I.

THE NATURE OF INTERNATIONAL LAW

A. INTRODUCTION
 International law is the body of rules and principles of action which are binding
upon civilized states in their relations with one another.
 Today, this also extends to states, organizations, and individuals.
 Natural Law – Each state, just as each individual, is endowed with certain rights.
 Legal Positivism – Now the prevailing thought of international law -
International law is the body of law by which each individual state has
consented to be bound.
 Sources of international law, set forth in article 38(1) of the Statute of the
International Court of Justice:
o International Treaties, whether general or particular, establishing rules
expressly recognized by the consenting states.
o International Custom, as evidence of a general practice accepted as law.
o General Principles of Law recognized by civilized nations.
o Judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of the rules of law.
B. THE INFLUENCE OF THE CIVIL LAW
II. TREATIES
A. BACKGROUND
B. THE LAW OF TREATIES
 An international treaty is any agreement governed by international law.
 The Vienna Convention is the primary source for the law of treaties; however,
the U.S. has not ratified it.
 Treaties governed by the Vienna Convention must meet the Convention’s
definition of treaty. That definition requires that a treaty:
o Must be between states.
o Must be in writing.
o Must be governed by international law.
 Not all treaties are governed by the Vienna Convention.
 U.S. Distinction between treaties and executive agreements:
o Treaty – Concluded by the President and with the advice and consent of
the Senate. Senate ratification requires 2/3rds majority vote.
o Executive Agreement – Concluded by the President based on authority
granted by Congress and/or the inherent powers of the Constitution.
 An international agreement can be denied legal force and effect under U.S.
domestic law, but still be binding internationally. However, a state’s internal
law cannot be invoked as justification for failure to perform a treaty.
 Treaties may not conflict with:
o Ius Cogens – The peremptory norms of international law.
o U.N. Charter rights and obligations.
 Nation states are presumed to have the capacity to conduct international
treaties. International organizations only if the constitution of the organization
expressly or impliedly gives the capacity.
 The treaty process includes:
 o Negotiation – Varies depending on whether the treaty is bilateral of
multilateral
o Adoption – The formal act of signifying that the form and content of the
treaty have been agreed upon
o Authentication
o Forms of Conclusion – Consent to be bound
 A reservation to a treaty is a unilateral statement, however phrased or named,
made by a state when signing ratifying, acceding to, accepting, or approving a
treaty, whereby it purports to exclude or to vary the legal effect of certain
provisions in their application to the state.
 Treaties may be amended by agreement between parties.
o Amendments alter a treaty with respect to all parties.
o “Modifications” to a treaty are made by a limited number of parties,
and are permitted only if:
1) Modifications are permitted by the original treaty
2) Modifications are not prohibited by the treaty and the
modifications do not affect the object and purpose of the treaty
as a whole
 Grounds for invalidating a treaty include:
o Error
 Only a right to invalidate – not instant invalidation
 Contribution to the error or notice of the error without
objection invalidates the grounds for invalidation
 Textual errors / wording is not grounds for invalidation
o Fraudulent Conduct
 Like error, only the right to invalidate
o Corruption
o Coercion
 of a Representative
 of a State
o Conflict with peremptory norms – ius cogens
o Conflict with domestic law*
 Reason to invalidate a treaty, but until the treaty is invalidated,
is not a reason to fail to perform a treaty.
 Grounds for termination and suspension of treaties include:
o Conditions for termination/suspension set forth in the agreement:
 Realization of duration
 Realization of purpose
o Grounds analogous to contract law:
 Impossibility of performance
 Fundamental change of circumstances (Rebus sic stantibus). In
order for have a valid fundamental change of circumstances,
the following circumstances must be met:
 Fundamental change
 Change must have been unforeseen
 The circumstances at the time of the agreement must
have been an essential basis of the treaty
  The change in circumstance must radically alter
performance obligations yet to be performed
o Later inconsistent treaties between parties
 Later treaty supersedes
o War between contracting parties
 Not ipso facto termination of treaties; Factors to consider:
 Express termination?
 Incompatibility with war?
 Intent to govern hostilities? (Hague/Geneva)
 Suspension during war?
 The effect of termination due to material breach of the agreement varies
according to bilateral and multilateral agreements
o Bilateral treaties:
 Breach by one party entitles the other party to terminate or
suspend the agreement
o Multilateral treaties:
 Parties Not In Breach:
 By unanimous decision, may terminate or suspend as
between the aggrieved parties and the breaching party
or between all parties
 Parties Specifically Affected:
 Can act alone to unilaterally suspend or terminate in
whole or in part between itself and the breaching party
 Radical Change In Position:
 Any party may unilaterally revoke the treaty if the
breach radically and materially changes the position of
every party to the treaty
 Unilateral abrogation of treaties is usually prohibited
III. CUSTOM AND NON-CONSENSUAL SOURCES OF INTERNATIONAL LAW
A. CUSTOMARY INTERNATIONAL LAW
 Quantitative factors in determining an international custom include:
o The amount and type of state practice
o Duration of the state practice
o Consistency of state practice
o The number and makeup of states adhering to the practice
 Customary law may be limited to a particular region.
 Local customary rights are different from and independent of general
international customary rights.
B. GENERAL PRINCIPLES OF LAW
 A general principle of law recognized by civilized nations is one that is so
fundamental that it is a basic tenet in virtually every major legal system.
 General principles of law primarily apply to fill gaps left by treaties and
customary law.
C. NATURAL LAW AND IUS COGENS
 Natural law was based on rights and obligations endowed by God.
 Ius Cogens are peremptory norms which are rules of international law of such a
fundamental importance that derogation from them is prohibited.
  Some commonly accepted rules under Ius Cogens are:
o Pacta sunt servata
 “Agreements must be kept”
 Every treaty in force is binding upon the parties to it, and must
be performed in good faith.
o Prohibitions on the use of threat or force
o Genocide
o Slavery
o Piracy
o Prohibitions on terrorism
o Prohibitions on the taking of hostages
D. EQUITY
 Ex aequo et bono
o “According to the right and good”
o Equity can overrule all other legal principles
o There has not yet been an international case tried using ex aequo et
bono.
 General principles of law
o The use of substantive concepts of equity common to all modern legal
systems:
 Estoppel
 Unjust enrichment
 Abuse of rights
 (Also the use of reasonableness/fairness)
IV. INTERNATIONAL LAW AND MUNICIPAL LAW
 Two theoretical approaches to the relationship between international law and municipal
law:
o Dualism
 International law and municipal law are entirely separate legal systems.
 A state’s internal laws determine the effect of international laws within
the domestic legal order.
 A state may not impose its own municipal order on the international
legal system.
 Conflict between municipal laws and international laws does not relieve
a state from its international obligation.
 A state can be bound by an international law, but precluded
from acting on it due to its own laws; the laws will not be
enforced, but the state will still face possible penalties for
noncompliance.
o Monism
 Municipal law and international law belong to a single “universal legal
order.”
 Diminished role of the state results in a dominant role for international
law over municipal law.
A. TREATIES AND THE CONSTITUTION
 Treaties as discussed in the U.S. Constitution:
 o Art. I § 10: The individual states of the U.S. may not enter into treaties,
alliances, or confederations with foreign nations.
o Art. II § 2: The President of the U.S. has the authority to make treaties
with the “Advice and Consent” of the Senate. 2/3 of the senators
present must concur.
o Art. III § 2: The judicial power of the U.S. extends to cases arising under
treaties.
o Art. VI § 2: Treaties, along with the Constitution and federal laws, are
the supreme Law of the Land, and prevail over conflicting state laws.
 Types of “treaties” recognized by U.S. law:
o Art. II Treaties
o Congressional/Executive Agreements (Statutory Agreements)
 Made by the President when the power is delegated to him
through the legislature, when a bill is passed by a majority of
both the House and the Senate.
 Self-Executing Treaties
o Treaties directly applicable by the U.S. courts as U.S. law, and not
requiring implementation before going into effect.
o Judge made doctrine; not explicit in the Constitution.
o May be applied in U.S. courts w/o the need for implementing legislation
by Congress.
o A treaty cannot be self-executing if the subject matter is one that lies
within the exclusive law-making power of Congress.
o Usually, treaties of the U.S. are not self-executing.
 A treaty is specifically non-self-executing if it instructs the legislature to
implement the enacting legislation.
 Both self-executing treaties and legislatively implemented treaties fall under the
Supremacy Clause and prevail over conflicting state law.
o They do not necessarily prevail over federal law.
o The last to be enacted in time prevails. (Last in Time)
 The Last in Time rule only applies to Article II treaties. Federal
law trumps executive agreements.
 The Last in Time rule does not relieve the U.S. from its
international obligations.
 The Constitution always trumps federal law, treaties, and state law.
B. THE LAW OF NATIONS IN UNITED STATES LAW
 The law of nations (international law) is considered to be a part of the law of the
United States.
 International custom is to be automatically incorporated into the domestic legal
order of the United States and is applicable in domestic courts.
 Customary Law, like Art. II treaties, is protected under the Supremacy Clause,
and has supremacy over state laws.
 U.S. courts group customary law with other non-treaty based international law
to form what is called international common law.
V. INTERNATIONAL COURTS AND TRIBUNALS
A. PUBLIC INTERNATIONAL ARBITRATION
 Arbitration results in legally binding settlements.
  Arbitration panels are composed of judges appointed by the parties, and may
regulate disputes not only between states, but also between states and private
parties or just private parties.
o Usually consists of 3 parts; 1 judge selected by each party, and a third
judge agreed upon by both parties.
 Advantages:
o More conclusive; binding resolution
o Parties retain greater control, because they appoint arbitrators
o Parties may designate the procedures and laws to be applied
o Less formal and less contentious than adjudication
 Disadvantages:
o Very cumbersome and time consuming
o Arbitration panels do not have the authority of courts to conduct
evidentiary proceedings
o Parties pay for the entire cost of the arbitration
 There is no international law requirement to arbitrate.
 Arbitration awards are usually binding, and not subject to appeal. There have
been derogations where judicial review by a court such as the ICJ reviews the
case, however.
 Defenses against enforcement of arbitration decisions:
o Tribunal exceeded its powers
o Contrary to public policy
o Matters were considered incapable of settlement under the laws of the
forum country
o The award is in “manifest disregard” of the law
o U.N. Model rules provide additional bases:
 Corruption
 Failure to state reasons of the reward
 Serious departure from a fundamental procedural rule
 Agreement to arbitration is a nullity
o New York Model provides other bases for defending enforcement:
 Parties to the agreement were under an incapacity
 Agreement to arbitrate was invalid
 A party was not given notice, or was unable to present their
case
 Composition of the tribunal was not in accordance with the
agreement
 The ICJ may play a role as international arbiter, and has jurisdiction in all cases
which the parties refer to it.
B. THE INTERNATIONAL COURT OF JUSTICE
 The ICJ is the successor to the Permanent Court of International Justice.
 The principal judicial organ of the U.N.
1. JURISDICTION
 All members of the U.N. are parties to the ICJ statute.
o Being a party to the statute does not confer jurisdiction.
Jurisdiction is based on the expressed or implies consent of
parties.
  Only states may be parties in contentious cases held by
the ICJ
 The ICJ may only hear cases governed by international law.
 There ICJ has two types of jurisdiction:
o Contentious
o Advisory
2. CONTENTIOUS CASES AT THE I.C.J.
 Decisions in contentious cases are binding on the parties.
3. ADVISORY OPINIONS AT THE I.C.J.
 Advisory opinions are non-binding; however, parties may agree to be
bound by the non-binding opinion.
 Only designated organs of the U.N. may request an advisory opinion
from the ICJ.
4. CHAMBERS AT THE I.C.J.
 Chambers are based in Peace Palace, The Hague, Netherlands.
 Judges are elected with regard for distribution.
 Only one national of a state may sit as an ICJ judge at one time.
VI. INDIVIDUALS AND INTERNATIONAL LAW
A. INDIVIDUALS AS THE OBJECTS OF INTERNATIONAL LAW
 Although it is the sovereign right of all states to determine its own citizens and
criteria for becoming one in municipal law, such a process can be scrutinized on
the international plain in questions of diplomatic protection. The Court upheld
the principle of effective nationality, where the national must prove a
meaningful connection to the state in question.
 In contentious cases with international NGO’s (including corporations), only the
state in which a corporation is incorporated can sue. The concept of diplomatic
protection under international law can apply equally to corporations as well as
individuals.
B. INDIVIDUALS AS SUBJECTS OF INTERNATIONAL LAW
 Individuals are now protected without regard to their status as nationals or
aliens. In the past, only states were thought of being able to be “participants” in
international law.
C. INTERNATIONAL HUMAN RIGHTS LAW
 The Nuremburg Tribunal charged Nazi leaders with “crimes against humanity.”
 Crimes against humanity were defined as:
o Murder, extermination, enslavement, deportation, and other inhumane
acts committed against any civilian population, before or during the
war, or prosecutions on political, racial, or religious ground . . . whether
or not in violation of the domestic law of the country where
perpetrated.
 The definition of crimes against humanity was expanded to include rape and
sexual enslavement used as an instrument of terror.
 Incarcerated minors must be segregated from adult inmates.
 The suppression of free speech, even via an official injunction, violated
international civil rights because there was not a pressing social need and was
not necessary.
 Some human rights have evolved into customary international law.
VII. STATES AND INTERNATIONAL LAW
A. THE SOVERIGN STATE
 States are sovereign entities
 To be recognized as a sovereign state, generally, a state must possess:
o Territory
o Population
o Government
o Capacity to conduct relations with other states
 However, the political existence of a state is independent of recognition by
other states.
B. RECOGNITION AND SUCCESSION OF STATES AND GOVERNMENTS
 Changes in the government or the international policy of a state do not affect its
position in international law.
 States may change between forms of government without ceasing to be that
state.
 A state is usually bound by engagements entered into by governments that
cease to exist. The restored government is generally liable for acts of the
usurper.
 A state actor is not immune to service of process.
 Property of a dissociated state is to be distributed among successor states based
on equitable distribution.
VIII. INTERNATIONAL ORGANIZATIONS, PEOPLES, AND NON-GOVERNMENTAL ORGANIZATIONS
A. INTERGOVERNMENTAL ORGANIZATIONS
 IGO’s have international legal personality necessary to carry out their functions.
 The capacity of an IGO to conclude treaties is governed by the rules of that
organization.
B. SELF-DETERMINATION OF PEOPLES
 International law "does not specifically grant component parts of sovereign
states the legal right to secede unilaterally from their 'parent' state."
 The various international documents that support the existence of a people's
right to self-determination also contain parallel statements supportive of the
conclusion that the exercise of such a right must be sufficiently limited to
prevent threats to an existing state's territorial integrity or the stability of
relations between sovereign states.
C. NON-GOVERNMENTAL ORGANIZATIONS
 NGO’s are private organizations.
 NGO’s play a role in international affairs, but do not necessarily possess any
official status, or have a mandate for their existence or activities.
 In contrast, IGO’s have a mandate from governments for their existence and
activities, and enjoy certain “privileges and immunities.”
XII. INTERNATIONAL CONFLICT OF LAWS
A. PRINCIPLES OF JURISDICTION
1. THE TERRITORIAL PRINCIPLE
 An essential attribute of a state’s sovereignty is to have jurisdiction over
all persons and objects within its territory.
2. THE NATIONALITY PRINCIPLE
  No state may perform an act of sovereignty in another state without
permission of the host state.
 The state of a person against whom proceedings are taking place may
exercise jurisdiction based on the nationality of the defendant.
3. THE EFFECTS PRINCIPLE
 A national law can apply to conduct taken outside of that nation by
people owing allegiance to that nation.
 The nationality of firms is irrelevant to anti-trust laws.
B. RESOLVING CONFLICTS OF JURISDICTION
1. PARTY CHOICE
 Previously, agreement to a specific jurisdiction was viewed as contrary
to public policy. Today, a forum clause should control jurisdiction,
absent a strong showing that it should be set aside.
 Arbitration agreements are a special type of forum selection clause.
2. THE BALANCING TEST
 Even though a national law can be applied, does not always mean that it
should; when concurrent jurisdiction exists, a balancing test should be
performed to see if national or foreign laws are more harmonious.
 If there is multiple interpretations of U.S. law, the interpretation that
does not violate international law is preferred.
3. INTERNATIONAL COMITY
 Comity falls between obligation and courtesy. (VOLUNTARY)
 Previously, the doctrine of reciprocity governed international comity;
today, however, there is movement away from a jot-for-jot reciprocity.
 In the U.S., each individual state has discretion on whether to apply
international comity.
4. FORUM NON CONVENIENS
 A state will not exercise jurisdiction if it is a seriously inconvenient
forum for the trial of the action provided that a more appropriate forum
is available to the plaintiff.
C. FOREIGN SOVERIGN IMMUNITY
 There is a general legal principle that the property of sovereign states is immune
from claims.
 A sovereign state has immunity for public or sovereign acts, but not for private
or commercial acts.
 The fact that a public/sovereign act has economic consequences does not grant
the courts jurisdiction under FISA.
D. THE ACT OF STATE DOCTRINE
 The Act of State doctrine is a U.S. federal law, not international law.
 Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts will not sit in judgment on the acts of a
government done in its own territory,
 The Act of State doctrine precludes U.S. courts from questioning the validity of
nationalization of U.S. private property located in a sovereign foreign country.
(public act by another nation)
 The Act of State doctrine is applicable only where the relief sought would have
to declare an act of another sovereign state invalid.