International Law Outline

1. Introduction to Sources of Law

1. Definition of International Law: rules and principles of generalapplication dealing with the conduct of states and of international organizationsand with their relations inter se, as well as with some of their relationswith persons, whether natural or judicial.

1. International law: the bodyof rules and principles of action which are binding upon civilized statesin their relationships with one another.
2. New Actors (Modern Approach): evolved to expands the definition to include relations not only betweenstates but also relations (1) between international organizations and states,(2) among the international organizations themselves, (3) as well as therelationships between states or international organizations and natural andjudicial persons, such as the law governing human rights. Includes organizationscreated by individuals, organizations representing indigenous peoples orspecial interests.

1. Creators: internationallaw is predominantly created and affected by states. (A state has the rightto assert a claim against an injured citizen to the ICJ, the U.N. SecurityCouncil, etc.)

2. Importance of Public InternationalLaw:

1. Importance of Public InternationalLaw: concerns the conduct of statesand international organizations and not the conduct of individuals, corporationsand private entities.

1. Public International law: (1) defines the very existence of "states," (2) provides the framework fordiplomatic relations, (3) governs international agreements, (4) sets forthrules for the separation of international commerce, (5) governs individualhuman rights, (6) regulates protection of the global environment (air, land,sea, global resources).

2. General International Law: rules and principles that are applicable to a number of states, on the basisof either customary international law or multilateral treaties.

1. Universal International Law: becomes binding on all states.
2. Regional International Law: applies to states on a certain region (Latin America, Europe, etc.).
3. Particular International Law: applies to certain/few states.
4. International Comity: theobservance of various states to certain rules without obligations.

3. Limitations: internationallaw is limited generally to a small number of states and those that considerthemselves equal/sovereign.

1. U.N. General Assembly:only member states, not a world legislature.
2. International Court of Justice: only operates by consent of states.
3. U.N. General Security Council: legally/politically limited.

4. Self Help: the rule wherestates must resort to own force/political persuasion to obtain their goalsif another state refuses reparations.

1. War: illegal form of self-helpexcept for defense against armed attack.
2. Retorsion: cutting offlegal aid (no legal responsibility to give aid).
3. Reprisal: an act whichis generally illegal, but is justified by a prior act. Must be in same gravityand extent as prior act.

5. Politics and Political Pressure: has much more an impact on international law than national (municipal) law.

3. History of Public InternationalLaw:

1. Historical Approach:

1. Different Legal Traditions:

1. Anglo-Saxon Commonlaw: England, Commonwealth, U.S.
2. European Civil Law: EuropeanCountries, based upon Roman law.
3. Marxist Law: law basedupon class struggle and formations of society.
4. Islamic Law: law withno separation of church, state and society.
5. Asian/African: specialtraditions.
6. International law as horizontalsystem: horizontal legal systems differ from centralized ones (nationallaw) for it’s based upon reciprocity and consensus rather than command, obedienceand enforcement (sanctions and legislature).

2. Historical Evolution of Internationallaw:

1. Sovereignty: Relationship between a superior to his inferiors within his state and betweenthe ruler of a state toward other rulers or states. No dependence upon otherstates, the state is independent.

1. Treaties: Relationshipwhere one state loses its independence by becoming the protectorate of another.
2. Cost Analysis: sovereigntyis now looked at as a balance of benefits and cons to relative independence,loss of sovereignty, etc.
3. War thus Annexation/Colonization: the act of war, taking of another country (colonization,annexation) was an act of claiming sovereignty over the taken country andfacilitated the idea that sovereign by force was valid.

2. Intervention: the ideathat Christian nations (or nations with like interest) could act on theirbehalf.

1. Humanism: instead ofwar efforts/treaties, intervention gained support on the idea of humanism(to protect human life against atrocity).

3. Arbitration: the peacefulsettling of disputes through negotiations, conciliation, mediation or arbitration.Started really with Jay Treaty of 1794 between U.S. and Britain, to settledisputes between citizens of lost property during war for independence.
4. Humanization: the GenevaConvention of 1864 gave status to work assisting the wounded. PetersburgDeclaration of 1868, prohibited exploding projectiles. Brussels Conferenceof 1874 and Institute de Droit International of 1880 paved way for HaguePeace Conferences of 1899 and 1907.
5. International Legal Community: the connection between jus cogens and international pubic order.
6. Cooperation: There isnow a sense that social and economic cooperation should be more importantthan pure sovereignty.
7. Human beings/ "the individual:" there has been more though to the individual in international law – humanrights, refugees.

2. Main Theories of InternationalLaw: There have been two (possibly three) main theories in the study of InternationalLaw: the natural law approach of the 16^th and 17^th centuries and the positivist movement of the 19^th and20^th

1. Natural Law: each state,just as each individual, is endowed with certain natural rights. These rightsare not created but rather are the "dictate of right reason," basic principlesof justice with a universal validity. This law was not created by man butdeduced (discovered) by pure reason.

1. Canonical: only the churchuses natural law now.
2. Unjust Laws: laws whichare not just are not "law" therefore, they can be disregarded by judges.
3. Hugo Grotius: transformednatural law stating that it was "based on divine authority to a law basedon universal reason."

1. Requrements: (1) requirementof restitution of harm done by one party to another, (2) pacta sunt servanda, states must honor treaties, (3) freedom of seas.

2. Positive Law: exists withoutthe affirmative consent of nations, positivism teaches that internationallaw is a body of law to which states have consented to be bound. Astate’s consent may (1) either be express as in the form of a treatyor (2) implied, as in acquiescence to customary law.

1. Man-made: law is man-made,the product of thinking. Law is made by legislatures and may be made by legislatures.
2. Policy-oriented: internationallaw is a constant flow of authoritative decision-making in which legal argumentis only one factor among many others. Criticized by positivists as abandoningthe very concept of law and legal rules.

3. Others:

1. Combination: law evolvedfrom natural law, it could be translated to positive law.
2. Critical Legal Studies (deconstructionists): denies that international law has an existence of its own (because of itsindeterminancy, inconsistency and lack of coherence).
3. Feminism: the feministapproach to international law.

2. Sources of International Law: in normal sense, it is where lawscome from (Dutch law derived from Roman law). In a legal sense, the termmeans the criteria under which a rule is accepted as valid in the given legalsystem at issue. This distinguishes law de lege fereneda from lawde lege lata (law from what is should be to law what it is).

1. Sources: of international law,set forth in Art. 38 of the Statute of the International Court of Justice.

1. Customary law: law that evolvedfrom the practice of states. The distinctions between customary law and treatiesare now problematic.

1. International custom (Custom): evidence of a general practice accepted as law.
2. A general practice: howthe law is practiced in states (legislative and executive history as purportedby published material and works). Most of this is accessible with very fewdeveloped countries, UN.
3. Accepted as law (opinio juris):
4. Evidence of Customary law: can be found in tribunals, treaties, etc.

2. Treaty (international conventions)I.C.J. Art 38 ¶ 1(a): treaties are often codified customary law. However,on some points treaties are silent (customary law can be inferred sometimes).

1. Multilateral treaties: can codify customary law and can be used even against a non-signatory state:(1) only part of the treaty is customary law, (2) parliamentary procedurestake too long, (3) inertia.
2. Declaration of Maritime Law: set the rules of maritime law between Austria, France, Prussia,Sardinia, Turkey and U.K. but other parties accepted it as the rules of customarylaw.

3. General Principles of Law (I.C.J.Art. 38, ¶ 1(c)): recognized by civilized nations.
4. Judicial Decisions and techniquesof the most highly qualified publicists (Art. 38 ¶ 1(d)).

2. Hierarchy: treaties/common law à general practices of law à judicialdecisions à learned writings à equity (not really international law).
3. Statute of the International Courtof Justice:

1. Article 38: the sources of international law, Article 38(1) of the Statute of the InternationalCourt of Justice are (1) international conventions, whether generalor particular, (2) general principles of law, recognized by civilized nations, (3) international custom, (4) judicial decisions.

1. Subsidiary source: teachingsof the most highly qualified publicists of the various nations.
2. International Convention: any agreement governed by International Law.

4. Vienna Convention Definition ofa Treaty – Requirements:

1. Vienna Convention: The Vienna convention on the Law ofTreaties, is the primary source for the law on treaties. Most provisionswere existing while others went beyond the existing law to create new lawat the time they were adopted.

1. United States: Did notratify the Treaty but recognized the treaty as an authoritative guide tocurrent treaty law and practice.
2. Limited Application: TheVienna Convention applies only to treaties which meet the requirements.
3. Vienna Convention Definitionof Treaty: an international agreement concluded between States in Writtenform and governed by international law, whether embodied in a single instrumentor two or more related instruments or whatever its particular designation."

1. Short: document mustbe (1) between states, (2) in writing, (3) governed by international law.

5. International Law Governs All Treaties: governance by international law isrequired by all treaties, whether or not they are within the scope of theVienna Convention.

1. Domestic Law: evidence thatdomestic law (entertainment contracts state California) controls a treatyrebuts the presumption.
2. Example: standard contractbetween two governments on the price of beef, contract being one normallyused in meat trade among private parties.

6. Non-Vienna Convention Treaties: the Vienna Convention only statesthat treaties which are not adopted in accordance with it have no legal force.Any agreement between two countries is a treaty.

1. United States Domestic Law: the US distinguishes between Treaties and Executive Orders for the agreementto have legal effect (in the legal affect accorded to the agreement).

1. Treaty: concluded by thePresident with the advice and consent of the Senate. Senate ratificationof a treaty requires a 2/3^rd majority vote.
2. Executive Agreement: anexecutive agreement is concluded by the President based on authority grantedby Congress or based on the inherent authority granted to the President bythe Constitution.

2. Potential Conflicts between USand International Law Treaties: a treaty can be denied a binding effectin US law and still have an effect in the international arena.

1. State’s internal law: astate’s internal law will not be used as justification for not performinga treaty.

7. Name and form of Treaties: an international agreement concludedbetween States in written form and governed by international law, whetherembodied in a single instrument or in two or more related instruments, andwhatever its particular designation. 1969 Vienna Convention on the Lawof Treaties, Art. 2(1)(a).

1. Types of Treaties: the definitionof treaty excludes:

1. Municipal law: Agreementsbetween states which are governed by municipal law.
2. No legal relations: agreementsbetween states which are not intended to create legal relations at all.
3. International organizations: treaties including international organizations.
4. Oral treaties/agreements: were not considered part of the Vienna Convention to keep it less complexbecause different rules apply to oral and written treaties.

2. Scope of Treaties: a signedtreaty is binding upon every party in respect to its entire territory.

1. Colonial Clauses: a clausethat states the treaty is binding on its non-colonial (metropolitan) territory,with an option of extending it to one or more colonies.
2. Third states: there isno application or obligation to third party states.

1. Art 2(6): requires thatU.N. "ensure" that non-member states abide by Art 2 of the Charter of theU.N. so long as it’s necessary for the maintenance of international peaceand security. This is not a requirement to be followed by all states, justthe way the U.N. deals with non-member states.

3. Inconsistent Treaties: successive treaties on the same subject matters which are mutually inconsistent.

3. Components of Treaty and Language: treatieshave 4 parts: (1) title, (2) preamble, (3) main body and (4) final part.The language is selected by the agreeing parties.

1. Title: a description ofthe type of treaty and the subject matter, often including the names of theparties.
2. Preamble: the reasons forthe treaty (purpose), names of negotiating representatives.
3. Main body: the rights andobligations of the parties.
4. Final part: provisionssetting for the guidelines for entry into force, termination, revisions,accessions, reservations, publication, languages, etc. and date and placeof conclusion (signatures and seals).
5. Authentication and Languageof Text (Article 33): when a treaty has been authenticated in two ormore languages, the text is equally authoritative in each language unlessthe parties agree that a particular text will prevail. Other versions ofthe text will be considered authentic, only if the parties agree. The besttext which agrees with Article 31 and 32 (of the intent, purpose and textualmeaning of the treaty) will prevail.

4. Subject Matter: subject matter is composed of therights and obligations of the parties with limitations:

1. Jus cogens restrictions: treaty may not set forth rights and obligations which conflict with theimperative norms of international law (jus cogens).
2. UN Charter Restrictions: treaty may not set forth rights and obligations which conflict with thoseobligations a member-state has undertaken under the UN Charter.

5. Subject Matter: extradition, copyright, standardizationof road signs, environmental issues, protection of foreign investment.

1. Contracts: in most systems,contracts are not considered law, only the legislative acts are. With treaties,agreements between states, they are considered law.
2. Law-making treaties: treatieswhich act as contracts yet resemble national statutes in content. They imposeobligations on all parties to the treaty and seek to regulate the parties’behavior over a long period of time. They create law by forming an agreementupon general universal legal principles.

1. Parties: normally theparties are more numerous than contract-treaties.

3. Contract treaties: treatieswhich resemble contracts, these are not sources of law but merely legal transactions.only to the states which make the treaties and not a whole host of nations.

1. Difference with law-makingtreaties: the contract treaty is more likely to be nullified by war thana law-making treaty.

4. Parties: only states, internationalorganizations and other traditionally recognized entities (Holy See) canform treaties.

1. Business contracts: contractswhich a party in one state has business with the parties in another is nota treaty but usually occurs under the laws of one state (jurisdiction).
2. Multinational companies (oil): many multinational companies deal with international lawwhen creating contracts with states to exploit oil, not national law. Thisis to keep states from evading responsibilities by changing internal law.

6. Classification of InternationalTreaties: treaties may be classified by the following criteria: (1) contracting parties,(2) geographic factors, (3) possibility of accession, (4) subject matter,(5) form, or (6) method of conclusion.

1. Contracting parties: agreementsbetween two or multiparties (two bilateral, more multilateral).

1. Bilateral: come in avariety of forms, for a fixed period of time to agreements general in nature/alliances.
2. Multilateral:

1. Restricted: only alimited number of nations can be part of the treaty (limited cooperation).
2. General: open to allstates (or at least regional) and apply even though not all parties agreeto adopt or enter into force.

2. Geographic: usually opento all states belonging to a region. (Problems: Turkey? European for EEC?)
3. Possibility of Accession: an open treaty allows for the joining of a new party, closed disallows newparties to join.

1. Hybrid: semi-open allowsaccession but only after consultation with parties.
2. Traditional notion: thetreaty must allow accession or the parties of the treaty must allow it.

4. Subject matter: looselycategorized as political, technical, etc. (merely for convenience).
5. According to form (written/verbal): Although the Vienna convention states that treaties must be written, theRestatement states that oral agreements are as enforceable as written.
6. Method of Conclusion: (1)concluded in solemn form (special procedure) or (2) simplified form (an exchangeof documents showing an intention to either reject or accept the treaty –letters).

8. Treaty making power – Capacity: states, organizationsand representatives have the proper capacity to negotiate and conclude aninternational agreement.

1. Nation-States and InternationalOrganizations: nation-states (presumption) have the necessary capacityto negotiate and conclude treaties. International organizations have thenecessary capacity only if the constitution of the organization either expresslyor impliedly gives the organization that capacity.
2. Component States of Federal Union: An inconsistent area is the capacity of the component states of a federalunion. Generally, one constituent state of a federation may enter agreementswith other constituent states, but the rules may differ with regards to enteringinto international agreements. Two determining factors are the constitutionalguidelines of the federation and recognition of international legal personality.
3. Self-governing territories: conflicting views.

1. No capacity view: holdsthat self-governing territories are not states and cannot be regarded as"distinct juridical person" capable of being a responsible party to a treatyentirely separate from the State.
2. Capacity view: some treatiesspecifically include self-governing territories amongst the parties whichmay sign the convention.

4. Authority of persons representinga state or international organization (Article 46): authority is issued in a documententitled full powers document, which includes names of individualswho may negotiate treaty (who have capacity).

1. Practice of State: a statemay dispense with full powers if the practice of the state demonstratesits intention to consider its representative as being duly authorized.
2. Heads of State: Full Powersare also dispensed with for heads of state, heads of government, ministersof foreign affairs and heads of diplomatic missions.

1. Full powers: they havefull powers to approve the treaty.
2. Ratification without legislativeapproval: when the head of a country ratifies a treaty without the legislative(constitutional) body ratifying it.

1. Treaty valid: one school.
2. Breach: there are exceptionswhen the one party of the treaty knew that the other party was acting inbreach of a constitutional requirement.

5. Apparently Authority of a State’sRepresentative: a State is bound to a treaty unless it is clearly evident that the representativewas acting beyond his/her authority.

1. Violation of InternationalConstitution (Article 46): a State may not invoke the fact that its consentto be bound by the treaty has been expressed in violation of a provisionof its internal law regarding competence to conclude treaties as invalidatingits consent unless that violation was manifest and concerned a rule of itsinternal law of fundamental importance.
2. Violation manifest (Article46): when it would objectively be evident to any state conducting itselfin the matter in accordance with normal practice and in good faith.
3. Specific Restrictions (Article47): if a person with specific restrictions for authorization signs atreaty and it is invalid (due to the specific restriction), the treaty isstill valid and the omission to observe the restriction may not be invokedunless it was communicated to the other parties.

6. Subsequent Confirmation:When authority is lacking, the treaty is without legal effect unless thestate subsequently confirms it. Vienna Convention, Art. 8 is not clear ifthis confirmation must be written or can be oral.

9. Treaty Process: (1) negotiation, (2) adoption, (3) authentication and (4) forms of conclusion.

1. Negotiation: the negotiationvaries according to bilateral or multilaterial.

1. Bilateral Treaties: begins(usually) with foreign ministry of one parties and followed up by discussionand exchanges of notes.
2. Multilateral:

1. Restricted Multilateral Treaties: conducted by the same manner as bilateral treaties.
2. General Multilateral Treaties: conducted at diplomatic conferences where diplomatic delegations act onbehalf of the states.

3. Unilateral Promises: away that a country can unilaterally promise the world community (obligatethemselves)) that is legally binding.

2. Adoption and Forms of Conclusion:

1. Adoption: the formal actsignifying that the form and content of the treaty have been agreed upon.Adoption signifies that the negotiations are complete, the disputed pointshave been resolved and the wording of the final document agreed upon.
2. Adoption and binding: althoughthe states might agree on the text of the treaty, states do not become boundby it until they accept the treaty as binding upon them.

1. Consent (Art. 11): expressedby signature, exchange of instruments constituting a treaty, ratification,acceptance, approval or accession, or by any other means if so agreed.

1. United States v. Pink: President does have some authority to enter into executive agreements withoutthe advice and consent of the Senate. The U.S. and the Soviet Union assignedto the U.S. the amounts it owed to U.S. nationals so that outstanding claimscould be paid. This was an agreement which the basis of "normalizing" relationsbetween the two countries.

1. President’s Power: the power to remove obstacles to full recognition as settlement of claimsof our nationals. No obstacles are to be placed in the way between this countryand another nation unless the historic conception of powers and responsibilitiesis to be drastically revised.

2. Signature: this is thenormal form of acceptance of a treaty whereby diplomats are allowed to signon behalf of their state.

3. Conclusion: a party is not bound t a treatyuntil it has consented to be bound. The consent can be expressed bysignature, the exchange of instruments, approval, acceptance, ratificationand "any other means if so agreed. The conclusion of a treaty is not thetermination but coming into effect or formation. Article 9 of 1969 ViennaConvention.

1. Treaty between states (Art.9(1)): a treaty between states "concludes" when all states adopt thetreaty.
2. Treaty by convention (Art.9(2)): a treaty adopted in a convention of states occurs when 2/3rdsof states agree for the treaty or agree to adopt something else.

4. Binding by Signature (Art.12(1)): astate is bound by the treaty when:

1. The treaty provides that signaturesshall have the effect.
2. Established that the negotiatingStates were agreed that signature should have that effect.
3. There was an intention of thestate to give the effect is from the full powers of the representative orwas expressed during negotiations.

5. Binding by ratification (Art.14(1)): statesare bound by ratification only when:

1. The treaty provides that consentis expressed by ratification.
2. It is otherwise establishedthat the negotiating states agreed that ratification is required.
3. The representative of the statehas signed the treaty subject to ratification.
4. The intention of the state tosign the treaty subject to ratification appears from the full powers of itsrepresentative or was expressed during the negotiations.

6. Ratification: some constitutionaldemocracies require that the head of state seek legislative approval beforea treaty is approved.

1. Presently: ratificationoccurs when the instruments of ratification are exchanged between states(contracting states) or are deposited in a depositary.
2. Multi-state ratification: the instruments of ratification are usually sent to a state or internationalorganization appointed to act as the depositary.
3. Treaties expression of ratification: treaties sometimes express whether ratification is needed.

7. Binding by performance: performance of a treaty can constitute tacit ratification.
8. Binding by accession: theprocess by which a state which was not a signatory of a treaty may neverthelessbecome a party to the treaty and be bound to its terms.

1. No Negotiations: acceder(or agrees to be bound by the treaty) did not take part in any of the negotiations.
2. Restricted use: thisis only allowed if expressly allowed in the treaty itself.

9. Binding by an exchange of notes: treaties are concluded by an exchange of correspondence (notes).
10. Blurring of accession and ratification/signature: the Vienna Convention allows the treaty to be open for oneyear for those states in Art. 81 (signature), however Art. 83 allows thetreaty to be "open thereafter" for all states in any category mentioned inArt. 81.
11. Binding by Acceptance/Approval: acceptance and approval perform the same action as ratification and accession,they give the state time to consider the treaty before being bound by it.And, they allow a state to "accept" a treaty rather than have to go throughratification.
12. Drafting by International Organization: becomes binding by accession, acceptance, ratification, signature, etc.of any state who wants to be bound.

3. Entry into Force: the actual implementationof a treaty’s terms. Entry in to force occurs when a specific requirementlaid out in the treaty has been met (number of ratifications).

1. Provision: the provisionsetting out the manner of entry into force apply from the moment the treatyis adopted, unlike other the remainder of the treaty which is implementedupon entry into force. A provisional application may permit the treaty tobe implemented before the formal requirements for entry into force have beenmet.
2. Departure from the rule: states can (within the treaty) allow themselves to be excepted from thisrule. Thus, states can grant themselves time to be in compliance/adapt tothe treaty.
3. Each States "Entering intoForce:" each state must enter into force on a treaty. Usually there isa statistical number of states which must sign onto a treaty for the treatyto be "entering into force." However, the treaty only becomes binding onthose that sign on.
4. Retroactivity: can be appliedonly if agreed upon by all states and if there is a clear intention to doso.
5. Termination: a state canterminate its participation within the treaty if the state informs othersof its intention not to be bound by the treaty.
6. Treaties:

1. Bilateral Treaties: comeinto force on the date the treaty is to take effect.
2. Multilateral Treaties: usually contain a provision that a specific # of states must sign beforeentry into force.

1. Ratified: a treatycan state that it comes into force only upon acceptance/ratification of allparties.

3. No laying out of requirement: if a treaty does not set "entry into force" requirements, all states mustratify the treaty before the treaty enters into force.

4. No interference: Refrain fromActs which would defeat object and purpose of treaty: (1) The state hassigned/ratified the treaty until it informs the others of its purpose notto be bound by it. (2) It has consented to be bound by treaty, pending theentry of force provided that there is no unduly delay. (lots of provisos).
5. Registering (Art. 102(1): every treaty (UN members) must be registered with U.N. after coming intoforce.

1. Not void: a treaty notregistered is not void, but it cannot be enforced in any organ of theU.N (ICJ).

10. RESERVATIONS (Article 19): a unilateral statement, however phrased or named, made by a State when signing,ratifying, acceding to, accepting or approving a treaty, whereby it purportsto exclude or to vary the legal effect of certain provisions in theirapplication to that State.

1. Traditional Rule: Accepted byother states: the reservation must be accepted or rejected by the otherstates to be valid. If accepted, the state is a part of the treaty. If rejected,the state cannot be a part of the treaty without removing its reservation.

1. Treaties: certain treatiesallow for reservations if acceptable to purpose and intention of the convention.
2. Bilateral treaties: nota problem, because both states can negotiate the treaty again.
3. Multilateral Treaties:problematic because some state will accept all portions while others willreserve out of major portions of the treaty.
4. Vienna Convention perspective: that the traditional rules will be accepted unless the reservation is acceptedby all states who are a part of the convention.

2. Declaration of Understanding: a state’s determination of what it considers a treaty to mean has no legalstanding.
3. Permissible Reservations (Article19, Vienna Convention): permits reservations to general multilateraltreaties, unless the treaty expressly or impliedly prohibits reservations,or the reservations sought are simply incompatible with the object and purposeof the treaty.
4. Purpose of Reservations:multilateral treaties need wide acceptance. Reservation encourages more membersto accept the treaty while taking their own municipal needs into consideration.
5. Legal Effects of Acceptancesof and Objections to Reservations: if a state accepts the reservation,the treaty will enter into force between the accepting and reserving state.

1. Acceptance of an Objectionsto Reservations: A reservation expressly permitted by a treaty does notrequire acceptance unless the treaty so provided (Article 20). Otherwise,unanimous consent to a reservation is not necessary. If the treaty itselfdoes not prohibit a reservation in any way, or expressly permit it, eachstate is free to decide whether to reject or to accept the reservation.

1. Article 20: if the treatyallows some reservations, no acceptance by another state is required. Ifall parties are bound to all parts of the treaty, acceptance is requiredby all parties (essential condition). With an international organization,the reservation has to be approved by that organization. States can accedeto the reservation if they do not object to it within 12 months after theywere notified of the reservation.

2. Objection of a Reservation: if a state objects to a reservation: (1) the state may object to the reservation,yet enter the treaty and fulfil its obligations and still enter with relationsto the reserving state, (2) the objecting state objects and expressesan intent that the entire treaty has no effect between it and the reservingstate.

1. Effect of (2): the acceptingstate and reserving state have no treaty between them but have a reservation

6. Modification: the treatyprovisions apply as modified by the reserving state.
7. Limitations: reservationsgenerally narrowly construed and do not apply to other provisions of treatyby implication.
8. Withdrawal of reservations (Article21, Vienna Conv.): at any time, a reservation can be withdrawn by thestate making the reservation (an objection can also be withdrawn).

1. Withdraw of Objection:Withdrawal of the objection (or withdrawal of reservation) to the reservationonly occurs when the reserving nation (or objecting nation) receives thewithdrawal.

9. In Writing (Article 23):reservations must be in writing and communicated to the states which areentitled to become parties. The state making the reservation must "confirm"the reservation upon signing the treaty (the reservation is considered tohave happened on that date). Withdrawal of reservations must be made in writing.

11. Observance of the Treaties: all parties must perform their obligations under a treaty in good faith.

1. Pacta Sunt Servanda (Article26, Vienna Conv.): Every treaty in force is binding upon the partiesto it and must be performed by them in good faith.
2. Good Faith Performance: goodfaith performance required regardless of conflicts with municipal law. Conflictingdomestic law does not excuse a state from its treaty obligations, unlessthe state’s consent to be bound by the treaty was expressed in violationof the state’s domestic law.

1. Predominance: treaty obligationspredominate over domestic law only in the arena of international law. This is not always the case in domestic courts.

3. Territorial Scope of Treaties: a treaty applies to all territory of either party. May be limited by reservation.
4. Interpretation of Treaties: three basic approaches (1) textual approach, which looks only to the text of the treaty and the plain and natural meanings of the words,(2) limited contextual approach, regards the text as the starting-pointfor interpretation, ascertaining the intent of the parties from written secondarysources, (3) policy-oriented and configurative approach, the mostliberal and conceptual, gleans intent from the treaty text and all pre- andpost-treaty communications, with no one source predominating over anotherand intent being considered in a very broad framework of "giving effect tothe goals of a public order of human dignity.

1. Interpretation of treaties(Article 31): the treaty shall be interpreted in good faith inaccordance with the ordinary meaning to be given to the terms of thetreaty in their context and in the light of its object and purpose. (Thisis soft-textualism as defined by the court).

1. Textual Considerations (Article31): documents that are also considered are: agreements related to thetreaty (between all connected parties), an instrument of one or more partiesof a treaty and adopted by all the others.

2. Subsequent agreements (Article31): the treaty will be considered with subsequent agreements of theinterpretation of the treaty, any subsequent application of the treaty, relevantrules of international law as they pertain to the treaty, and all specialmeanings of some words (granted by the parties).
3. Ambiguous/Obscure or Absurd/Unreasonable(Article 32): if a treaty is ambiguous/obscure or absurd/unreasonable,recourse can be made to supplement to means of interpretation such as preparatorywork on the treaty, to confirm the meaning of the treaty with Article 31.

5. Fulfillment of Treaties:remedies available for non-fulfillment include submission of the disputeto the ICJ, diplomatic negotiations and arbitration. Treaty will often designatethe manner in which disputes are resolved.
6. Amendment of Treaties: (generally)a treaty must be amended by agreement between the parties. Amendments takeon the character of the treaties themselves and are governed accordinglyby the general law on treaties.

1. Amendments Alter a Treaty (Article40): notification to all parties of the purpose to amend. All partieshave the right to participate in the decision to amend as well as in thesubsequent negotiations and conclusions of any amendments.
2. Modifications (Article 41): Modifications permitted if (1) modifications permitted by original treaty,(2) modifications are not prohibited by treaty and modification does notaffect the purpose or intent of treaty as a whole.
3. Amendment/Modification: Argument, customary international law recognizes amendment or modificationof a treaty by actual practice of the parties which is at variance with thetreaty provisions.

7. Invalidation of Treaties: the grounds for invalidation are: (1) error, (2) fraudulent conduct, (3)corruption, (4) coercion, (5) conflict with preemptory norms (jus cogens),(6) conflict with domestic law.

1. Voidable: a treaty conflictingwith the Vienna Convention might not be "void" but might be "voidable" ifthe state assumes the privilege to make the treaty void.

1. Notice: the party whois claiming the treaty is void for a reason must give the other time to makeobjections to the "voiding." If a dispute arises and it is not settled in12 months, the International Court of Justice will settle the dispute.

2. Grounds: a treaty can beinvalid if obtained by mistake, fraud or corruption. A treaty is invalidif it conflicts with ius cogens

1. Error (Article 48): errorrarely invoked because it’s a lengthy process of negotiations which decreaseposs. of error: (1) right to invalidate treaty, error does not automaticallyinvalidate a treaty but provides an avenue, (2) invalidation not allowed,if party in question was cause of error or on notice, no invalidation, (3)errors limited to wording of text do not affect validity.
2. Fraudulent Conduct: doesnot void a treaty but are grounds for invalidating party’s consent.
3. Corruption: the exerciseof substantial or inappropriate influence on the representative concludinga treaty on behalf of the state. This influence must come from another state,not from own representative.
4. Coercion (State or Rep.): acts or threats to procure consent to be bound. Consent is without legaleffect.

1. Coercion (Article 51): a representative who has been forced or threatened to signa treaty will not represent a valid ratification of that treaty, the treatyhas no legal effect.
2. Coercion on a state (war,aggression): after WWI, there has been a tendency to see aggression asillegal. Treaties are invalid if they are procured through a violation ofthe principles of international law in the Charter of the U.N.
3. Economic, Military andPolitical Force: there is disagreement as to what type of "aggressive"force Article 52 is talking about. It was left to be determined by the practicean interpretation of the Charter. However, economic and political aggressionwas rejected by the San Fran. Conference in 1945.

5. Conflict with preemptorynorm (jus cogens): these treaties are unenforceable.
6. Conflict with Domestic Law: mainly conflicts in US law (US must adhere to treaty even if conflict).

3. Separability (Article 44): the offending clause/section of the treaty may be separated from the rest(the rest having full effect) if (1) the treaty itself permits separability, (2) the objectionable clauses are "separable from the remainder ofthe treaty with regard to their application," "not an essential basisof the consent" and "continued performance of the remainder of the treatywould not be unjust."

1. Possible Termination: if a treaty becomes in conflict with the "preemptory norm of general internationallaw" the existing treaty which conflicts with the norm becomes terminated.

4. Acquiescence; a party whichperforms under the treaty, despite knowing that grounds for invalidationexists, is precluded from asserting those grounds for invalidation.
5. Termination and Suspension: (1) agreement of the parties, if the treaty provides, (2) the goal of thetreaty is realized.

1. Termination or of withdrawal:

1. Automatic: some treatiesare automatically terminated as a matter of the treaty itself. Art. 54.
2. Notice: some treatiesallow parties to withdraw upon notice to the other signatories. Art. 54.
3. Consent: if all partiesconsent, the treaty is terminated. Art. 54.
4. Conduct: if party conductinfers that the treaty is terminated, the treaty will no longer be in force.
5. Implied: if the treatycontains no provision to withdraw, the parties may only withdrawal if (1)the parties intended to admit the possibility of denunciation or withdrawal,or (2) withdrawal is implied by the nature of the treaty. Notice must be12 months.

2. Unilateral Abrogation ofTreaties: in principle is not permitted but often allowed, when a treatyneglects to address the subject.

1. No Abrogation Provision: treaties without abrogation or withdrawal clause is (in principle) not permitted.
2. Abrogation Provisions: treaties may be revoked in accordance with the provisions.

3. Contract Law Defenses: Treaties may be terminated for reasons analogous to contract law defenses.
4. Termination by reason ofduration: termination by reason of duration or realization of purposeis fairly straightforward.
5. Withdrawal/Termination: may take place only according to the procedures and application of the treatyor of the present Convention.

1. Impossibility of Performance: impossibility is based on the permanent distinction or disappearance ofsomething indispensable to the performance. However, the "impossibility ofperformance" to a treaty is not a reason to terminate the treaty (this islike benefit or risk of the bargain in contracts).
2. Rebus sic stantibus: fundamental change in the circumstances (rarely found). There must be (1)change in the fundamental character, (2) change in the circumstancesmust have been unforseen, (3) the circumstances at the time of enteringthe agreement must have been an essential basis of the treaty, and(4) the change in circumstances must radically alter the performance of obligationsyet to be performed under the treaty.

1. Cannot happen if: caused by territory changes or the party who is claiming the fundamentalchange was a breaching party.
2. Suspension: a partymay suspend a treaty if they could terminate it.
3. Vienna Convention: takes this perspective that there is no automatic termination, but an optionto terminate the treaty.

3. Unforeseen: the changein circumstances must have been unforeseen by the parties.
4. Essential Basis: thecircumstances at the time of entering the agreement must have been an essentialbasis of the treaty.
5. Radical Alternatives: the change in circumstances must radically alter the performance of obligationsyet to be performed under the treaty.

6. Termination due to Breach: effects of breach vary if it’s bilateral or multilateral. A material breachby one party entitles the other parties to invoke the breach as a groundfor terminating the treaty or suspending the operation in whole or in part. Art. 60(1).

1. Material Breach: abreach that (1) a repudiation of the treaty not sanctioned by the presentconvention, or (2) a violation of a provision essential to the accomplishmentof the object or purpose of the treaty. Art. 60(3).
2. Multiparty treaty materialbreach: if the material breach is with a multi-lateral treaty. The treatymay only be terminated if (1) all (other) parties unanimously agree to suspend/terminatethe treaty between the defaulting state and themselves or all parties, (2)the party affected by the breach can invoke as grounds to suspend the treatybetween itself and the defaulting state, (3) any other state may invoke thebreach as grounds for termination if the breach is of such a quality thatit radically affects the relations of all the states in the treaty or thefurther performance of its obligations under the treaty.
3. Issues:

1. Modification of rightto suspend or terminate treaty due to material breach: a party’s rightto terminate the treaty due to a material breach of an other state can bemodified by the treaty itself.
2. No automatic termination: the breach only gives the aggrieved party an opportunityto assert their right that they are harmed by the material breach of anotherparty.

7. Later Inconsistent TreatyBetween Parties: a treaty is terminated if all parties conclude a lateragreement on the same subject-matter and it is implied that the later treatyis to govern; or the later treaty is so incompatible with the earlier treatythat the two treaties cannot be performed at the same time.
8. War Between Contracting Parties: the Outbreak of an Armed Conflict Does not ipso facto terminate or suspendthe operation of treaties in force between the parties to an armed conflict.The nature of the treaty dictates the effect of hostilities on its operation.

1. Hostilities: theseare not to the legal definition of war and do not terminate treaties.
2. Peace treaties: usuallydetermine what is to happen to pre-war treaties.

6. Effect of State Successionon International Treaties: Succession of states is the shift of responsibilityover a territory from one state to another state. Succession affectsthe legal identity of the state and its treaty obligations, and occurs withsuccession of states, annexations, merger and consolidation, and decolonization.

1. Restatement § 201: Restatementgenerally follows the Vienna Convention but does vary in several aspects.The Restatement does not distinguish between newly independent states (formercolonies) and new states resulting from the disintegration of a former stateor secession of a former state.
2. Vienna Convention on theSuccession of States in Respect to Treaties: as of 1993, the Conventionhad not entered into force, this Convention was primarily intended to codifycustomary law.

1. Transfer of Authority Resultingin Moving Boundaries: The international agreements of the state to whichthe territory once belonged are no longer applicable. The international agreementsof the state to which the territory now belongs apply.
2. Absorption of an entirestate: international agreements of the absorbed state cease and are replacedby the international agreements of the absorbing state.
3. Newly formed states (formercolonies or states resulting from separation): the new state does notautomatically become a party to the international agreements of the predecessorstate. The new state, however, is not precluded from accepting such agreement.
4. Territorial and boundaryagreements: such agreements are unaffected by the succession of states.
5. Newly independent statesunder the Vienna Convention: there is a distinction between newly independentstates (former colonies) and states created by disintegration or secession.

1. Clean State Doctrine: states that are newly independent begin an existence free of the obligationsof its predecessor state.
2. Right of Option:newly independent state has a Right of Option to be a party to general multilateraltreaties by virtue of being a successor to one.

6. States Created by Disintegrationor Succession: a new state created by succession from a former state,or by disintegration of a former state into two or more states, generallysucceeds automatically to most of the former state’s treaties.

3. Effect of Governmental Successionof International Treaties: a change in government has no effect on thelegality identity of the state.

12. International Custom: one ofthe two principle sources of international law (along with treaties). Customaryinternational law is important for its potentially general application tostates not parties to treaties, as well as its ability to supplement areasof international concern not addressed in treaties.

1. Application of InternationalCustomary Law: the predominant view is that customary international lawenjoys universal application, regardless of what nations participated inits formation. Explanations: (1) clear and consistent obligations, supportedby action, (2) historic departure from a customary rule and other states’acceptance of that deviation.
2. Relationship between treatiesand customary law: treaties are given equal weight with custom, prevailover custom, be proof of custom or codify custom.
3. Two approaches: there aretwo approaches to customary law

1. Objectivist/Sociological Approach: customary law is universal and therefore binding on every state.
2. Participatory/Voluntarist Approach: customary law only applies to states which have participatedin the custom, and newly independent states have the right not to be boundby a previously established practice as customary of international law.

1. Objections by developingnations: Former USSR nations and developing countries object that customarylaw on a principle that is mainly Western (out of their sphere of influence).
2. Restatement § 201: rejectsthis position and views are bound by whatever custom is established at thetime the state comes into existence..

4. Establishment of an InternationalCustom: customary law follows basic principle that acts are permittedunless expressly forbidden.

1. Quantitative factors: (1)the amount and type of state practice, (2) duration of state practice, (3)consistency of state practice, (4) number and makeup of states adhering tothe practice.

1. State practice: how statespractice their international relations (implicitly consent to the creationof legal rules). state practice consists of what states do, not only what they say.

1. Claims: claims couldnot be forced unless they are actually "enforced" by that state.
2. General practice: shouldbe consistent with the states who participate in the practice. General practicedoes not require that states actually all practice the activity (nuclearpower), only that all (most) states accept the customary law in question.

1. Space: U.S., Europeand Russia.
2. Sea: all countrieswith sea bordered borders.

3. War crimes trials:states "say" that there is customary law when they have practiced the sametype of activity.
4. Breaches (ICJ): breachesof the rule by states to be "breaches" and not creations of new rules.

1. Illegal activity: when a state act and other states protest as illegal, this undermines theidea that the action was based on customary law.

5. Doctrine of Acquiescence: the idea that states are bound by their silence.

2. Duration of State Practice: the practice must be used for an appreciable period of time.

1. Long-term: long-termpractice was important.
2. Short-term: passageof only a short period of time is not necessarily, of itself, a bar to theformation of a new rule of customary international law.

3. Consistency of Usage: consistency (repetition) with which it is applied. Minor and infrequentinconsistencies do not necessarily negate a custom.

1. Small amount of practice: a small amount of inconsistency will not create "inconsistency"with the main rule. Yet, a small amount of practice can create a rule initself.
2. Problems: customarylaw has major inconsistencies which make customary law incomprehensible.

4. Number and Makeup of States: a significant number of states must use the practice (states representinggeographic, economic and social characteristics).
5. Local Customary Rights: Local Customary rights may develop from constant and continual practicebetween two nations, but such customary rights differ from and are independentof general international customary law principles.

1. Local Regional Custom: Customary law may also be limited to a particular region and therefore notto be the practice of such a wide variety of states.

2. Qualitative factors: conceptof opinio juris sive necessitates, the sense of legal obligation compellingstates to follow certain practices. Certain types of conduct are requiredby international law. There is a sense of legal obligation compelling statesto follow a certain practice.

1. Already law: states believethat this was already law before it "became law."
2. Omissions: customarylaw includes acts which states are forbidden to do.
3. Consensus: the courtstates that consensus creates rules. The rules of law binding on states...emanatefrom their own free will as expressed in conventions or by usages generallyaccepted as expressing principles of law.

1. New states: the ideaof consensus does not apply when new states emerge which have not participatedin the creation of the "consensus" rule.
2. Binding: if a statecannot show that the violating state accepted the rule, they can prove thatother states accepted the rule. If this is the case, the offending statemust prove that they in some way explicitly rejected the rule and did notaccept it.
3. Persistent objector: becomes a problem, for can a state never be bound to customary rules.

4. Desuetude: when the partiesof the treaty ignore the obligations or responsibilities of those treatiesand the other do not enforce the agreement. This can take the form of a newcustomary law.

5. Instant customary law ("dirittospontaneo"): this is to deny the relevance of time in forming customarylaw and focus on opinio iuris as expressed in non-binding resolutions anddeclarations.

1. Conservative view: thereduction of the time-element is carefully balanced with a stronger emphasison the scope and nature of state practice.
2. Confirmation: a state’sadmission of diritto spontaneo will only have force if the existence of therule in the opinio iuris of States is confirmed by practice.
3. Change: customary law canchange by agreements of all the parties in question. If states agree to change,the customary law will change quickly. If some state change and others acquiesce,then the law ill change by the silence of the parties in question. Thisis based solely upon juis iuris only and without the idea of practice.
4. Illegal acts: when customarylaw requires a state to act and there is proof that the state failed to act.

6. Permissive rule: a statemay be permitted to do a certain act in international law. This can be provenby the actions which states have taken in the past and the non-action bystates who’s interests have been effected.

1. Lotis (case): French shipcollided with Turkish ship killing many Turks. The Turks stated that permissivelaw allowed them to prosecute the captain. Court sided with Turkey statingthat while some states did not act to prosecute the actors, that some did.

7. Resolutions and recommendationsof International Organizations: General Assembly resolutions are nota form of international legislation and accordingly are not legally binding.

1. Resolutions: the resolutionsare frequently used as evidence of customary law. The resolutions are usefulas evidence because the votes of the world body may show a consensus (orlack of consensus) on a particular issue.

13. General principles of Law:general sources of law are not so much a source of law as a method of usingexisting sources – extending rules by analogy, inferring the existence ofbroad principles for more specific rules by means of inductive reasoning.

1. Gaps: may be filled by borrowingprincipals which are common to all or most national systems of law; specificrules of law usually vary from country to country, but the basic principlesare often similar.

1. National law: maybe useused to fill gaps only when they are suited to the international environment.
2. Natural justice: law commonto all legal systems (such as the principals of good faith, estoppel, proporationality).

2. Basis: the problem is thatwhereas many legal systems have etomological forms (Roman law à French), there is a problem when courts have cross system problems(countries from dual and competing legal systems).

1. Non liquet: the ICJ canstate that it cannot rule on a factor (instead of filling in the gaps) becausethere is no basis (foundation) in international law at the time.

3. Limited application of generalprinciples: general principles of law apply to fill the gaps betweencustomary law and treaties.

1. International law: somebasis in contracts (oil and gas, etc.) are considered international law,built by aspects of national law.

4. Decreasing Importance: Generalprinciples are losing importance because many norms are now incorporatedin treaties or are recognized as customary international law. They continueto be applied in procedural matters and problems of international judicialadministration.
5. Restatement: general principlesare secondary sources of international law.
6. Application of general principlesof procedural matters: general principles continue to be applied in proceduralmatters and problems of international judicial administration.

1. Laches and res judicata: are often relied on in cases as well as the rule that judges act with impartialityand independence.

14. Judicial Decisions and Publicists: Article 38 includes in its sources of international law judicial decisionsand the teachings of highly qualified publicists as a subsidiary means. The judicial decisions may be rendered by either an international tribunal,such as the International Court of Justice, or by a national court adjudicatingissues of international law.

1. Role of Judicial Decisions: the ICJ states that the judicial decisions have no binding forceexcept for between the parties, with respect to the particular case.

1. ICJ Opinion (Article 38): judicial decisions have no binding force except between the parties andin respect to that particular point.
2. Stare Decisis: there isno formal stare decisis doctrine and the CIJ is not required to follow itsprevious decisions, although they take the decision into account.
3. Lawmaking: if a decisionis popular and gains acceptance, the decision can become new law and tribunalswill follow the case in later decisions.

2. Highly Qualified Publicists: work of scholars, international groups of publicists serve the developmentof international law by codifying existing rules of law and by proposingnew rules (Restatements).

1. Role of systematization andcodification: the international institutes serve the development of internationallaw both by codifying existing rules of law and by proposing new rules.
2. Role of scholarly work in courtroom: varies from court to court, (1) British courts reluctantly refer to writers,(2) French courts highly influenced by works.
3. ICJ use: the ICJ will usethe works but will rarely note where the "ideas" come from.
4. Problematic: due to thenumber of writers, there is hardly anyone who is considered an authority.

3. Resolutions of the UN or otherInternational Law Organizations: the significance of UN resolutions andother laws vary depending on the circumstances.

1. General Assembly Resolutions: (1) internal General Assembly Resolutions, (2) Declaratory Resolutions,(3) State practice as proof of impact, (4) Diverse Majority as Proof of Impactand (5) binding effect on dissenting state.

1. Internal GA Resolution: General Assembly resolutions are binding on the UN as a matter of law.
2. Declaratory Resolutions: resolutions approved unanimously and supported by state practice are regardedas evidence of customary law.
3. State practice: widespreadadoption does not make it "instant custom" unless the states intended thepractice to be customary law and practiced it as such.
4. Diverse Majority approval: if a diverse majority of countries (political, geographical, economic interests)rule on a resolution, it might be considered customary law.
5. Dissenting states: dissentingstates are bound depending on whether the resolution is customary law

2. Acts of international organizations: organizations many times have some organs which are not consistingof member states, rulings of these bodies can be sources of law.

1. Is v. May be:some organizations takes the stance that something may be law. If they takethe stance that it is, the law may be considered customary law.
2. Normative value: eventhough the decision may not be binding, they might have a normative value.It is necessary to look at the content and conditions of adoption.

4. Soft Law: law which operatesin a zone of law and politics. These are treaties not yet in force, organizationswhich lack legally binding quality. States/organizations want to bind themselveslegally but test these before they become law.

15. JUS COGENS – PREEMPTORY NORMS: rules of international law of such importance that derogation from themis prohibited.

1. Jus cogens: there are a fewrules with are generally accepted as preemptory norm.

1. pacta sunt servanda, prohibitionson use of threat or force, genocide, slave trade, piracy, prohibitions onterrorism and the taking of hostages.
2. Others: prohibitions ongenocide, slave trade, piracy, prohibitions on terrorism, taking of hostages.
3. Application: controversysurrounding the very existence of jus cogens as well as the difficulty ofidentifying rules of jus cogens, resulted in sparse application.

2. Lus cogens: the idea thata treaty is invalid if it conflicts with natural law, the overriding principle.The preemptory norms of general international law, a norm which is acceptedand recognized by the international community of states as a whole as a normfor which no derogation is permitted an which can be modified only by a subsequentnorm of general international law having the same character.

1. As a whole: the preemptorynorm must be accepted by the community as a whole.
2. Which rules?: basis ruleagainst violating human rights, right against aggression (may be).
3. Custom or treaties: thiscan be derived from custom or treaties but probably no other way.

3. Obligations erga omnes and internationalcrimes:

1. Law of reprisals: onlythe directly injured state has the right to react against aggression.
2. Obligations erga omnes: the enforceability of norms of international law, the violation of whichis deemed to be an offence not only against the state directly affected bythe branch, but also against all members of the international community.
3. International crimes:

1. Act: an act of a statewhich constitutes a breach of an international obligation is an internationallywrongful act, regardless of the subject matter of the obligation breached.
2. Community as a whole: an international act results from a breach by a State of an internationalobligation so essential for the protection of fundamental interests of theinternational community that its breach is recognized as a crime by thatcommunity as a whole constitutes an international crime.
3. Types: crimes alwaysare an erga omnes breach.

1. Treaty obligation:breach of a treaty/obligation which prohibits aggression and maintains peace.
2. Self-determination: breach of a treaty regarding the self-determination of peoples (colonialism).
3. Wide-scale importance: slavery, genocide, apartheid, the safeguarding of human beings.
4. Human environment:the safeguard of obligations regarding the human environment, pollution ofatmosphere and seas. Note this is not accepted as an erga omnes.

16. EQUITY IN INTERNATIONAL LAW: equity in international law can be used if the parties agree to have a casedecided ex aequo et bono, where equity overrides all other legal principlesin the case.

1. Ex aequo et bono (Article 38): it shall not prejudice the power of the Court to decide a case of ex aequoet bono if the parties agree. Equity is not merely applied but is allowedto override all other legal principles.
2. General principles of law: there are substantive concepts of equity common to all modern legal systemswhich are therefore, general principles of international law.
3. Equity (justice): naturallaw – justice, natural law and equity – merge into one law. This is the questionof whether a state can prevent another state of doing something that theyhave already done themselves. Equity is not seen as a source of law but whenauthorities are divided on a point of law.

1. Presently: the conflictsare on the delimitation of maritime boundaries and the redistribution ofwealth from richer to poorer countries.

4. Effect on other principles: another way for lawyers to have the judge deal with the case.

1. Intra legem (within thelaw), contra legem (against the law), paetor legem (outsidethe law). Decisions contra legem are unauthorized unless the partiesagreed to confer on the Court the power to hear cases ex aequo et bono.

3. States and Their Authority:

1. Definition of State: a stateis an entity that has a (1) defined territory and a (2) permanent population,under the (3) control of its own government and (4) that engages in or hasthe capacity to engage in formal relations with other such entities.

1. Defined Territory: thereis no minimum territory or size requirement. A state need not be establishedwith clearly defined frontiers.

1. Territorial sovereignty: the ability to take legal and factual measures within their own territoryand prohibit foreign governments from exercising authority in the same areawithout consent.

1. Island of Palmas: a casewhere the Netherlands and the U.S. disputed the ownership of Palmas (betweenPhilippines and Indonesia).

2. State Protection: the abilityto display the activities of a state and to protect within the territory,the right of the other states, the right to inviolability and integrity inpeace and war and to protect its nationals in foreign territory.

1. Agreement: State boundariesare most often determined by agreements between the parties, rather thanbeing dictated by the principles of international law.
2. Conflicts: however somestates are still "states" even though the borders are in dispute.

3. Effect of Succession: asuccession of states is not grounds for affecting boundaries establishedby treaty, or rights and obligations established by treating and relatingto the boundary regime.
4. Defined by geographical boundaries: these are territories which might be separated by borderlinesfrom other areas and yet under one common legal system.

1. Air and space (everythingabove, no agreement as of yet how far). Separate agreements and treatiesdeal with airspace versus outer space.

1. Air: The general viewis that a state has complete and exclusive authority over the airspace withinits territory.
2. Space: The prevailingtheory in the field of outer space is that every state may explore and useouter space, free of national appropriation by another state. This includesthe moon and all celestial bodies.
3. Earth and below (intheory reaching to the center of the globe).

2. International Rivers: international rivers flow through a state’s territory but not be subjectto the absolute authority of the state. An international river has the followingcharacteristics: (1) navigable, (2) flows directly or indirectly into thesea, (3) flows through the territory of two or more states or forms the boundarybetween them and (4) an international act proclaims it to be an internationalriver.

1. Examples: Danube, Rhine,Amazon, Congo, Niger Rivers.
2. Vienna Convention of 1815: established the principle of freedom of navigation and international rivers,the rights of states to use the international rivers (along the river) andimposed riparian states the obligation of maintaining barge towing pointsand removing obstacles to navigation.

3. State Coastal Zone: seais divided into several zones (1) internal waters, (2) territorial sea, (3)contiguous zone, (4) continental shelf, (5) exclusive economic zone, (6)the high seas (with sovereign rights of the coastal state varying with eachzone).

1. Internal waters: arewithin the state’s territory.
2. Territorial 12 miles (territorial waters, even though some countries claim up to 200), the bandthat extends out from the coast.

1. Limited: to innocentpassage.

3. Economic Zone: 200miles, much more limited.

4. Res nullius and res communis: this refers to territory which belongs to no state.

1. Res nullius: unattributedterritory, this gave rise to the colonial empires (which no European nationclaimed).
2. Res communis: commonterritory (the high seas, Antarctica, moon and outer space).

5. Acquisition of TerritorialSovereignty: Acquisition of territory may occur in a variety of ways:(1) accretion, (2) cession, (3) conquest, (4) contiguity, (5) occupation,(6) prescription.

1. Other considerations: other factors are considered in resolving territorial disputes: (1) affiliationsof the inhabitants of the disputed territory, (2) geographical, economicand historical considerations, (3) cultural unity.
2. Accretion: the naturalprocess of river shifting and growing deltas, volcanoes, etc, that may expanda state’s territory.
3. Cession: sovereignarea may be transferred by means of agreement between states. Some statethat territory shifted without the agreement of the population is not valid.
4. Conquest: title byconquest was rare because property more frequently transferred by cession,the UN General Charter says that land cannot be transferred by aggression.
5. Contiguity: no rulein international law which permits acquisition over neighboring islands thatare not a part of another state. Mere geographic proximity is not a validfor extending territory.
6. Prescription: likeadverse possession, lasting possession of an area, may confirm title to astate. This is not occupation (which involves acquisition of land from astate rather than the state giving it up).
7. Political: (1) affiliationsof inhabitants, geographical, economic and historic considerations, culturalunity.

6. Boundary Dispute: thereis no rule that the land be precisely delineated. In the majority of instances,the land is not actually determined with specificity but many times underdispute.
7. Litigation/Arbitration: contests involving relatively little/small areas of land may be resolvedby international litigation or arbitration or some other settlement, suchas a peace treaty.

2. Permanent Population/a people: there is no minimum number required. Antarctica, however, has no permanentpopulation and, in part of that reason, is not considered a state. (Antarcticahas no permanent population and therefore is not a state).

1. Nomads: (Somalia) a largenumber of nomads coming into and out of a state is no bar to being a stateas long as there is a defined population existing within its borders.
2. Mini-state problem: thereis a problem if very small states with very small populations being admittedin full union with other states (much larger).

1. Holy See/Vatican City: has some administrative capacity, has diplomatic relations, but many stateactivities (foreign relations) are Italy’s.

3. Jurisdiction: a state exercisesterritorial jurisdiction over nationals when at home and personal jurisdictionwhen abroad.
4. Multi-lingual/ethnic: statesdo not have to be mono-lingual or ethnic, many states have many languages/ethnicities.

3. Under control of its own government: the state’s own government must be able to assert itself without the aidof foreign troops and to carry out its own duties. Exceptions may be: (1)state temporarily lacking an effective government as a result of civil war,(2) newly gained independence or similar upheavals, (3) a simple change inregime and even conflicting claims of governmental authority, (4) a stateoccupied by an enemy in times of war as long as allies are fighting on itsbehalf against the enemy.

1. War and occupation: doesnot dissolve a state as long as the enemies of the conquering party are stillopposing the occupation. Once the opposition stops, then there is no morestate.

1. Finland (1918): becauseof a civil war, problem with Russia, lots of instability.
2. State of Palestine: declaredin 1888, because of lack of control over territory, was not a state.

2. Secession: government isrequired when a group of people secede and then try to set up their own governmentin a previous territory of their "original" state. The mother state can stillcrush the secessionists and be within their rights.

1. Continuance: as longas the mother country is continuing to crush the secessionist movement, thesecessionist movement does not have the permanency to be considereda state.
2. Intervention: interventionby a third party state is prohibited.
3. Civil War: a state doesnot cease to exist if momentarily deprived of effective control over allof its territory.

1. Independence: somerequire independence as a requirement to state sovereignty.

4. State Duties: as longas the state can perform duties (sending/receiving ambassadors, signing treaties,making and replying to international claims, etc.) like any other state,it is considered independent, regardless of its internal difficulties.
5. Dependent: a state onlybecomes dependent to another state if it enters into an agreement that mostof its duties (internationally) will be performed by another state. Thisdoes not include puppet governments.
6. Form of: the form ofgovernment does not matter: democratic, constitutional monarchy, Soviet stylecommunism, Islamic law, etc.

1. Choice: is determinedby internal domestic interests.

3. Independence: a state maytemporarily lack effective government as a result of a civil war, independence.
4. Change in regime: willnot disqualify a state from statehood.

4. Capacity to Engage in Relationswith Other States: A state must have the competence, within its own constitutionalsystem, to conduct international relations with other states, as well asthe political, technical and financial capabilities to do so.

1. Before recognition: thestate has the right to determine internal interests (conservation/prosperity,administer services, court system, etc.).
2. Self-Determination and recognitionas additional criteria: these are not usually regarded as constitutiveelements for a state. What matters is territorial effectiveness.

1. Colonies becoming independent: have a limited ability to enter into international agreements.
2. Protectorates: it retainspower over most governmental functions yet allows the protecting state exercisemost of its international functions as its agent.
3. Trusteeships: statesplaced under the control of the U.N. after WWII have a limited capacity toconduct foreign relations.

3. Unions of States:

1. Federal Form: most importanttype of union, mostly constitutional systems. The basis feature is authorityover internal affairs is divided by the constitution between federal authoritiesand the member states of the federation, while foreign affairs are normallyhandled solely by the federal authorities.
2. Member states: are notconsidered independent states in international law but parts of the federalstate.
3. Member states with internationalrelations power: some constitutions allow member states in the federationto exercise limited international relations power of the larger state.

1. USSR: Belarus and Ukraineto have limited international relations power to gain 3 seats in U.N.
2. USA: allows statesto have some relations with foreign powers by an Act of Congress (if thereis one, limited scope).

2. Recognition:

1. Role of Recognition in DefiningA State: an entity must be treated as a state when it meets the fourrequirements set forth. It existence as a state is independent of any formalrecognition.

1. Types of Recognition:

1. Express and implied recognition: recognition of a state or government is often done expressly, but certainconduct may also imply recognition.

1. Recognition of State: an acknowledgment of the entity that fulfils the criteria of statehood.
2. Recognition of Government: the regime is in effective control of the state.

2. Recognition Under US Law: Under US law, only the President has the authority to recognize or not recognizean entity as a state. The United States uses this as a sign of approval (MonroePolicy Era).

1. Approval: Others likethe UK approve all countries which have control of their territory withoutregard to their form of government.

3. Discretionary or Mandatory: generally recognition is discretionary.

1. Optional (Ian Brownlie): recognition is a public act that is optional and states are not under alegal duty to do so. However, states risk in legal danger if they refuseto recognize other states.
2. Lauterpacht (intermediate)Theory: states have an obligation of recognizing an entity whohas satisfied all of the requirements for being a state.

1. Elements: this theoryis being/has been dissolved by the fact that some "states" are recognizedonly when they have "some" elements of statehood but not all.

3. Doctrine of Effectiveness: the ability of a state to gain recognition because of its effective controlover its territory rather than formal recognition by its former sovereign.

1. Premature recognition: a state is recognized before effective control over a territory at issue,such premature recognition is illegal.
2. Premature Withdrawalof Recognition: if recognition is withdrawn before loss of control, suchpremature withdrawal of recognition is illegal.

4. Nonrecognition under UNCharter (Article 41): the UN Security Council can order members to "severdiplomatic relations" with a state or government.

4. De jure and de facto recognition: under the Constitutive theory, treatment of an entityas a state without extending a formal recognition was called de facto recognition,as opposed to de jure recognition. Today there is little distinction betweende jure and de facto recognition.

1. De facto: treatmentof an entity as a state without extending formal recognition is de facto recognition. This happens when the government has illegallytaken control. Non-recognition does not mean that the states are outsideinternational law.

1. Example: a governmentwhich seizes control illegally and in violation of human rights.

2. De jure: Recognitionof the "government in fact" occurs regardless of the policies of whetherit should happen De jure recognition implies the government lawfully in powereven though it retains little actual power.

1. Example: governmentin exile.

5. Conditional Recognition: recognition cannot be granted subject to conditions, except for assumedconditions such as adherence to international law. This is because it isassumed that powerful states will use this as blackmail.

1. Reasonable conditions: assumed under international legal principles, general international law.

2. Recognition of States:

1. Theory of Recognition:

1. Declarative Theory: thefacts of statehood (defined territory, etc.) rather than formal recognitiondefine and entity as a state. Any recognition is simply a formalistic orlegal reality of statehood.

1. Statehood: the criteriafor statehood is up to states themselves. There is no resolved theory onif a state should met an objective definition of state or not.
2. Today’s prevailing view: Recognition does not create a State. Political existence of a State is independentof recognition. Before recognition, State can defend integrity independence.

2. Constitutive Theory:the existence of a state is a question of fact and the acknowledgement ofthe facts; the recognition is what "constitutes" the state.

1. Not widely accepted: the PRC, China, was assumed to be a state long before it was recognized.

2. Evidentiary value of Recognition: recognition is useful evidence of the existence of a stateif enough other states recognize a state and recognition is based on internationalprinciples rather than political considerations.

3. Recognition of Governments: recognition is an acknowledgementof the effective control of state. Recognition is not based on constitutionalityof government or legitimacy under its own domestic laws, but of effectivenessof control.

1. Tradition: (1) when a governmentis in effective control, (2) when it has the consent or acquiescence of people,(3) it shows a willingness to comply with the state’s obligations under internationallaw.
2. Estrada Doctrine (non-recognition): some states do not recognize other states because they consider the formof government (policies, etc.) as totally internal. Recognition is for onlydiplomatic relations and not for a stamp of approval.
3. Wilson Doctrine (Early 1900): the Tobor Doctrine adopted by the US and called the Wilson Doctrine. TheUS would only recognize democratic and constitutional governments. US nolonger adheres to this doctrine.
4. Acts of Recognition: recognitionis more of a continuous or establishment of diplomatic relations.
5. Significance in Domestic Lawof Recognition of State/Governments: a state may enjoy important benefits:(1) access to the court system, (2) entitlement to property belonging tothose states located in US, (3) right to claim sovereign immunity.

1. Non-Recognized States: non-recognized states have no right to sue or claim other rights of a governmentalnature in another state if they are not recognized.

1. Private individuals: varies depending on the national framework (recognition of births, deaths).
2. Germany/Switzerland: apply the law of the effective state even if not recognized.
3. English/American Courts: complete disregard of the acts of another state.

1. New law: the lawof foreign non-recognized states can be applied if allowed to do so by theexecutive (not harmful to foreign policies behind non-recognition).

4. Rights and Obligations of States:

1. Rights: States have the rights that are generally accorded them by the internationalcommunity. Some rights are protected by the UN Charter and other UN resolutions.

1. Right of Sovereignty: the right of sovereignty is fundamental because it prohibits foreign interventionin internal affairs. A state’s authority is supreme within its national territory,although restrictions on territorial jurisdiction may be made in internationalagreements. There is dispute over how exclusive a state’s jurisdiction iswithin its borders, particularly with respect to human rights. States havesimilar qualified rights of sovereignty over their natural resources.

1. Restrictions on territorialjurisdiction: restrictions on territorial jurisdiction may be made bytreaty.
2. Exclusive, domestic jurisdiction: exclusive, domestic jurisdiction is subject to much controversy. The Individualis solely the under domestic law (except for international human rights).
3. Sovereignty over resources: states are declared to have absolute sovereignty over natural resourceswithin their territories.

2. Equality of States: UnderInternational law, all independent states are equal. All states enjoy equaltreatment; thus, no state is permitted to intervene in the affairs of anotherstate.
3. Right to Defense: a statehas the right to take steps necessary to protect a state’s security. However,a state may not take anticipatory self-defense measures without violatinginternational law (UN Charter).
4. The right to internationalintercourse: states are free to establish and regulate their own internationalrelations, as long as they do not violate the accepted rules and principlesof international law.

2. Rights of States Under US Law: Under U.S. law, a state has: (1) sovereignty over its territory and generalauthority over its nationals, (2) status as a legal person, and (3) capacityto join with other states to make international law, as customary law orby international agreement.
3. General Responsibility of States: A state injuring the rights of property of another state in breach of itsinternational obligations incurs international responsibility. A state maybear political responsibility or civil responsibility.

1. Acts Attributable to States: A state only incurs liability for those individual actions or omissionswhich can be attributed to the state. The acts of its organs or agents generallyare imputed to the state. A federal state generally cannot deny responsibilityfor the acts of its member states or provinces.

1. Acts of state organs: acts of state organs are imputed upon the state.
2. Acts of state agents: imputed on the state if acting under governmental authority.
3. Acts of officials:state has responsibility over the actions of state (within limits of competencyor not).
4. Member states/provinces: federal state cannot deny responsibility for acts of member states/provinces.

2. Element of Fault: A stateis expected to take responsible care to prevent injury to another state orareas outside its territorial boundaries.

1. Lawful Adverse Affects: sometimes lawful actions of states may have adverse effects on other states.

3. Defenses to claims againsta State: A state’s apparent violation of international law may be justifiedon the grounds of: (1) consent, (2) force majeure, (3) distress, (4) necessity,(5) self-defense and counter-measures.

1. Consent: consent givenby another state will allow actions of the former state against being liablefor damage (or what otherwise would be illegal).
2. Force Majeure: theact may be excused because (1) due to irresistible force or unseen externalevent, (2) beyond its control, (3) impossible for the State to act in conformitywith an obligation or know that it s conduct was not in conformity. (Thisoften happens with ships and aircaft.)
3. Distress: wrongfulconduct of a state may be excused if the act was to save lives of persons(within its care).
4. Necessity: state mayact in violation, in order to protect interest in great peril. (1) stateacting in violation of international obligations for necessity, (2) obligationwhere state is in breach of preemptory norm, (3) defense of necessity byterms of an application.
5. Self-Defense: statemust be acting in accordance with self-defense in UN Charter.

4. Requirement of injury: it is generally stated that actual injury is not required to give rise toresponsibility of other states for breach of an international obligation,unless the obligation specifically requires injury as an element of its breach.

1. Ergo omnes obligations: All states can be held to have legal interest in the protection of the obligationsof a state towards the international community as a whole. These obligationsergo omnes.
2. International crimes: An international crime is an international obligation so essential to theprotection of fundamental interests of the international community that itsbreach is recognized as a crime by the community as a whole.

5. Remedies: Breach of internationalobligations may give rise to an appropriate remedy, including collectivesanctions, restitution, indemnity, and satisfaction.

1. Collective sanctions: acts of aggression can be countered by collective sanctions on the parties,UN Security Council may adopt non-military enforcement (41) all have to obey.
2. Restitution: reparationdesigned to put the party back in the same place as they were.
3. Indemnity: to pay forall loss (compensate damage), generally punitive damages are not awarded.
4. Satisfaction: reparationis appropriate where there is no material injury (regrets, apologies, formaland judicial declarations, punishment of guilty minor officials).
5. Self-Help, retorsions,reprisals.

6. Implementing obligationsof reparation: reparation may be sought through diplomatic channels orthrough agreed upon procedures of dispute requirements: (1) standing, (2)laches, (3) prior negotiation of the dispute, (4) exhaustion of local remedies,(5) consent to third parties settlement.

1. Standing: parties musthave a legal interest in the dispute.
2. Laches: tribunals havediscretion to decide if there has been undue delay in bringing a claim.
3. Negotiations: manyinternational agreements and tribunals require negotiations, consultations,or diplomacy.
4. Exhaustion: state submittingclaim, must exhaust available remedies in the state. Exceptions: transitoryconnections between states and outer space/missiles.
5. Consent: the partyconsents, expressly or implied, to submit to tribunal.

7. Change in government doesnot Change Obligations: although necessary to the functions of a state,a change in government does not change obligations on the international realm.

1. Tinoco case: CostaRica was responsible for the actions of its illegitimate leader (printingbank notes for U.K. companies), out-standing obligation.

5. Heads of State, Government Officials,Diplomats and Officials of International Organizations:

1. Heads of State: most heads of state are considered organs of the state and are limited intheir powers by the states’ constitutions. A head of state may be held personallyresponsible for certain international crimes.
2. Government: foreign politicalacts of a government and statements of a prime minister (or his functionalequivalent) made on behalf of the state are binding on the state.
3. Secretary of State/Ministerof Foreign Affairs (or functional equivalent): The Secretary of Stateis a state’s key figure with respect to its foreign affairs; his acts andstatements are binding on the state.
4. Diplomatic Agents: Diplomaticagents are persons empowered to represent a state in a foreign state or inan international organization. The two categories of diplomats (regular andextraordinary) and heads of missions (ambassadors, envoys, and charge d’affaires)comprise the diplomatic corps. Permanent diplomatic relations with anotherstate are established by an international agreement followed by an exchangeof diplomatic representatives.

1. Diplomatic immunities andprivileges: the established privileges and immunities of diplomats applyonly from the moment the diplomat enters the host country and only for theperiod in which he is, in fact, a diplomat.
2. Diplomatic corps: diplomaticcorps in a state consisted only of all the heads of missions (modern trendis all diplomats).
3. Immunities and privileges: an independent and specially protected status, where the diplomatic privilegesapply from moment of entering the state to speedy exit.
4. Terminated mission: Diplomaticmissions with a particular purpose are terminated with the completion ofthe job. Others are established and serve for a term, which can be haltedby their state.

5. Consuls: consuls are authorizedto protect the interests of their state in a foreign state with respect toadministrative, legal, economic and cultural affairs.

1. No political function: consuls have no political function (unlike diplomats).
2. Purpose: the main purposeis for trade, economic, cultural and scientific relations between states.
3. Enjoy immunities and privileges: but to a lesser extent.

6. Office of International Organizations: The status of international officials is regulated by treaties, such asthe UN Charter and the UN Convention on Privileges and Immunities.

4. State Jurisdiction and JurisdictionalRemedies:

1. Definition of Jurisdiction: jurisdiction is the allocation of power and authority among the states overpersons, property and events (legal interests).

1. Types of Jurisdiction

1. Legislative Jurisdiction: the power to legislate with respect to persons, property or events in question(the right to apply or prescribe laws to persons and activities).
2. Judicial Jurisdiction:the power to hear cases concerning persons, property or events in question(the power of courts to exercise judgment).
3. Enforcement Jurisdiction: the power of physical interference exercised by the executive, such as thearrest of person, property, etc. (the right to enforce those laws throughapplications of sanctions).

2. Criminal and Civil: the limitationsare over criminal and civil matters. Most important are the restrictionson criminal matters.

1. Municipal Courts and InternationalLaw: international law allows municipal courts to charge a person (internationalperson) within boundaries of prohibitions.

3. Extraterritorial application: the United State’s extraterritorial claim of jurisdiction in antitrust anddrug enforcement is "very contentious."

2. International Jurisdiction Principles: there are five main basis of jurisdiction

1. Territorial Principle: essentialattribute of a state’s sovereignty is to have jurisdiction over all of itspersons or objects within its territory.

1. Defined: Independence inregard to a portion of the globe with the right to exercise therein, to theexclusion of any other state, the functions of a State. The exclusive competenceof the State in regard to its own territory in such a way as to make it thepoint of departure in settling most questions that concern internationalrelations.

1. Open/Secret Performance (CoerciveActs): no state has the right to infringe upon the territorial integrityof another state in order to apprehend an alleged criminal, even if the suspectis charged with an international crime, such as drug trafficking.

2. Two Types:

1. Pure Territorial (Subjective/Injury): the act must commence in the state’s territory, regardless of where theyare concluded or consummated. [applicable to conspiracies to commit crimesin foreign states]
2. Objective Territorial (Effects): the act must either be completed within the state’s territory or cause seriousand harmful consequences to the social and economic order within the state’sterritory.

1. Lotus case: negligenceon a French Ship, the Lotus, has an effect on a Turkish Ship.

3. Effects Doctrine (US): American federal courts adopted a broad interpretation of objective principlewhich base don effects. Jurisdiction is based on the reprehensible effectsor consequences alone, no matter how minimal or attenuated.

1. Affect on Nationals: some states prosecute persons (foreign nationals) for crimes which directlyor indirectly affect their nationals.

1. Cutting: newspaper,Mexico/U.S., defamatory statements.
2. U.S.: the principlehas not been generally accepted for ordinary torts or crimes, but it is increasinglyaccepted as applied to terrorists or other organized attacks on a state’snationals by reason of their nationality, or to assassination of a state’sdiplomatic representatives or other officials.

2. Active Nationality PrincipleBased on Nationality of Defendant: the state of the person against whom proceedings are taking place may exercisejurisdiction based on the nationality of the defendant. This is true forcorporations, vessels and aircraft.

1. Nationality of individuals: to regulate the conduct of its nationals everywhere and thus assert nationalityas a basis of jurisdiction is widely accepted. However, there must be a genuinelink between the person (to assert jurisdiction).

1. Municipal law: whethera person has the nationality of a state is determined by municipal law. Internationallaw only sets down the limits for states to prescribe the criteria relevantfor nationality.
2. Limited Jurisdiction: some states only give themselves jurisdiction for the prosecutionof their nationals for limited reasons (treason, murder, bigamy).

1. U.S. Courts: U.S. Courtsmay only try a U.S. national for crimes perpetrated which are in violationof its own laws, not the laws of foreign governments (criminal laws).
2. Germany: can try acitizen for practically any crime on foreign soil.

2. Nationality of Corporations: based on national law, may be determined by state of incorporation, principleplace of business or nationality of those owning or controlling the corporation.
3. Nationality of principles: determined by the flag that the vessel flies.
4. Aircraft: determined byits place in registration under the Chicago Convention on International CivilAviation.
5. Extent of Territory: landwithin state’s boundaries, the coastal zones as specified in the law of thesea.

3. Protective Principle: statemay exercise jurisdiction over crimes which threaten its security and integrityor its vital economic interests even when committed abroad (in foreign territory):forging its currency, espionage, plots to break in immigration regulations,etc.

1. Restatement: generallylimits protective jurisdiction to laws recognized as criminal by the internationalcommunities.
2. Detrimental to state interests: currently, violations of immigration, custom laws.

4. Universality Principle: someoffenses, such as piracy on the high seas, slave trading and war crimes,are considered to be so serious to the general interest of the internationalcommunity that they are subject to jurisdiction in all states (national orinternational courts).

1. Acts which Threaten InternationalCommunity: acts like terrorism, hijacking, war crimes, etc. are threatsto the international community and therefore can be prosecuted in all states.
2. Universal Concern: piracy,slave trade, attacks on or hijacking of aircraft, genocide, war crimes, andcertain acts of terrorism.
3. Filartiga v. Peña: allowedthe United States to prosecute aliens who committed torts against internationallaw.

1. US Alien Tort Statute: grants a district court jurisdiction over any civil action by an alien fora tort only, committed in violation of the law of nations or a treaty ofthe United States.
2. Torture Victim ProtectionAct of 1991: allows victims to file claims for damages in a civil actionagainst individuals who "under actual or apparent authority, or color oflaw, of any foreign nation’ subjects an individual to torture or extrajudicialkilling.

5. Passive Personality PrincipalBased on Nationality of Victims: the state of a person suffering injuryor damage may assert that person’s nationality as a basis of exercising jurisdiction.
6. Jurisdiction based on Agreements: in addition to the five principles, states may confer jurisdiction throughinternational agreements.

1. Example: Jurisdiction overarmed forces determined by international agreements.
2. Example: the agreementbetween the US and Cuba the US recognizes ultimate sovereignty by Cuba, whileCuba recognizes complete jurisdiction and control within the leased areasto the US today.

5. Extradition:

1. Extradition generally: extradition is a process by which a defendant of a serious crime in onestate (the requesting state) and found in a second state (the asylum state)is returned to the requesting state for trial or punishment. In the absenceof a treaty there is no obligation to extradite.

1. Right to asylum: an individualhas no right to demand asylum, only a state has the right to grant asylum.

2. Extradition Obligation: thereis no obligation to extradite unless there is a treaty. Yet, states can extraditein absence of one.
3. Extraditable Offenses: treatiesemploy one or two methods for specifying the grounds for extradition.

1. Double Criminality: a requirementof double criminality (when the conduct is an offense in both states andpunishable by a specific term of imprisonment.
2. List of Extraditable Offenses: it may list the indictable offense for which extradition is available.

4. Nationals of the Asylum State: State treaties sometimes provide that a state may not or cannot extraditeits nationals. Criminals may escape punishment if their own states failsto persecute them.
5. Process of Requesting Extradition: Request for extradition often are initiated along diplomatic channels. Therequest is then normally subject to a judicial determination followed byconsideration in the executive branch, which has some discretion in the finaldetermination.
6. Standard Treaty Limitations onExtradition: some Standard treaty provisions may (4) include a specialtyprovision (the accused may only be prosecuted for offenses for which he wasindicted), (5) require territorial jurisdiction or (6) list other non-extraditablecrimes.

1. Discrimination: extraditionis not granted if it would be prosecution based on race, gender, politicaloffense or similar grounds that would prejudice the process.
2. Lack of Probable Cause: therequests of jurisdiction must be sufficient prima facie of guilt attributedfor the person who’s fugitive sought.
3. Political Offenses: mosttreaties exempt political offenses. Not political offenses: recognizesnon-political offenses: genocide, assassination of head of state, war crimes,genocide.

1. Purely political: purelypolitical offenses are acts directed against the state which lack the essentialcharacteristics of a crime. Examples: treason, sedition, rebellion,espionage.
2. Related political offenses: related political offenses are common crimes motivated by political goals.

1. Political Incidence (AngloAmerican): requires criminal offense to be committed in the course ofdispute between a governing party and another party with political aims.
2. Political Objective (FrancoBelgian): the means to achieve a political objective are limited. Thedegree of proportionality must exist between the political objective andthe crime which extradition is sought.
3. Predominant Motive (Swiss): the approach demands a close and direct link between the crime and the politicalact, making it more likely for a fugitive to be extradited. A political offensemust be directly related to a political goal.
4. Treaty exceptions to Terrorism: the trend is to exempt extradition from treaties.

4. Doctrine of Speciality: thenation may not punish a party for an offense other than those acts enumeratedto the extradition request.

1. Reextradition to third state: the doctrine may also prevent a state from extraditing the fugitive to athird state.
2. Exceptions: the state mayprosecute the fugitive for persons after the extradition occurs.

5. Territorial Jurisdiction: extradition usually relies upon the principle of territorial jurisdictionso that the crime committed is within the territorial jurisdiction of therequisitioning state.
6. Non-Extraditable Offenses: mandatory or discretionary exception for crimes of a religious, fiscal,or military nature is often included.

7. Method Employed to Avoid Safeguardson Extradition Treaties: to avoid the terms of extradition treaties,potential asylum states may deport the accused as an undesirable alien. Requisitioningstates have been known to abduct the accused from an asylum state as well.

1. Deportation: the state mayavoid extradition problems by refusing a person staying in their country(undesirable alien).
2. Abduction: although generallyconsidered an affront to sovereignty, US courts accept abduction of personsbrought before them (by illegal means).

6. United States Jurisdictional Principles:

1. US Grounds for Jurisdiction: Under the widely accepted "pure" territorial principle, the US law may beapplied for any conduct taking place in the US. The controversial effectstest of the US law is an extension of the objective territorial principle,in which any minimal effect jurisdiction. The protective principle also hasbeen applied in a few cases.

1. Conduct and effects: theUS is applied to conduct taking place in US territory, regardless of wherethe effects are felt.
2. Protective Principle in US law: this is only in a few cases, espionage, counterfeiting of the state’s sealor currency, falsification of official documents, etc.

2. Conflicts of law under US law: "comity" is the term used to describe judicial restraint practicedin order to avoid or resolve such conflicts of jurisdiction, and has beenused by US courts to refuse jurisdiction in deference to another state. Concerns are: (1) vital national interests, (2) nationality of persons, (3)ability to enforce judgement, (4) hardship to parties, (5) justified expectations,(6) consistency.

1. Form non conveniens: oftenutilized method for settling problems of concurrent jurisdiction.
2. Reciprocity Distinguished: has been used to justify refusal to enforce a foreign court’s judgment whenthe foreign governments refuse to enforce US judgment.
3. Sovereign Compulsion defense: designed to prevent unfairness to private parties subject to the conflictingcommands of several states.

1. Individual: may not berequired to do an act in violation of his own national laws or refrain froman act required by the state.
2. Foreign nationality: aperson may be required to do an act in violation of his own national lawsor act even when required to refrain.

4. Helms-Burton Act: the lawthat allows nationals of third states dealing with American property expropriatedby Cuba, using such property or making benefit of it, may be sued for damagesbefore American courts and even barred from entering the United States.

7. Immunities from Jurisdiction: State and Diplomatic Immunity. Also International Organizational immunity.

1. Sovereign Immunity: there are two main theoriesof sovereign immunity: (1) absolute immunity and (2) qualifiedimmunity.

1. Absolute Theory: based on the notion that all sovereign states are equal and are not subjectto each other’s authority.

1. Latin America: AbsoluteTheory is still followed in Latin America.
2. Modern view: a state maybe subject to a foreign jurisdiction when it engages in commercial activity.Further, there is a denial of immunity for claims to property or other immovablesacquired by gift of succession, as well as claims in non-commercial tortcases.

2. Restrictive Theory (CommercialException): when a state engages in commercial activity, it may be subjectto a foreign jurisdiction.

1. Extent of Immunity: althoughsome states grant absolute immunity to the actions of a state there is atrend to qualified immunity.

1. Qualified Immunity: wherethe actions of a state with relation to "governmental acts" (iure imperii) are immune, however not commercial acts (iure gestionis).

1. Commercial Ownership byState: requiring proof of ownership (property) for immunity in a proceedingwould require submitting to the jurisdiction of the foreign state.

1. U.K. middle road: the U.K. requires that states present some evidence (a prima facie) caseto show that their claim of property (thus, immunity) is not groundless.

2. Contract, Real Estate andTorts: the immunity of a foreign state from claims against it arisingout of contract or tort actions. Also, this applies to land which is acquiredby gift of succession and claims in non-tort actions.

2. De jure imperii: sometheorists state that immunity should be for immunity for conduct de jureimperii and immunity from execution if it is sought against property of aforeign state which service public (not commercial) purposes).

1. Discretion: with regardto conduct and property de jure getionis, states are free to grant immunity.
2. State Property: theprotection of a state from enforcement measures against its property (bankaccount of state’s embassy).

2. Third world states: approachof the former Soviet Union, is that there is absolute immunity, but in practicethe state’s allowed themselves to be subject to jurisdiction in treaties.

3. Foreign Sovereign ImmunitiesAct (FSIA): jurisdiction over aforeign state in federal or state court of the United States may only beobtained through application of the FSIA. A foreign state denied sovereignimmunity is liable to the same extent as a private party, except that itwill not generally be liable for punitive damages.

1. Immunity exceptions (§ 1604): are to waivers of immunity, commercial activity, expropriation claims, propertyclaims, non-commercial torts, maritime liens, counterclaims and internationalagreements. All states who agree to the treaty at the time of theenactment of the act are immune in the U.S. (federal and state) courts except:

1. Jurisdiction through FSIA: applies to political subdivisions, agencies, instrumentalities of a foreignstate.

1. Foreign State (§ 1603): includes political subdivisions of a foreign state or an agency or instrumentalityof a foreign state.
2. Instrumentality(§1603(b)): Agent or instrumentality of a foreign state" is a legal person (person,corporation, entity) and is an organ of a foreign state or politicalsubdivision (or a majority of its shares are owned by a foreign state, SAS), and which is not a citizen as defined in 28 U.S.C. §§1132(c) and (d) or not created by the laws of any third country.
3. United States (§1603(c)): all territorial waters, territories, subject to jurisdiction of the U.S.

2. Waivers of immunity (explicitand implicit)(§1605): where the U.S. has waived immunity either implicitlyor explicitly (regardless any withdraw of waiver by that state).
3. Commercial Activity (§1605): : a cause of action based upon commercial activity within the U.S.carried on by a foreign state, or for an action (performed in the U.S.) foractions elsewhere.

1. Having contact with U.S.: foreign activity carried on in the U.S. by a foreign state,means commercial conduct carried on by the state, having substantialcontacts with the U.S.
2. Commercial activity (§1603(d)): the regular course of commercial conduct or a particular commercial transactionor act.
3. Extent of the Claim (§1604): the law extends to claims of immunity against the U.S.(not commercial activities) and their commercial property can be levied uponfor the satisfaction for debts in connection with their commercial activities.

4. Expropriation claims: property taken in violation of international law is not immune.
5. Property rights: doesnot apply to property in the US acquired by gifts or rights in immovableproperty. The denial of immunity extends to all property (including propertyfor consular or diplomatic purposes.

1. Property (§1605): takenin violation of international law and exchanged for property in the U.S.(or actions taken by an agent or instrumentality of the government).
2. Succession or immovableproperty rights (§1605): : rights to property which are grantedin the U.S. acquired by succession or gift or rights in immovable propertysituated in the United States.

6. Noncommercial torts:the exception to tort immunity extends to all acts committed acting in thecourse of duties of state. (1) discretionary acts (not in course of duties)and (2) torts/injuries occurring outside of US are not immune.

1. Personal injury, death,damage to or loss of property (§1605): caused by a tortious act or omissionof the foreign state or an official (agent) of that state (in the scope ofemployment).

7. Maritime Liens (§1605): there is no immunity for maritime liens to which a foreign state might bea party (ownership of a vessel or cargo). Provided that, a summons and thecomplaint are delivered to the person (having possession of the vessel),that the vessel be arrested (pursuant to process), the service of arrestdeemed valid delivery of the notice.

1. Liability (§1605):the party bringing the suit is liable to the state if they know that a vesselof a foreign state is involved (and there is any damage sustained by thestate).

8. Counterclaims: foreignstate is subject to counterclaim is denied immunity if it would be deniedimmunity had it been brought as a direct claim against the state.

1. Counterclaims (§ 1607): a foreign state is not immune to counterclaims to which it is not immune,to which claims meet or are below the claim of the foreign state and claimswhich are of the same "transaction or occurrence" and subject matter of thestate’s claim.

9. Attachment, arrest, execution: property of foreign states, some are immune without exception.

1. Property of a foreign state: is immune from arrest and execution except as in § 1610 and § 1611.

1. Commercial Activity.
2. Waiver of Immunity.
3. Taking by violation of InternationalLaw.

2. Certain types of PropertyImmune from Execution: property deemed by the President to be immunefrom all attachments or judicial processes impeding the disbursal of funds.

1. Foreign Central Bankor Monetary Union: unless waived.
2. Military Activity: the property is of military character or under military control of defenseagency.

10. Summons and Service and DefaultJudgment (§ 1068): a default judgment against a state cannot be grantedunless the claimant establishes his claim with evidence that he was harmed(damaged) by the state in question.
11. International agreements: foreign state is immune subject to treaties. (no telling whether it’s broadenough to cover international custom).
12. Extent of liability:liable to the same extent as a private party (except no punitive damages).If only punitives are awarded, the state will only be responsible for punitivesthat reflect the actual or compensatory damages.

1. Liability (§ 1606): a foreign state is not liable for punitive damages.
2. Death: if a death results,then the country is liable for compensatory damages measured by the pecuniaryinjuries resulting from the death.

2. Act of State Doctrine: the act of state doctrine isnot a rule of sovereign immunity and, in fact, is not even a rule of internationallaw. It is a domestic-court-made doctrine, which protects the sovereigntyof states by judicial deference to the public acts of a foreign state doneon that state’s territory. The Act of state may be employed for private litigants,while sovereignty can only be applied by states.

1. Supreme Court Determination: the US must deem as valid, the acts of foreign sovereigns taken within theirown jurisdictions. Underhill v Hernandez (U.S. citizen tried in Venezuelancourt, court jurisdiction will not be reviewed).

1. Immunity form Challenge: the acts of state carried out within its own territory cannot be challengedin a court of other states.
2. Contrary to Private Law Doctrine: covers actions which are against the state’s own laws. TheAct of State Doctrine is much broader than the Private Law Doctrine.
3. Narrower Than Private Law Doctrine: the Act of State covers only state action and not the action betweenprivate individuals.
4. Immunity of Agents: allagents or actors on behalf of a state (foreign state) are immune from thelegal proceedings in respect to the acts done by them on behalf of the foreignstate. The state can invoke an "action to protect their agents" without invoking"sovereign immunity."

2. Exception to the Act of StateDoctrine: (1) treaty exception, (2) commercial exception, (3) situs ofproperty exception. (4) when the State Department rules that the Act of Statedoctrine was not required.

1. Treaty law exception: sometreaties provide a legal standard for compensation or adjudicating the case.If so, then state action doctrine does not apply.
2. Commercial Exception: analogousto commercial activity exception of sovereign immunity. The state actiondoctrine is inapplicable to the repudiation of a purely commercial obligationowed by a foreign sovereign or by one of its commercial instrumentalities.
3. Situs of the property:the Act of State doctrine only applies to land within the foreign territory,under foreign jurisdiction, not the land in the US.

1. Expropriation of PrivateProperty: here the purchaser is not forced to buy the property as anagent is forced to carry out the actions of the state.
2. American Property: mostof these cases deal with the foreign nationalization of private property(mostly American interests).

3. Anti-Trust Cases: the applicationis especially controversial in anti-trust cases. Defendants raise the doctrineto shift the blame for damages incurred by the Π to the conduct of the foreign state.
4. Doctrine of Other States: although not required by international law as practiced in US courts, thecourts of many other states do recognize a similar doctrine.

1. Civil Law countries: donot have the Act of State Doctrine, but review their conflicts principlesfor a determination of the affect to afford foreign nationalization decrees.

3. Immunity of State Representative: just as diplomatic and consulate premises enjoy special protection, so dovarious state representatives.

1. Head of State: the immunityof head of state relies on both sovereign immunity and diplomaticimmunity.

1. Cabinet Ministers: thequestion is whether this applies to cabinet level ministers, etc.

2. Diplomatic representative: diplomats (and their family members) enjoy broad protection fromarrest and detention, as well as immunity from criminal laws, and civil andadministrative jurisdiction.

1. Vienna Convention on DiplomaticRelations (1961): most of the countries of the world have agreed to itand it can be used as evidence of "customary law." Therefore, it can be usedagainst countries who haven’t even signed it.
2. Specific Privileges: TheVienna Convention, also enacted as U.S. federal statutory law, provides thatdiplomats are (1) not required to give evidence, (2) immune from personalservice, (3) excused from paying most taxes and social security provisions(except water rates, payment for services rendered), (4) excused for customsduties and inspections.

1. Exceptions (Art. 31(1)): the diplomat is immune from civil and administrative jurisdictionexcept: (1) actions involving purely property issues (personal), (2) estateadministration (immovable property) in the host state in which the diplomatis involved in a non-official capacity, (3) any other commercial or professionalconduct in which the diplomat is functioning outside his official duties.

1. Commercial activities: diplomats are immune from commercial suits (even thoughstates might not be).

2. Iran hostages case (US Diplomaticand Consular Staff in Tehran): Iran breached convention and customarylaw with regard to diplomats and was inexcusable even with the extraordinarycircumstances.
3. Convention on the Preventionand Punishment of Crimes Against Internationally Protected Persons: requiresstates to prosecute or extradite persons for committing, attempting or threateningto commit violence against a head of state, diplomatic agent, or consularofficial. Title 18 U.S.C. § 112.
4. Purpose of the Privileges: the purpose is not to benefit individuals but to ensure theefficient performance of the functions of diplomatic missions as representingstates.
5. Administrative, Technicaland Service Staff: have complete immunity from criminal jurisdiction,but immunity from civil and administrative jurisdictions only with respectto official acts.

1. Functional: this ismerely functional because it represents a need to allow subordinate staffto be "sacrificed" for the diplomatic mission in the receiving state.

3. Waiver of Immunity:

1. Binding: municipal lawis still binding on the official for an act, but it is unenforceable.
2. State: the immunity isconferred on the state and can only be waived by the State. This can happen in the face of the Court (after the action has commenced)or by agreement before the proceedings are commenced.

1. In the face of the Court: (after proceedings have commenced) can take two forms:

1. Express: the stateexpressly stating that the immunity is waived.

1. Waiver: the receivingstate can ask the ambassador to waive his subordinates immunity (so thatthe official can be charged in the offending state).

2. Implied: defendingthe action without challenging the jurisdiction of the court.

2. Appearance: waivercan be obtained when the state appears willingly in a claim.

1. Suit: a state whichsues another person/state in court can be deemed to have waived the immunityfor a cross-claim.
2. Related: the cross-claimmust be related to the initial claim of the State.

3. Waiver of Execution (enforcement): a state can waive the jurisdictional ability of the court to judge the caseand still not waive the enforcement (after the judgment is obtained and thecourt tries to enforce the result.

1. Commercial exemption: in states which do not cover commercial acts within the diplomatic immunity,there is no need for waiver of enforcement (execution).

3. Status of Embassies and Consulates: although such diplomatic premises are within the territory of the receivingstate, they do not enjoy special protection. Diplomatic or consulate premisesare inviolable and are immune from any exercise of jurisdiction by thereceiving state that would interfere with their official use.

1. Functions of Diplomatic Mission: (1) Representing the sending State in the receiving State; (2) Protectingin the receiving State the interests of the sending State and of its nationals,within the limits permitted by international law; (3) Negotiating with theGovernment of the receiving State; (4) Ascertaining by all lawful means conditionsand developments in the receiving State, and reporting thereon to the Governmentof the sending State; (5) Promoting friendly relations between the sendingState and the receiving state, and developing their economic, cultural andscientific relations.
2. Actions in the Mission: actions in the mission can be subject to the laws of the receiving state,criminals of the receiving state may not take refuge.
3. Official Actions (Vienna Conventionon Diplomatic Relations): diplomatic/consular premises are "inviolable,and are immune from any exercise of jurisdiction by the receiving state thatwould interfere with their official use: refrain from search and seizure,attachment or other forms of jurisdictional enforcement.
4. Protection: the host statemust protect the diplomatic premises from private interference (500 feet).
5. Enter premises: the hoststate may not enter premises unless invited.
6. Taxes: exempt from alltaxes (except water, etc.).
7. Free movement: the diplomatmay have right of free travel in all areas except restricted areas (nationalsecurity interests).
8. Transmission of Communications: the mission must have unimpeded transmissions of communication to the sendingstate; however, radio transmission is not required (and can only be allowedwith approval from receiving state).
9. Arrest: diplomatic agentsmay not be arrested or subject to coercive measures.
10. Diplomatic Approval: theambassador of a state (sending state) must be "accepted" (acceptable) bythe corresponding state (receiving nation). Subordinates are not requiredto be accepted.

1. Persona non grata: astate may at any time declare an ambassador a persona non grata, thus requiringthe sending state to send another ambassador.

11. Withdraw of Diplomatic Relations: when a state breaks off diplomatic relations, they requirethe corresponding state to "withdraw" and break off relations.

1. Reasonable Time to Leave: once the position ends, the person is given a reasonable time to leave thecountry.

4. Consuls: consular immunityhas been codified under the Vienna Convention on Consular Relations. Underthe Convention, consulars are immune from arrest or detention except forserious crimes or as directed by court decisions, and consular activitiesare inviolable.

1. Vienna Convention on ConsularRelations: codified the law on consular relations.
2. Difference with Diplomat: the consular might have the same duties as a diplomat (can communicate withnationals of the sending state in the territory of the receiving state, especiallywhen those nationals are in prison before trial or after conviction in acriminal case) but are not totally immune (consuls who do not act as diplomatshave many of the same privileges and immunities as diplomats, but they areimmune from civil or criminal jurisdiction with respect to activities for official acts and not other acts) and only can import itemsfor personal use (free of duty) at the time of first appointment.

5. Special Mission: immunityfor special missions is covered by the general provisions of diplomatic immunity.

1. Convention on Special Missions: General assembly approved a convention (20 ratified it already, not US)which grant immunity for special missions.
2. Restatement: immunity forspecial missions is covered by the general provisions of diplomatic immunity.

6. (UN) Representative in InternationalOrganizations: UN civil servants are protected under the Convention onthe Privileges and Immunities of the UN, which generally grants immunitiessimilar to those enjoyed by diplomats and consuls. The immunity of internationaltreaties is established by treaty (The General Convention of the Privilegesand Immunities of the UN is an example of such a treaty): (1) immunity fromall legal process, (2) inviolability of premises, assets, archives and officialpapers, (3) exemption from direct taxes and duties, (4) exemption for stafffrom income tax, (5) diplomatic immunity for the Secretary General and AssistantSecretaries-General. (Other Staff Members have limited immunity).

8. legal rights:

1. Legal Person: an entity that has the right to enter into legal relations and to have legalrights and duties.

1. States: the original, primaryand universal subjects of international law.
2. Organizations: have personalitybut only with certain international rights and obligations. This islimited to the treaty which affords them limited rights and duties to obtaintheir specific task.

1. Ultra vives: if the organizationacts outside of their authority, their actions are void.

3. Individuals: have now obtainedstatus through human rights. They cannot make treaties or create customaryrules of international law.

9. International Organizations and UN: an organization is set up byan agreement between two or more states. Organizations are set up by statesfor specific purposes and with specific powers. The organizations can becategorized by its’ regional or global focus or on the typesof organizational functions or tasks.

1. Traditional Type (InternationalOrganizations): they are based upon inter-governmental cooperation ofstates which retain control of the decision-making and finance of the organization.

1. All major organizations:with the exception of the European Union, all major organizations are thistype.

2. Regional Organizations: refers to regional institutions createdthrough agreements between member states.

1. Basic Characteristics: concernedwith problems within a specific region. Some handle only specific concernssuch as economic, military or political issues, while others deal with anymatter that concerns the nations in that region. The primary function ofthese regional organizations is to promote cooperation between the memberstates. Occasionally, the term regional organization has been loosely appliedto defense organizations.
2. Major Organizations:

1. The Organization of AmericanStates: created in 1948 to promote unity and cooperation among nationsin Western Hemisphere. (Security through common defense).
2. The Council of Europe:Created in 1949 to promote unity after WWII.
3. The Organization of AfricanUnity: OAU formed in 1963 as loose association of African nations. Haslimited power. Each nation retained autonomy as recognized in OAU Charter.

3. Functions

1. The Organization of AmericanStates: concentrated efforts on political cooperation. Concerns are (1)security, (2) ensuring peaceful settlement of disputes, (3) coordinatingcommon defense, (4) promoting economic, social and cultural development.
2. The Council of Europe:focused on Economic cooperation through European Communities and has developedagreements in the area.
3. The Organization of AfricanUnity: focuses on noninterference and peaceful resolution between memberstates. Has limited role in conflicts.

4. Relationship to UN (Art. 52 ¶1): the UN encourages its members in regional organizations to attemptto settle local disputes in those organizations before referring them tothe Security Council. The issue of regional jurisdiction and the often overlappingauthority of the Security Council is unclear.

1. Art 52 ¶ 2: regional organizationshave duty to inform the Security Council of any actions the organizationis undertaking or contemplating for the maintenance of international peaceand security.
2. Art 53: regional organizationsmust seek Security Council authorization for any enforcement action.
3. Art 54: regional organizationmust inform Security Council for international peace and security measures.
4. Jurisdictional issues:While questions differ as to the conflicting jurisdictions of the SecurityCouncil and regional organizations, the Security Council has deferred toorganizations for pragmatic considerations.
5. Collective Self-Defense OrganizationsDistinguished: loosely applied to collective defense arrangements underArt. 51 of the UN Charter. Collective Self-Defense refers to other statesaiding a state that is attacked.

3. Supranational Organizations: European Community.

1. Mandate: Supranational organizationsresult in a division of power between the individual member states and theorganization. There is a transfer of sovereignty from the member states tothe international level is more extensive as to the scope and nature of delegatedpowers and is characterized by the cumulative presence of: (1) the organsof the organization are composed of persons who are not governmental representatives,(2) the organs can take decisions by majority vote, (3) they have authorityto adopt binding acts (some which have a direct legal effect upon individualsand companies), (4) the constituent treaty of the organization and the measuresadopted by its organs form a new legal order and (5) compliance of memberstates with their obligations and the validity of acts adopted by the organsof the organization are subject to judicial review by an independent courtof justice.
2. Structure: treaties establishingthe EC provide the institutional structure of the organization. Four organizationshave power: (1) European Commission, (2) Commission of Ministers, (3) EuropeanParliament, (4) European Court of Justice.

1. Commission: persons appointedby member states. Commission makes decisions in private and not intendedto represent individual interests of member states.
2. European Council: eachmember represents one member of Parliament.
3. European Parliament: representsthe peoples of the community, comprised of representative elected by directelections. Seats are allotted by party.
4. European Court of Justice: 13 judges appointed to 6 year terms. Court ensures compliance with EuropeanCommunity.

3. Community Law and Domestic Law: treaties signed by member states are treated as constitution of the Communityand are binding on each of the nations and individuals.

1. Directives: Regulations,directives and decisions created by the institution of the European Communityin accordance with treaties are also directly applicable to member statesand citizens.
2. European Court of Justice Decisions: are held to be superior to the laws of domestic states.

1. Institutional Theory: member states have given up sovereignty in specific areas in favor of thecommunity, therefore they have given up the power to enact conflicting lawsin these areas.
2. Political Theory: stateshave limited their sovereignty granting power to the Community, so any lawsthat contradict the community are invalid.

4. Non-Regional Organizations:

1. Non-Governmental Organizations(NGO): not established by governmentalor by an agreement between states and their members are private citizensor bodies corporate. (Amnesty International). Some are entrusted with certainfunctions of states.

1. Role: primarily informal.
2. Watchdog: they mainly havean effect on international law-making in areas by adding expertise, makingprocedures more clear, supervising and factfinding with regard to human rights.
3. Consulting Status: whilesome NGOs have consulting status, they are not part of international law.
4. North South Problem: mostNGOs are in richer developed countries.

2. Individuals or Companies: most of the legal (international) power is rare, limited and derivative(it can be conferred only by states.

1. States: set up the treatiesor adopt customary rules giving rights to individuals or corporations, thatmake contracts with individuals or companies by international law.
2. Power through treaties: individuals have rights to the access of international dispute procedures,but this power mainly depends upon treaties consented to by their governmentsand consent can be qualified or withdrawn.
3. Power of Tribunal: if thetreaty allows individuals or companies the right to an international tribunal,then they might have rights.
4. Individuals:

1. International Problems: usually between the person and their own government (human rights).
2. States can Challenge AnotherState Action: state X can challenge state Y’s handling of their citizen,however state X is not protecting its own citizen and state X does not haveto give any compensation it might receive in the international realm to thecitizen of State Y that is harmed.
3. Exhaust Remedies: theindividual must exhaust all municipal remedies under their state before seekingredress on the international level.

5. Companies/Corporations (Trans-NationalCorporations, TNC):

1. Unilateral Elevation: a state cannot unilaterally allow a company to have redresses on the internationallevel for actions caused by that state.

3. Insurgents and national liberationmovements:

1. Insurgents: as long asthe old government is still in power, a wrongful act of the insurgents isnot considered a state action in international law.

1. Act of State: but ifthe insurgents come to power, it becomes (retroactively) an act of state.

2. National Liberation Movements: their international status depends upon the recognition of their politicalgoals of freedom from colonial domination, racist oppression or alien occupation.

4. Ethnic Minorities and IndigenousPeoples:

1. Ethnic Minorities: a groupnumerically inferior to the rest of the population of a State, in a non-dominantposition, whose members – being nationals of the State – possess ethnic,religious or linguistic characteristics differing from those of the restof the population and show, if only implicitly, a sense of solidarity, directedtowards preserving their culture, traditions, religion or language.
2. Indigenous Peoples: thosewhich having a historical continuity with pre-invasion and pre-colonial societiesthat developed on their territories, consider themselves distinct from othersectors of the societies now prevailing in those territories, or parts ofthem. They form at present non-dominant sectors of society and are determinedto preserve, develop and transmit to future generations their ancestral territories,and their ethnic identity, as the basis of their continued existence as peoples,in accordance with their own cultural patters, social institutions and legalsystems.

1. Individual: a personwho belongs to the indigenous group through self-identification as indigenousand is recognized and accepted by these populations as one of its members.

5. UN: International organizations usuallyrefers to public or international organization, in contrast to private ornongovernmental organization (NGOs). International organizations are establishedby treaties and governed by international law. The UN is a public organizationof over 150 states that was established by international governmental cooperationon October 23, 1945.

1. The UN Charter: Entered intoforce on October 24, 1945. 150 members (Koreas, Taiwan, Switzerland are exceptions).

1. Purposes: (1) maintaininternational peace and security, (2) develop friendly relations among states,(3) achieve international cooperation in solving economic, social, culturaland humanitarian problems, and (4) be a center for states to use to attainthese common goals.

1. Security: maintain internationalpeace and security, and to what end: to take effective collective measuresfor the prevention and removal of threats to the peace, and for the suppressionof acts of aggression or other breaches of the peace, and to bring aboutby peaceful means, and in conformity with the principles of justice and internationallaw, adjustment or settlement of international disputes or situations whichmight lead to a breach of the peace.

1. Domestic Jurisdiction (Art.2(7)): the U.N. cannot intervene in matters essentially in the domesticjurisdiction of the country

1. Acts of aggression: are generally not considered a matter of domestic jurisdiction.
2. Others: violationsof human rights, threats of international peace, infringement on rights ofstates.

2. Friendly relations: todevelop friendly relations among nations based on respect for the principleof equal rights and self-determination of peoples, and to take other appropriatemeasures to strengthen universal peace.
3. Cooperation: to achieveinternational co-operation in solving international problems of an economic,social, cultural or humanitarian character, and in promoting and encouragingrespect for human rights and for fundamental freedoms for all without distinctionas to race, sex, language or religion.
4. Center for States: tobe the center for harmonizing the actions of nations in the attainment ofthese common ends.
5. Other role: humanitarian,human rights, decolonization, assistance with refugees, economic development,relations between rich/poor countries.

2. Principles: (1) sovereignequality of all member states, (2) fulfillment of states’ obligations underthe Charter, (3) settlement of disputes by peaceful means, (4) refrainmentfrom the threat or use of force against the territorial integrity of politicalindependence, (5) assistance to the UN in any action it takes, (6) adherenceby non-members states to these principles so far as to maintain internationalpeace and security, (7) non-intervention in matters which are essentiallywithin the domestic jurisdiction of a state.
3. Charter Specifics:

1. Treaty text: the originallanguages of the United Nations were English and French, and there are distinctionsbetween the two. (both give broader or narrower interpretations).
2. Literal Interpretation: when there is an evaluation of the work based solely on the text. Wordsare read with their ordinary meaning, unless clear from the content thata technical meaning is appropriate.

1. Conflict: particularprovisions are not meant to be in conflict with other parts of the text.
2. Treaties: this is mostproperly the way of interpreting treaties.

3. Intention and travaux prepatories(legislative history): one can determine the intention of the partiesby looking at the text, the legislative history of the text itself, the recordsof negotiations.

1. Travaux prepatories: this is the record of the negotiations.
2. Organizations: thisis usually not used for setting up treaties because they need more of a groundingthan legislative history.

4. Practice: the way thatstates act (perform their duties) is evidence of what was intended in thetreaties.

1. Voting (Majority): a practice supported by the majority will always be the way documents areinterpreted.
2. Against treaty: sometimespractice goes in direct conflict with the treaty obligations and responsibilities.There is no law or authority as to what is required after this result.
3. Amendments: amendmentsto the treaty require 2/3rds vote of general assembly, ratified by 2/3rdsvote of members and approved by Security Council.

5. Statutory Interpretation:

1. Full effect: the treatyshould be interpreted to give full effect to its purpose.
2. Sovereignty: the treatyshould not be interpreted to limit the sovereignty of states.

1. Tribunals: restrictiveinterpretation is used to when tribunals with jurisdiction is used.
2. Heavier burden: itis also used when the burden placed on one party is greater than another.

3. Effectiveness: powerscan be implied if they are needed (necessary) to achieve the purposes whichthe body was set up to do.

2. Revision of Charter: underArt. 108, the Charter can be amended by a 2/3^rd vote of the GeneralAssembly, and ratification by the constitutional processes of 2/3rds of themembers of the UN including all permanent members of the Security Council.
3. Nature and Function of the UN: the UN has organizational personality (legal capacity) and immunity in the international system. The most important role of the UNis during peacetime.

1. Legal capacity (Art 104): states that the Organization shall enjoy in the territory for the exerciseof its functions and the fulfillment of its purposes.

1. ICJ: the UN has the requisiteinternational personality endowing it with the legal capacity to bring internationalclaims for harm done to the organization itself. The UN can bring claimsfor reparations for harm done to an agent fulfilling his or her duties, evenif the agent is the national of the state, and even if the defendant is anonmember.
2. Conferred: they are confirmedupon it by necessary implication as being essential to the performance ofits duties and that the effective working of the Organization to accomplishits task.

2. Immunity: the UN and itsrepresentatives are immune and enjoy privileges and immunities in the territoriesof its members necessary to fulfill its purposes, the same immunity thatis normally enjoyed by foreign governments.

6. Membership: membership is governedby Charter.

1. Original and Other Members: there were 51 original members, October 24, 1945.
2. Admission to Membership (4, ¶1): open to "all other peace loving states which accept the obligationscontained in the present Charter" and are willing and able to carry themout.

1. Recommendation: New membersare recommended by the Security Council (after a request) and approved bythe General Assembly by 2/3rds vote. The Security Council may decide notto recommend that states should be part of the UN (Russia has vetoed Korea’smembership request).
2. Admission v. Representation: in the Chinese case, the question was admissions and representation, whetherChina should be admitted as a new nation, or should it "assume" the representationof China from Taiwan.

3. Suspension (Art. 5): a memberor state against which preventive or enforcement action has been taken bythe Security Council may have its membership suspended by General Assemblyupon recommendation by Security Council.
4. Expulsion: If a member persistentlyviolates the principles of the Charter, it may be expelled from the organizationby the General Assembly, also upon recommendation by the Security Council.

1. Violations: a member stateswho consistently violates the charter can be expelled.

1. Examples: Malaysia (Indonesiaproblem). China (whether to admit it, etc. 1994, Taiwan was expelled andthe Chinese government recognized.)

2. Yugoslavia: Serbia andMontenegro requested to keep the Yugoslavian seat in the General Assembly.The GA refused stating that Yugoslavia would have to be "peace-loving" andenter into the General Assembly as a new state.

5. Withdrawal: if a the UN isunable to continue its peace or do so at the expense of justice and law,or if a member's rights and obligations as such were changed by Charter amendmentsin which it has not concurred and which it finds unable to accept, or ifan amendment duly accepted by the necessary majority in the Assembly or ina general conference fails to secure the ratification necessary to bringsuch amendment into effect.
6. Credentials: the governmentrepresentatives are entitled to represent a member state of the UN is a questionof credentials. This just takes a majority vote (less demanding voting).Sometimes credentials are difficult to determine (admissions of China afterCommunist takeover).

7. Charter Supremacy (art. 103): if the Charter conflicts with any other treaty obligation, the Charter prevails.

1. Charter Supremacy and the LockerbieCase: Libya resisted extradition requests of France, UK, US, for Libyannationals suspected of causing the explosion of the Pan Am flight. Duringthe penancy of the trial, the Security Council ruled that Libya should comply.The Security Council acted under Chapter VII of the Charter. The court ruledthat Security Council opinions are binding on all organs of the UN, thusit must comply.

8. The UN Organs: there are six principal organs tothe UN – (1) the General Assembly, (2) the three Councils, (3) the Secretariatand (4) the International Court of Justice.

1. The General Assembly: comprisedof all member states of the UN. It is essentially the global forum for theexchange and debate of ideas. It resolutions are simply recommendations and not legally binding upon members as a matter of Charter law.

1. Sessions: General Assemblymeets at regular sessions/special sessions.
2. Functions and Powers: essentiallya global forum for the exchange of ideas. It may address any matter (exceptdisputes being reviewed by Security Council) and may make recommendationsto the Security council or the UN on any matter.

1. International Peace:the General Assembly may review matters of International Peace and Securityand make recommendations.
2. Initiate studies and makerecommendations for: (1) promoting international cooperation in politicalfield and encouraging development of international law, (2) promote internationalcooperation in the economic, social, cultural, educational and health fieldsand in assisting the realization of human rights for all.
3. Discuss: any questionregarding the scope of the present Charter or relating to the powers andfunctions of the organs, and make recommendations to GA or SC.
4. Other duties: approvalof budgets, approval of application of memberships, supervision of TrusteeshipCouncil, appointment of Secretary General, making and consideration of reports.

1. Budget: the GA mustapprove the budged 2/3rds vote (important votes), 1/2+ for procedural ones.Parties for two consecutive years who don't pay their dues cannot vote (immediate).

3. Limitations on powers:any question of international security on which action is necessary mustbe referred to Security Council.
4. Voting: every member hasone vote (2/3rds vote).

1. Important questions:include (1) recommendations concerning international peace and security,(2) election of non-permanent members of Security Council, (3) members ofEconomic and Social Council and members of Trusteeship Council, (4) admissionof new members, (5) suspension and expulsion of members, (6) questions relatedto the budget.
2. Arrears: member who isbehind in financial contributions to the UN by two years will not vote inthe UN unless the General Assembly has determined that the failure to payis not due to considerations beyond the control of the member.

5. Legal statute of resolutions: its recommendations are not binding upon members as a matter of Charterlaw.

2. Security Council: this organhas the primary responsibility for the maintenance of international peaceand security. The permanent members have a veto vote in substantive matters.

1. Composition: fifteen membernations, 5 permanent members, China, France, U.K., U.S., Russia).

1. Nonpermanent members: 10 other members elected by the general assembly for two year term. 5 (Asian/African),2 (Latin American), 1 (Eastern European), 2 (European) and other IndustrialStates.

2. Functions and Responsibilities:

1. Primary responsibility (Art.23): for peacekeeping and international security, by making recommendations,taking enforcement action, also directing peace-keeping operations.

1. Others: (1) PeacefulSettlement (Ch. VI), Action with respect to threats to the peace, breachesof peace and acts of aggression (Ch. VII), Use regional arrangements forthe maintenance of International Peace (Ch. VIII), International TrusteesSystem (Ch. XII).

2. Binding: decisions ofthe Security Council are legally binding on all members.
3. Annual Reports: the Councilrequired to submit annual reports to General Assembly for consideration.
4. Function Continuously: the Security Council must function continuously with members representedall times.

3. Voting Procedure (Art. 27): each member has one vote.

1. Procedural Matters: requirea 9 vote majority.
2. All other matters: requirean affirmative vote of nine members, including the concurring votes ofthe permanent members. This creates the right of veto by the permanentmembers.

4. Abstentions: there hasbeen a practice of not counting abstentions as vetoes. This is not treatedas a veto.
5. Double Veto: this is whenparties will veto the procedural/nonprocedural nature of the resolution,to stall it, and then veto the substance of the resolution.

1. President: the presidentcan rule that the procedural/nonprocedural issues is procedural and not subjectto veto. Presidential rulings are final unless reversed by procedural veto.

3. The Economic and Social Council(ECOSOC): 54 elected members of the UN. Its primary responsibilitiesare to make studies, reports, and cultural matters and to prepare draft conventionsfor submission to the General Assembly on matters within its competence.

1. Promotions: to promotea higher standard of living, full employment, economic and social progressand development, solutions to international economic, social, health andrelated problems. International cultural and educational cooperation. Universalrespect for human rights and fundamental freedoms.
2. Reports and help: the ECOSOCgives reports to the GA and SC and makes decisions which are nonbinding.
3. Specialized Agencies: agencieswhich agree to abide by the ECOSOC and the UN are brought in as specializedagencies where they attain a status.

1. World Bank Group: IMF,IBRD.
2. Big Four: ILO, FAO, UNESCO,WHO (these agencies existed prior to the UN).

4. Trusteeship Council: Thisorgan is responsible for administering trusteeship territories that are notyet self-governing. The importance of this council lessens as trust territoriesbecome independent.
5. International Court of Justice: the International Court of Justice (ICJ) is the principal judicial organof the UN and the successor to the Permanent Court of International Justicefor the League of nations.

1. All members: all membersof the UN treaty are members of the ICJ and nonmembers can become membersof only the ICJ (upon recommendation by Security Council and approval ofGeneral Assembly).

6. Secretariat: composed ofthe Secretary-General and any required staff of the organization. Employsall of the persons who administer the UN (in N.Y.)

1. Secretary General: recommendedby the Security Council and approved by the GA, and may veto the approvalof the Secretary General.
2. Article 99: the SecretaryGeneral may bring to the attention of the Security Council any matter whichin his opinion may threaten the maintenance of international peace and security.
3. Article 100: requires theSecretary General to not be political (or a political puppet of a foreigngovernment). Also, there is a ban for states trying to influence the Secretariat.

9. Legislative Activities of GeneralAssembly and the International Law Commission: the ILC is composed ofleading international lawyers who research international law and draft conventions.When such conventions are adopted by the General Assembly and receive broadsupport they often become a generally accepted statement of internationallaw.

1. Article 13, ¶ 1(a): the GeneralAssembly created the International Law Commission.

10. Specialized Agencies (Art. 57): specialized agencies are those "established by intergovernmental agreementand having wide international responsibilities, as defined in their basicinstruments, in economic, social, cultural, educational, health, and relatedfields…"

1. Defined (Art. 57):definesspecialized agencies as established by international agreement and havingwide international responsibilities, as defined in their basic instruments(economic, educational, health, social and related fields).

1. Reporting: the activitiesare different but require regular reporting to the Economic and Social Counciland consideration of recommendations by General Assembly.

2. Examples: IMF, InternationalBank for Reconstruction and Development, UNESCO, WHO, Food and AgricultureOrganization, ILO, Universal Postal Organization, International Civil AviationOrganization (ICAO).
3. Membership: not limited tothe members of the UN, to expand scope. Most UN members are also membersof organs.
4. Legislative Activities: bymaking recommendations and drafting conventions, specialized agencies havedeveloped international law in many areas. They do not have authority toenact binding legislation, but the standards are widely accepted.

10. State Responsibility:

1. International Wrongful Act: when a state commits a breach of international law. There is a wrongful actwhen conduct consisting of an act or omission is attributable to the Stateunder international law and that conduct constitutes a breach of an internationalobligation of the State.

1. Liability: an obligationto pay compensation, these are not prohibited by international law, but notrequired.
2. ILC Draft of Articles on StateResponsibility, Ch. I, Art. 4: when conduct consisting of an action oromission is attributable to the State under international law and that conductconstitutes a breach of international obligations of the State.

2. Certain laws or forms of action:

1. Human Rights: are fairlynew and prohibit ill treatment of all individuals regardless of internationalorigin or nationality.
2. Alien status: does not requirecountries to admit aliens, but if they do, they must treat them in a civilizedfashion.

3. Assertion of Rights: the statewho has the nationality of the injured citizen may assert its rights againstthe injured state. The theory is that the state suffers a loss when the citizenis injured.

1. Individuals: can only resortto municipal law for their personal injuries.

4. Acts of the State: the conductof an organ of a State, of a territorial government entity or of an entityempowered to exercise elements of governmental authority, such organ havingacted in that capacity, shall be considered as an act of the State underinternational law even if, in the particular case, the organ exceeded itscompetence according to internal law or contravened instructions concerningits authority. ILC Draft Art. 10.

1. Organ: an organ of the statewho acts under the internal law of that state as long as the organ is actingin its capacity.

1. ILC Draft Resolution Ch. II,Art. 6: organ of State is considered as an act of that State under internationallaw whether that organ belongs to the constituent, legislative, executive,judicial, or other power whether its functions are of an international oran internal character, and whether it holds a superior or a subordinate positionin the organization of the State.
2. Art. 9: conductof organs placed at its disposal by another state or international organization.
3. Art. 10: conductof organs acting outside their competence or contrary to instructions concerningtheir ability.

2. Regardless of position: theorgan (judicial, executive, constituent, legislative) is a representativeof the state even if it has a superior or subordinate position of the state.
3. Territorial gov: the conductof an organ of the territorial government within the State is consideredan act of the state if that organ acts in its capacity.

1. Art. 12: conductin the territory of another state. Not state action.

4. Non governmental organization: an entity which is not an organ of the government or state but which acts(empowered by) internal law of the State, it's considered an arm of the state.

1. Art. 13: conductof international organizations, if the conduct took place in the territoryof the state or other territory under its jurisdiction.

5. Disobeying state officials: officials of the state who either exceed or disobey can be held liable andthe state will be liable (as long as they are acting within their capacity).
6. Imputability: a state isliable for only its own acts or omissions, and, in this context, the stateis the governmental apparatus, not the government itself.
7. Insurrections Art. 14: conduct of organs of insurrection movements. Not state conduct.

1. Art. 15: prior conductof insurrection movement that becomes new government. Shall be attributablewithout prejudice to the state.

8. ILC Draft Resolutions, Ch. II, Art. 5: the conduct of any State organ having that status underthe internal law of that State shall be considered as an act of the Stateconcerned under international law, provided that organ was acting in thatcapacity in the case in question.

5. Private individuals: statesare generally not responsible for private individuals unless they are acting(in fact) on behalf of the state or exercising elements of governmental authorityin the absence of government official and under circumstances which justifiedthem in assuming such authority.

1. State liable for private individualsif:

1. Encouragement: the stateencourages individuals to attack foreigners.
2. Reasonable care: the statefails to take reasonable care to prevent individuals from being harmed.
3. Punishment: the failureto punish individuals for their acts.
4. Compensation: the failureto provide the foreigner an opportunity to obtain compensation for the harm.
5. Benefit: obtaining benefitfrom the individual's act.

1. ILC Draft Resolution Art. 8: conduct of persons acting in fact on behalf of states.

6. Ratification: to expressratification of the person's act (approving it, expressly, or by statingthat the person acted in the name of the state).

2. Not action of state:

1. Art. 11: conductof persons not acting on behalf of the state. "Not considered an action ofthe State under international law."

6. Organizations:

1. Art. 16: a breach is whenan act, an international obligation of the State, is not in conformity withwhat is required of it by that obligation.
2. Art. 17: act of theState which constitutes the break is an internationally wrongful act, regardlessof the origin, whether customary, convention or other of the obligation.

7. Minimum international standards: a person who accepts the law of one state cannot be granted therights (more favorable) in his/her home state.

1. Minimum standard: the foreignnational can claim his home state's laws if the state that he is in fallbelow the minimum standard.

1. Neer Rule: the treatmentof an alien, in order to constitute an international delinquency, shouldamount to an outrage, to bad faith, to willful neglect of duty or to an insufficiencyof governmental action so far short of international standards that everyreasonable and impartial man would readily recognize its insufficiency.

2. Latin America (national standard): the only duty is to treat foreign nationals as they would treat domesticperson.

8. Preliminary objection: thecase involving the treatment of aliens is brought before an internationaltribunal, may be lost on a preliminary objection: noncompliance with therules concerning nationality of claims, failure to exhaust local remedies,waiver, unreasonable delay (latches), improper behavior by the injured alien.
9. Nationality of Claims: theclaim will fail unless the injured is a national of the claimed state. Panevezys-Saldutiski Railroad case.

1. State assertion: in takingup the case of one of its nationals .. a State is in reality asserting itsown right … This right necessarily limited to intervention on behalf of itsown nationals because, in the absence of a special agreement, it is the bondof nationality between the State and the individual which alone confers uponthe State the right of diplomatic protection.
2. Nationality is conferred by:

1. Birth: children born intheir territory (ius soli), nationality on children born of parents who arenationals (ius sanguinis), nationality acquired other ways.
2. Marriage.
3. Adoption or legitimatization.
4. Naturalization. Foreignergiven the nationality of a state by request.

1. Switzerland: has a verylong residency period.
2. Israel: all persons ofJewish background.

5. Territory transfer: asthe result of transfer of territory from one state to another.

3. Nationality lost:

1. Dual national: allowedor required to renounce one of the nationalities upon attaining majority.
2. Acquisition: of a new nationality(in some states) requires you to drop all others.
3. Deprivation: only nationalizedcitizens can be deprived of citizenship (ones born in Britain cannot).
4. Transfer: a transfer ofterritory from one party to another.

10. Claims of nationality states:

1. States against Third parties

1. Orthodox: the states whichone has nationality with can claim to protect their citizen (regardless ofwhich one).
2. Master nationality Theory: the state which has the closer ties can assert protection of its citizen.
3. Nottebohm case: the Germannational, in Guatemala.

11. Corporations: the corporationis a citizen of the state upon which the company is incorporated.

1. Barcelona transaction: Belgiumowners, Canadian company, Barcelona public interest.
2. Rule: a state cannot makeclaims on behalf of its nationals who have suffered losses as a result ofinjuries inflicted on foreign companies in which they own shares.

1. Exception: the companyhas gone into liquidation, the national stat of the shareholders may makea claim in respect to the losses suffered by them as a result of the injuriesinflicted upon the company.

12. Exhaust local remedies: anindividual must exhaust local remedies before an international claim is broughton his behalf.

1. Breach: there is a breachonly after aliens concerned have exhausted the effective local remedies availableto them without obtaining treatment called for by the obligation or, wherethat is not possible, an equivalent treatment.
2. Interhandel claim: the assetsseizure by the U.S., WWII.
3. Ambatielos claim: the shippurchase by from the British Gov.

13. Waiver: if a state has waivedits claim, it cannot change its claim. The waiver is final.

1. Calvo clause: foreignersagreed in advance to not seek diplomatic protection of his national government. The individual could not agree to the "Calvo" clause because the individualdoes not have the right, it is only for the State.

14. Consequences of an InternationalWrongful Act: if a state causes an international wrongful act to occur,all states may react because it is an affront to the international community.

1. Obligations:

1. Stop from illegal conduct: the offending state must cease illegal conduct.
2. Full reparation: the harmedstate must be granted full reparations.
3. Restitution, Compensation,etc.: the wrongdoing state has to reestablish the situation that existedbefore the illegal act was committed, provide that this:

1. Is not materially possible.
2. Would not involve a breach ofan obligation arising from a norm of general international law.
3. Would not involve a burden outof all proportions to the benefit which the injured state would gain fromobtaining restitution in kind instead of compensation.
4. Not seriously jeopardize thepolitical independence or economic stability of the State which has committedthe internationally wrongful act, whereas the injured State would not besimilarly affected if it did not obtain restitution in kind.

4. Satisfaction: when theremight not be material damage but a moral damage (insulting another head ofstate).

1. Apology.
2. Nominal damages.
3. Damages reflecting the gravityof the infringement.
4. Disciplinary action or punishmentof those responsible, if arising out of a criminal act.

5. Countermeasures: generallyrefer to acts of retaliation known as reprisals.

1. Prohibition: there isa prohibition of armed combat, and countermeasures have to be proportionateto the harm created. There must be no violation of basic human rights orthe peremptory norm of international law.

2. Convention of the Settlementof Investments Between States and Nationals of Other States:

1. Wholeness: this entiredocuments is the civil procedure of the trial or disputes between investmentsand states.
2. Jurisdiction: the jurisdictionextends to the contracting state and other states.
3. Contracting States: theperson who had the nationality of a Contracting State and any judicial personwhich had the nationality of the state other than the State party to thedispute.
4. Arbitration: consists ofthe procedures for arbitration and the designation of arbitrators.

11. Human Rights: individualsare protected without regard to their status as nationals or aliens. This is sharp contrast with the history of international law being oneof states and not among individuals.

1. Brief History:

1. Traditional Concept: everyhuman has certain inalienable and legally enforceable rights protecting himor her against state interference and the abuse of power by governments.
2. Post-WWII: After WW I, numberof treaties began to focus on individual rights. The modern concept of internationalhuman rights law is the result of the world’s reaction to the Holocaust andother Nazi atrocities during WW II.
3. Current Status: concept ofinternational human rights law is now firmly established, its relativelyrecent emergence results in a body of law character by evolving ideas, institutionsand procedures.

2. UN Charter: UN Charter is thefirst attempt to provide a comprehensive protection for all individuals.Since foundation, the UN has continued to promote and protect human rightsand has drafted treaties for global adoption dealing with many aspects ofhuman rights. The UN Charter contains articles concerning human rights, whichpledge the members active support for "human rights and fundamental freedoms."The articles are modern.

1. Art 55: the United Nationsshall promote … universal respect for, and observance of, human rights andfundamental freedoms for all without distinction as to race, sex, languageor religions.

1. Breakers of "Covenant."if states fail to enforce, distinctions, exclusions, restrictions and limitationsexclusively based on grounds of race, color, descent or national or ethnicorigin constituting a denial of fundamental human rights is a flagrant violationof the purposes and principles of the Charter.

2. Art 56: all members pledgethemselves to take joint and separate action in cooperation with the Organizationfor the achievement of the purposes set forth as in Article 55.

1. 56: suggests that statesare obliged to progressive rather than present fulfillment of the goals ofArt. 55.

3. Implementation: Commissionon Human Rights was established in 1946 to draft treaties implementing articles55 and 56.

1. Rights: these articlesconfer "rights" on individuals (not only benefits).

1. Not self executing: theUS has found that Art. 55 and 56 are not self-executing and do not conferany rights on individuals. Stating that the required "mandatory" languagerequired to create enforceable rights.

2. Conflict: there is alsoa conflict (Art. 2(7)) which requires the UN from interfering (intervening)in matters which are generally domestic in origin.

3. Universal Declaration of HumanRights (adopted by UN on Dec. 10, 1948): The rights of this General AssemblyResolution fall into two categories: (1) civil and political rights and (2)economic, social and cultural rights. Not legally binding: this wasa General Assembly resolution and is non-binding but serves as customaryinternational law.

1. Civil and Political Rights: prohibit slavery, inhuman treatment, arbitrary arrest and arbitrary interferencein privacy, with discrimination based on race, sex, color, language, religion,political or other (etc.).

1. Rights: the right to seekpolitical asylum, fair trail, freedoms of movement and nationality, rightto marry, right to own property, freedom of belief/worship, freedom of opinion,etc.
2. Foundations: these arethe foundations of democratic political systems and have been the focus ofhuman rights development in those countries.

2. Economic, Social and CulturalRights the right to full security, full employment, fair conditions ofwork, adequate standard of living, education, participation in the culturallife of the community.
3. Limitations on Human Rights (Art.29 ¶ 2): limitations for the purpose of securing due recognition andrespect for the rights and freedoms of others and of meeting the just requirementsof morality, public order and the general welfare in a democratic society.

4. UN Human Rights Covenants: Two groups of rights set forth in the Declaration of Human Rights serve asthe basis for subsequent treaties outlining in greater detail the protectedrights of individuals.

1. 1966 Covenants: InternationalConvention on Civil and Political Rights, the International Covenant on Economic,Social and Cultural Rights, both came into force on 1976.

1. Problems: the person museexhaust local remedies and the states must have accepted a procedural framework.There is no reference to a binding judicial body which can make binding decisions.
2. Reservations: there areover 150 reservations between 127 states in the treaties which make it largelyineffective.

2. The International Covenant onCivil and Political Rights (Art. 27): includes the (1) right of self-determinationand (2) rights of all peoples to freely dispose of their natural wealth andresources.

1. Property: the rights donot include the right to property (also the Universal Declaration of HumanRights).
2. Rights granted to: ethnic,religious, linguistic minorities.

3. International Covenant on Economic,Social and Cultural Rights: (1) right to self-determination and (2) rightof all people to freely dispose of their wealth and resources.

1. Limitations: Legal obligationsare much less precise and demanding than those in the Covenant on Civil andPolitical Rights.

1. Art 2: only requiresstates "take steps to the maximum of its available resources … with a viewto achieving progressively, the rights of the Covenant.

2. Review of Compliance: Implementationis limited to review of state reports by the Economic and Social Council,established an expert committee to review reports.

5. Role of Specialized Agencies: a number of specialized agencies have been active in the area of developinghuman rights law.

1. Active Bodies in Human Rights: Economic and Social Council (ECOSCO) can make recommendationson human rights, draft contentions, convene international human rights conferences,etc.

1. Sub-Commission on the Preventionof Discrimination: basically ineffective.
2. High Commissioner for HumanRights: the problem is that they have to work within all the boundaries(obligations, rights, sovereignties, etc.) of the United Nations and tryto work for the "development" of human-kind.

12. Fundamental Human Rights:

1. The Right of Peoples to Self-determination: self-determination is the right of the people in a territory to decidethe political and legal status of that territory. The right of that inhabitantsof an established state to determine their own government is well establishedbut there is little or no agreement on the right of groups to secede fromstates of which they form a part, on reunification of peoples in dividedstates, or the right of minorities to preserve their own separate identitieswithin a state.

1. UN Charter: incorporatesconcept of self-determination in Art. 1, ¶ 2, 55, 73, 76 ¶ b.

1. Art 1 ¶2: purpose is topromote "equal rights" and "self-determination of peoples."
2. Art 55: the UN promotessolutions to international economic, social, health and related problems.
3. Art 73: aimed at UN membersassuming responsibility for administering territories (non-self governing).
4. Ch XII: objective of trusteeshipis to promote progression to self-government or independence.
5. Declaration on the Grantingof Independence to Colonial Countries and Peoples: the UN policy of decolonization.
6. UN Declaration on Principlesof International Law Concerning Friendly Relations and Cooperation AmongStates.

2. People: objective elementis the existence of an ethic group linked by some common history. This isoften expressed in common language, religion or territory. The group mustalso identify itself as a people.
3. Legal Status of Principle ofSelf-determination: the uncertainty results from a lack of concrete definitions,as well as its conflict with well-established principle of sovereignty. However, there is little agreement for (1) reuniting people in separate countries,(2) right of minorities within states, etc.
4. Rights of Indigenous Peoples: indigenous peoples assert rights of self-determination rather than be absorbedinto states. Recognition of freedom of self-determination conflicts withrights of the state (territorial claims, etc.).
5. Civil and Political Rights: these include prohibition of torture, discrimination on grounds of race,gender, religion, language, political opinion, nationality, ethnicity, birthor other status, and prohibition of arbitrary arrests or interferences withprivacy.
6. Economic, Social and CulturalRights: these include the right to social security, full employment,fair working conditions, education, health care, an adequate standard ofliving, and participation in the community’s cultural life.
7. Prohibition of Slavery (SlaveryConvention of 1926 and Protocol amending the Convention): the prohibitionagainst slavery is a fundamental right as a matter of customary customaryinternational law and the norm is recognized as jus cogens from whichno derogation is permitted.
8. Genocide: Genocide, or actscommitted with the intent to destroy a national, ethnic, racial or religiousgroup, is a crime for which individuals are punishable under internationallaw.

1. Definition (Art 2): actscommittee with the intent to destroy, in whole or in part, national, ethnic,racial and religious groups.
2. Punishable Acts: seriousmental or bodily harm, inflicting living conditions calculated to destroythe group, imposing birth control measures to prevent births, forcible transferringchildren of one group to another.
3. Jurisdiction: punishmentis left to domestic courts of states however, genocide is a universal crimepunishable by any state.

9. Crimes Against Humanity:"Crimes against humanity" are defined as "murder, extermination, enslavement,deportation, and other inhuman acts committed against civilian population,before or during the war, or persecutions on political, racial or religiousgrounds.
10. Prohibitions of Discrimination: every individual is protected from discrimination, whether racial, gender-based,religious or otherwise.

1. Racial Discrimination (InternationalConvention on the Elimination of All Forms of Racial Discrimination): racial discrimination is any distinction, exclusion, restriction or preferencebased on race, color, descent of national or ethnic origin.

1. International Conventionon the Suppression and Punishment of the Crime of Apartheid: definedApartheid as a crime against humanity involving "inhuman acts committed forthe purpose of establishing and maintaining domination by any one group ofpersons over any other racial group of persons and systematically oppressingthem.

2. Sexual Discrimination (Conventionon the Elimination of All Forms of Discrimination Against Women): enteredinto force on 1981, focuses on the status of women (equal education, healthcareand equality before the law).
3. Religious Discrimination (Declarationon the Elimination of All Forms of Intolerance and of Discrimination Basedon Religion or Belief: religion is subject only to limitations as areprescribed in law and are necessary to protect public safety, order, healthand morals or fundamental rights and freedoms of others.

11. Freedom from Torture: thereis no justifications for torture except for its prohibition. States mustadopt measures to prevent torture in their jurisdiction, and ensure thattorture, complicity, and attempts to commit torture are criminal offenses.

1. Definition of Torture:any act by which severe pain or suffering, whether physical or mental isintentionally inflicted upon a person for such purposes as obtaining fromhim or a third person information or a confession, punishing him for an acthe or a third person has committed or is suspected of having committed, orintimidating or coercing him or a third person, or for any reason based ondiscrimination of any kind.
2. Committee Against Torture (Art2(1) and 4): monitored periodically through state reports to a CommitteeAgainst Torture.

12. Rights of Refugees: the 1951Geneva Convention addresses many civil rights for refugees. At present, customaryinternational law does not appear to recognize a right to asylum, althoughthis rule has been the subject of much criticism.

1. Definition of Refugee:defines a refugee as a person who owning to a well-founded fear of beingprosecuted for reasons of race, religion, nationality, membership of a particularsocial group or political opinion, is outside the country of his nationalityand is unable or, owing to fear, is unwilling to avail himself of the protectionof that country; or who, not having a nationality and being outside the countryof his former habitual residence as a result of such events.
2. State’s obligation to Refugees: refugees within the state must be given a reasonable time to resettle. However, the convention does not give a right to require entry into a country,or impose any duty on the state to admit refugees. The state has a rightto grant asylum, but the individual has no right to demand asylum.

1. Right to leave: thereis a right to leave one’s country and seek other countries for asylum frompersecution.

3. Haitian Refugees Case:US Supreme court held that neither domestic immigration law or Art. 33 ofthe Refugee Convention applied to the high seas.
4. Diplomatic Asylum: grantingof refuge by a state in its embassies, ships or aircraft in the territoryof another state. Once granted, there is a right to safe conduct from theforeign state.

13. Newly Emerging Rights and FundamentalRights Recognized as Customary Law: many of the rights recognized in international agreements above are alsorecognized as customary law.

1. Customary Law human rights: established through (1) virtually universal adherence to UN Charter or theUniversal Declaration of Human Rights, (2) widespread participation of statesin preparation and adoption of human rights agreements and General Assemblyresolutions on human rights, (3) frequent invocation and application of internationalhuman rights principles in both domestic practice and diplomatic practice.
2. Restatement § 702: list ofrights generally considered customary law. A state violates internationalcustomary law if they encourages activity banned by the UN.
3. Creation of Customary Human RightsLaw: customary human rights established in a different manner than normalcustomary law: more universal adherence to UN Charter, Declaration of HumanRights, Participation in Human Rights Organization,
4. Evolution of New Rights: humanrights is an evolving creature.

1. First Generation: the distinctionbetween civil rights in the sense of individual freedoms from state interference.
2. Second Generation: the socialrights in the sense of rights to claim welfare benefits from the state, suchas the right to work or education.
3. Third Generation (Non-Traditional): include the right to peace, self-determination, common heritage of mankindprinciple, the right to development, minority rights, clean environment.
4. Problem: there is a problembetween the viewpoints of Asia, the West, Islamic Counties, Third World Countries(etc.) when it comes to defining what human rights are.

5. Enforcement of Human Rights Lawin the US courts: Because the US has failed to ratify and implement somany human rights treaties, enforcement of human rights law in the UnitedStates courts is largely dependent on incorporation of custom into US lawand specific legislation provisions, such as the Alien Tort Statute.

1. US Enforcement: US Courtshave incorporated the customs in United States law and specific legislaturestatutes.

14. Derogation From Protection of Rights: agreements ensuring protection of fundamental human rights often allow derogationfrom the rights in times of "public emergencies." The most basic human rights may not be derogated from, including torture, slavery, genocideand like crimes.

1. Examples: International Covenanton Civil and Political Rights and the European Convention for the Protectionof Human Rights and Fundamental Freedoms.
2. International Covenant on Civiland Political Rights: Derogation from the Covenant’s obligations maybe made under the following circumstances

1. Requirement for Derogation (Art4): provides derogation from the Covenant’s obligations. There mustbe a "time of public emergency which threatens life of a nation" and thecircumstances must be "officially proclaimed:" (1) it must be a "time ofpublic emergency which threatens life of the nation, (2) the existence ofsuch dire circumstances must be "officially proclaimed," (3) derogation ispermitted "only to the extent strictly required by the exigencies of thesituation, (4) the measures may not be "inconsistent with their other obligationsunder international law, and (5) the measures may not involve discriminationsolely on the ground of race, color, sex, language, religion or social origin
2. Limitations to Derogation Underthe Covenant: certain rights may not be derogated.

1. Art 6: inherent right tolife, prohibition of genocide, restrict dealt penalty to only serious crimes,rights to seek pardon or commutation for death penalty, and prohibition ofdeath for persons under 18 and pregnant women.
2. Art 7: prohibits torture,cruel, inhuman and degrading punishment.
3. Art 8 ¶ 1: prohibitionof slavery and slave trade. ¶ 2 prohibits holding anyone in servitude.
4. Art 11: imprisonment forfailure to fulfill contractual obligations.
5. Art 15: conviction foract or omission not a criminal offense under either national or internationallaw.
6. Art 16: guarantees eachperson everywhere a right of recognition as a person under the law.
7. Art 18: rights of religiousfreedom and prevention of imposition of religion.

3. Procedure: State must immediatelyinform UN of derogation.

3. European Convention for the Protectionof Human Rights and Fundamental Freedoms (Art 15 ¶ 1): the derogationprovision of the European Convention is similar to that of the Covenant onCivil and Political Rights. It permits derogation (1) in time of war or otherpublic emergency threatening the life of the nation, (2) only to the extentstrictly required by the exigencies of the situation and (3) provided suchmeasures are not inconsistent with its other obligations under internationallaw.

1. Limitations to Derogation, Art15 ¶ 2: protects the right to life, except for executions resulting fromconviction of a crime for which death penalty is provided by law. (Self-defenseexcluded).
2. Procedure, Art 15 ¶ 3: requiresderogating party fully inform Secretary General of U N of reasons.
3. Clauses of Limitation: anumber of rights enumerated in the European Convention on Human Rights alsohave their own clauses of limitation, which allow restrictions on the rightas necessary to protect national security, safety, and health or morals.

15. Regional Human Rights Law: regional human rights regimes operate mainly in Western Europe, the Americasand Africa: (1) homogenity, there are relatively similar socio-economic,cultural, political, and juridicial characteristics that permit members toact in concert with others, geographic proximity and protection of humanrights, (2) geographic proximity within more or less common interests.(3) relative homogenity and geographic proximity facilitate the actualprocess of investigating and remedying human rights violations.

1. European System of Human RightsLaw: European Convention on Human Rights has established an effectivehuman rights regime, enforcing rights through the European Commission onHuman Rights, the European Court of Human Rights and the Committee of Ministersof the Council of Europe.

1. European Social Charter:Social Charter ratified by half of states of Council of Europe, rights toeconomic, social and cultural rights: (1) right to work, (2) right to faircompensation, (3) rights of children, (4) rights of employed women to protection,(5) rights of social and medical assistance.
2. European Commission of HumanRights: organization similar to International Convention on Civil andPolitical Rights, composed of individuals elected by the European Ministers.
3. European Court of Human Rights
4. Committee of Ministers of theCouncil of Europe

1. Council of Europe: createdthe European Convention for the Protection of Human Rights and FundamentalFreedoms, which all states of the European Council have to follow.

1. Sanctions: the ultimatesanction is withdrawing from the organization.
2. Problem: huge numbersof cases which have not even been addressed as of yet.

5. The Process of Implementationand Enforcement: the European Convention and the European Social Charterdetail their respective adjudication procedures.

1. Human Rights Commission: claims can be submitted by states or persons. Commission considers facts,prima facie case, whether case can be resolved by settlement. Before Protocol9, only states or commission members could submit articles to court.
2. Committee of Ministers: cases not settled by the Commission are dealt with by the Council of Ministersand states are obliged to take upon themselves the decisions of the Committee.
3. European Court of Human Rights: judicial organ of Council of Europe (distinct from European Community).
4. The European Social Charter: Charter does not allow an adjudicative process like the European Convention.

2. Inter-American System: themost developed regime of human rights (outside of Europe). The primary sourcefor human rights law in the Americas are the Charter of the Organizationof American States (OAS) and the 1969 American Convention on Human Rights.

1. OAS Charter: make littlemention of human rights and provided no machinery for protection. However,it formed the Inter-American Commission on Human Rights to promote humanrights.
2. American Convention on HumanRights: signed but not ratified by US, has a structure similar to theEuropean model but has no right to education or other economic/social rights.
3. Institutions of Inter-AmericanSystem: two organs responsible for supervising implementation and enforcementof human rights are the Inter-American Commission on Human Rights and theInter-American Court of Human Rights.

1. Inter-American Commission onHuman Rights: seven members, to represent all countries. To ensure complianceof OAS member states to obligations under the Charter.

1. American Convention:requires personal/individual petitions for the

2. Inter-American Court of HumanRights: seven judges elected by state parties. Not elected by OAS, becausecourt not established under OAS Charter.

1. Contentious Jurisdiction: court has authority for claims where states violate rights guaranteed inOAS Convention.
2. Advisory jurisdiction: authority is broader under advisory jurisdiction than under contentiousjurisdiction.

4. Process of Implementation andEnforcement: claims of human rights violations are first considered bythe Commission, and the referable to the Court.

1. Commission: violationsmay be brought before the commission by individuals or organizations, complaintneed not be a victim of the violation.
2. Court: either commissionor state parties to the Convention which accept the court’s jurisdictionmay bring cases in front of the court.

3. African Regional System of HumanRights Law the primary source of law is the African Charter of Humanand People’s Rights, which differs significantly from the European and Americanhuman rights regimes. It guarantees economic, social and cultural rightsas well as political and civil rights; it is concerned with the rights of"peoples" as well as individuals; and it proclaims the duties as well asrights of individuals.

1. Institutions: The Charteralso differs significantly from the European and American human rights regimebecause it does not provide a human rights court. The Charter does, however,establish an African Convention on Human and People’s Rights to considerstate and individual petitions.

16. Law of Common Resources (Sea, Airways,Telecommunications)

1. Law of the Sea Convention (1982): comprehensive law of the sea treaty was promulgated. Incorporated much ofthe 1958 treaties. 1982 LOS Convention did not meet with universal acceptance(deep sea provisions).

1. Generally (Basic Principles): (1) a ship of any state can navigate the oceans freely, (2) the state ofthe ship’s nationality has exclusive jurisdiction over the ship on the highseas, and (3) no other state can exercise jurisdiction over that ship absentsome affirmative rule authorizing concurrent jurisdiction.

1. Sea divided into three zones: (1) internal waters, (2) territorial sea, (3) high sea).

1. Treaties regarding the zones: the convention on the Territorial Sea and the Contiguous Zone, the Conventionon the High Seas, the Convention on Fishing and Conservation of the LivingResources of the High Seas, the Convention on the Continental Shelf.

2. The Law of the Sea Convention(1982): There are over 144 countries participating.

1. Problems with mining rights: the convention was originally not signed by the Western Powers because therewas a dispute as to the deep sea mining rights, especially since the WesternPowers would be mining the ocean’s sea bed and the developed countries wouldbe benefiting but not putting any of their capital in it.
2. Environmental protection: there is a lot of environmental protection in this convention that was neverin others.

2. The Right of States to ConferNationality Upon a Ship (Flag): the nationality of the ship is definedby the flag of the ship. A ship may fly only one flag. A ship without nationalitymay be prevented from engaging in international trade or commerce or navigationof any sort on the high seas.

1. General Principle: US SupremeCourt recognized that each state under international law may determine foritself the conditions on which it will grant nationality to a merchant ship.
2. One Flag Limitations: Astate may not grant it nationality to a ship that is already authorized tofly the flag of another state.
3. Genuine Link Necessary: Furthermore, a state must have a genuine link to a ship in orderfor a state to confer its nationality upon it, proven by: (1) ownership bynationals, (2) national officers, (3) national crew, and (4) national build.

1. Flag of convenience:ships transfer registries to countries (Panama/Liberia) to avoid restrictions.

4. Documentation and registration: a state that authorizes ships to fly its flag must (1) maintain a register of ships containing the name and description of each ship so authorized,and (2) issue documents to the registered ships evidencing authorization.

1. Registered: nationalityis determined where the ship is registered. If registered in more than onestate (for convenience) it can be considered as an unflagged ship.

5. Duties of a flag state: each state has a duty to "effectively exert its jurisdiction and controlin administrative, technical and social matters over ships flying its flag.

1. Obligations: (1) maintaina register of ships authorized to fly its flag, (2) govern the internal affairsof the ship, (3) ensure the safety at sea with regard to the seaworthinessof the ship, crews, communications, and the prevention of collisions, (4)ensure that each ship is surveyed by the qualified surveyor of ships andhas on board appropriate charts, nautical publications, and navigationalequipment, (5) ensure that each ship is manned by a qualified master, officersand crew and (6) ensure that the master, officers and the crew are fullyconversant with, and are required to observe, applicable international law.

3. Baseline Determinations for MeasuringCoastal Zones

1. Purpose of the Baseline: the baseline is the starting point form which a coastal state’s variousmaritime jurisdictions is measured.

1. Landward: land that islandward of the baseline is considered the internal waters of the state.

2. Validity of Baselines:determined by international law.
3. Delineation of the Baseline: the baseline is the low-water line along the coast.

1. Rivers: if a river flowsinto the sea, the baseline is drawn straight across the mouth of the riverbetween the low-water points of its lands.

1. Water from the Meuse Case: in this case, Netherlands sued Belgium for diverting the water from theMeuse (governed by the 1863 treaty regarding Zuid-Willemsvaart.

1. Holding: the courtheld that a country can do whatever it wants with its environment, as longas it’s within its own territory and does not endanger the physical well-beingof neighbors.

2. Bays: Bays are consideredto be internal waters of a state when the bay’s area is as large or largerthan the semi-circle for which the diameter is a line drawn across the mouthof the bay, as long as that line is less than 24 nautical miles.

1. Exceeds: if the linebetween the nature entrance points exceeds 24 miles, a straight baselineof 24 miles can be drawn so as to enclose the maximum area of water possiblewith a baseline of that length.
2. Historic Bays: placesthat are historically the territorial waters of the state (and recognizedas such) are considered historic claims: Hudson Bay (55 miles at mouth, 580,000square miles). Factors important are: (1) state exercises sovereign authorityover waters, (2) authority exerted for considerable time, (3) other stateshave acquiesced authority.

1. Gulf of Fonseca case: the ICJ stated that Nicaragua, Honduras and El Salvador had to each haveprotection over the historic bay.
2. Gulf of Sidra Incident: Lybia asserted forces in the Gulf. US exercised right of innocent passagebaseline beyond 24 miles.

3. Islands: an island is"a naturally formed area of land, surrounded by water, which is above waterat high tide. Every island has the right to claim each and every coastalzone.

1. Art 10(2): 1958 conventionon the territorial sea and the contiguous zones states that "territorialsea of an island is measured in accordance with the provisions of these articles."
2. Archipelagic States: the problem is that certain nations are archipelagos (Philippines, Indonesia,Micronesia, etc.).

4. Indented Coastlines and IslandFringes: a straight baseline method may be used for a fringe of islandsor deeply indented coastline by joining appropriate points, if (1) the baselinedoes not depart from the general direction of the coast and are not sufficientlylinked, (2) the lowtide elevation is not used, (3) if a straight baselinedoes not cut off the territorial sea of another state from the high seasor an exclusive economic zone and (4) innocent passage is granted througha newly created internal waters.

1. Fisheries case: courtin the Fisheries imposed limitations on the use of straight baselines.
2. Low-tide Elevations: straight baselines not drown to the low-time elevations unless the lighthousesand installations permanently above sea level are built upon them.
3. Cutting off territorialsea: states operating their seas to cut off the territorial access ofanother.
4. Problem with Straits: some straits, would be within the territorial waters of another state.
5. Rocks: rocks that "cannotsustain human habitation or economic life of their own shall have no exclusiveeconomic zone or continental shelf. This is problematic because many statesare asserting authority over rocks to gain fishing and oil rights: spratlyislands.

5. Archipelagic states:straight baselines joining the outermost islands may be drawn, 100 milesmax.
6. Low tide elevations:situated wholly or partly within the territorial sea may be used as baselines.
7. Harbors and Roadsteads: outermost permanent harbor works are part of baseline. Roadsteds do notinfluence baseline.

4. Demarcation of Baseline withAdjacent and Opposite Sides; where the coasts of two states are oppositeor adjacent to each other, neither state is entitled to extend its territorialsea beyond the median line. The delimination of the continental and economiczone between states shall be determined by agreement. In the absence of agreement,the boundary shall be the median line, where opposite states are involved;and an equidistant line, where adjacent states are involved.

1. Adjacent States: wheretwo states are adjacent or facing each other (except by agreement or by historicalreference) the territory between the two is the medium point between thetwo.

4. Internal Waters and Ports:

1. General Definition: internal waters are the waters of lakes, rivers and bays landward ofthe baseline of the territorial sea. The waters on the landward sideof the baseline from which the width of the territorial sea is measured andcorresponds to Art. 5 of the 1958 convention.

1. Innocent Passage: statescan prohibit entry into their internal waters except for ships in distressor in cases where innocent passage existed previously.

2. Freedom of Access to Ports: Freedom of access to ports by foreign merchant vessels is governed by theprinciple of reciprocity. Land-locked nations may not be denied freedomof access to ports solely because of their inability to reciprocate. Portscan only be closed to foreign vessels when the vital interests of a staterequire it. A coastal state may condition a foreign ship’s access to a portupon compliance with the laws and regulations of the port.

1. Port: a port is a placefor loading or unloading a ship. A coastal state has full sovereignty over its internal waters and ports.
2. Land-Locked Nation: landlockednations may not be denied freedom of access to ports solely because of theirinability to reciprocate.
3. Closing of Ports: portsmust be open to foreign vessels and can only be closed when the vital interestof a State so require.
4. Regulation: coastal statemay condition a foreign ship’s access to port upon compliance with laws andregulations governing the conduct of the business of the port (pollution,safety controls).

3. Jurisdiction Over Foreign Vessels: a foreign merchant ship which enters any port of a state subjects itselfto the administrative, civil and civilian jurisdiction of that state,although a ship’s internal matters are left to the flag state. Warshipsmust comply with laws regarding navigation, health, safety and post administration.

1. Matters Internal to a Ship: state will not interfere with the decisions of the captainof the ship, which do not involve the "peace or dignity" of the coastal stateor "tranquility of the port."

1. Jurisdiction: the state’sjurisdiction is toward its internal waters, not exclusive. The courts ofthe ship’s flag may prosecute persons for crimes committed on the ship.
2. Crime: if a memberof the crew committed a crime on official business or in uniform, the crewis immune.

2. Seeking Refuge: Foreignvessels are not subject to the state’s jurisdiction when the vessel is seekingrefuge because of distress. The flag state also has jurisdiction, and theLOS Convention grants the port state in certain situations enlarged jurisdiction.

1. Distress: a ship indistress can use the port. The state cannot profit from it or impose duties,taxes, etc.

3. Jurisdiction of flag state: if the coastal state does not assert jurisdiction over an offense in itsports or internal waters, it is the duty of the flag state to apply its ownstatutes.

5. Territorial Sea: generally it extends an "N" numberof miles from the internal waters.

1. Coastal State Sovereignty overthe Territorial Sea: a state has the same sovereignty over its territorialsea, air space, seabed, and subsoil thereof as it has with respect to itsland.
2. Breadth of the TerritorialSea: LOS Convention, every state has the right to establish the breathof its territorial sea up to 12 nautical miles as measured from thebaseline.

1. US: the US adheres tothe three-mile territorial sea for domestic law purposes. For internationalrelations, the US has extended its territorial sea to 12 miles.
2. 200 miles: many stateshave extended their claims of territorial sea from 3 to 200 miles.
3. Width (UNCLOS II): thewidth is now about 12 miles (it use to be 3, a cannon shot).
4. Where measured by (Art. 4,Geneva Convention): the state’s territorial waters are measured from: (See Baseline).

1. Indentations: localitieswhere the coastline is deeply indented and cut into, of if there is a fringeof islands along the coast in its immediate vicinity, the method of straightbaselines joining appropriate points may be employed in drawing the baselinefrom which the breath of the territorial sea is measured.
2. Coastline: the baselinemust not depart from the general appreciation of the coastline.
3. Economic interests: particular interests are taking into consideration (economic, etc.).

3. Right of Innocent Passage: all ships have the right of innocentpassage through the territorial waters. All countries have the right to excludemerchant ships and others from their waters, but states can only ask warshipsto leave.

1. General Definition of Passage: passage means navigation through the territorial sea forthe purposes of either traversing that sea without entering internal waters,or proceeding to or from internal waters. Innocent passage must not be prejudicialto the peace, good order or security of the coastal state.

1. Prohibited Activities: all activities not having a direct bearing on passage violate "innocentpassage" including: (1) threat or use of force, (2) exercise or practicewith weapons, (3) collecting information that prejudices the defense or securityof the coastal state, (4) propaganda affecting the defense or security ofthe coastal state, (5) aircraft activity, (6) any activity involving a militarydevice, (7) loading or unloading any commodity, (8) pollution in contraventionof international law, (9) fishing, (10) research or surveying, (11) interferingwith communications of the coastal state.

2. Coastal State’s Rights: within the territorial sea, the coastal state retains several rights formonitoring activity in the area, including (1) verification, the unilateralright to verify the innocent character of the passage, (2) suspensionof innocent passage, the ability to suspend the right of innocent passage,(3) regulation of right of innocent passage, the adoption of regulationsrelating to innocent passage, (4) exercising criminal jurisdiction, the exercise of fairly broad criminal jurisdiction over foreign ships and(5) exercising civil jurisdiction, the exercise of more limited civiljurisdiction over foreign ships.

1. Suspension: may takeplace only after due publication.
2. Regulation of right ofinnocent passage: (1) safety of navigation and the regulation of maritimetraffic, (2) protection of navigational aids and facilities, (3) protectionof cables/pipelines, (4) conservation of living resources (fishing), (5)preservation of environment of the coastal state and the prevention, reductionof pollution, (6) marine scientific resources, (7) enforcement of fishing,customs, fiscal, immigration and sanitary regulations.

1. Transport: coastalships have exclusive rights to transport
2. War: belligerentstates have no right to make war in the territorial waters of another.

3. Exercising Criminal Jurisdiction: coastal state may exert criminal jurisdiction on board of foreign ship passingthrough territorial sea: (1) the consequences of the crime extend to thecoastal state, (2) the crime is of a kind to disturb the peace of the countryor the good order of the territorial sea, (3) assistance of local authoritieshas been requested by the master of the ship or by a diplomatic agent ofthe flag state, (4) such measures are necessary for the suppression of illicittraffic in narcotic drugs.
4. Exercising Civil Jurisdiction: coastal state may not exercise civil jurisdiction over foreign ships passingthrough the territorial sea, except for obligations assumed in the courseof, or for the purpose of, the ships’ voyage through the waters of the coastalstate.

1. Civil arrest: thecoastal state may levy execution against or arrest for civil proceedingsa foreign ship lying in the territorial sea or passing through the territorialsea after leaving internal waters.

3. Warships: no prior notificationis required for warships in innocent passage under the LOS Convention. Awarship which does not comply with foreign laws may be required to leaveterritorial sea immediately.

1. Submarines: must navigateon the surface and show flag.

4. Transit Passage the rightof passage exists "through straits which are used for international navigationbetween one part of the high sea to another part of the high seasor the territorial seas of the foreign state.

1. Broad enough: the statedoes not exist where the strait is broad enough to allow navigation througha high seas route in its middle. Unlike innocent passage, transit passageextends to aircraft and submarines and the coastal state must place lesslimitations on it.
2. Archipelagic sea lanespassage: under LOS Convention, all ships have right of archipelagic sealanes passage.

5. Contiguous Zone: thecoastal state may exercise the control necessary to prevent infringementof its customs, fiscal, immigration or sanitary laws and regulations in azone contiguous to its territorial sea. The contiguous zone may not extendbeyond 24 miles from the baseline from which the breath of the territorialsea is measured.

1. Rights: the state canassert jurisdiction over the contiguous zone if it is necessary to controlfor:

1. Infringement: toprevent infringement of its customs, fiscal, immigration, or sanitary regulationswithin its territory or territorial sea.
2. Punishment: to punishinfringement of the above regulations committed within its territory or territorialsea.

2. Measured from: thecontiguous zone cannot extend beyond 12 miles from the baseline from whichthe breath of the territorial sea is measured.

6. Exclusive Economic Zone: the Exclusive Economic Zone was createdto give coastal states exclusive economic water rights beyond the contiguouszone. The 200-mile zone was adopted at the Third UN conference on the Lawof the Seas The EEZ is generally treated as part of the high seas, althoughstates may exercise exclusive exploitation of its resources.

1. United States: has adoptedthe 200-mile EEZ limitation.
2. High Seas to Fishery Zonesto Exclusive Economic Zones: the state has exclusive fishery zones overtheir territorial waters and preferential rights from 12 miles beyond theirterritorial limit.

1. Early Coastal Management: US fishermen exerting right to seabed and subsoil, to South America 200miles.
2. The 200-Mile Exclusive EconomicZone: now the exclusive fishery zone is 200 miles (188 miles beyond the12 mile territorial sea).Exclusive fishery zones (Fisheries Jurisdictioncase). Adopted by the 3^rd UN Conference on the Law of the Seain 1982. Exclusive right for coastal states to explore, exploit, conserveand manage all living and nonliving resources within their economic zone.

3. Management and Conservationof the Living Resources Within the EEZ: the coastal state has severalresponsibilities in the management of the resources within the EEZ, includingthe duty to prevent over-exploitation and to promote optimum utilizationof the living resources. In granting access to its EEZ, a coastal state mustgive special considerations to the rights and needs of geographically disadvantagedand landlocked states in that region.

1. Duty of the Coastal Stateto Prevent Over-Exploitation of Living Resources of EEZ: coastal statesmust maintain levels of fishing to produce maximum sustainable yield, withoutdepleting stock.
2. Duty of the Coastal stateto Promote Optimum Utilization of Living Resources: the coastal statedetermines the allowable catch of living resources and its own capacity toharvest. If the allowable catch exceeds the ability of the state to catch,the state must allow others to exploit the living resources.

4. Right of Geographically DisadvantagedStates and Landlocked States in EEZ: Geographically disadvantaged statesare coastal states which can claim no EEZ of their own or whose geographiclocations make them dependent upon exploitation of the EEZ of other coastalstates in the region. These states and land-locked states have the rightto participate, on an equitable basis, in the exploitation of any fisherysurplus in the EEZs of coastal states in the region.

1. Rights: landlocked andgeographically disadvantaged states have the right to participate, and onan equitable basis, exploit the living resources of coastal states.
2. Terms of Participation: considerations: (1) avoid detriment to fishing communities or industriesof coastal state, (2) extent to which the disadvantaged state participatesin the exploitation of other state’s EEZs, (3) avoidance of a particularburden on any single coastal state, (4) the nutritional needs of the populationconcerned.
3. Special Access of DevelopingStates to Limited Surplus; when coastal state is near a point of beingable to harvest the allowable catch, it must cooperate with developing statesto establish equitable participation.

5. Species Subject to SpecialRules: several species have been singled out for special treatment withinEEZs, such as migratory animals, marine mammals and sedentary species.

1. Species Extending Beyonda Single EEZ: species which migrate require states to coordinate conversationefforts.
2. Marine Mammals: exploitationof marine mammals may be more strictly regulated by the coastal state thanfish stocks.
3. River Stocks: anadromousand catadromous species (river to sea, sea to river) require the state thatthe fish either originate or end up (spend most of the their life cycle)cooperate with other states.
4. Sedentary Species: notgoverned by LOS convention, these are species immobile or under the seabedat their harvesting stage. They are the natural resources of the continentalshelf.

6. Enforcement of Conservationand Management Measures: Enforcement of conservation and management measuresdepends upon whether the violation occurred within the EEZ or beyond it.A coastal state has enforcement rights within the EEZ, but has limited enforcementpowers beyond the EEZ.

1. Within the EEZ: statehas the right to enforce all laws enacted to conserve and manage living resources. States may board and inspect ship, impound or arrest crew in violation ofthese laws. Upon arrest, the flag state must be informed.
2. Outside the EEZ: anadromousand catadromous species allow for arrest, if in hot pursuit, but only ifall states agree.

7. US Legislation Relating toConservation and Exploitation of Living Resources in the EEZ: foreignfishing allowed if by treaty (optimum amount required to benefit US).
8. Other uses of EEZ: a Coastalstate may exploit non-living resources in its EEZ.

1. Non-Living Resources of theEEZ: state may exploit non-living resources of the EEZ (energy, currents,winds, etc.).
2. Marine Scientific Research: Coastal states may regulate, authorize or conduct marine scientific researchwithin its EEZ. If the proposed scientific benefit of all mankind, the coastalstate must consent to another state’s request to do research.

9. Artificial Islands and Installations: the coastal state has exclusive right to construct and regulate construction,operation and use of any artificial island, and of installations and structuresbuilt for economic purposes in its EEZ if they do not obstruct reconstructedsea navigation lanes.

7. Continental Shelf: the continental shelf is that submarine area which begins at the shoreand ends where the continental slope to the deep seabed begins. The 1958Convention and the LOS Convention establish more detailed measurements.

1. Definition: Art. 76(1)of the Convention, provides that "the continental shelf of a coastal statecomprises the sea-bed and subsoil of the submarine areas that extend beyondits territorial sea throughout the natural prolongation of its land territoryto the outer edge of the continental margin, or to a distance of 200 nauticalmiles from the baselines from which the breath of the territorial sea ismeasured where the outer edge of the continental shelf margin does not extendup to that distance.

1. 1958 Convention on the ContinentalShelf: defined continental shelf as seabed and subsoil of submarine areasadjacent to the coast but outside the limits of the territorial sea to adepth of 200 meters or to where the water depth allows exploitation of naturalresources.
2. The LOS Convention:

1. Geological definition: the continental shelf as running to the edge of the continental margin.
2. 200 Miles: 200 nauticalmiles from the baseline. If the continental margin extends beyond 200 nauticalmiles, the outer limit of the shelf may not exceed 350 nautical miles or100 miles from a point where the depth reaches 2500 meters.

2. Rights and Duties of a CoastalState Over the Continental Shelf: the coastal state has limited obligations in managing the continental shelf and has extensive rights over thenatural resources of the shelf.

1. Extent of Sovereign Rights: coastal state has exclusive rights over the continental shelf for the purposesof exploring and exploiting the natural resources. No one else may do sowithout the state’s consent even when the state does not exploit them.

1. Exploitation: the coastalstate exercises rights over the continental shelf for the purposes of exploitingthe natural resources.
2. Express consent: ifthe coastal state does not exploit the resources, all states which want tomust get the express consent of the coastal state.
3. Covers: all mineraland animal rights of the continental shelf.

2. Duties: when a coastalstate exploits non-living resources on its continental shelf beyond the 200-milelimit, the coastal state must pay a fee to the deep seabed Authority (LOSConvention).

3. Sedentary Fisheries: thecoastal state has sovereign rights over all sedentary fisheries on its continentalshelf. Sedentary fishers are not subject to optimum yield regulations.
4. Marine Scientific Researchon the Continental Shelf: the same rules apply to continental shelf researchas those which apply to the EEZ. State may not withhold consent to a researchproject if it will be conducted in an area where the coastal state has notor will not begin exploitation or exploration activities (within reasonabletime).
5. United States Practice andLegislation Relating to the Continental Shelf: US control over the continentalshelf area is divided between federal and state government. States have fulljurisdiction and rights over the inner continental shelf area. However, thefederal government has power to regulate commerce, navigation, defense, andinternational affairs within the inner shelf.

1. Federal Sovereignty:US government has paramount rights. States have subordinate rights.
2. Outer Continental Shelf LandsActs (OSLA): federal regulatory system for the resources of the outercontinental shelf. Submerged Land Act granted states full jurisdiction overinner continental shelf area.

8. Exploiting the Mineral Resourcesof the Deep Seabed: there are variousviews regarding the deep seabed. This is since scientists found manganesenodules on the ocean floor.

1. Current Status of the LegalRegime of the Deep Seabed:

1. Common heritage (LOS Convention): the mineral resources of the deep seabed may be exploitedonly through an international authority acting on behalf of all countriesand is advocated by the LOS Convention and the developing states.

1. Declaration of PrinciplesGoverning the Sea Bed: UN adopted measure by unanimous vote. Deep seabedis common heritage of mankind.
2. LOS Convention: establisheddeep seabed regime. Questionable whether it will become customary law (opposedbe developed countries).

2. Freedom of High Seas: the right to explore and exploit the mineral resources is the freedom ofthe high seas. No state may claim or acquire exclusive rights. (US view).
3. Res Nullius: the seabedbelongs to no one, and that the mineral resources of the deep may be exploredand exploited to the exclusion of all others by the first state who claimsit.

2. Seabed Mining under the LOSConvention: No state may claim, exercise sovereign rights over, or appropriateany part of the deep seabed or its resources because the mineral resourcesof the seabed are the common heritage of mankind. The seabed is governedby an Authority established by the Convention to oversee exploitation anddistribution.

1. International Seabed Authority: is under the authority of the International Seabed Authority, who can exploitthe deep seabed and give half the proceeds to the state who exploits it andthen half for the developing communities (economic interest and developmentof the world).

1. Organs: consists ofan Assembly, Council and Secretariat, of all states parties to LOS.

2. The Assembly: supremeorgan o the Authority, one representative from each member.
3. The Council: executiveorgan, establishes policies and approves plans of work, 36 members of theAuthority.
4. The Enterprise: separatelegal entity which will carry out mining operations on behalf of Authority.
5. Regulation of Mining: Annex III provides guidelines for exploring and exploiting deep seabed.
6. Problem: the US, USZSR,etc. have passed laws authorizing people to exploit the seabed. There isno real agreement as to who has the authority over it.

3. United States Legislation: the US has promulgated its own regulations on the seabed in the 1980 DeepSeabed Hard Mineral Resource Act. The US has rejected the deep seabed regimeunder the LOS Convention because of the way it provides for sharing of technologyand profits.

9. Freedom of the High Seas: freedom of the high seas includebut are not limited to: (1) freedom of navigation, (2) freedomof overflight, (3) freedom of fishing, (4) freedom to lay submarinecables and pipelines, (5) freedom to construct artificial islands, (6) freedom of scientific research.

1. Due Regard: the freedomsmust be exercised with due regard for the interests of other states if thereis due regard for the rights and duties of the coastal states, and thereis compliance with internationally legal regulations of the coastal state.
2. High Seas: seas which arenot part (or within) the territorial seas. All parts of the sea that arenot included in the territorial sea or the internal waters of the state.

1. Laws: ships are onlysubject to the international laws and the laws of the flag of the ship.
2. Interference: generally,no state can interfere with another state’s ships (except at time of war,warships). However, there are some exceptions.

1. Stateless ships: anystate may seize a stateless ship on the high seas.
2. Treaties: a treatyof one state can give another state the right to arrest, etc.
3. Narcotic Drugs: allstates can arrest a ship if (1) they believe that the ship is trading innarcotics/drugs and (2) they receive approval from the flag state.
4. Slavery: any statecan arrest for slavery (international crime).
5. Piracy: any state mayarrest for piracy. However, piracy is "actions perpetrated against otherships." Any illegal act of violence, detention or act of depredation, committedfor private ends by the crew or the passengers of a private ship or a privateaircraft, and directed: (1) on the high seas against another ship or aircraftor against persons aboard a ship/aircraft, (2) against a ship/aircraft/person/property outside the jurisdiction of any state.
6. Reciprocal power: oncea ship is arrested, the state has to hand over the ship to the flag state.
7. Belligerent rights: warships belonging to belligerent states may seize the merchant ships andneutral merchant ships trading with the enemy (in certain circumstances).

3. Municipal Court Action (LotusCase reaction): after the Lotus Case the courts of a state cannotenact any penal or disciplinary proceedings against a person in the servicesof a ship except before the administrative authorities of the flag of theship.

3. Reservation of the high seasfor peaceful purposes: the high seas must be used for peaceful purposes. Naval forces may use the high seas, but use or threat of force violatesthe law of the sea and article 2(4) of the UN Charter absent other justificationof international law (self-defense).
4. Freedom of Navigation:Every state has the right to sail ships on the high seas bearing its nationalflag. Warships and state-owned ships have complete immunity from jurisdictionof any other state other than the flag state when on the high seas. The flagstate of merchant ships has exclusive jurisdiction in terms of arrest orother physical interference, subject to the following exceptions:

1. Treaty exception: flagstate may provide by international agreement to allow another state to exercisejurisdiction over ships.
2. Collision cases: foreignstate has concurrent jurisdiction based on territoriality principle whena flag ship affects their territory.
3. Right visit: warshipentitled to bard another ship when there is reasonable grounds to believethe ship is engaged in piracy, slave trade or unauthorized broadcasting.

1. Illegal act: any illegalacts of violence, detention or any act of depredation (piracy), (a) againstanother ship or aircraft, etc., (b) against a ship, property, aircraft, personoutside jurisdiction of any state.
2. Voluntary participation: any act of voluntary participation in the operation of a ship or aircraftwith knowledge of facts making it a pirate ship or aircraft.
3. Inciting Piracy.

4. Hot pursuit: warshipto engage in pursuit on high seas if state had good reason to believe therewas a violation of laws and (1) if hot pursuit begin in state’s territorialsea (EEZ, internal water, contiguous zone, continental shelf, etc.) and (2)ceases in the territorial waters of the other state.
5. Necessity: LOS Convention,proportional measures to protect coasts from pollution or threat of pollutionfrom maritime casualty.
6. Self-defense: rules governingthreat or use of force in self-defense governed by UN charter.
7. Action Authorized by UN.

5. Freedom of Overflight:all aircraft have a right to fly over the high seas.
6. Freedom of Fishing and ConservationMeasures: all states have a right to fish the high seas. This is limitedby treaties and regard for the rights and duties of other states.
7. Freedom to Lay Submarine Cablesand Pipelines: cable and pipeline laying is subject to coastal stateregulation on the continental shelf.
8. Freedom to Construct ArtificialIslands: construction and operation of artificial islands, installationsand structures is subject to coastal regulation of such activities on thecontinental shelf or in the EEZ.
9. Freedom of Scientific Research: all states and competent international organizations have the right to conductscientific marine research outside of EEZs.

2. Preservation of the Marine Environment: states must ensure, in exercisingtheir sovereign rights to exploit their resources, that activities withintheir jurisdiction and control do not cause damage to the environment orother states or of areas beyond the limit of national jurisdiction.

1. The 1958 Conventions

1. Stockholm Declaration and GeneralObligation to Preserve the Environment: Principle 7 allows for statesto take "all possible steps" to prevent pollution of the seas. Principle21, provides that states must ensure, in exercising their sovereign rightsto exploit their resources and no state could use territory that is injuriousto other states.
2. Third UN Conference on theLaw of the Sea: States are required to take all measures necessary toprevent pollution of the marine environment from any source: (1) releaseof toxic, harmful or noxious substances, (2) pollution for vessels, (3) pollutionfrom installations and devices used in exploration or exploitation of naturalresources of the seabed or subsoil, (4) pollution from other installationsoperating in marine environment.

1. Regional Standards Adopted: states required to harmonize policies on a regional level with regard topollution from land-based sources.
2. Global Standards Adopted: states requested to harmonize their policies on a global level with regardto pollution from land-based sources, seabed authorities subject to nationaljurisdiction, pollution from dumping and pollution of marine environment.

2. Vessel Source Pollution:states are required to establish international guidelines governing vesselsource pollution through international organizations.

1. Flag State Jurisdiction: Flag states are required to adopt laws and regulations for the preventionof pollution of the marine environment from ships flying their flag or oftheir registry: (1) design, construction and equipment, operation, maintainingvessel, (2) accident prevention, (3) emergency procedures, (4) operationof sea safety standards, (5) prevention of intentional and unintentionaldischarage.
2. Coastal State Regulation inports, Internal Waters and Territorial Sea: coastal states may adoptlaws and regulations for the prevention, reduction and control of marinepollution.
3. Coastal State Jurisdictionin EEZ: Coastal states may adopt laws and regulations for the prevention,reduction and control of marine pollution from foreign vessels within theirterritorial sea but may not hamper innocent passage. States may regulatevessel source pollution in their EEZs through an international organizationor diplomatic conference. A state also may make a request to the appropriateinternational organization for additional coastal state regulation of vessel-sourcepollution in the EEZ if international rules provide adequate protection.

3. Pollution from Land-Based Sources: all states must adopt laws or regulations to prevent pollution of the marineenvironment from land-based sources.
4. Ocean Dumping: States arerequired to adopt laws and regulations to prevent pollution of the marineenvironment by the dumping of sewage, sludge and other waste materials intothe ocean. These laws must be comparable to global standards. Dumping inthe coastal zones of states requires consent and also is regulated underthe Dumping Convention: (1) high level radioactive wastes, (2) materialsproduced for biological and chemical, (3) non-biodegradable synthetic materials.
5. Pollution from Seabed ActivitiesSubject to National Jurisdiction: States are required to adopt all lawsand regulations necessary to prevent pollution of the marine environmentarising from, or in connection with, their exploration and exploitation ofthe seabed and subsoil.
6. Pollution from Deep Seabed Mining: the LOS Convention authorizes the Authority to adopt appropriate rules andregulations to prevent pollution of the marine environment from deep seabedactivities.
7. Pollution from or Through theAtmosphere: all states are required to adopt laws and regulations toprevent pollution of the marine environment from or through the atmosphere.
8. Protection from Fragile Ecosystems: States are obligated to take measures necessary to protect and preserverare or fragile ecosystems as well as the habitat of depleted, threatenedor endangered species and other forms of marine life.
9. Liability: a state whichfails to fulfill its obligations to protect and preserve the marine environmentis liable in accordance with international law.

1. Liability for Nuclear Accidents: Art 2, 1962 Nuclear Ships Convention provides that the ship (country flagstate) has absolute strict liability for any nuclear problems arising outof nuclear powered ships.
2. Liability for Oil Pollution: 1969, governs injuries caused by oil pollution. No full compensation forvictims of oil pollution, the International Fund for Compensation for OilPollution Damage created.

10. Enforcement: flag states,coastal states and port states may all enforce rules and regulations relatingto the marine environments depending on the source of pollution, the locationof the violation, and the degree of harm to the environment. A state is obligatedto compensate the flag state for any injury or loss attributed to unlawfulor excessive measures taken against a foreign ship.

1. Flag State Enforcement: flag states obligated to ensure that all ships flying flags comply withinternational rules.
2. Coastal State Enforcement: ship in port, coastal ship may institute proceedings against it for violationof laws adopted under the Convention: undergo physical inspections.
3. Port State Enforcement: port may investigate and prosecute parties who violate EEZ of another stateand are in their port, port may not investigate (without authority) violationsoccurring within own EEZ.
4. Liability for Wrongful Enforcement: a state is obligated to compensate the flag state for nay injury or losscaused by unlawful or excessive measures taken against foreign ship.

11. Notification and cooperativeAction: as soon as a state is aware that injury to the marine environmenthas occurred or is imminent, it must notify immediately the appropriateglobal or regional international organizations and all states likely to beaffected.
12. Government Non-commercial Ships: Ships that are used by governments for noncommercial purposesare not subject to the international rules, standards, and enforcement proceduresdiscussed.

3. Air and Space law: it’s a breach of international law (because of the security interests) fora state to order its aircraft to breach the territory of another state.

1. Generally:

1. Common Law View: commonlaw doctrine held that a state’s control over airspace extended to theend of the universe.
2. Balancing Free Airspace withStates’ Self-Preservation: Early attempts to define states’ sovereigntyover airspace balanced the inherent nature of airspace as free from sovereigncontrol against the need of the sovereign to provide for defense and protection.
3. Exclusive control: in 1919,the Paris Convention established that each state’s exclusive control overthe airspace over its territory and territorial waters. No state controlover the airspace over the high sea.

1. Territory Limited By TerritorialWaters: states retained control of airspace above only the territoryof the state and above its territorial waters.
2. No Control Over High Seas: free from state control.

2. Developing law after WWII: with the dramatic rise in international air traffic, a need arose to establishsome general principles to govern international air travel.

1. The Five Freedoms: at thistime, free airspace has been broken down into five components. These so-called"five freedom" became the basis of the international agreement ofthe World War II era. The five freedoms: (1) overflight, (2) non-trafficlanding, (3) putting down traffic, (4) picking up traffic, and (5) international traffic.
2. Chicago Convention: themost important of the World War II-era agreements was the Chicago Convention,which created the International Civil Aviation Organization and the InternationalAir Services Transit Agreement. It also outlined a number of other generalprinciples.

1. Aircraft must follow prescribedsafe routes.
2. Right to refuse intra-statetraffic
3. Applies only to civil aircraft.
4. Discrimination based on nationalityprohibited.

3. International Air ServicesTransit Agreement Extends to Limited Freedoms of Schedule Air Schedules: only the first two freedoms, overflights, non-traffic landings, are generallyavailable under the International Air Services Transit Agreement for scheduledair service. The remaining three freedoms generally are not agreed upon.

1. Scheduled air service: governed by bilateral agreement, complex webs of bilateral agreements whichgovern international air traffic.

4. Definition of "scheduled internationalair service:" Because the rules governing scheduled or non-scheduledinternational air service differ, the International Civil Aviation Organizationpromulgated the following definition. A "scheduled international air service"is a series of flights that: (1) overflies more than one state, (2) open to the public and (3) has regular service.
5. Prescriptive Jurisdiction forInternational Air Travel: When an aircraft engages in international airtravel, it will at all time be traveling either in airspace governed by astate’s domestic regulations or in airspace above the high seas. Regulationsregarding air travel differ by jurisdiction.

1. Domestic regulation: When the aircraft is in airspace above a state or its territorial water,the regulations of that state apply.
2. ICAO: When the aircraftis in airspace above the high seas, rules promulgated by the ICAO under article12 of the Chicago Convention apply. Additional rules may apply for speciallydamaged zones, such as Flight Information Regions (FIRs) or Air Defense IdentificationZones (ADIZs)

1. Requirements for US: (1) file flight plan with aeronautical facility and (2) give position whenone to two hours from US.
2. Legal under Chicago: silent on ADIZ, thus states are not precluded.
3. No effect on entry: ADIZ does not preclude any aircraft from entering the US.

6. Aircraft has nationality ofstate of registration (Art. 17): of the Chicago Convention defines thenationality of any aircraft as the state in which it is registered.
7. Civil Aircraft: the problemis that civil aircraft have been shot down. In 1984, the ICAO (a UN body)drafted an amendment stating that civilian aircraft could not be shot down,but could be designated an aircraft to shoot down.

1. Registration: the registrationof aircraft is similar to that of ships, the nationality is determined byregistration.

4. Liability of Air Carriers:

1. Limitations on Liability Neededto Foster Airline Industry: the original purpose for placing limits onthe recovery from airlines for damages was to assist the growth of the fledglingairline industry. Many United States courts construe the limitation of liabilityprovisions very strictly against air carriers on the theory that theoriginal purpose behind the provisions is no longer valid.

1. Need to Attract Capital: airline industry needed capital to assist growth and it hoped that limitationon costs for damages would further that cause.
2. Need to Obtain Insurance: limitations served to make airlines attractive to insurance carriers, thatwould otherwise not extend policies for heavy loses.
3. Limitations Narrowly Construed: Many US courts construe limitation on liability provision very strictlyagainst air carriers.

2. Standard of Liability: theWarsaw Convention provided a stricter standard of liability for the airlines.Under the Convention, carriers shall be liable for the death or personalinjury unless it can be proven that it or its agents had taken all necessarymeasures to avoid the damage or that it was impossible for the carrier totake such measures.

1. Requirement of Delivery ofTicket: Warsaw Convention, if carrier accepts passenger without ticket,the carrier cannot avail itself of the liability limit.

1. Liberal interpretation: US courts dislike liability limitations, they construe delivery requirementto allow for full recovery. Actual ticket is required to give passenger noticeof limitations.
2. Strict interpretation: other courts held that delivery requirement merely demands the passengerphysically possess ticket before boarding.

2. Limitation Not Applicable toCertain Flights: limitation applies to travel that initiates and terminatesin different state, both of which are parties of the Convention. The limitationalso applies to travel that initiates and terminates in a single state thatis a party of the Convention.

3. Jurisdiction: Warsaw Conventionof 1929 specifies when a state has jurisdiction for actions brought underits terms. Article 28, there is jurisdiction in the state of: (1) the carrier’sdomicile, (2) the carrier’s principle place of business, (3) the locationat which the ticket was purchased, (4) the passenger’s place of destination.
4. Violation of Airspace:

1. Violation of airspace:under various international conventions and bilateral agreements, governinginternational aviation, an aircraft normally needs authorization to entera state’s airspace and is required to follow certain procedures while operatingin that airspace.
2. Use of Force to Terminate aTrespass: by analogy to the law of the sea, states may use only "necessaryand reasonable force" in response to intruding aircraft.

5. Offenses Committed Aboard Aircraft:

1. Jurisdiction Generally: Because an aircraft takes on the nationality of the flag state, that statemay assert jurisdiction over offenses committed on board the aircraft. Inaddition, the subjacent state over which the aircraft flies may assert concurrentjurisdiction based on territoriality. Other states may also assert jurisdictionfor offenses committed based on other aircraft principles, such as the nationalityof the defendant, universality, or the nationality of the state.
2. Hijacking and Sabotage: Hijacking invokes the use or threat of the use or force to exercise controlover an aircraft. Sabotage generally addresses efforts to place the safetyof the aircraft in jeopardy. The international community has establishedconventions to govern both of these offenses. The convention for the Suppressionof Unlawful Seizure of Aircraft ("Hague Convention") governs hijacking andthe Convention for the Suppression of Unlawful Acts Against the Safety ofCivil Aviation ("Montreal Convention") deals with sabotage. Many of the articlesof the two conventions are identical.

1. Duty to Extradite or Prosecute: Both conventions recognize hijacking and sabotage as universalcrimes, and require that a state either prosecutes or extradite the allegedoffenders.
2. Jurisdiction: the Hagueand Montreal Conventions (as well as the International Convention for theTaking of Hostages) recognize hijacking and sabotage as universal crimes.

5. Outer Space:

1. Necessity of a Definition Debatable

1. Definition: a controversy exists as to whether a definition of outer space is even necessaryand, if it is, whether it should be scientifically based or politically based.At least seven possible definitions have been supported over the years:

1. Definition no necessary: the United States, among other states, takes the position that there isno need to define where outer space begins.

1. No complaints: throughoutthe history of space exploration, no state has ever complained that anotherstate has violated their airspace during the launch or landing of a spacevehicle.
2. Definition would be arbitrary: science is not yet able to define exactly where outer space begins so anyattempt to set a definition would be arbitrary.
3. Definition for practicalimportance: the minimum height at which satellites can remain in orbitis far beyond the maximum height at which aircraft can fly.

2. Definition is necessary: other countries assert that a definition should exist:

1. Future applications ofinternational law: a definition is necessary for applying the internationallaw of air and space as technology develops.
2. Secure state sovereignty: lack of a definition invites states to violate the sovereignty of otherstates.
3. Basis for domestic law: a definition serves as a basis for enacting domestic law to provide fora state’s defense and for the full exercise of state sovereignty.

3. Scientific Versus ContrivedDefinition: a definition can be based on scientific principles or bebased on the needs of the international community.

1. Scientific definition: some states argue for a definition of outer space content that a scientificdetermination of the line between air and space is possible.
2. Contrived definition: indivisibly principle supports the notion that air and outer space are merelydifferent degrees of one another. The definition should be arrived at bytraditional decisionmaking.

4. Possible Definitions: (1) the limit of the atmosphere, (2) limit of air flight,(3) point at which a satellite can orbit, (4) the point at whichcentrifugal force replaces aerodynamic forces, (5) the point at whichthe atmosphere will no longer sustain human life, (6) the limit ofa state’s effective control over its airspace, (7) the current orbitalminimum.

6. Control of outer space: the widely adopted Treaty of Principles Governing the Activities ofStates in the Exploration and Use of Outer Space, Including the Moon andCelestial Bodies ("Outer Space Theory") generally provides for free accessto outer space and celestial bodies by all nations.

1. Liability for damage caused byspace objects: Under the Outer Space Treaty and the More detailed Conventionon International Liability for Damage Caused by Space Objects ("LiabilityConvention"), a state which launches or authorizes launching of an object,or from whose territory an object is launched, can be held liable for damagescaused by the object. The standard of liability varies depending on whereand how the damage occurs. Damages are determined in the Liability Conventionby the amount needed to return the injured party, whether the party is aperson, state or international organization, "to the condition which wouldhave existed if the damage had not occurred."

1. Standards of Liability: standard of liability varies depending upon where and how the damage occurs.

1. Strict liability: statestrictly liable for objects which fall to earth.
2. Faults-based: state heldstrictly liable for damage caused by its space object on the surface of theearth or aircraft in flight.
3. Joint and several liability: states jointly and severally liable: (1) previous damage, (2) joint mission,when two states on the same project they are liable.

2. Measure of Damages: damagesdetermined by liability convention by amount needed to return the injuredparty to the position they would be if the injury would have not happened.
3. Defenses: a state willnot be liable if they can prove the damage was partially caused by the grossnegligence on the part of the claimant.
4. Obligation to consider renderingassistance: in cases where damage caused "presents a large scale dangerto human life or seriously interferes with the living conditions of the populationor the functioning of vital centers," the responsible state shall examinethe possibility of rendering assistance to the damaged state.
5. Responsibility for activitiesin outer space: States bear international responsibility for nationalactivities in outer space regardless of whether the activity is carried outby governmental or non-governmental entities.
6. State retains jurisdictionover objects it launches into space: States retains jurisdiction overobjects launched into space which are registered to it (flag theory).

2. Military Applications in OuterSpace: the Outer Space Treaty bans military use of outer space and celestialbodies but permits some military use of orbiting space craft. The Treatydoes not, however, prohibit the use of military personnel in the conductof research or for other peaceful purposes.

1. Ban on Weapons of Mass Destruction: Treaty prohibits the use of weapons of mass destruction in orbit, on celestialbodies or in outer space. Other military use permitted.
2. Ban on Nonpeaceful Use of CelestialBodies: celestial bodies may only be used for peaceful purposes. Prohibitionsof creation of military fortifications, military maneuvers, etc.

3. Geostationary Orbits: a satellitein a geostationary orbit remains over the same position on earth. Such orbitsonly over the equator. Although some states along the equator claim specialrights to geostationary orbits, the prevalent view is that such orbits areproperly considered outer space and therefore are under no state’s control.

1. Valuable Resource: valuablebecause satellites occupying orbits are always within reception range andrequire little tracking. They are limited in number because of the neededspace, so that they don’t collide.
2. Not Controlled by Any ParticularState or States: some states along the equator claim special rights togeostationary orbits, the prevalent view is that such orbits are properlyconsidered "outer space" and therefore are under no state’s control.
3. Regulated use of geostationaryorbits: Because geostationary orbits are so valuable and are limitedin number, the international community has sought agreement on their use.

1. Squatter’s rights: firstone there gets the orbit.
2. ITU approach: every stategets at least one guaranteed orbit.

4. Remote Sensing: UN principle12 requires that a sensed state shall have immediate access on a non-discriminatorybasis and at reasonable cost to all primary, processed and analyzed dataconcerning territory under its jurisdiction.

7. Celestial Bodies:

1. Territory not subject to statecontrol: Under the Outer SpaceTreaty no state may exercise any claim of right to the moon or any othercelestial body. The moon and other celestial bodies may be used onlyfor peaceful purposes.

1. Problem: there is no determinationas to where space begins and who has real control over space (being a newfrontier). Further, same law that applies to aircraft (flyover) does notapply to space satellites, etc.

2. Control of Resources on the Moonand Other Celestial Bodies:

1. UNCOPUOS: the UN Committeeon the Peaceful Use of Space, includes a few nations, but warfare(use by modern states) is outside the mandate of UNCOPUOS.
2. Outer Space Treaty of 1967: the basic framework of outer space law.

1. Exploration: for thebenefit of all nations, and cannot be annexed by any state.
2. Contamination: the activitiesof one state cannot contaminate the earth. Art. 9.
3. Disclosure: the statemust disclose its activities. Art. 10-12.
4. Liability: a state whichlaunches things into space is liable for the damage. Art. 7.
5. Moon/Celestial Bodies: shall be used for peaceful purposes. Art. 4.

3. Agreement Governing the Activitiesof States on the Moon and Other Celestial Bodies Which Addresses Exploitationof the Moon’s Resources: The Agreement Provides, inter alia, for thedevelopment of a governing regime for the exploitation of the moon’s resources.

1. Development of A GoverningRegime: parties to the Agreement shall develop a regime to govern theexploitation of the moon’s resources. The treaty also provides that themoon and its resources are the common heritage of mankind.

1. Development of resources.
2. Management of resources.
3. Expansion of opportunity.
4. Equitable sharing of benefits.

4. Common Heritage: treatyprovides that the moon and resources are common heritage of mankind. Lackof US support has been to this position.

17. International Environmental Law: the principles of modern internationalenvironmental law began to emerge in 1972 during the Stockholm Conferenceand recently culminated in the 1992 "Earth Summit" in Rio de Janeiro. Manyinternational organizations, including the UN have played a fundamental role.

1. Types of Conventions: the NationsConference on the Human Environment (1972), the World Charter for Nature(UN adoption 1982).

1. 1987 Brundtland Report: notedthe importance for international cooperation and responsibility for environment(pollution, reduction in resource exploitation, etc.).
2. Sustainable Development:defined as development that meets the needs of the present without compromisingthe ability of future generations to meet their own needs.

1. Needs: needs of the poor(given priority) countries.
2. Limitations: on the stateof technology and social organization as it "limits" the environment's abilityto meet future needs.

2. Stockholm Conference (1972): sponsored by the UN, was the first global environmental conference. Attendedby 113 parties, adopted two documents: (1) the Stockholm Declaration on theHuman Environment, and (2) the Action Plan for the Human Environment.

1. Stockholm Declaration: globalapproach to environmental problems. Its most important provisions state theprinciples that humans have a ‘fundamental right to an environment of qualitythat permits a life of dignity and well-being (Principle 1), the right toexploit their own resources, ensuring that their activities within theirjurisdictions do not cause damage to areas outside of their jurisdictions(Principle 21), and noted that states should develop international law regardingliability and compensation for pollution victims (Principle 22).

1. Principle 1: recognitionof a fundamental right to freedom, equality, and adequate conditions forlife, in an environment of a quality that permits a life of dignity and well-being.
2. Principle 21: the responsibilityof all states to ensure that the activities within their jurisdiction andcontrol do not cause damage to the environment of other States or areas beyondtheir territorial barriers.

1. Exploitation: a statehas the right to exploit their own resources pursuant to their own environmentalpolicies.

3. Principle 22: a call todevelop further the international law regarding liability and compensationfor victims of pollution and other environmental damage caused by activitieswithin the jurisdiction or control of such States to areas beyond their jurisdiction.

1. Liability: states arereluctant to hold themselves liable for actions in contrast to their allowanceof liability for civil liability of private operators.

2. Action Plan: the partiesadopted 109 resolutions aimed to assist states in assessing environmentalproblems and providing solutions.

3. United Nations Environmental Program(UNEP): UNEP (established 1973) as a result of the Stockholm Conference.It is a subsidiary organ of the UN and coordinates its environmental activities.UNEP has a Governing Council, a Secretariat in Kenya, and an EnvironmentFund. Function of UNEP include gathering information on environmental problems,recommending possible solutions, and funding programs. It has played a leadrole in the formulation of international environmental law and has sponsoredmajor global agreements.

1. Structure of the UNEP: UNEPhas a Governing Council of 58 members; Secretariat based in Kenya.
2. Functions of the UNEP: functionsinclude gathering information on environmental problems and existing effortsto solve them, recommending and initiating environmental protection programs,and funding chosen environmental protection programs, and funding chosenenvironmental protection programs.
3. Phase I: this was introducedby the United Nations Environmental Programme (UNEP) and the Action Planfor the Human Environment.

1. Dealt with: water, airand soil pollution from industrial activities as well as from poverty (legalinstruments).
2. Marine environment: nocomprehensive global treaty dealing with all relevant aspects.

1. 1982 Law of the Sea Convention: dealt with general principles of environmental law.
2. Sources (Oil): thereare specific sources (oil) conventions starting with the 1954 InternationalConvention for the Prevention of Pollution of the Sea by Oil.
3. Sources (Waste): coveredin the 1972 Convention on the Prevention of Marine Pollution by Dumping Wastesand Other Matter.

1. EEZ: there is an exclusiveeconomic zone of 200 miles which grants.

4. There are various other agreementswith regard to sea pollution (waste) and pollution in rivers (but no substantivestatements as to the law.

3. Air pollution: 1979 GenevaConvention on Long-Range Transboundary Air Pollution.

1. Signatories: are theU.S., Canada and most of Europe.
2. 1984 Protocol: amendedthe 1979 treaty to include long-term financing of cooperative programs formonitoring and evaluating long-range transmissions of pollution.
3. 1985 Protocol: concerningreduction of sulfur emissions/transboundary fluxes by 30%.
4. 1988 Protocol: concerningemissions of Nitrogen Oxides.
5. 1991 Protocol: volatileorganic compounds.
6. 1994 Protocol: furtherreduction in sulphur.

4. Nature and conservation ofspecies:
5. International Transport andDisposal of Wastes.
6. Nuclear Energy: but onlyaddressed the issue of liability with regard to the peaceful use of nuclearenergy.
7. Military Use of EnvironmentModification: there is a treaty against the use of destruction of theenvironment for military gain.
8. Ozone layer: lead to theVienna Convention for the Protection of the Ozone Layer (March 22, 1985).

4. UNEP’s Legal Activities:UNEP plays lead role in the formulation of international environmental law,sponsored major international environmental agreements including (Ozone treaties).

4. World Charter for Nature: theWorld Charter for Nature was drafted in 1982 by the World Conservation Union(IUCN). Its preamble and 24 articles set forth global environmental principlesthat focus upon the value of nature, the importance of integrating naturewith economic planning, and suggest ways that states can implement thesegoals.

1. General Principles: natureshall be respected (Principle 1) and that unique areas of the globe shouldreceive special protection (Principle 3).
2. Functions: principles stressthe importance of integrating nature conservation into social and economicdevelopment planning (Principle 7), and the necessity of avoiding destructionof natural resources through either waste, pollution, natural disaster, orother adverse processes (Principles 10-11).
3. Implementation: focuses onthe importance of incorporating the UN Charter principles into the law andpractice of each state. Principle 21 provides that states and other entitiesshall:

1. Cooperate: cooperate throughcommon activities, such as information exchanges, to conserve nature.
2. Standards: establish standardsfor products and manufacturing processes with adverse effects/nature.
3. Legal: implement legalprovisions for nature conservation and environmental protection.
4. Harm: ensure that own activitiesto not harm natural systems of jurisdictions or those areas beyond nationaljurisdiction.
5. Safeguard: safeguard andconserve natural areas beyond national jurisdiction.

4. Draft Articles on State Responsibility: the International Law Commission (ILC) drafted various activities that focuson state liability with regard to transboundary pollution and other environmentaldamage. Article 1 states that "every international wrongful act of a stateentails the international responsibility of that state." Article 19(3)(d)lists among international crimes "a serious breach of an international obligation… for the safeguarding and preservation of the human environment…"

1. Article 1: draft articlesstate that "every international wrongful act of State entails internationalresponsibility."
2. Article 3: intentionallywrongful act occurs when (1) conduct is an act or omission "attributableto the state under international law," and (2) "that conduct constitutesa breach of an international obligation of the state."
3. Article 19(3)(d): ILC listedamong crimes "a serious breach of international obligation of essential importanceof protecting the environment, allowing for massive pollution of seas."
4. Articles 29, 30, and 31
5. Article 29 to 31: describesituations that preclude the liability of a state for an otherwise wrongfulact: "1. An act made with consent by the affected state. 2. An act legallymade in response to the wrongful act by the affected state, and 3. An actdue to the extraordinary events that made it materially impossible for thestate to act in conformity with its obligations (force majeur).

5. Restatement (Third) on ForeignRelations Law in the United States: the American Law Institute drafteda Restatement on Foreign Relations which provides in section 601 that a stateis obligated to take measures to ensure that activities under its controlconform to general international principles regarding transboundary pollutionand are not conducted so as to cause significant injury to another state.It is also that a state is legally responsible for such an injury.

1. Obligations: state mustmake measures as may be necessary, to the extent that practicable under thecircumstances to ensure activities are within jurisdiction and control. (2)must conform to international rules and standards, (2) measures should notcause significant injury to the environment of another state.
2. State responsible to otherstates: (1) for violation of its obligation under Sub. 1(a), (2) significantinjury, resulting from such violation, to the environment of areas beyondthe limits of national jurisdiction.
3. Significant injury: thestate is responsible for significant injury.

6. The 1992 Rio Earth Summit: the UN Conference on the Environment and Development (UNCED), or Earth Summit,held in Rio de Janeiro, Brazil, was the largest global conference on theenvironment. The Earth Summit produced five major documents: Convention onBiological Diversity, the Climate Change Convention, the Declaration of Principleson Forest Conservation, the Rio Declaration and Agenda 21.

1. Summit Documents: Conventionon Biological Diversity, Climate Change Convention, Declaration of Principleson Forest Conversation, Rio Declaration.
2. The Rio Declaration: theRio Declaration (equivalent to Stockholm Declaration), contains 27 non-bindingprinciples, endorsed by the Conference and UN General Assembly. It reflectsa compromise between developed and nondeveloped countries, and specificallyincludes the "right to development."

1. Principle 2: providesthat states have a right to exploit their resources pursuant to environmentaland developmental policies, a revision of Principle 21 (Stockholm Declaration).
2. New elements: new conceptsinclude precautionary approach to environmental management (Principle 15),the right to development (Principle 2), obligation to undertake environmentalimpact assessments of proposed activities that have significant impact onenvironment (Principle 17).
3. Other provisions: relateto notification of environmental disasters, environmental impact assessments,and liability for transboundary pollution and compensation to its victims.

3. Agenda 21: contains theplan of action for sustainable development and environmental preservation.It includes a set of prior actions and means to accomplish them. A Commissionfor Sustainable Development is established to monitor and review implementationof Article 21: Article 21 avoided controversial issues as population growth,consumption patterns, international debt of developing countries.

1. Achieving sustainable growth: integrated environment and development decisionmaking.
2. Fostering an equitable world: combating poverty and protecting human health.
3. Making the world habitable: addressing issues of urban water supply, solid waste management, and urbanpollution.
4. Encouraging efficient resourceuse: category includes management of energy resources, care and use offresh water, forest development, management of fragile ecosystems, conservationof biological diversity, management of resources.
5. Protecting global and regionalresources: ocean and seas, etc.
6. Managing chemicals and hazardousand nuclear wastes.

5. Transboundary Pollution:

1. General Rule: no state may use or permit the use of its territory in a manner that isinjurious to another state or its persons or property. Train Smelter

1. Train Smelter Case: thecase brought by the US against Canada, established two fundamental principlesof liability under international law for transboundary pollution: (1) a statemust show damage and causation and (2) a state has a duty to prevent, andmay be responsible for pollution by private parties within its jurisdiction.

1. Tribunal: held that Canadawas legally responsible for the harm caused to US forests in Washington Stateby a smelter near Trail, Canada.
2. Arbitration: arbitrationbetween the U.S. and Canada.

2. Corfu Channel Case: theCorfu Channel Case was brought in the International Court of Justice (ICJ)by the U.K. against Albania for damages to British warships by mines in theStraits of Corfu. The court held against Albania and established the principlesthat every state has an obligation not to knowingly allow its territory tobe used contrary to the rights of other states, and a duty to notify otherstates of imminent danager.
3. Lake Lanoux Arbitration: this case was brought by France against Spain, and established the principlethat a downstream state does not have a right to veto an upstream state’suse of water, but the upstream state must consider counterproposals of thedownstream state.
4. Nuclear Test Cases: Thesecases, brought in the ICJ by Australia and New Zealand, left the legalityof nuclear testing unresolved on the merits. However, the ICJ did preliminaryenjoin France from testing while it heard the dispute.
5. United States law: thecourt uses United States law as a guide to international customary law. SpecificallyMissouri v. Illinois.

1. The case: the right ofMissouri to be protected against Illinois dumping Chicago sewage into IllinoisRiver, flowing into Mississippi.
2. New York v. New Jersey: the court said that the trespass must be of significant magnitude and mustbe establishe by clear and convincing evidence.
3. Air pollution (Georgia vTennesee): Georgia had the right to assert its rights (extreme rights)to protect her own citizens (to breathe good air) "The possible disasterto those outside the State must be accepted as a consequence of her standingupon her extreme rights."

2. Possible Theories for TransboundaryPollution Under International Law: theories include (1) strict liabilityfor ultrahazardous activities, (2) liability for negligent or intentionalacts ("abuse of rights") and (3) liability for pollution that exceeds anamount a state’s neighbors can reasonably endure ("good neighborness").

1. Specific Treaties Focusingon Transboundary Pollution: treaties in this area take a variety of approaches,including agreeing to try to reach an agreement ("framework conventions"),establishing substantive standards, "freezing" pollution at current levels,providing for notification and consultation, and authorizing an internationalorganization to establish rules.

1. Acid Rain Treaties: varioustreaties have addressed acid rain resulting from sulfur oxide problems.

6. Ozone Depletion and Global Warning:

1. Protection of the Ozone Layer: The ozone layer protects the earth by filtering out harmful ultravioletradiation and is currently being depleted primarily by chlorofluorocarbons(CFCs) from air conditioning, aerosols, styrofoam and refigerators.

1. Vienna Convention for the Protectionof the Ozone Layer 1985: a framework convention that focuses upon theinformation exchange and cooperation among states for research with a goalto protect human health and the environment from the adverse affects of adiminished ozone layer.
2. Montreal Protocol on Substancesthat Deplete the Ozone Layer: adopted in 1987 and amended in 1990, setsforth timetables for a 50% reduction in the use of CFC’s by 1999.

1. 1987 Protocol: in forcein 1989, set forth timetable for reduction of CFCs, 50% by 1999. Bans importationof CFCs of non-parities unless non-parties meet reductions of the Protocol.

1. Halon: levels at 1986levels.

2. 1990 amendment: placetotal ban on CFCs by the year 2000 (by the year 2010 for developing countries).Gradual reduction of CFCs: 20%-1990, 50%-1995, 85%-1997 (based on 1986).

2. Protection of the Climate: climate change due to greenhouse effect resulting from certain gasesin the air trap infrared radiation near the earth’s surface (escalating earth’stemperatures).

1. UN Resolutions on ClimaticChange: (1989) the UN passed two resolutions to formally recognize climatechange as a great concern to be given high priority. They emphasize the needfor governmental efforts to prevent climate change, and reviewed possibleelements for an international climate change convention.
2. UN Framework Convention onClimate Change: signed at 1992 Earth Summit, emphasizing global concernabout climate change caused by greenhouse gases. Its objective was to stabilizegas concentrations in the atmosphere, with an implicit goal of returningto 1990 levels by 2000. The parties do not agree to form specific goals ordeadlines. Commit to periodic national inventories on emissions, mitigationprograms, development of technology to control emissions, consider climatechange in decision-making processes, and cooperate in the exchange of information,education and public awareness. Developed countries also agree to use thebest available scientific technology, and assist developing countries withfinancing their obligations under the agreement.

1. Who: signed by 154 countries(entered into force on March 21, 1994).
2. Problem: while the Europeancommunity agreed to return emissions to the 1990 rates at 2000, the UnitedState did not agree until later. Further, Saudi Arabia formed a block.
3. Commitments of parties: various goals leading to the elimination of gasses which cause greenhouseeffect from control of emissions to removal.
4. Structure of convention: establishes a conference of the Parties to review implementation of theConvention and to adopt protocol, amendments, and annexes as needed.

7. Wildlife Preservation:

1. Provisions Under the StockholmDeclaration and the World Charter of Nature: primarily focused on the preservation of wildlife.

1. Stockholm Declaration (1972): Principle 4 of the Declaration states that plants and animals are a worldheritage and that man has a responsibility to safeguard nature and alsoconsider conservation when planning economic development.

1. 27 principles: the principleswere the different contribution to the global environmental degradation,the need to reduce and eliminate unsustainable patterns of production andconsumption and of the promotion of appropriate demographic policies, theprecautionary approach, the right to development, environmental impact assessments,the right to individuals to access to information held by public authorities,the avoidance of unilateral trade measures in response to environmental challengesoutside of their own jurisdiction, and to the role of women and indigenouspeoples.
2. Customary law: is viewedas customary law, only to the extent that it reflects a principle of limitedterritorial sovereignty and integrity, but only as far as "substantial" transboundaryharm is involved.

2. World Charter for Nature: Principle 2 of the Charter stresses the need to safeguard habitats toprovide global genetic viability and maintain animal populations to ensuretheir survival. Principle 3, states that all areas of the earth aresubject to conservation.

2. International Convention forthe Regulation of Whaling (1946): established the International WhalingCommission, and intended to regulate the fishing industry. It is increasinglybeing directed to conservation of whales. Under the Convention, an annualschedule of whaling regulations is published, which the Commission may modify.In 1990, the Commission set a ten-year moratorium on whaling. Any membermay opt-out of its obligations under the treaty by objecting.

1. Structure of the Commission: has one member from each government, holds annual sessions to analyze informationabout whaling industry and adopt recommendations for regulations.
2. Functioning of the Convention: schedule with whaling regulations is published annually. Commission haspower to modify schedule. Opt-Out provision allows any member to exempt itselffrom compliance by objecting. 3 year moratorium of commercial whaling from1982 and extended moratorium to 1990 for 10 more years.

3. Convention on International Tradein Endangered Species of Wild Fauna and Flora (CITES): 100 Parties, setup a system of import and export permits and regulations to protect endangeredspecies from overexploitation. The Convention establishes a Secretariat atUNEP to prepare scientific studies and coordinate national record-keepingrequired by the Convention. The state parties are required to meet everytwo years to modify the Convention if necessary. The permit required underthe Convention are nationally administered, and keyed to categories of endangeredspecies as described in Appendices I-III of the Convention. No permit maybe used for a species, or recognizable part or derivative thereof, that isthreatened with extinction.

1. Structure of the Convention: establishes a Secretariat operated under UNEP preparing scientific and technicalstudies.
2. Functioning of the Permit System: import and export permits required under convention are nationally administeredand are keyed to categories of endangered species.

4. UN Convention on Biological Diversity: signed at 1992 Earth Summit. Objectives include conserving biological diversityand the sustainable use of biological resources, and equitable sharing ofthe benefits of genetic resources. The parties to the Convention are committedto developing and implementing national strategies to protect biologicaldiversity. The convention establishes a Conference of the Parties to reviewimplementation and adopt protocols or amendments, a Secretariat to arrangemeeting and prepare reports, and a technical body to provide scientific adviceto the Conference.

1. Weaknesses: they are bothnormative objectives are not sufficiently global to establish a comprehensiveinternational legal regime to protect the atmosphere and the living resources.
2. Framework: they are onlyframework conventions requiring more specific regulations in the future.
3. Commitments to the Parties: parties of the Convention obligate themselves to the following, developingstrategies for diversity, adopting incentive measures, and taking other measuresto protect areas, develop monitoring/tracking schemes, etc.
4. Structure of the Convention: convention establishes a conference of the Parties to review implementation,and to adopt protocols, amendments, and annexes.

8. Hazardous Waste, Radioactive Pollution,and Environmental Emergencies:

1. Early Conventions on Civil Liabilityfor Nuclear Damage: conventionsinclude the Paris Convention of Third Party Liability in the Field of NuclearEnergy of 1960, the Brussels Convention Supplementary to the Paris Convention,the Vienna Convention on Civil Liability for Nuclear Damage of 1963, andthe Joint Protocol Relating to the Application of the Vienna Convention andthe Paris Convention of 1988.

1. Vienna Convention on CivilLiability for Nuclear Damage 1963: operator of a nuclear installationis absolutely liable for nuclear damage. Exemptions: victim of nuclear damagemust present claim within 10 years of the date of accident or the claim isbarred. Convention requires the installation state to insure payment of theclaim against operator.
2. Joint Protocol Relating tothe Application of the Vienna Convention and the Paris Convention 1988: the purpose is to eliminate conflicts of law when contentions apply, andto require parties of e