Download International_Law_Outline - St. Thomas More – Loyola Law School


What is international law?
o Law that regulates States (nations)
o Who makes International Law?
 Nation States
o Legal obligations between states
 States make it
o State?
 National states
o Subjects
 Individuals are only subjects of international law
o Public international law
 Governs state conduct
o Private international law
 Choice of national law governing transactions
 Transactions between citizens of different states
 Ex) Working for Hollywood agencies, and you deal with copyrights
for distributing films. If you sign a movie contract dealing with
distribution with Taiwan, you need to agree which national law to
apply such as use U.S contract law or Taiwan contract law.
 Business and torts
 Used to decided which national law govern transactions
 Common law countries: “conflict of law”
 Civil law countries: “private international law”
o What is not International Law?
 Domestic law: law of nation. Ex) U.S. Federal Code.
 Foreign law: domestic law of a foreign nation.
 Transnational Law: “Any law reaching across the boarder.” International
law is thus transnational but so can domestic law, if they apply outside their
boarder.
o Supranational Law
 Law that a nation state agrees to give a higher standing to than its own law.
 Ex) European Union, group of nation states come signed up to treaties and
treat the European Union laws to a superior degree and follow European
Union law if there is a conflict with European Union law and its nation’s law.
o How is it enforced?
 There is no formal enforcement mechanism
 There is more benefit to comply
 Self interest to states advantage

Sources of international law
o Art 38 of the International Court of Justice Statute
 Attached in the UN charter
 The court shall apply:
 1. Treaties/ International conventions - establishing rules
expressly recognized by the contesting states
o Only bind states that ratify/confirm them
o E.g. Treaties, Geneva convention
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2. International custom, as evidence of general practice
accepted as law (Requires 1) state practice and 2) sense of
legal obligation (opinio juris)
 3. General principles of law recognized by civilized nations
o General principles of law are those commonly found in
the major legal systems of the world
o Borrow concepts from domestic law, general principles
of law which are commonly found in the major legal
systems of the world
o Look at municipal law that we can use to solve at IL
level (only look at civilized countries)
o e.g. prohibition against double jeopardy, estoppel,
obligation to act in good faith
 4. Judicial decisions and the teaching of the most highly
qualified publicist
o Art. 59
 Makes judicial decisions binding only on parties
to case
o Which courts
 International courts
 International court of justice (ICJ)
 International criminal tribunal (ICC)
 Domestic courts (sometimes)
 Majority of body of law
o Teachings of the most highly qualified publicists
 Their opinions published in the books and
articles
o These are persuasive authorities
o Customary International Law (CIL)
 Called the “law of nations” until 19th C
 Becomes a CIL faster when there are more followers, slower with less
followers
 Binds all states
 Regardless of participation in development
 A state is bound by CIL simply by virtue of being a state
 Requires: Elements
 1. State practice
o Acts attributable to the government
o States do practice the custom
 2. Sense of legal obligation (opinio juris)
o and over time there is a sense of legal obligation as the
practice has become custom
 State practice
 = Acts attributable to the government
o Treaties
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o
o
o
o
o
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1. May codify CIL (what kind of rules are they
adding to the treaties)
 Practice becomes custom and treaty is
written out to enumerate the custom
 2. Treaty may become CIL
 A treaty between many counties even if
you are not party to the treaty it can be
deemed as custom
Unilateral declarations
 e.g. we are doing this and we expect other to
follow
International organizations
 Decisions within international organizations
 E.g. UN declaration on human rights
National laws
 Shows what their concerns are, what they are
authorizing and forbidding
 E.g. national law against piracy reflects what is
custom international law
Military and police manuals
 They have manuals for troops, what they can do
and cannot do. This includes indications of what
they think of law, or follow.
 E.g. county believes that is the law
Internal Governmental Circulars
 What they purport to do, cannot do according to
international law, such as torture
Press Release
o
When used
 No treaty governs a subject
 Some or all states involved with an issue not treaty party
 Treaty has gaps (when they cannot agree on a treaty)
o E.g. Geneva convention
 Applies to only “state parties”
 How about al queda
Exception
 Persistent objector
o A state that has repeatedly and unambiguously object to
the emergence of a CIL rule
o Must be around during its development and before it
becomes rule
o Example
 Cluster bombs
Jus Cogens (use cogens)
 Peremptory/absolute rule of general international law which
one must follow
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Norms that are so fundamental you cannot deviate from them
Persistent objector exception does not work
Cannot exclude them by treaty
o 1969 Vienna Convention on the Law of Treaties
e.g. slaves, genocide, war of aggression, torture
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Standing
o Normally only harmed country has standing
o Obligation erga omnes
 Certain obligations of a State are owed to all States, or erga omnes(to
all the world). Ex) providing neutralization of certain area, freedom of
navigation in international waterways.
 Any country can complain by the violation of another country
 The obligations are so serious that any country can seek redress
 Normally only the country that has been violated can pursue
the violating country
 May be created by treaty or customary law
 E.g. War of aggression, genocide, slavery, torture, space, Antarctica,
navigation in international water
Example) of how Jus Cogen and Obligation Erga Omnes are related.
State A violates Jus Cogen of slavery. “You are wrong to engage in slavery
because of jus cogen and I can seek retribution because of obligation erga omnes,
since it is an obligation owed to other states.

1969, Vienna Convention on the law of treaties (VCLT)
o Largely codifies customary international law
o Not jus cogens
o Country can contract around it
o Thus depart from it by a mutual agreement w/ another state
o Ratified by more then ½ of the countries
o US has not ratified it
o What it says
o Art. 2.1a:
o “Treaty” means an international agreement between two or
more states governed by international law
o Requires a treaty to be:
o 1. Between 2 states
o 2. In writing
o 3. Intended to create obligations under international law
o 4. Nomenclature essentially irrelevant
 e.g. treaty, agreement, convention
o 5. Notes maybe treaties
o 6. Does not have to be signed

Major differences between Treaties and CIL
o Treaties bind only states that ratify them
o CIL binds all states except persistent objectors
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o Treaties may codify CIL rules into their treaties like VCLT.
o Treaty provision may become CIL
Treaties: an international agreement concluded between states in written form
and governed by international law
o Only binds states that ratify them
o Vienna Convention on Law of Treaties (VCLT)
o Largely codifies customary international law (CIL)
o Nothing is jus cogen, meaning states can contract around it
o Who can be a party to a treaty
o Federal states – no Ex) California cannot become a party to a treaty
o Overseas territories – yes, but only w/ permission of parent
government
o International organizations – yes
o Separate territories like Hong Kong with the consent of supervising
nation state.
o Special cases
o Taiwan
o Yes
o political issue though between Taiwan / China issue
o Palestine
o Yes
o Even under the protest of Israel
o Must be registered with the UN Secretariat
o UN publishes a comprehensive treaty database
o Nomenclature/name is essentially irrelevant (called charter, treaty, agreement,
etc)
o Does not have to be signed
o May be an exchange of notes
o Memorandum of understanding (MOUs)
o Capture mutual understandings not intended to create binding
obligations
o Not intended to create binding obligations
o Unlike treaty no language of obligation
o Words
o Will, come into force, etc.
o Good for confidentiality
o Since you do not have to give it to the UN, meaning not
everyone can access the treaty.
o Good to circumvent local countries bureaucracy
o E.g. since not a treaty do not need the parliament to vote on it
Treaty life cycle
o Negotiation and drafting
o Individual with full powers need to negotiate
o Treaty negotiated by individual without full powers null unless state
endorses their actions
o Certain persons have implicit full powers
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o Head of state
o = Chief public representative of the government
o US - President
o Head of government
o US - President
o Minister of foreign affairs
o US – secretary of state
o Adoption
o Ends negotiation and fixes text
o By consensus or 2/3 in multinational setting
o Then the text is fixed
o Authentication
o Small committee that smoothes out the final wording
o Traditionally states authenticate by signing, not absolute however.
o Signature
o Does not make a treaty binding ratification does
o By signing the treaty you cannot “defeat the object and purpose”
of the treaty
Ex: the nuclear weapon treaty not to distribute weapon. You should not
distribute the nuclear weapon to Japan, but you don't have to agree to the
specific technicalities such as having your nuclear facility investigated by
the others, which might be part of the treaty
o Ratification
o Formal consent by a country to be bound by treaty
o Bilateral treaty, exchange of ratifications
o Multilateral treaty, deposited with specified authority
o Non ratifying states not bound to the treaty
o Ratification accomplished via written notification
o Some countries signature (still a written instrument) binds them
as that is their only process
o Must be stated explicitly stated in treaty text
o In U.S, senate needs to approve then the president has
the final decision to ratify or not.
o Accession
o State agrees to be bound after treaty has entered force
o Usually treaties are bound after accession since treaties are already in
force.
o Reservation and declarations
o Reservation
o Document attached to a ratification that wants to modify the
legal consequences of the treaty.
o Efforts to legally modify the terms of treaty (like the contract).
o E.g. US will accept the non proliferation of nuclear weapons
except we can exchange weapons with Canada
o Reservations authorized by treaty require no response
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o Such as pre-approved departures
o Reservation presumed to be accepted if no reply within
12 months.
o Otherwise treated as an offer
 Other states have few options
 1. Accept
 2. Object but allow treaty w/ reservation
 3. Refuse to apply reservation (no treaty
relationship with that state)
o If treaty enters into force w/ a reservation
 The country that made the reservation must
allow its partner-countries that it is dealing with
also get the benefit of the reservation
o In bilateral treaty, reservations become modifications of
a treaty (since only two parties)
o 1969, Vienna Convention on Treaties
o Bars reservations if
 Reservations are prohibited by the treaty text
 Outside scope allowed by treaty
 Incompatible with treaty’s object and
purpose
o What happens when a nation makes a reservation
“incompatible with treaty’s object and purpose?”
 Not a party
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o
o
o
o
Party, but no reservation
Party, gets the reservation with non objecting
states
o Likely up to the nations who are parties to the treaty
how to deal with it
o Declarations
o Has no international legal effects
o Trying to clarify the meaning of the treaty
o Not addressed in VCLT
o International Law Commission and UNCLOS art. 309
language based on VCLT reservation wording
o E.g. defines what a nuclear weapon is in a treaty
Entry into force
o Treaty not binding until specified entry into force
o Bilateral treaties
o Typically in force when ratified by both countries
o Multilateral treaties
o Specific number of ratification
 Need 10 states to ratify
o Specific country ratifications
 Treat won’t be in force until U.S., France, and
China ratifies the treaty.
o Sometimes the date will be specified (i.e.6/5/12)
 If you accede treaty is automatically binding
since it is already in force
o Can combine these steps as well
Treaty “party” is nation which is bound by treaty
o Need:
o 1. Ratification
o 2. In force
o Not same as signatories meaning the country just only signed
and cannot violate the purpose of the treaty.
Amendment
o Treaties can be updated through amendment
o Bilateral
o Need mutual agreement
o Multilateral
o Historically needed unanimity (this is the default unless
specified)
o Some modern treaties 2/3
o Amendments only effective between agreeing parties
o Some modern treaties allow amendments to bind all
parties
 UN charter, only needs 2/3 and unanimity of
security council
Protocols
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o Protocol is a treaty modifying or supplementing the provisions of
another treaty
o May update the treaty or be drafted concurrently
o Ratification of protocols are always optional
o Protocol might be better than amendments sometimes because
amendment may require all parties to agree to a change or may be
binding on parties as where protocol binds those that agree.
o Good since some countries want additional language for individual
petitions
o Makes original treaty a minimum
o E.g. Treaty says “Thou shall not torture”
o Protocol can be added to add requirement that parties have to
be inspected by the inspectors.
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o Withdrawal
o Regulated by terms of the treaty
o Generally specify lead time requirement
o If treaty silent, VCLT bars withdrawal unless
o It can be shown parties intended to allow withdrawal or right of
withdrawal can be implied from nature of treaty
Treaties must be performed in good faith
o Domestic law cannot excuse non compliance
o E.g. US signed torture convention
o No torture allowed
o But we water board
o In the international community can be made illegal
o People must stay in the US
Treaties as domestic law
o Once the state ratifies the treaty, its impact on the state’s national court:
o Monist approach treats treaties as national law without further legislation
o Automatically authorized
o Dualist approach always requires legislative enactment
o Ex) Britain need to go through enactment before it can be binding
domestically.
 Result of Treaty being Domestic: You can ask the U.S court to follow the rules
of treaty domestically.
Where do treaties apply
o National territory of a party
o Metropolitan land mass (actual countries itself)
o Territorial sea
o 12 miles offshore
o Overseas possessions
o Generally do not apply elsewhere
o Occupations e.g. US occupies Iraq
o Exclusive economic zone/ continental shelf
o Foreign territory
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Termination of treaties
o Consent or treaty provision
o All treaty parties agree
o Timeframe
o Objective of treaty achieved
o Treaty has been superseded by a newer agreement
o By material breach
o VCLT specifies material breach required
o Violation of a provision essential to the accomplishment of
the purpose of the treaty
o Or Repudiation of the treaty not permitted by the VCLT
o Differs for bilateral and multilateral treaties
o Bilateral
o Innocent party may invoke as ground for terminating
treaty
o May also suspend operation in whole or in party
o Multilateral
o Material breach is ground for suspension unless:
 All non breaching parties unanimously agree to
terminate the breach party or terminate with
respect to all
o Impossibility of performance
o Disappearance or destruction of an object indispensable for treaty
o Applies to only permanent circumstances
o Can only suspend performance for temporary impossibility
o Cannot create the impossibility
o Fundamental change of circumstances
o VCLT
o Conditions must have changed to the extent parties would not have
agreed to treaty terms under them
Treaty interpretation
o VCLT art 31 – primary interpretation
o Interpret a treaty in good faith
o Cannot treat a term in some way beneficial to your state, when
the word does not mean that way.
o Words are given their ordinary meaning (Ex) tree means plant, not
weed)
o If ambiguous - In context and light of treaty object and purpose
(Cool can be used in different context with different meanings)
o Includes Preamble and annexes (How the language is used in
preamble to help figure out the context which it is used in)
o Can also consider
o Agreements made or adopted by all parties at the time
o Subsequent agreements and practice
o Relevant rules of international law
o VCLT art 32 – supplementary criteria
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o If results form art 31
o Is ambiguous or obscure; or
o Result is manifestly absurd or unreasonable then
o Can also consider
 Preparatory work of the treaty
 Circumstances of treaty conclusion
o Commentary is not mentioned
o VCLT art 33 – multiple languages
o If authenticated in one language that version prevails
o If authenticated in multiple languages, all equally valid
o terms presumed to have same meaning in each
o If clearly different and art. 31/32 don’t resolve then:
o adopt meaning which best reconciles texts with regard
for treaty object and purpose
Treaties and third parties
o Cannot create obligations or rights to 3rd parties w/o consent
o Must be in writing
Severing or suspending diplomatic relation and war does not terminate treaties
o May preclude some performances of the treaty.
A treaty may be declared invalid if:
o Person lacked authority
o Was procured through fraud/corruption/coercion
o Through threat of aggression violating UN Charter
o Its terms violate a jus cogens norm
A state to qualify under International law
o Montevideo Convention and CIL now:
o International law requires a state to have:
o 1. A permanent population
o 2. Defined territory
o 3. A government
o 4. Capacity to enter into relations with other states
o 1. A permanent population
o no size or homogeneity requirement
o must be settled
o presence of nomadic nature does not matter
o 2. Defined territory
o Must control a reasonably defined area
o No size requirement
o Precise boarders may be disputed
o e.g. Israel 1948-49
o Intertemporal principle
o Territorial claims must be judged by effective law at time of
claim not resolution
o Ex) If in 1800 Germany claimed Slovakia by force, then
territorial dispute in 2000 must use the law applied in 1800.
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o Delimitation: Legal term of deciding where the borders of country lie.
o Demarcation: Physical term of actual marking of the land boundaries.
o Territorial acquisition
o Discovery
o Discover the land and claim it.
o Not applicable anymore
o Conquest/ annexation
o Obsolete, no longer acquainted through conquest.
o Can still form a territorial dispute judgment since you
look at the law in effect at the time claim arose
(intertermporal principle)
o Cession
o When one state agrees to give or receive state/land from
another.
o You can buy land
o Occupation
o Uninhabited territory and you establish a population on
it
o Ex) Volcano erupts and forms an island. Occupy it.
o Prescription
o Adverse possession in international term
o Lease
o You can lease territory
o E.g. Guantanamo, Hong Kong
 1903 - Cuban government that was a puppet for
the US, gave a lease
 Coaling, naval station only
 1934
 both government have to agree to
abandon the lease
 Is the use now authorized by international law?
 Yes, not a naval station
 No, prison in naval station
o 3. A government
o Must be centralized government
o Can be religious law too
o Once a State has been established, Statehood not lost due to
occupation by another power or civil war
o Options after an irregular change in government
o Nations can recognize government in exile
o Can give new government “legal” recognition, de jure
o Can give new government de facto “practical”
recognition to just deal with them
o Can withhold recognition to indicate disapproval
 Like US doesn’t recognize Cuba
o 4. Capacity to enter into relations with other states
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o Independence in external relations
o There is no other country which is limiting the state’s ability to
make relationship with the other
o State A cannot be fully controlled by Soviet Union
o Territory not subject to the authority of another state
o not part of a federation
o not an overseas territory of another state
o Theories of recognition
o Declarative Theory
o Existence of state established by conformance with objective
legal criteria (E.g., territorial, government, population, etc)
o Not dependant on recognition by other states
o Doesn’t matter if other states don’t recognize the state
o Position endorsed by Montevideo Convention
o Constitutive theory
o Legal status as a state requires recognition by other states
o This position never formally adopted in any agreement
o Other factors
o Under the Constitutive theory
o Recognized by other states
o UN membership
o U.N Charter Article 4
 1. Recommendation of the Security Council
 2. Decision of the General Assembly
o e.g. Afghanistan controlled Taliban
o maybe a state
o if a state then US must apply the Geneva conventions
o if not then Geneva conventions do not apply
Self determination (nations have the right to freely choose their sovereignty and
international political status)
o UN charter Art. 1(2)
o People get to self determination right
o International covenant on civil and political rights
o Treaty
o Get self determination
o UN Declaration on the granting of independence to colonial countries and
people
o But attempts divide and disrupt a national unity is incompatible
with the charter
o Uti Possidetis - Latin meaning as you possess
o When countries are given their independence their territory is fixed
at the time of independence
o No country can take it away from you
o Now this clumping is favored over the right of self determination
o E.g. keep a country together that has many different ethic groups since
boarder was made by white man
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Succession
o No explicit prohibition in international law
o If a country chooses to divide itself it is not a problem
o If a country does not choose to divide the IL seems to favor keeping the
country together
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Jurisdiction
o US Federal jurisdiction
o Need
o 1. constitutional scope
o 2. international law scope
o Federal crimes
o 1. Constitutional scope
o Federal power or authority
 E.g. postal crime, commerce, federal land,
special maritime and territory
o 2. International law scope
o Territorial principle
 States have the right to enforce law within their
own territory
 Treaties can reduce this scope
 To all persons present in the territory
 Immunities may limit its exercise but is
subject to waiver (U.S ambassador)
 Ex) You go to Saudi Arabia, you are
subject to its law.
 Territory can include ships and aircraft
registered to nation
 E.g. Commit a crime in U.S airplane
flying over the pacific, subject to U.S.
law
 Principle also limits foreign legal activity in
territory (meaning if evidence is in the foreign
state, you need to get approval of the foreignstae
to collect evidence or serve)
 Can’t gather evidence or serve legal
process w/o consent
 Embassies are not territory of nation
they represent
o Nationality Principle
 States can regulate actions of nationals abroad
 If they choose, States can extend their
law to citizens abroad
 Ex) If you are Frenchman, you come to
U.S. and commit an assault, France
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applies its criminal code to its resident in
France
 Apply tax law to earnings
 Government officials’ conduct regulated by
national law
 Travel fraud,
 Can apply criminal law to nationals abroad
 May require extradition to actually
prosecute
 e.g. US person goes to France commits a
crime. Need to get personal jurisdiction
to get into a US court
o Need to get permission from the
country unless person comes into
US voluntarily (extradition)
 e.g. War crimes act, illicit foreign sexual
conduct
 U.S. Law examples:
 War Crimes Act of 1996
 Illicit foreign sexual conduct (US
punishes for illegal sexual activity
happened in SEAsia)
o Passive Personality Principle – victim jurisdiction
 State criminalizes acts abroad against its citizens
 Do not have to be crimes under local law
where the victim lives, it’s legal.
 Essentially “victim jurisdiction”
 U.S. initially opposed the concept
 Now endorses, primarily in terrorism
sphere
 E.g. terrorist kills US citizen in foreign
country
 E.g. War crimes act
o Victim of a war crime
 E.g. Terrorist act
o For terrorist victims
o Protective Principle
 State criminalizes acts abroad prejudicial to its
security
 Principle not as well defined as other
rules
 Act need not be an offense under local nation’s
law
 E.g. counterfeiting US money,
immigration violations
o Effects Doctrine
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States criminalize acts abroad w/ substantial
harmful effects w/in nation
 U.S. a leading proponent of this doctrine.
 E.g. someone points a gun in Canada
and shoots a bullet and kills someone in
the US
 Controversial
 ECJ has now generally adopted
 Does not have to be illegal in foreign
country (perfectly legal in London, but
unlawful in US)
 E.g. Sherman anti-trust act
o Universal jurisdiction
 Some offenses considered so prejudicial to all
states that any may exercise jurisdiction
 Ex) Piracy, slavery, torture, war crimes,
genocide
 US law e.g.
 Piracy, Abduction from a foreign
country ok
o Quasi-Jurisdiction
 Offenses specified by treaty as warranting
exercise of universal jurisdiction
 Until incorporated in CIL, only treaty parties
bound.
 Ex) Terrorism and drug trafficking
 Specific acts defined by the convention,
any state parties to this convention
authorized to prosecute anyone
committed to this act anywhere in the
world.
o Abduction
 Generally violates international law
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State Sovereign immunity
o U.S Court hold to be “customary practice”
o Part international law
o Part comity
o Respect for the other nation
o Part of domestic common law
o 2004 UN convention on jurisdictional immunities
o Not in force yet
o State immunity
o Who gets state immunity:
o Organs of government
o Branches, agencies (CIA), diplomatic missions
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o Political subdivision
o E.g. CA. If someone wants to sue CA in Spanish court,
CA would be immune.
o Agencies or instrumentalities of the state
o Includes commercial entities performing actual
governmental functions
 E.g. U.S hires black water to protect them in
Iraq. Blackwater, immune for acting under
governmental function
o Representatives of the state acting in official capacity
o Head of state
o Foreign minister
 Includes civil and criminal matters
o Official acts subject to general state immunity
o Private acts generally immune while in office
 State may waive post-tenure immunity.
o Torture convention exception
 Torture convention explicitly makes head of
state liable.
 Still subject to immunity while in office
o War crimes, genocide exception maybe
o Visiting forces (armed forces)
o CIL (governed by CIL and SOFA)
o Governed by Status of forces Agreement (SOFA: how
the criminal/civil jurisdiction over the force is to be
exercised)
 Typically provide limited liability for torts
o Exceptions
o Consent
 Nations can always consent to foreign
jurisdiction
 Waiver in K/treaty or ad hoc
 Consent by action
 Initiating/ intervening in legal action
o Unless appearance is only to
claim immunity
 Bringing a suit constitutes consent to
counter claims.
 Arbitration
 If a state consents to arbitration it waves
its immunity
 E.g. Can agree to be used
 E.g. US federal torts claim act
o Commercial activity
 E.g. engages in business activity not behaving
like a state normally
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Participate in commercial activity forfeits
immunity
 Define
 Acts anyone can do (acta jure
gestionis)= commercial activities
 Acts only a state can do (acta jure
imperii) = immunity
 Two different tests
 1. Nature of the act
o e.g. buying blankets or
something anyone or public can
do = commercial
 2. Purpose of the act
o e.g. buying the blankets for the
U.S. prison system, military =
non-commercial = immunity
 UN convention:
 refer primarily to nature of the transaction
 purpose considered if parties agree or if
relevant to forum state practice
 Commercial definition
o Buy/ sell goods
o Borrow money/loans
o Contracts/ transactions of
industrial, trade, or professional
nature
 US law
 Uses Nature rather than purpose
o Employment contracts
 Employment contracts in foreign counties
 E.g. China Embassy hires someone in the US
China Embassy w/ bad US law
o Torts
o No immunity for suits seeking compensation for:
 Wrongful death, personal injury
 Damage or loss of tangible property
 Provided:
 1. cause is act/omission attributed to
foreign state
 2. act occurred in territory of forum state
 3. agent was present at the time
 e.g. plane crash caused by foreign agent,
crashed in the forum state, agent was not
present (failed last element but in UK
did not need it)
18
Hypo: While on vacation in Washington D.C., your rental car is struck head-on by a
Rolls-Royce driven by the very intoxicated Ambassador from Amocoa. The car is totaled
(for which Hertz expects you to reimburse them) and you require expensive medical care
and miss weeks of work. Can you sue Amocoa?
o Yes, this is a tort, personal injury, and occurred in U.S. You
can sue foreign country for tort.
o Property issues
 Real property
 Immovable property
 Gift or inheritance
 Right of administration of property
(trust/bankruptcy, etc)
 Int. Prop. rights in forum state
Hypo: You purchased a home in Sherman Oaks from the government of Residencia
which had been the home of its Consul General. They affirmatively [mis]represent the
house as being in excellent condition. After moving in you find it is termite ridden, has
leaky pipes, and faulty electrical wiring. Can you sue Residencia in a U.S. court?
o Yes, this is property right.
o Enforcement
o Liability to suit does not make judgment enforceable, state
must consent (just because one wins does not automatically
mean he will recover the compensation)
o Thus, lawyers should consider ability to obtain
satisfaction/enforcement before the suit.
o Defendant state must consent to attachment/arrest
o Exception
 Property is commercial purpose
 It is connected with entity action was directed
against; and,
 Present in the state form
Hypo: You won your suit against Amocoa and were awarded a judgment of $1M which
has not been paid a year later. Amocoa owns a $3.5M house in Pacific Palisades where
the head of its government funded Amocoan Overseas Film Co. resides. Can a California
court attach a lien to that property to enforce the judgment?
 Need to analyze whether Amcoan overseas film co. is recognized as part of the
Amocoan government. Might want to broaden the definition of entity. One would
argue it was against ambassador, person. This is a film company, but funded by
govt. but the idea that it is govt funded that it should suggest that it is set up to
qualify for govt entity. Govt. entity can include corporation hired by the govt.
Then ask yourself if it was used for commercial purpose, maybe to entertain
people, etc. Not for residency.
o Warship
19
o Warship immunity has been longstanding principle of
CIL
o Ships must obey foreign law, but foreign states cannot
enforce them
o Applies to other non-commercial state owned vessels
(customs, police vessels)
o Does not apply to commercial service subject to
arrest/enforcement

o Proper service of Process
o Must transmit to foreign ministry via diplomatic channels
o Can’t serve embassy in forum state
o Can’t “tag” visiting officials sued in official capacity
o Can’t privately deliver to government in home state
o States may agree on alternative procedure
o Appearance can wave proper service
Wrongful acts under IL
o States are responsible for honoring international law obligations
o Principles of state responsibility governed by customary international
law:
o State responsibility attaches when an act:
o 1. Conduct attributable to the state
o Essentially same actors who might get immunity
o Applies to private actors on state’ behalf
o Applies even to acts in excess of lawful authority
o Excludes only acts of purely personal nature
 Ex) Ambassador beating up her husband for
cheating on her.
o 2. Breach of an international laws
o look at the primary rules to see if the law has been breached
Primary Rules: Rules of IL
o rules that govern the state conduct (treaties usually.. Ex)
which determines whether
“human rights treaty”, substantive rights)
there was a breach
o e.g. hit by a car, look at the substantive law; cal civ.
Secondary Rules: whether
code
breach is attributable to the
o after the state has breached the “primary rules” then we look
State and the legal
secondary rules at law of state responsibility, to figure out
consequence.
what they are liable for.
o dispute resolution rules
o CIL related to dispute resolution
o Lex specialis
o Special rules prevail over general in international law
o Treaty provisions for redress prevail over customary
state responsibility rules. CIL are trumped by specific
rules (treaty)
20




o E.g. dispute resolution procedure in a treaty beat CIL
procedural rules
HYPO: A Reuters photographer covering a conflict between Belligerentina and
Pacifica is killed by a bomb aimed at the squad of Pacifica soldiers he is
accompanying in the war zone. Is Belligerentina responsible for depriving him of life
in violation of the International Covenant on Civil and Political Rights?
We look at the primary rules first to see if there is a breach. We have to look at what
“Int’l Covt Civil and Pol Rts” say first and determine breach. The generic rule can be
trumped by specific rules/treaties agreed by the States. So if there is a conflict
between rules we choose the more specific one.
HYPO: Armed employees of Blackwater, a private U.S. firm under contract to
provide security for State Dept. officials in Iraq, feel threatened and spray automatic
weapons around a public square in Iraq, killing and wounding several dozen Iraqi
citizens. Can the victims and their families sue Blackwater and/or the U.S.
government in an Iraqi court?
Would there be sovereign immunity? Even though they are not part of government,
but they provide security service for the state department. So they are govt security so
can be attributed to the govt. qualify since government contractor. Probably cannot
bring suit in the Iraqi court or US court without US consent because Blackwater is
part of the govt since they were hired by them. Also no tort exception because this is
for military purpose. But U.S. is internationally responsible due to primary rights
breach although victims cannot sue.
o Consequences of wrongful acts
o Wrongdoer has the obligation to:
o Cease (promise to stop)
o Offer assurances of non-repetition, and
o Repair
o Restitution – returning to pre violation
o Ex) If you steal a painting, return the painting. However,
restitution is not possible sometimes then we move on
to compensation.
o Compensation – Payment for actual loss (even includes moral
damages) no punitive damage in int’l law.
o Satisfaction – apology
o The state whose rights were violated can choose the type of
reparations required.
o State that was wronged decides whether reparation is
enough.
o Contributory negligence allowed.
o Ex) if State A is 80% wrong and B is 20% wrong, then A is only liable
for 80%.
o Who can invoke responsibility?
o State whose rights were violated; or
o A group of states including international organizations whose rights
have been violated; or
21



o If multiple wrongdoers, each can invoke separately invoke
o Wrongdoer can be jointly or severally liable
o Any state (int’l community) for erga omnes obligations
o Piracy, genocide, slavery, and racial discrimination
o Countermeasures
o Self help remedy to wrongful acts
o Countermeasure consists of wronged state not performing international
obligation to wrongdoer
o Legitimacy depends on original acts’ wrongfulness
o Must be intended to cause compliance
o Need not be reciprocal, but must be proportionate
o Procedural steps
o 1. Ask to cease and make reparation
o 2. Announce countermeasure and offer negotiation
o 3. Suspend countermeasure if tribunal to decide issue
o 4. Terminate as soon as wrongdoer has satisfied obligations
Succession
Issue arises when new nation is created from all or part of existing state
o Must be new state for succession issue to arise
o Change of name, government, constitution insufficient
o Obligations and treaties remain in force
Key succession issue is which obligations of old state bind the new
o It is all about determining which obligation/treaty from the old party will bind
the new state.
o Categories:
o Decolonialization: Resulting in independence of overseas territory
o Most African nations
o Secession* of one part of a state to form a new state
o One part of a state to form a new state
o Singapore from Malaysia
o Dissolution* of a state to form two or more states
o A state to forttm two or more states
o the U.S.S.R.
o Merger – two states form a new state
o Tanganyika and Zanzibar into Tanzania
o Absorption* – two into one existing state
o East Germany into the Federal Republic of Germany
o * Statehood of an existing state generally continues uninterrupted
o Continuation Issues/Theories
o Where one state is clear continuation of previous state, it inherits rights
and obligations incl UN membership
o Name change does not impact continuation status
o E.g., Russia after dissolution of USSR
o Cf Serbia and Montenegro after Yugoslavia breakup
o Two general theories for ex-colonial states
o Clean slate: “new” state free of all obligations
22
o Universal succession: “new” sate inherits obligations
o Neither fully applies on contemporary practice
o Devolution Agreement may resolve issues
o CIL rules
o Where a state is clear continuance of previous state, it inherits rights
and obligations including U.N. membership
o CIL
o 1. Devolution Agreement
o New government would reach an agreement with old
government
o 2. Territorial treaties
o fully binding
o includes waterways
o 3. Political treaties
o need consent of new state to be binding
o e.g. defense alliances, friendship treaties
o 4. Multilateral treaties
o Generally not binding
o New country gets to decide for oneself
o No rules for assets, archives, and liabilities
o When a nation changes its identity, these are resolved case by
cases.
o When a state is absorbed generally only the treaty commitments of
absorbing nation remain in force

Diplomatic Functions, Privileges & Immunities
o IL
o Vienna Convention on Diplomatic Relations 1961
o Widely considered CIL
o Diplomatic Functions (work in embassies)
o Represent sending State in receiving State
o Negotiate with Government of receiving state
o Ascertain (legally) conditions and development of the receving State
and reporting to the sending State.
o By legal means (no espionage)
o Report back home what is going on
o Protecting the interests of the sending State and its nationals within the
limits of international law
o Promote friendly relationships, economic, and culture ties
o Classes of Mission Personal
o Head of mission
o Diplomatic Staff
o Administration and Technical Staff (A&T)
o Enjoy most diplomatic privileges and immunities
o Exempt from local taxation
o Only have civil immunity for official functions
23
o Service Staff
o Only enjoy immunity for official functions
o Are exempt from local taxation
o Private Servant
o Are exempt from local taxation
o Sending State Responsibilities
o Select head of mission and diplomatic personnel
o May accredit personnel to more than one state (represent US in
several countries)
o May also accredit personnel to international organizations
o One
o Notify receiving State of assignments/arrivals/departures (must
notify the receiving state that the person is immune)
o Respect receiving State laws and regulations
o Refrain from interference in internal affairs
o E.g. elections
o Only supposed to do business w/ ministry of foreign affairs or
authorized agencies
o Use mission premises only as permitted by law
o Refrain from any “for profit” activities
o Bear burden of proof of immunity entitlement
o Receiving State Rights &Obligations
o Authority
o Must give “agreement” to selected head of mission
o Can declare any diplomatic staff “persona non grata”
o Can declar any other staff member “not acceptable”
o Sending state must then recall or terminate functions
o Must approve of personnel
o Including head of mission and staff
o Reasonably limit embassy size if no specific agreement
o Can refuse to accept personnel in category or specific person
o Can limit areas where diplomats can travel
o Obligation
o Assist in obtaining suitable diplomatic premises
o Must protect mission premises (like offices)
o Prevent disturbance of peace or impairment of dignity
o Protect the foreign embassy when protestors violently
protest outside.
o Give diplomats freedom of movement,
o Safe expedite transit out of the country, even in war with that
nation
o Immunity for embassy
o State can only enter with mission head’s permission
o E.g. embassy on fire, state cannot go and fight fire without
permission
o Mission premises/archives/ documents/ correspondence inviolable
24
o Diplomatic bags not to be detained or opened
o This includes the couriers which are also immune
o Mission exempt from municipal taxes
o Mission, furnishings, property, and vehicles immune from search
or attachment
o Immunity not altered by armed conflict
o But can kick everyone one out safely
o Immunity for diplomats
o Larger then state immunity
o Immune from any arrest or detention
o Also immune from criminal jurisdiction of receiving State
o But exceptions of state immunity apply
o E.g. real property, succession in personal property,
personal commercial transactions, appearances waives
immunity to counterclaims
o Diplomats cannot be compelled to testify in court
o Diplomatic immunity may be waived only by sending State.
Immunity belongs to the state
o E.g. government can wave immunity of ambassador, if better
for policy
o Must wave again for judgment to be enforced
o Immunity extends to diplomats’ families
o Privileges
o Not subject to receiving state taxes, customs duties, or employment
rules
o Exception taxes included in good and services, real property,
inheritance taxes, private income (don’t really need to
remember the detail of exceptions).
o Diplomats’ private servants may be covered by sending State social
security rules
o Diplomats baggage is not inspected
o Includes traveling through 3rd party countries
Diplomat’s Responsibilities
 Respect receiving State laws and regulations
 Refrain from interference in internal affairs
o Conduct business only with Ministry of Foreign Affairs or other authorized
agencies
 Use mission premises only as permitted by law
 Refrain from any “for profit” activities
 Bear burden of proof of immunity entitlement

Third Country Responsibilities
o Diplomats transiting to/from posting in another country entitled to
inviolability in transit. Still under immunity while in transit (cannot
be subject to arrests and such).
25
o Diplomatic communications/couriers entitled to same inviolability as
receiving State must provide
Other Mission Staff
1. Administrative and Technical Staff (A & T)
a. Enjoy most diplomatic privileges and immunities
b. Exempt from local taxation
c. Only have civil immunity for official functions
2. Service Staff only enjoy immunity for official functions
a. Are exempt from local taxation
3. Private Servants are exempt from local taxation

Consular Functions, Privileges & Immunities
o IL
o Vienna Convention on Consular Relations 1963
o Widely considered CIL
o Consular Functions
o Protecting the interests of sending State and its nationals within the
limits of international law, including both actual and corporate persons
o Assist nationals; issue passports; assist minors (kids separated from
their parents)/ incapacitated of sending state;
o Transmitting letters, legal documents, and collecting evidence;
o Supervision of ships & aircraft; providing assistance to ships &
aircraft;
o Ascertaining conditions and development of receiving state.
o Promoting friendly relationships. (Green= common in diplomatic and
consular)
o Consular Organization
o Head of consular post
o Consular officer
o Consular employee
o Service Staff
o Consular Relations
o Established by mutual consent between nations
o Implied by establishment of diplomatic relations
o Severing diplomatic relations does not automatically terminate
consular relations
o Consular posts and districts set by sending State subject to approval by
receiving State
o Needs to decide the authority of consular according to
geography/district.
o consent needed to act outside set district
o May be exercised in support of third state with consent
o Consular Credentials
o Sending state must provide formal notice of appointment or
commission for consulate head
o Receiving state approves posting via an exequatur
26
o
o
o
o
o
o
o Prerequisite for performing consular duties
Consular appointment process
o Must provide formal notice of appointment
o Receiving state approves posting
Receiving State Authority
o Broad approval authority over personnel in territory
o Must give “exequatur” to selected head of mission
o Can declare any consular officer “persona non grata”
o Can declare any other staff member “not acceptable”
o Sending state must then recall or terminate functions
o Reasonably limit consular size if no specific agreement
o Must consent to use of own nationals by sending State
Consular office
o Posts and area subject to approval by receiving state
o Do not have to have an office can share offices
Receiving immunities
o Generally same as those provided for diplomatic facilities
o Consular premises are inviolable like embassies
o Except consent to enter in emergencies is
o E.g. fire can go in unless there is an objection
o Consular officers enjoy limited immunities
o Full immunity only for acts as state agent
o Can be forced to testify
o consular officers are subject to criminal prosecution
o but may only be detained for “grave crimes”
Receiving Privileges
o Allowed free communications with sending State nationals in
receiving State
o Allowed access to prisoners
o Sending state citizens have right to have their consulate notified of
arrest
o Consulate must be informed of sending state citizens’ deaths,
shipwrecks, aircraft accidents
o Consular officers can deal directly with local officials
o unlike diplomats who only deal with head of state
Honorary consuls
o Unpaid persons accredited to perform consular functions
o Typically businessperson in consular district.
o May be local or third country national
o Role specifically addressed in Vienna Convention
o Takes precedence after professional consular heads
o Immune from criminal jurisdiction for official acts
o No immunity for any other acts
o Premises are not inviolable
o Ex) police can get a search warrant if there is a tax
fraud by the consular’s business.
27
HYPO
American citizen Raymond Davis shoots two men in Lahore, Pakistan.
 Arrested by Pakistan, charged with murder and illegal firearms possession
 Claims to be employed by U.S. Consulate
 Subsequently claims “diplomatic immunity”
 U.S. notifies Pakistan of diplomatic statute several days after shooting
Answer: First problem is that Davis shot two men not when he was under the scope of
consular activity. He was going to ATM from his home. Additionally, for to be a
diplomat, the receiving state needs to get an advance notification of diplomat and the
receiving state has the option of accepting or rejecting the diplomats. U.S. notified
Pakistan that he was a diplomat after the incident.
Also if you are a diplomat, your job is to stay in the “capital” of the state. He was not
staying in the state.




Nationality
o Link to a state under international law
o The concept applies to both natural and legal persons
o Ex) Corporations have nationality like humans.
o State has right to protect national against other states
o Criteria generally set by national laws, but
o International law requires “genuine connection”
o States decide what makes someone a national
o But international law requires “genuine connection”
o not just any frivolous connection. Something like your family
lives there, you were born there, you have a business there, etc.
Citizenship
o Entitlement under the law of a state to full civic and political rights
o citizens almost always nationals, but not all nationals citizens
o citizenship has higher threshold to be a member compared to
nationality.
Dual Nationality
o Possible to acquire dual nationality (born, marriage)
o Both nations may be entitled to protect dual national
o Traditionally no right in territory of the other
o Always true in third states, but not in dual nationality state
o e.g. national of Syria and US, Syria can draft you US cannot
protect you
o Dual nationals owe allegiance to both countries
o Subject to laws of both
o U.S. law discourages but does not bar dual nationality
o Voluntary application for foreign citizenship can cost U.S.
o You can lose your US nationality if you do things
o Volunteer into the military of another country
Nationality of Legal Persons (corporations)
28

o General rule is nationality is state of incorporation/location of registered
head office
o If different, courts examine where control and ownership really lie
o state with more “close, substantial, and effective connection”
chosen
o Bilateral investment treaties may define covered companies
o Foreign branches generally have parent’s nationality
o Independently incorporated subsidiaries follow general corporate rule.
Nationality of ships and aircrafts
o Where they are registered (chosen to register, not where it is owned)
o Nationality of owners irrelevant
o Registered state has jurisdiction over acts onboard

Right to Leave and Return
o International Covenant on Civil & Political Rights gives:
o Right to leave any country, including one’s own
o but can limit where one can go
o Unrestricted right to return to own country
o States may nevertheless
o Impose restrictions on granting passports
o Bar travel to certain states
o Right to travel may be limited to
o prevent flight of accused criminals
o protect public health
 Protection of Nationals Abroad
o States have the right to protect nationals abroad
o but no obligation to do so
Statelessness
 Can lose citizenship without acquiring new one
 State of residence entitled to treat as an alien
o Need not accord any state the right of protection
 Need only grant minimum rights mandated by human rights treaties state is a party to
 Partial treaty coverage
o UN Convention on Status of Stateless Persons (1954)
o 57 parties
o Convention on Reduction of Statelessness (1961)
o 29 parties
 Aliens - any person not a national of particular state
o Aliens have no entitlement to enter or remain in state
o May be subject to passport and visa requirements
o States may limit length of stay, residence, and employment
o Subject to law and jurisdiction of state where present
o May be taxed on income earned
o May also be liable to own state law
o Aliens may be denied full property rights of nationals
o States may bar from real property ownership
29
o May exclude from professions
o If allowed to own property, must have equal access to courts with
national property owners
o Property may be subject to expropriation
 Expropriation (taking of property)
o Taking property from owners under sovereign authority
o Factors used to evaluate under international law:
o 1. Existence of valid legislative authority
o 2. Legitimate public purpose
o 3. Discrimination against aliens
o 4. Payment of just compensation (must have this factor)
o payment should be in convertible form
o Bilateral investment treaties may provide specific criteria
applicable between parties
Expropriation Terminology
1. Expropriation- taking property from owners under sovereign authority
2. Nationalization- expropriation of an industry or resource to place it under state
control
3. Confiscation- expropriation without payment of just compensation
4. Sequestration- taking temporary possession of property where title remains with
legal owner
Expropriation Legitimacy
Criteria used to evaluate under international law:
1. Existence of valid legislative authority
2. Legitimate public purpose
3. Discrimination against aliens
4. Payment of just compensation
a. Payment should be in convertible form
Bilateral Investment treaties may provide specific criteria applicable between parties
 Asylum
o Allowing an alien to enter and remain in a territory over the objection of the
state of nationality
o E.g. US holding Chinese even though cannot charge them, and China wants
them back
o Cannot force a state to give the alien back
o Political Asylum – admitting alien to national territory
o Diplomatic Asylum –protection in a diplomatic mission
o Alien may be of any nationality
o Legally an abuse of diplomatic mission, but
o Political factors result in being done periodically
o Refuge – temporary protection from harm (Unlike asylum which has
longer sense of protection. It is a political decision and implies
continuous protection. Can’t turn the asylum away once he is on the
land.)
 Refugee
30
o Definition temporary protection from harm ( race, religion, nationality, etc)
o Must be out of his nationality and believes that his country will not protect
him.
o Displaced Person- individuals fleeing for personal safety from conflict or
natural disaster
o Internally Displaced Persons- persons displaced within their own country
o Economic migrants- persons leaving home country seeking better lifestyle
o Illegal Immigrant- person entering country in violation of passport/visa
regulation (refugee can be an illegal immigrant)
 Refugee Process
o 1. Refugee status is a right (right granted to protection) if Convention
definition met
o Criteria:
o 1. Outside country
o 2. Well founded fear of persecution
o 3. Fear based on race, religion, nationality, group
membership, politics
o 4. Unable or unwilling to return or be protected by
nation
o 2. Individual must apply to nation where present
o Some sources say it must be first state outside own country
(minority view)
o Law only requires first state receiving application to act
(majority view)
o Nations set procedures (refugee process) in domestic law
o Need not enter country legally to make claim
o 3. If claim made at frontier, entry/ haven should be allowed. Allow
temporary protective haven.
o 4. Follow specific convention articles govern refugee treatment
o Essentially ‘most favored alien’ status
o 5. Convention protection ends if refugee (do not need to know this for
test):
o No longer needs protection;
o Is being helped by other UN agency;
o Is being treated as a national by new state;
o Has committed crime against peace, war crime, or crime
against humanity
o Has committed acts contrary to purposes and principles of UN
 Non-refoulement
 State not obligated to admit those establishing refugee status but
o Refugee cannot be returned to country where life or freedom
will be threatened because of
o race, religion, nationality, group membership, politics
o Objective standard used
o While deciding what to do with the refuge, they are entitled to
protection.
31
o Legal test is objective, not subjective. Just because individual
is fearful, doesn’t mean they will be accepted. It has to be
objective.
o May send to 3rd country.
o Non-return protection does not apply where:
o “reasonable grounds” for considering refugee threat to
state security.
o refugee has been convicted of “particularly serious
crime” and is judged danger to community
 Refugee may be expelled from any state on grounds of
“national security or public order”
o requires due process of law (there has to be a judicial
process determining whether we should expel or not)
o refugee must be given opportunity to seek admission to
another state
1) Non-refoulement protection does not apply where:
a) “Reasonable grounds” for considering refugee threat to state security
b) Refugee has been convicted of “particularly serious crime” and is judged danger
to community
2) Refugee expulsion on grounds of “national security”:
a) Requires due process of law
b) Must give opportunity to seek admission to another state

International criminal law cooperation
o Extradition
 Legal procedure which accused/ convicted of crime is transferred to
state where he is wanted
 1. No obligation to extradite unless there is a treaty
1. Obligation to extradite is based solely on treaties
2. Can be done ad hoc (“improvised”) if both states [can] agree
3. Requests transmitted through diplomatic channels
a. Must include statement of facts/evidence
4. Usually subject to judicial and executive review
 If approved extraditing state delivers individual to
requesting state
 2. Need dual criminality Or List treaty
 Only offenses punishable under the laws of both countries are
traditionally extraditable (Ex: Needs to be punishable under US
law as well)
 List treaty
o In lieu of dual criminality, treaty may specify offenses
for which extradition allowed (Ex: Itemize particular
lists of offenses which are eligible to extradition)
 3. Specialty defense
32

Person extradited may only be tried for crimes specified in
extradition request
o Courts disagree whether defendants can raise this issue
o E.g. If A needs country B to extradite, when they get to
country B cannot charge them for charges beyond the
what country A alleged for the extradition
 Who gets to raise this defense
o Courts disagree who can raise it
o But definitely the state who conducted the extradition
can use it
 4. Political act exception
 Most extradition treaties exempt “political acts” from their
coverage
 Provisional Arrest- request to national to detain fugitive in advance
of formal documentation transmittal
 Nationality- many countries barred from extraditing own nationals
(often will exert liberal “nationality” jurisdiction).
 5. Can be done as hoc if both states agree
 6. Terrorism Extradition under other treaties
 Treaties addressing terrorism
o No safe haven concept
 Generally must prosecute yourself or extradite
o Extradition process
 Combined legal and political process
 1. Prosecutor develops Extradition documentation
o (These are not on the slides)
o Where suspect is wanted to face charges
 Affidavit form prosecutor stating facts of case
 Copies of criminal law and statute of limitations
 Certified copies of arrest warrant and charges
 Documentary evidence that crime was
committed and that suspect was responsible
o If suspect fled after conviction
 Court documentation showing conviction and
sentence
 Affidavit stating how much of sentence was
served
o Provisional arrest
 Request detainment until can get official
documents
 2. Forwarded via diplomatic channels
 3. Court validates
 4. Appropriate official approves request
o Can lobby here for your client
 E.g. person walks into your office want to be kept from
extradition out of the US
33
o
o
o
o
1. Review the treaty country
2. Specialty defense maybe
3. Political act exception
4. lobby directly to official that needs to approve the
request
 Demonstration
o Extradition alternatives
 1. Seek deportation to 3rd country which can extradite
 Ex) In Country B where extradition is not available. Ask B to
deport to country A where we have extradition treaty.
 2. Revoke US passport to try to force deportation
 Maybe in violation of immigration laws
 3. Monitor suspect and seek extradition if they travel
 Get a provisional arrest as a US prosecutor
 4. Lure suspect out of country denying extradition
 Requires advance DOJ approval due to sensitivity (we have
lottery ticket waiting for you)
 5. Abduct
 US courts allow under Alvarex-Machain
o Even in violation of extradition treaty
 Requires advance DOJ approval due to sensitivity
 5. Encourage support foreign prosecution
 6. INTERPOL red notice
 International police
o Information clearing house between police agencies
o Mutual legal assistance treaty (good for governments prosecution)
 Bilateral agreements for coordinating support for criminal
investigations
 Allow direct coordination between central authorities
 Eg. U.S. DOJ and foreign national counterpart
 Require assistance in collecting evidence
 Physical evidence, records, statements
 Requested nation’s courts may need to issue warrants
o US does
 Only good for prosecution generally not defense
 UN Model treaty
 US treaty is based on this
 Allows
o Take evidence or statements form person
o Make person available to talk to
o Effecting service of judicial documents
o Examining objects and sites
o Providing information and evidentiary items
o Documents including banks, financial, corporate, and
business records
o Letters Rogatory (good for private parties and criminal defense)
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Formal request for legal assistance (usually evidence collection)
from another state
 1. Must be issued by court in requesting country
 2. Routed (via diplomatic channels) to court in assisting
country
 3. Evidence collection completed under judicial authority
Process is time consuming and may be expensive
 U.S. embassies charge fees to process
 Foreign governments may also impose fees
 6-12 months
May be only means available to private parties
Need: Letters Rogatory Take Aways
 American attorney to draft request
 Issued under seal of American court
 Forwarded via diplomatic channels
 Foreign court directs action
 Returned to requesting US court via diplomatic channels
Good for civil litigation
Good for criminal defense
 Since the government/ prosecution has access
Dispute settlement
o No legal obligation to settle dispute
 As long as you are not resorting to war its ok
o But if you resolve a dispute it must be done by peaceful means
 UN Charter Art. 2(3)
o Calls that you resolve disputes in peaceful means
 UN Charter Art. 33
 Calls settlement by:
o Informal (non-biding)
 (a) negotiation
 (b) inquiry
 (c) mediation
 (d) conciliation (how about you do this and you
do that)
o formal (binding)
 (e) arbitration
 (f) judicial settlement
 (g) resort to regional agencies or arrangements,
or
o (h) other peaceful means of their own choice.
o Informal (non-binding)
o Negotiation
 Bilateral Negotiations
 Entirely flexible as to structure, timing, etc.
35
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Can be conducted discretely reducing public pressure
Negotiations (or “consultation”) may be prerequisite for ADR
o Inquiry
 Commission appointed to ascertain facts in question
 Composed of representative of each party plus neutral
members
o Selected by expertise in topic
 Almost never used
o Mediation
 Ad hoc approach using neutral third person to propose possible
compromise solutions
 Can be a state that mediates or an official from international
organization
 E.g. Israel/ Palestine
o Conciliation
 “Conciliation Commission” formed with 3-5 members
 each state appoints one member
 two members select 1-3 more “neutral” members
 one of the neutral members serves as chairperson
 Treaty may specify appointment authority (e.g. ICJ President)
 Commission hears parties’ views and offers ideas for resolution that
might be mutually agreeable
 no authority to compel acceptance
 parties bear all commission expenses
o Formal (binding)
o Jurisdiction and admisability standing must be established before each
binding international adjudication takes place
 Binding Settlement Jurisdiction
 Required elements for jurisdiction:
o 1. Consent of parties
 Must consent in treaty or ad hoc agreement
 May be general treaty on dispute
settlement
 Can be multilateral or bilateral
 Ex) we are neighbors so future disputes
should be disputed through this treaty A.
 May be substantive treaty incorporating dispute
provisions
 compromissory clause (these are what
the provisions are called)

 May be a bilateral agreement specific to dispute
at issue
36
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
Compromis (dedicated agreement
focused on resolution of dispute)
o 2. Existence of a legal dispute
 “[A] disagreement over a point of law or fact, a
conflict of legal views or interests between two
persons.”
 Permanent Court of International Justice
in Mavrommatis (1924)
 Examples of legal dispute from ICJ Statute Art.
36(2):
 interpretation of a treaty
 any question of international law
 existence of fact constituting
international obligation violation
o e.g. did this country launch a war
contract to war of agression
 reparation to be made for breach of
international obligation
o 3. Timing of dispute origination
 Dispute must have risen within the time frame
of consent
 e.g. treaty in force compared to when the
dispute arises
 if you use a compromis then you can
lawyer around this element by
specifying the issue at a valid time
Admissibility
 There must be a “Legal interest on part of state making
claim”
o Nationality of beneficial interest (Ex) The claim is
about the harm to one of the applicant’s nationals, then
the person must be a national of the applicant state.)
o Arises when claim asserted on behalf of national
 Citizens bringing on behalf of their country
o Must be a nation from time of injury through
adjudication
 Needs to be a citizen of the state
o Cannot be national of respondent state
 US cannot sue Germany over dual relationship
citizen who is US/Germany
o Continuity principle allow claims assignment to conational (Claim started in US to US but not from US to
Italy)
 Exhaustion of local remedies
o Claimant must first seek redress available in respondent
state (Need to let
37
o Exceptions:
 when pursuing local remedy would obviously be
futile (unfair to the foreign party)
 where treaty or contract allow immediate resort
to international resolution
o Arbitration
 State vs. State
 Binding resolution by panel chosen by parties
 Composition like that of conciliation commission
 1 member from each of state parties
 1 to 3 additional “neutral” members
o practical advantage to having 3 neutral members
o they can come up with a neutral decision rather than
just following either party’s extreme decision. So can
come up with conciliatory decision saying A is partially
right and B is partially right.
 Parties have more control vis-a-vis judicial resolution
 choice or arbiters
 choice of language/timing
 option for confidentiality
 Permanent Court of Arbitration (PCA)
 Serves as center to facilitate dispute resolution
o provides expertise on process
o facilities for meetings
o lists of experienced arbiters
o records of resolution (published only by parties’
consent)
 Secretary General can appoint arbiters
o Mixed Arbitral Tribunal- pg. 409
 State vs. “legal person”
 non-state entity may be human or corporation
 States must agree upfront to non-state actions

generally done in context of investment treaties
 Treaties generally give direct access to tribunals
 International Centre for Settlement of Investment Disputes
 mixed arbitral tribunal under auspices of World Bank
o Judicial settlement
 State vs. State
 International Court of Justice (ICJ)
 UN organ along w/Security Council & General Assembly
o No authority to review Security Counsel or General
Assembly actions
 Only international court of universal jurisdiction
o But states must still consent to it
o Any state may appear as a party
o Any issue of international law may be decided
38
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 Successor to the Permanent Court of Int’l Justice
ICJ Composition
 Normally all judges sit together on cases (15-17)
o Can establish a smaller chamber
 Case specific or by issue specialty
 President’s vote decisive in case of a tie
 Court may establish smaller chambers
o Case specific, only have 5 judges on the panel.
 No appeal from ICJ decisions
 Decisions binding only on parties
ICJ Jurisdiction
 Only states can be parties to cases before ICJ
 States can make declaration accepting ICJ jurisdiction
o Termed as accepting “compulsory jurisdiction”
 US can say compulsory jurisdiction, saying they
will accept ICJ jurisdiction.
o Declarations are only binding reciprocally
 Countries who accepted compulsory jurisdiction
they can sue any other countries, if you want to
take advantage of compulsory jurisdiction
against others, then you must be under
compulsory jurisdiction as well.
o Any two such states can automatically have case heard
o 64 such declarations in force; some with reservations
 States can accept ICJ jurisdiction for treaty matters
o –compromissory clause
 States can accept ICJ jurisdiction for specific dispute
o Compromis
o “let’s just have ICJ resolve our case for this issue”
Appearance Rules
 Court may adjudicate even if one party fails to appear
o Must establish jurisdiction
o Ensure case is well-founded
o Five cases have been decided absent one party
 Third party with valid legal interest may intervene
ICJ bases of law for decision
 1. Article 38 of the ICJ Statute
o The Court . . . is to decide in accordance with
international law such disputes as are submitted to it,
shall apply:
 a. international
 b. international custom,
 c. the general principles of law recognized by
civilized nations;
 d. judicial decisions and the teachings of the
most highly qualified publicists
39
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2. Make decision based on equitable ideals
o This provision shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the parties
agree thereto.
ICJ Advisory Opinions
 ICJ specifically chartered to issue advisory opinions
 May only be requested by U.N. bodies
o Security Council and General Assembly
o other U.N. agencies authorized by UNGA
United nations
o UN Purpose and Functions
 Maintain international peace and security
 Develop friendly relations based on the principle of human rights and
the self-determination of peoples
 Effective and collective measures for the prevention and removal of
threats to peace
o Structure of the United Nations
 Main Organs of the United Nations
 Secretariat: Takes care of day-to-day work of the U.N.
 Secretary General appointed by the G.A. for a five- year
renewable term.
 Duties range from administering peacekeeping operations to
preparing studies
 Staff of about 9,000 employees
 General Assembly: The United Nation’s main deliberative body.
 Their job is to talk.
 Representatives of all 192 Member States
o each State has one vote
 Decisions on important issues require 2/3 majority
o budget/elections (how much it is going to spend and
where it is going to come from)
 Decisions on other questions are by a simple majority
o including question of whether issue is important
o Widely endorsed resolutions can shape customary
international law
 Works towards development and codification of customary
international law through International Law Commission/Sixth
Committee.
 Sponsors codification of international law via treaties (“UN
Conventions”) (invites nations to come)
 Security council:
 Primary responsibility for the maintenance of international
peace and security
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5 permanent members with veto: China, France, Russian, UK,
US
10 rotating members (elected by GA to two-year terms)
Meets as required
Resolutions approved by the Security Council are binding
o GA resolutions are not binding
Under the Charter, the Security Council has the authority:
o to call on Members to apply economic sanctions and
other measures not involving the use of force to
prevent or stop aggression;
o to take military action against an aggressor;
Procedural matters require nine affirmative votes
Substantive issues require nine affirmative votes with no
negative votes by any permanent member (just none of them
can vote no)
Activities
o UN peacekeeping missions
o International criminal tribunal
Resort to use force in self defense
o UN Charter
 Chapter VI: allows the security council to recommend resolutions
 “Pacific Settlement of Disputes”
 UN Security Councils may recommend solutions; not biding
 Chapter VII
 “Threates to the Peace, Breaches of the Peace, and Acts of
Aggression”
 UN Sec. Council may implement mandatory measures (e.g.
sanctions)
 UN purpose to prevent war
 Preamble:
o “Save succeeding generations from the scourge of war”
 Art 1:
o “To maintain international peace and security”
 General Assembly and Security Council given roles in
preventing war
 Art 43 calls for on-call force agreements
 But there is an inherent right of self defense
 Art 51
o Nothing in the Charter impairs the inherent right of
self defense
 But an must be an armed attack
 Thus preemptive strike does not seem to
work
o CIL
41
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
Caroline Case
 Test:
o Pre-emptive action requires strict necessity
 1. Instant
 2. Overwhelming
 3. Leaving no choice of means
 4. No time for deliberation
 e.g. Bush Pre-emptive war doctrine
 Asserted right to use force against
o 1. Rogue state
 Does not follow IL
o 2. Terrorist threats
Preemptive attacks in self defense?
o Facial reading of UN charter does not allow it
 No, Art 51 says armed attack
o BUT, Secretary General Anon put a report together saying that:
 Art 51 should be read to allow preemptively when
 1. imminent
 2. no other means would deflect
 3. action is proportionate to actual threat
 likely to be now considered CIL, but not dispositive
o E.g.
 Pre-emptive strike on Iran
 Justification?
o Nuclear threat and capacity to use it
 Legality?
o Art 51 read strictly
o 3 criteria from the UN
o or 4 from the Caroline criteria
 Just?
o Would it be a just war, 5 factors
Antarctica
o Legally defined
 All land and ice shelves south of 60° S
o Antarctica Treaty
 Major Treaty Provisions:
 1. Antarctica to be used for peaceful purposes only
o actual military activity is prohibited
o military personnel and equipment may be used for
scientific research/peaceful purposes
 2. Freedom of scientific investigation and cooperation shall
continue
 3. Information to be freely exchanged with the UN and other
international agencies (people are free to research but needs to
share such information with others)
42

4. Nations have jurisdiction over own personnel
o If someone commits a crime in Antarctic, the nation is
supposed to exercise jurisdiction over their nationals.
 Treaty Approach to Claims [claims to the land]
 Let’s allow research approaches to go forward and ignore the
claims
 Nothing in the treaty requires you to renounce any claims to
Antarctica. We are not denying your claim but not recognizing
the claim.
 A nation joining the treaty does not constitute any renunciation
of claims
 Joining the treaty does not constitute recognition of a claim
 No activity during the treaty’s duration can be used to support
a claim
 No additional claims maybe asserted while the treaty is in force
 No provisions shall be interpreted as:
 1) renunciation by any party of previously asserted claims
 2) recognition by any party of previously asserted claims
 3) no activities during treaty’s duration can be used to support
or deny territorial claim
 4) no additional claims may be asserted while treaty in force
 Reservations
 US and USSR have reservations to reserve the right to make
future claims
o Antarctic Treaty System (ATS)
 ATS includes 5 additional treaties
 ATS’s yearly Antarctic Treaty Consultative Meetings (ATCM)
provide forum for region’s administration
 all treaty parties can participate
 only consultative members get to vote
 Decisions generally taken by consensus
 Even though by treaty only consultative members get to vote
 Provides practical means of updating regulations without having to
amend treaty
 Text bars amendments until 2011
 Can adopt measures without having to update treat
 ATCM now has permanent secretariat in Buenos Aires
 Nine person staff
 No dedicated legal advisor
 Annual meeting hosted by consulting members
 Rotates in alphabetical order in English (deciding what state is
going to host the meeting)
 Treaty System includes ATCM recommendations, measures, decisions
& resolutions on issues such as
 Scientific cooperation and data collection
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Protect the Antarctica environment
Conservation of plants and animals
Management of tourism
Preservation of historic sites
Logistical cooperation
Designation and management of protected areas

The Artic
o No actual landmass or international regulatory scheme comparable to
Antarctica
o Artic Council
 Established for discussion of regional issues
 Members are
 countries that have territories that around the Artic circle
 indigenous groups
 others states with interest

Canals
o Suez Canal
 1888 Convention of Constantinople
 UK and France political compromise
 Made it neutral territory
o Egypt now owns it
 Open to all civilian and military vessels at all times
o Not subject to attack by any party
o Opposing forces must leave 24 hours apart
o Warship can only spend 24 hours
o Panama Canal
 Use governed by Treaty concerning the permanent neutrality and
operation of the Panama Canal
 Open at all times to merchant and warships
o No discrimination on basis of armament or propulsion
 Warships immune from inspection but may be required to certify
compliance with Panamanian regulation
o Immune from inspection
 Exception
 Canal authorities may inspect deck/
navigation equipment
 US navy vessels entitled to expeditious transit
 Pilot of the ship is liable for negligence of its vessel

International Rivers
o No internationally recognized general right to navigate
 Principle of freedom of navigation declared by Congress of Vienna in
1815, not CIL
44
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 Some key rivers governed by individual treaty regimes
International Watercourses
o Includes entire systems of surface and ground waters
 Aquifers, glaciers, lakes, reservoirs, etc
o UN Convention on the Law of Non-Navigational Uses of International
Watercourses adopted in 1997
 Not likely to be in force in foreseeable future
o Individual waterway agreements or general principles only current source of
legal mandates

Space
o 1967 Outer Space treaty
 1. Is province of all mankind
 Exploration must be for benefit of all states
 2. No nation may make any outer space claims
 3. No weapons of mass destruction
 But does not band just weapons
 4. Celestial bodies to be used only for peaceful purposes
 E.g. putting a weapon on the moon
 5. Astronauts must aid others in distress
 E.g. if one of the astronauts are in trouble, have to save him.
 6. States internationally responsible for all acts by nationals and liable
for any damage
 E.g. Satellites fall out of the sky
 7. All objects launched must be registered with the UN

International organizations
o Basic characteristics:
 (1) Established by treaty (nation states get together and draw a treaty
and in the treaty create an organization)
 (2) Membership fundamentally comprised of states
 May include separate customs territories (e.g. Hong Kong
SAR, Taiwan)
 May include international organizations (e.g. the European
Community)
 Needs to be two or more states
 (3) Legal personality independent of members
 can sue and be sued
 entity they create can self enter into treat
 (4) Financed by members
 Cost of running the organization
 (5) Permanent secretariat
 People answering the phone and answer the mails
o Membership
 May be open to all or restricted by geography (e.g. EU) or interests
(e.g. ATCM)
45
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 Many are global, (EU only open to European states)
 May have to deal with representation issues
 E.G., PRC or Taiwan?
 Members’ representatives must have credentials documenting
authority
 standards set by each organization (each organization will
establish what kind of credential are required)
o Governance
 3 organs:
 Assembly
o All members represented with one vote each
o Meets at periodic intervals to set overall policy
 Executive body
o Selective representation
o Implements decisions of assembly
o Ex) Security counsels. Discuss general policy matters.
They tell the secretariat what kind of rule they want to
be made. Then they vote on it. Sort of like a middleman.
 Secretariat
o Permanent professional staff
o Carries out day to day functions of organization
International Legal Personality
o Organization has legal status independent of that of its members
 may be explicit in treaty or implied from purpose
 in principle members not liable for organization’s acts
 Think of it as a stock.. States are stock holders but the company has
their independent status as a company. When company gets sued,
stock holders do not get sued.
o Subject of international law with rights and duties
 Can enter into treaties with states and organizations
 Can enter into contracts, buy land, etc.
o In principle members not liable for organization’s acts
Privileges and Immunities
o Some degree of immunity generally considered to be a functional
requirement
 national representatives attending meetings (benefit from immunity)
 permanent staff (benefit from immunity)
 don’t need to worry about what other states might do to you..
o Generally specified in applicable treaties (specific immunity for
permanent staffs)
 multinational treaty establishing organization
 headquarters agreement with host state
 immunity will probably addressed in one of those two
agreements above.
o Typically staff only get immunity for official acts
o Organization typically exempt from any taxation
46
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International Organization Dispute Resolution
o Three categories of potential disputes
 State v. state
 They can disagree what the organization is doing
 State v. organization
 “we think this organization is failing to make efficient rules or
not enforcing rules..” state having problem with organization
 Employee v. organization
 Employee is disabled and the organization won’t let me work
o U.N. Charter does not address dispute resolution
 May be referred to standing bodies (UNGA/UNSC)
 ICJ may give advisory opinion
o Treaties should address for other organizations

International Civil Aviation (not on test)
o 1944 “Chicago Convention”
 Sets out basic rules for international air transport
 Establishes International Civil Aviation Organization (ICAO)
 Some key provisions:
 recognizes absolute national sovereignty over airspace
o no one can fly over a nation w/o consent of the country
 specifies that state aircraft require explicit clearance
o government aircraft
 gives transit right to non-scheduled civil flights
 makes scheduled flights subject to state approval
o International Civil Aviation Liability
 1929 Warsaw Convention
 Applies to all international air travel
 Limited liability to all international air travel
 Limitation on death 75k
o Lost luggage $12 dollars a pound
 Need not to prove negligence
o Just need to show death, and lugged was on the plane
 Montreal Convention of 1999
 Updated 1929 Warsaw convention
 Compensation of approx. $120,000 for death/injury
o Maximum compensation for lost luggage is $1,200
 No limit if actual negligence/wrongful act by carrier

Law of the sea convention
o Territorial sea (acts like State’s territory)
 State sovereignty extends to territorial sea
 Includes seabed; subsoil below, water and air above
 States may establish breadth up to 12nm
 You can claim less then 12nm
47
o
o
o
o
o
 Measured from baselines defined in convention
 Ships enjoy right of innocent passage though the territorial sea
 As long as their transit is innocent passage
o Continuous and expedititious passage
o Stopping only as necessary for
 Ordinary navigation
 Distress or force majeure
 Assisting person / ship / aircraft in distress
Territorial Sea Regulation
 Navigation safety including traffic lanes
 Conservation of living resources,
 Protection of environment
 Control on scientific research
 Enforcement of customs, immigration, fiscal, and sanitary
laws/regulation
 Can temporarily suspend innocent passage for security reasons
 Rules must be non-discriminatory
Coastal Jurisdiction
 Should only exercise over foreign ships if:
 Consequences of crime extend to State
 Ex) stabbing incident occurs in the ship passing through the
territorial sea of a State. However, the incident does not really
affect the State unless the murderer escapes to the State.
 Crime disturbs peace/good order of the territorial sea
 Ship’s master or consulate requests help
 Necessary to suppress drug trade
Warship/Public Vessel Immunity
 Warships are immune from coastal state enforcement actions
 May only be required to leave territory
 Flag state liable for any damages done
 Immunity extends to other public vessels operated for non-commercial
purposes
 Warship criteria:
 Commanded by commissioned officer
 Distinguishing marks
 Crew under military discipline
Internal waters
 Waters on the landward side of baselines
 Essentially treated like land
 No right of entry w/o permission
 Thus no innocent passage
 Exception
o Common law right in emergency
 Force major
 Limited exception
Contiguous zone
48

Outside the territorial sea (first 0 nm – 24 nm)
 Next 24 nm max after territorial sea
 Expands region where coastal state may protect its interest
 Maximum of 24nm from baseline
 May act to prevent violation of customs, immigration, and
sanitary laws
 May punish infringements that took place in territory/territorial sea
 Ships can normally freely travel in this zone including military ships
 Outside contiguous zones is international waters
o Archipelagic state
 Constituted wholly of one or more group of islands
 Ratio of land to water must be at least 1:9
 Baseline cannot exceed 125nm
o Exclusive Economic Zone
 Extends seaward from the territorial sea to a maximum of 200nm from
baselines
 Vessels and aircraft enjoy most high seas rights
 freedom of navigation and overflight
 right to lay submarine cables and pipelines
 Coastal state regulates economic resources and use
 construction of structures
 manages natural resource use and conservation (fish or oil)
 regulation of marine scientific research
o The continental shelf
 Seabed and subsoil of “natural prolongation of [state’s] land territory
to outer edge of the continental margin”
 complex rules determine distance, can exceed 350nm
 Exclusive coastal State control of resources/research
 includes minerals and sedentary living resources
Treaties under U.S. Law
1. U.S. follows qualified monist approach
- “self-executing” treaties judicially enforceable
- implementing legislation required otherwise
2. Indications a treaty is self-executing:
- mandatory and present-tense wording
- prohibitions vice requirements of affirmative act
- specific obligations rather than general
3. Indications a treaty is not self-executing:
- language may call for executory legislation
- if it requires action reserved to Congress
Missouri v. Holland
1. What does Court hold?
49
2. Treaties are a separate source of authority for federal legislation:
- Congress can act to implement treaty terms even if not
otherwise permitted by Art. 1 language
3. What limits are there on the Treaty power?
- Treaty cannot execute measures constitutionally
committed to full Congress
- E.g., treaty cannot make an actual appropriate or
create a new tax
- Treaty cannot deny/impact individual rights protected by
Constitution/Bill of Rights
Types of Executive Agreements
1. Article II Treaty Agreements
- international agreement made pursuant to a provision in a
treaty approved by the Senate
2. Congressional-Executive Agreement
- international agreement made:
(1) pursuant to ex-ante authority in statute; or
(2) endorsed ex-post by both Houses
3. Sole-Executive Agreement
- international agreement made without any specific
congressional authorization or approval
4. What are permissible bounds of:
Article II treaty agreements?: Treaty power limits
Congressional-Executive agreements?: limits established by
congress, limits by court-Art II
Sole Executive agreements? Article II.
Treaty Preemption Summary
1. All three types of preemption apply:
Field preemption: Treaty provides complete scheme of regulation
Obstacle preemption: State law interferes with treaty purpose or
scheme
Conflict preemption: State law conflicts with federal treaty (can’t
follow both in full)
Claims resolution clearly federal law!
- Ware v. Hylton (1796)
Th
9 Circuit went farther
- War is federal issue!
The Paquete Habana, 175 U.S. 677 (1900)
-Navy warships seize several coastal fishing boats
- condemned as prizes and sold
-Owners appeal
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-“International law is part of our law, and must be ascertained and
administered by the courts of justice . . . as often as questions of right
depending upon it are duly presented for their determination”
- no treaty
- no controlling executive or legislative act
- no judicial decision
Customary International Law
Is it binding on the Congress? No.
Can Congress trump it with statutes at will? No.
• Customary International Law
Is it binding on the Executive?
Does Art. II, Sec. 3, “he shall take Care that the Laws be faithfully
executed” include CIL?
Can the President violate CIL on his own authority?
- can any subordinates?
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