comity in respect to state sovereignty
a. Facts: French agents sink the Rainbow Warrior (which belonged to Green Peace). The
agents are arrested in New Zealand and sentenced to time in jail. France argues for the
release of the agents. New Zealand asks for compensation. Also does not want trade
disturbed. France unilaterally moved two people from an island. New Zealand wanted
their doctors to examine them first. New Zealand saw the agents as criminals and the
French saw them as heroes. Goes to arbitration.
b. Relevant Law: (1) Customary law of Treaties per Vienna Convention; and (2) Customary
law of State Responsibility.
i. Article 60, Vienna Convention – A material breach of a treaty, for the purposes
of this article, consists in: (a) a repudiation of the treaty not sanctioned by the
present Convention; or (b) the violation of a provision essential to the
accomplishment of the object or purpose of the treaty.
ii. Article 70. Consequences of the termination of a treaty – Unless the treaty
otherwise provides or the parties otherwise agree, the termination of a treaty
under its provisions or in accordance with the present Convention: (a) releases
the parties from any obligation further to perform the treaty; (b) does not
affect any right, obligation or legal situation of the parties created through the
execution of the treaty prior to its termination.
1. § (2) If a State denounces or withdraws from a multilateral treaty,
49paragraph 1 applies in the relations between that State and each of
 the other parties to the treaty from the date when such denunciation
or withdrawal takes effect.
iii. Custom- Customary Law of State Responsibility- including the legal
consequences of a breach
c. France’s Defenses: (1) Force Majeure- inappropriate defense as that test demands
“absolute and material impossibility” v. increased difficulty or burden; (2) Distress-
“circumstances of extreme urgency involving elementary humanitarian consideration”
i. Possible Justifications: (1) The existence of exceptional circumstances of
extreme urgency involving medical or other considerations of an elementary
nature…; (2) The reestablishment of the original situation of compliance…; and
(3) The existence of a good faith effort to try to obtain the consent ….
d. Decision: Decision of the arbitration tribunal was based on: Treaty between France and
New Zealand; Customary international law reference to this but w/o stating what
principle is (so leave tribunal w/ option of defining these principles).
i. Public Arbitration Remedies: Satisfaction Set up fund (here). Efficacy of these
remedies here?
2. Exam Relevance
a. COMITY & Sovereignty- was France respecting New Zealand’s independence.
b. New Zealand’s pursuit of damages was more about national honor, wanted an apology.

XV. INTERNATIONAL CONFLICTS OF LAW

a. The Principles of Jurisdiction
i. Territoriality Principle – sovereign state can prosecute criminal offenses committed within their borders
1. American Banana Co. v. United Fruit
a. Facts: Plaintiff is a US citizen and has banana plantation in Panama. P built a railroad which
would be the only means of expropriation. D intended to prevent competition and monopolize
the banana trade, made K’s with others and bought out others regulating purchase of the fruit
and controlling stock. D instigated dispute between Panama and Costa Rica which ultimately
resulted in Costa Rica holding lands which P’s railroad were going through. P claimed violation
of Sherman Anti-Trust Act
b. Issue: Does US have jurisdiction/ does the Sherman Act apply?
c. Holding: While a country may treat some relations between its own citizens a governed by its
own law in regions subject to no sovereign, like the high seas, or to no law recognized as
adequate, the general rule is that the character of an act as lawful or unlawful must be
determined wholly by the law of the country where it is done. We can’t extend our laws
outside our borders.
d. Reasoning: All legislation is prima facie territorial because of sovereignty – every state has
sovereign control over its own territory
i. This goes to the principle of reciprocity – we do not want to interfere with the
authority of a sovereign state
e. RELATES TO: Sovereignty; Jurisdiction; Reciprocity
ii. The Nationality Principle – the government of a citizen can obtain jurisdiction over its citizen even when that
citizen is abroad
1. Blackmer v. US
a. Facts: Blackmer is a US citizen and resident of Paris France and found guilty of contempt of
Supreme Court of D.C. for failure to respond to subpoenas served upon him in France requiring
him to appear as a witness for the US in a criminal case.
b. Issue: Does US have jurisdiction over a US citizen residing in another country?
c. Issue 2: Can the court enforce the obligation of Blackmer to appear/was his Due Process
violated? 50
 d. Holding: Issue 1 Yes - Blackmer continued to be a US citizen even after removing his residence
to France. Therefore, his citizenship created obligations and rights. His obligation was to
appear in court. Court says there is no question of international law, but solely of the purport
of the municipal law which establishes the duties of the citizen in relation to his own
government.
i. Issue 2 – Yes Ct. can make him appear. No – DP was not violated Jurisdiction of the
US over absent citizens is a jurisdiction in personam, as Blackmer is personally bound
to take notice of the laws that are applicable to him and to obey them. However,
there must be due process which requires appropriate notice of the judicial action and
an opportunity to be heard. This issue turned on the Congressional statute for serving
notice. Court found that service was not a violation of Due Process once it was made
and he received it.
iii. The Effects Principle – Jurisdiction based on where effects were felt
1. US v. ALCOA
a. Facts: ALCOA is a U.S. corporation who was engaged in an international cartel with several
Canadian and European aluminum producers to monopolize the aluminum market. ALCOA,
through its subsidiary company “Limited” which is incorporated in Canada set up an agreement
in 1931 that provided for the formation of a Swiss corp which would fix a quota of production
for each share and each shareholder was to be limited to the quantity measure by the number
of shares it held. Another agmt. in 1936 which only substituted system of unconditional quotas
with a system of royalties. US brought suit against ALCOA even though it found that ALCOA
was not part of the cartel because its subsidiary Limited was part of the alliance.
b. Issue: Whether or not suit could be brought in US based on the effects an international
agreement on a U.S. corp. under a violation of the Sherman Act (anti-trust)
i. The European companies were explicitly violating the Sherman Act, limiting exports to
the US, but this agreement was made outside of the US.
c. Holding: Justice Hand first looked at whether Congress intended to attach liability to conduct
outside the US of persons not in allegiance to it. Both agreements would have been unlawful if
made within the US. and even though made abroad, if they were intended to affect imports
and did affect imports, then they are unlawful. Hand looked at only 1936 agmt. because it
superseded 1931 agmt. Hand determined agmt. expressly made to have an effect on imports.
Then determined that although alliance intended to restrict imports, it does not appear that
they actually did. However, after proving intent to affect imports, the burden of proof shifted
to Limited to show lack of effect on US. Then Court looked to whether prices were actually
affected and looked to US v. Socony-Vacuum and repeated the underlying doctrine that all
factors which contribute to determine prices, must be kept free to operate unhampered by
agmts. Therefore, Sherman act was violated and US has jurisdiction under the effects principle
d. EFFECTS PRINCIPLE: Any state may impose liabilities, even upon persons not within its
allegiance, for conduct outside its borders that has consequences within its borders which the
state reprehends.
1. LIMITS to the EFFECTS PRINCIPLE:
a. Did it intend to have an effect?
b. Did have an effect?
c. Whether congress chose to attach liability
d. Whether own constitution permitted to do so.
e. US court has jurisdiction (legislative and judicial) even though events took place outside US
b/c the effects were directly felt (intentionally so) by the US.
i. Legislative b/c INTENDED to affect US commerce. Its targeted
f. EFFECTS PRINCIPLE:
51
 i. Applied to offenses or acts commenced outside the state’s territory, causing serious
and harmful consequences to the social and economic order within the state’s
territory
g. IN case, Second Circuit ruled that Sherman Anti-trust Act applied to a foreign agreement
intended to affect US market, even though the agreement was solely between foreign
companies and performed entirely on foreign soil.
h. RELATE TO: Alien Tort Claims Act; Foreign Sovereign Immunities Act; Jurisdiction

iv. Foreign Sovereign Immunity

1. The Schooner Exchange v. McFaddon
a. Facts: The vessel was owned by an U.S. citizen, and on a voyage, the vessel was violently and
forcibly seized by Napoleon of France. The vessel sailed into an American port and the citizens
filed a libel action to reclaim it. The district court denied the libel for lack of jurisdiction. The
appellate court reversed.
b. Issue: Whether an American citizen can assert, in an American court, a title to an armed
national vessel found within the waters of the US?
c. Holding: No. The court found that the vessel was a public armed vessel commissioned by, and
in the service of the emperor of France. The court found that the United States was at peace
with France and permitted the vessel to enter the ports as a friendly power. The court held
that when the vessel entered American territory, it did so under the implied promise that the
vessel was exempt from United States jurisdiction and enjoyed sovereign immunity. Justice
Marshall distinguishes this military ship from commercial/individual/merchant ships. Military
ships constitutes part of the military force of a nation which operates under the direct
command of the sovereign. Interfering with this ship when it came to US docks in a friendly,
peaceful manner will affect France’s sovereignty and will possibly ruin the peaceful relationship
between the US and France.
d. RELATE TO: comity/reciprocity, customary int'l law, justiciability (properly a matter for the
executive); globalization
2. Victory Transport, Inc. v. Comisaria General
a. Facts: Owner of a cargo ship wants to sue the Spanish Ministry of Commerce in U.S. court.
Govt of Spain says that because of foreign sovereign immunity, it cannot be sued in a U.S.
court without its consent, and it declines to give consent.
b. Issue: Whether, as an arm of the sovereign gov’t of Spain, appellant can be sued in the US
without its consent for private or public acts?
i. Sub-issue: was the transport of wheat a private or public act?
c. Holding: The Comisaria General’s chartering of the appellee’s ship to transport wheat is more
of the character of a private commercial act than a public or political act. Therefore, the arm of
the Gov’t does not have sovereign immunity when conducting private acts. The Court
acknowledges that there has been a great deal of deference to the idea of foreign sovereign
immunity in our history, and specifically points to The Schooner Exchange as an example of
this. However, the reasons we had this in the past don't really apply anymore because of the
increase of int’l transactions. The doctrine originated in an area of personal sovereignty, where
a king could do no wrong, and if one sovereign exercised authority over another it indicated
hostility or superiority. Now, though, the sovereignty is a public function, so that previous
explanation no longer has much import. The modern trend is to abandon it in lieu of the
restrictive theory. Court discusses several treaties that basically limit immunity to back this up
(pg 835, 1st full paragraph).
52
 d. Reasoning: The test the court uses is the restrictive theory of immunity, recognizing immunity
for a foreign state's public or sovereign acts (jure imperii), but denying immunity to a foreign
state's private or commercial acts (jure gestionis). The Tate Letter expressed US’s adherence to
the restrictive theory of immunity (immunity for public acts; not immune for private acts) but
the Tate letter did not make a distinction between public/private acts. What are public or
sovereign acts? (jure imperii) usually limited to: Internal administrative acts, such as expulsion
of an alien; Legislative acts, such as nationalization; Acts concerning the armed forces; Acts
concerning diplomatic activity; Public loans. The purpose of restrictive theory is to try to
accommodate the interest of individuals doing business w/ foreign govts in having their legal
rights determined by the court, with the interest of foreign govts in being free to perform
certain political acts w/o undergoing the embarrassment or hindrance of defending their
actions before foreign courts.
e. RULE: The modern trend is to use the restrictive theory of immunity, recognizing immunity for
a foreign state's public or sovereign acts (jure imperii), but denying immunity to a foreign
state's private or commercial acts (jure gestionis).Notes and Questions: · Tate Letter -
inaugurated the restrictive doctrine in U.S. law
f. Notes - The doctrine, as in Schooner, is no longer absolute· If a private, commercial act, then
not immune. There is a presumption against foreign sovereign immunity unless factors present
that show public act, or unless there's a letter from state dept recommends sovereign
immunity.
i. Immunity in Victory case – the presumption is that you do NOT have immunity unless
you are doing one of the following, then you do.
3. The Foreign Sovereign Immunities Act of 1976
a. FSIA – Provides the sole basis for obtaining jurisdiction over a foreign state in US courts
b. FSIA – essentially codified the restrictive theory of sovereign immunity
c. The presumption is that you have immunity unless you fall into an exception ie. commercial
activity.
d. FSIA defines “commercial activity” as either a regular course of commercial conduct or a
particular commercial transaction or act. The commercial character of the activity shall be
determine by reference to the nature of the course of conduct or particular transaction/act;
rather than by reference to its purpose
e. Other enumerated exceptions include – waiver of immunity; commercial activities;
expropriation claims; non-commercial torts; maritime liens; counter-claims; int’l agmts.
f. RELATE TO: Comparative law
4. Texas Trading and Milling Corp. v. Federal Republic of Nigeria – interpreting the FSIA
a. Facts: Nigeria repudiated contract with US cement suppliers when they realized they bought
too much and cargos were dangerously overloading their docks. Nigeria ordered its
government bank, Central Bank of Nigeria, not to pay the suppliers the contracted for amount.
Nigeria then enacted a law prohibiting entry into a Nigerian port to any ship which had not
secure two months’ prior approval and imposing criminal penalties for unauthorized entry.
Nigeria argues that it’s a gov’t action because they were buying for the government, and
therefore it was not a commercial transaction. Nigeria wanted the court to look at the goals as
being public policy oriented
b. Issue: Whether the Nigeria Central Bank is a public institution who may enjoy foreign sovereign
immunity?
c. Holding: Under the FSIA – commercial activity is defined in terms of course of transaction, not
purpose. Court looked at 3 other sources to determine whether transaction was commercial in
nature: 1) legislative history – if it’s a purchase or sale of goods; or if it’s an activity in which a
private person could engage in, then commercial; 2) US case law in existing upon passage of
FSIA – using restrictive theory
53 – public acts are immune, private acts are not immune; 3)
 Current standards of int’l law concerning sovereign immunity – follows restrictive theory as
well.
i. Therefore – under each of those sources, Nigeria’s activity qualified as commercial
activity and was characteristic of a private contract transaction and Nigeria defense of
sovereign immunity was denied. Court has jurisdiction over Nigeria.
5. Argentine Republic v. Amerada Hess Shipping Corp.
a. Facts: Liberian corporations chartered its oil tanker to Hess. Hess was carrying oil from Alaska,
around the southern tip of South America, to the U.S. Virgin Islands. There was an armed
conflict between Argentina & UK, and to protect US interests, the US Maritime Administration
gave both UK and Argentina a list of vessels that would be passing through, and the list
included Hess's ship, Hercules, to ensure the neutral vessel wouldn’t be attacked. On a trip
back to Alaska, Hercules was attacked by Argentine aircraft. The damages vessel sought refuge
in Brazil, and in addition to the damages the vessel sustained, there was an undetonated bomb
in one of the tanks. It was determined unreasonably hazardous to attempt the remove the
undetonated bomb, so the Hercules had to be destroyed. The Liberian corporations (foreign
plaintiffs) sued the Argentine Republic (foreign state) in U.S. district court under Alien Tort
Statute to recover damages for a tort allegedly committed by its armed forces on the high seas
in violation of int'l law. District court dismissed for lack of jurisdiction, now on appeal.
b. Issue: Whether a federal district court could exercise jurisdiction over Argentina under the
Alien Tort Statute?
i. Alien Tort Statute - establishes district court jurisdiction over any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.
c. Holding: Yes – ATS and FSIA provide grounds for jurisdiction over Argentina
d. Reasoning: Court found that Congress' intent when creating the FSIA was that it be the sole
basis for jurisdiction over a foreign state in our courts. Generally, foreign nations were immune
from suit in the United States for non-commercial, "public" acts unless one of the specific
exceptions under the FSIA was present, which was not the case.
e. RELATES TO: FSIA; ATS

HUMAN RIGHTS ENVIRONMENTAL LAW LECTURE (Chomsky) 

Alien Tort Statute

 One sentence long

 Gives an alien the right to come to court in the US to sue in TORT for a violation of the law of nations (customary
international law) or treaties of the US

Wei Wa v. Shell Oil

 Plaintiff: Small tribe in Nigeria. 

 Defendant:  Shell is a partner with the Nigerian government
 Facts:  Let the oil burned so hot that it raises the temperature of the village itself, noise is out of control and there is light
24/7 from the burning.  Transferred through pipes above ground.  Oil spills are left around which destroyed swamps, land
etc.  Every wildlife was killed. 
 Wei Wa – started to complain and went around to European countries in order to get help. 
 Shell – thought they were stimulating the Nigerian Economy and they should love that they are there.  Claimed they had
nothing to do with the killings of Wei Wa. 

Burma Case v. Merkin Oil

 Building a pipe line and in order to build in the isolated

54 area they had to use forced labor
  Military would force people to carry into steep mountains their weight on their backs.  No food, etc. 
 Company claims they didn’t do it.  BUT they paid the military, told them to do it and gave the military the rights to do it
 AWAKENING MONSTER OF ALIEN TORT STATUTE – now an awakening monster and trial lawyers will try to expand this to
such an extent that trade and investment in developing countries will be threatened.  People will be in poverty and denied
the right to participate in the global economy. 
 METRO CORPORATE COUNSEL – is your business the next ATS defendant?  Feel that increasingly transnationals are being
made to answer aiding and abetting human rights violations even when they are engaging in ordinary commercial activity
 INT CHAMBER OF COMMERCE – Americas interest is being compromised because the ATS undermines American
competitiveness

Doe v. Exxon Mobil

 The plaintiffs maintain that ExxonMobil hired the security forces, who were members of the Indonesian military, to protect
the natural gas extraction facility and pipeline which ExxonMobil was operating.  The plaintiffs further claim that
ExxonMobil knew or should have known about the Indonesian military’s human rights violations against the people of
Aceh.  The plaintiffs allege that they suffered human rights violations, such as murder, torture and rape, at the hands of
these security forces.

Why are Businesses Upset about These Cases?

 Affecting the image, and brand of these companies and causing them to make voluntary principles that they claim to use in
operations in developing countries.  When
 Bad for positive image
 But if you are involved in torture, slave labor, etc.  this is not constructive engagement
 There must be a nexis between the harm that the plaintiff suffers and the claims that are brought against them and the
company
o EX:  Apartheid Case – allegation that the auto manufacturers didn’t want there to be a union of black workers. 
White workers could organize, but sometimes separate orgs for colored.  This was considered an offense against
apartheid and a challenge to the way that the auto manufactures conducted themselves by taking advantage that
colored people got paid less and couldn’t organize.  (better for the companies)

ATS CASES AGAINST CORPORATION CASES

 Torture is a violation of the law of nations and customary international law

 Can come into court by a violation of the
 FILARTIGA = FIRST CASE TO BUILD ON FOR ATS.  Police inspector. 
o Vicarious liability – you don’t have to be there to do the torture yourself
 KADIC CASE – former Yugoslavia case involving a claim against a person who was claimed to be the head of an
unrecognized Serbian state in Bosnia.  Victims were being expelled
o International law is about the conduct of states. (government officials, etc.)  Kadish was not the official of a
recognized state so how could they find torture? 
o If I kill someone in my own home  just murder.  Claimed that it needs the authority of the state to violate
international law
o How the case was permitted:
 Maybe he was the state
 He was complicit with the Serbian state – acting in concert with them so he could be held liable as a state
actor even if not personally the state
 Few crimes that do not require state action:
 Slavery
 Genocide
 Crimes against Humanity (not clear)
 War Crimes – committed by nonstate actors

55 be hard to bring a case

 Need to know the local culture in the country or it will
 o If you don’t know the cultural context you can’t work with the plaintiff
o Cant bring environmental cases – although some can be indirectly with environmental law, RIGHT NOW
environmental isn’t a violation of law of nations

Pfizer Case –  conducting tests with children in Nigeria and didn’t tell them they were test products  

We now have a body of law that we have a cause of action if we can prove:

 Connection between harm suffered by the victim and the company

 CANT bring a case against a bank because a bank invested in a corporation
 NEED a closer connection
o IBM – can bring against them bc they set up a system to deprive South Africans of their citizenship.  This is enough
of a connection and will be tested in the US courts

Attempted Change To ATS – wanted to preclude claims against corporations from the ATS. 

 Lobbying in the Government – going to the government and telling them they are not having a positive image if they are
going to protect these companies when they are engaging in slavery, torture, etc. 

DEFENSES OF CORPORATIONS: 

 Claiming that the ATS does not reach corporations because there is no International Tribunal that a corporation can be held
criminally liable and that is where we should look for law.  IF not liable under International Criminal Law and therefore not
a violation of war of nations  not successful
 If they are individuals, they are not state actors and cant be held liable because the corporations are private
o BUT in joint venture, conspiracy, etc.

WHAT LAW DO WE LOOK AT? **OPEN AND DISPUTED AREA

 Do we look at the rules of aiding and abetting as in Federal Common Law?  (alien tort is creating a tort remedy so the
violations are defined by international law but determining who are parties should be looked at though federal common)
 Do we look to the International Law?
 Do we look to the law of the state where the issue is occurring? 

CANT HOLD A FOREIGN GOVERNMENT ACTOR LIABLE FOR AN ACTION IT DOES WITH ITS OWN CITIZENS WITHIN ITS OWN
JURISDICTION:

 Get around it – we are dealing with private individuals

*MOST CONTROVERSIAL – POLITICAL QUESTIONS DOCTRINE (justicibility theme) ALWAYS A DEFENSE BY THE PEOPLE BEING
BROUGHT UNDER ATS

 Will this create a conflict between the court and those branches of the government that are in charge of Foreign Policy?
o Bush- cant let Doe v. Exxon Mobil go forward bc it is interfering with the War on Terror
o Executive should be left to decide with issues of Foreign Policy and the courts should stay out of it!
 Cory v. Caterpillar – American woman killed by Israeli caterpillar tractor in Gaza.  Appellate court looked at the way in
which the tractors were purchased which was through congress.  This raised a political question because the transactions
were decided by other branches of government that have more of a responsibility for foreign affairs

OTHER DEFENSE – FORUM NON CONVENIENCE

 Can try the case somewhere else

 Texaco Case in Ecuador – every part of the case was sent to Ecuador and the government changed and the Oil Company left
the country and left a mess.  Texaco is complaining the court in Ecuador is biased. 
56
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