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    The Burney Law Firm, LLC747 Third Ave., Fl. 32New York, NY 10017

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    International Law

    a brief primer

    by Nathaniel Burney

    Nothing on this page constitutes legal advice.All content is copyright 2007-2010

    CONTENTS

    I. The Sources of International Law Customary International Law Treaties, General Principles, and Other Sources Judicial/Subsidiary Sources of International Law

    II. The Relationship Between International andDomestic Law Domestic Law vs. International Law

    Customary Law Treaty Law

    III. Executive Agreements In General What the President Can Do Purely Executive Powers vs. Shared Powers

    IV. States

    IX. International Environmental Law

    X. International Agreements The Law of Treaties Nonbinding International Documents Capacity to Enter Into Treaties Making a Treaty Observance of Agreements

    Interpretation of Agreements Amendments and Modifications Invalidity of Treaties

    XI. Human Rights Basics Some U.S. Mechanisms Related to Human Rights State Involvement Substantive Bases of Responsibility

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    Definition Recognition of States Recognition of Governments Self Determination Sovereignty Over Land, Sea and Air

    V. Non-State Entities: Organizations,Corporations and Individuals International Organizations Individuals and Nationality Corporations

    VI. Jurisdiction General Principles Prescriptive Jurisdiction Enforcement Jurisdiction Conflicts of Jurisdiction Extradition

    VII. Immunity from Jurisdiction Sovereign Immunity The Act of State Doctrine Immunity of State Representatives

    VIII. The Law of the Sea Introduction Territorial Rights Transit Passage, Straits and Archipelagos

    Substantive Human Rights Fundamental Human Rights Violations Procedure What to Do When an American is Tortured by aForeign Government

    Suspension of Human Rights Duplication of Claims

    XII. Settling Disputes Peacefully The First Rule of the Use of Force Is Not to Use It Settling Disputes Peacefully Dispute Settlement through the U.N. and otherinternational organizations International Arbitration Formal Adjudication: The International Court ofJustice

    XIII. The Use of Force

    Introduction Analysis for All Use-of-Force Issues Self Defense Uses of Force Permitted by CustomaryInternational Law, but not in UN Charter Intervention Humanitarian Intervention Intervention to Effect Changes Intervention Against Terrorism Intervention in Civil Wars Example: Nicaragua Necessity and Proportionality War Powers Resolution

    Collective Use of Force"Lawfare"

    I. THE SOURCES OF INTERNATIONAL LAW

    Article 38 of the Statute of the International Court of Justice defines the sources of international law.Look at them in order, to find the law.

    First, look to treatiesandother bilateral agreements to which sovereigns are signatories,and which govern the issue.

    Second, look to multinational agreements among sovereigns, which govern the issue.

    Third, look to customary international law.a. General practices of states, accepted as if they were law.

    b. Followed not out of habit or expediency, but because considered law.

    Fourth, look to general principles common to mature legal systems.

    Fifth, look to subsidiary determinations of law (e.g., Supreme Court decisions).Cases are important. They are used in real life.

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    CUSTOMARY INTERNATIONAL LAW

    Customary international law is something done as a general practice not because it isexpedient or convenient, but because it is considered law, out of a sense of legalrequirement (opinio juris).

    Element 1: General practice.Element 2: States do it out of a sense of legal obligation.

    What you do becomes precedent. Your actions have a legal effect, even though you didntactually create a legal document.

    Anyorder or document issued by anygovernment entity can be used as precedent!

    The Paquete Habana case relied on edicts and agreements as far back as1403.

    Even when no binding document exists, there is such a thing as estoppel.White House memos can be just as precedental as a treaty!

    Whenever considering whether something is custom, ask the following:

    What constitutes state practice?

    How much practice is required?

    How much consistency is required?

    Inconsistent state practices can be ignored if you look at the big trend.

    Are dissenting and non-participating states bound by custom?

    Do regional and special customs involve different requirements? May a specialcustom (one that conflicts with general custom) bind a state that has notsupported it?

    What evidence is required foropinio juris, the requirement that practice be acceptedas law?

    May treaties be invoked as evidence of customary law? May they create it?

    Is there a normative hierarchy in customary law?

    Would declarations of law adopted without dissent by the UN General Assemblyconstitute presumptive evidence of accepted international law, regardlessof actual state practice?

    Would the adoption of recommended standards of conduct by the GeneralAssembly or another representative international assembly give rise tocustomary law if they are generally followed by states?

    Those countries with the ability to do it have more influence than others when it comes tocreating custom. The U.S. is frequently in this position.

    The Paquete Habana (1900)

    A case about the Rules of Engagement, going into customary international law.

    Rules of Engagement Before the military engages in an action, it isgoverned by standing instructions on what they can and cannot

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    do. These are frequently classified, of course.

    The Paquete Habana and the Lola were Cuban fishing boats that were seized bythe U.S. during the Spanish-American war. The U.S. District Court saidthat the Navy had acted within its authority, under Federal statute.

    The Cubans argued that customary international law prohibited us from seizing the

    ships. The U.S. S. Ct. agreed, holding that international law is part of outlaw.

    This established rule of international law had existed to protect peaceful fishermenfrom wartime seizures. Coastal fishing vessels, their cargoes, and theircrews, are exempt from capture as prizes of war. (As a result, every USROE since then has said to leave fishing boats alone if involved in thepeaceful act of fishing [but not if using fish to camouflage silkworm missiles,however].)

    Asylum Case (1950)

    Under the Vienna Convention on Diplomatic Relations, when you get inside the

    walls of an embassy, you are inviolable, because others cannot go in andget you without that embassy countrys permission. One inch outside,though, and youre out of luck. (Theres lots of tense chases here in DC forthat reason, spies etc., and China doesnt let people within a mile of the USembassy.)

    Note, there are several Vienna conventions. Lots of conventions of allsorts. Be specific which ones you are referring to.

    A deposed Peruvian political leader sought asylum in the Colombian embassy inPeru. The Colombians granted asylum, and wanted to transport himthrough Peru to Colombia unscathed, as a matter of law.Colombia relied on a treaty that Peru had not signed on to. Peru claimed ithad no legal obligation.

    There was no bilateral agreement between Peru and Colombia.

    There was no multinational agreement binding on Peru. Peru had evenrepeatedly repudiated the Montevideo agreement, so that it wouldhave the status of a nonconsenting state.

    A multinational agreement can still be binding as customaryinternational law, even if you didnt sign on. Only if yourepeatedly repudiate it do you earn the status of anonconsenting state.

    You do have the option of dissenting while internationallaw is being formed, but your dissension must beactive and persistent.

    Dont sit on your hands. Make your protest. Nobody isgoing to tell you to do it, youre a sovereign.States can do whatever they want. You have theability to assert your rights, if you choose, but thatmeans youd better do so or else you may lose theright.

    Certain fundamental rules, however (such as freedom from torture,slavery, apartheid, genocide, etc.) cannot be repudiated.They areperemptory norms.

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    International agreements are governed, not by contractlaw, but by the Vienna Convention on Treaty Law.Under it, states can do anything they want toagree to, unless it violates a peremptory norm.

    Is there a rule of customary international law binding on Colombia and

    Peru?The ICJ said cases went both ways. Colombia pointed to

    numerous and frequent examples where Americancountries allowed safe transport like this. However, thecustom was only for political expediency it was not doneout of a sense of legal obligation.

    Note Asylum has different meanings in international law contexts and U.S.domestic-law contexts. It can mean leaving people alone who are underthe protection of another countrys embassy (something the US refuses todo, same as Peru here). It can also mean we wont repatriate you to acountry you fled for political/humanitarian reasons.

    Mere uniformity of external regularity never justifies a conclusion of normativity.Governments attach importance to distinguishing between custom by which theyhold themselves bound, and the mere practices often dictated by consideration ofexpediency and therefore devoid of definite legal meaning. The inductive reasoningthat establishes the existence of custom is a tied reasoning: the matter is not onlyone of counting the observed regularities, but of weighing them in terms of socialends deemed desirable.

    Portugal v. India (1960) Customary relations between nations becoming binding. (Not,by the way, related to the Anglo-Saxon concepts of adverse possession oreasement.)

    Portugal had territory within India, and India wouldnt let the Portuguese move theirmilitary and ammo back and forth to the enclaves. India asserted the rightsthat England had enjoyed, and the right of passage only appliedto civilactivities.

    If you dont take the measures to assert your rights, and protest, you acquiesce.You may even create legal precedent for a customary international lawcontrary to your interests.

    The major seafaring nations, for example, sail right up to the 12-mile limitwhen countries try to claim more sea territory. At the very least,they object to those countries claims.

    OPINIO JURIS North Sea Continental Shelf Cases (1969)

    Germanys coastline was concave, so the Dutch/Danish method of equidistant lineswould have reduced German sea control drastically. Germany had actuallysigned an agreement to that effect at a party, but when it sobered up itdecided not to ratify it.

    The agreement didnt say it was binding upon being signed, so it wasntbinding on Germany until it was ratified. (Geneva Convention of1958.)

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    That didnt mean Holland & Denmark couldnt argue that it was binding ascustomary international law, since everyone else was doing it.

    There are 3 ways the treaty could have become binding customary internationallaw:

    The treaty re-stated a pre-existing custom.

    The treatys rule crystallized customary law that had been in the process offormation.

    The treatys rule generated a new customary law following its adoption.

    Holland & Denmark argued that this treaty had generated a new customary law, anew norm of international law binding on everyone.

    That wasnt such a good argument, because Germany had repudiated thetreaty.

    Also, there had been very little time since the treaty [customaryinternational law can be created in a short time, but thepresumption is that it isnt].

    Also, only a few countries were using this rule, and even then they hadresorted to equidistance out of frustration, not because they felt itwas a binding legal obligation.

    Also, it was not apparent that the provision was a norm-creating provision.It was a secondary provision only.

    Also, the treaty permitted reservations, and many countries had made theirreservations known. That was hardly acceptance of a norm-creating law.

    The ICJ therefore held that there was no customary international law for theDutch/Danish position.

    Nicaragua v. U.S. (1986).

    Customary law may be a source of international law in international disputes. It isseparate from treaty law and convention law, as it must be applied even ifthe countries are parties to a treaty.

    The court held that it is no longer okay to settle disputes with force, a customarynorm.

    Note Use of force can be justified three ways: (1) self-defense, (2)enforcement under Ch. 7 of the UN Charter, or (3) pre-UN rules ofnecessity & proportionality [the US and a few other countries assertthis third principle from time to time].

    Back to Contents2007-2010 Nathaniel Burney

    TREATIES, GENERAL PRINCIPLES, AND OTHER SOURCES OF INTERNATIONAL LAW

    Treaties: International agreements are governed, not by contract law, but by the ViennaConvention on Treaty Law. Under it, states can do anything they want to agree to,unless it violates a peremptory norm.

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    Many countries dont have governments that work. But, presuming there is agovernment that works, one country can make an agreement with anothergovernment.

    Problems are settled between the parties apology, reparation, etc. There areplenty of mechanisms to work out violations of international obligations.

    States are grown-ups, they can deal with it.

    General Principles of Law and Equity.

    There arent that many of these:

    Promises are binding there is an obligation to perform in good faith.

    Clean hands you cant take advantage of your own wrongdoing.

    Estoppel is always out there to slam you. Especially if you are foolhardyenough to attach a map to an agreement (dangerous).

    Never agree to a document when there is something in it you dontunderstand. Its nice to be polite, but it is better to be right

    & useful than to be liked & dangerously incompetent.

    Two big ones: Considerations of Equity, and Considerations of Humanity.

    All mature legal systems have equitable principles.

    Meuse case, Netherlands v. Belgium (1937).

    Belgium was prevented from suing France for breaching its agreement not to build adam, when Belgium had breached the same agreement.

    Under Article 38, equity is part of international law.

    Corfu Channelcase, United Kingdom v. Albania (1949).a. Albania, the most xenophobic country ever, with a pillbox every half

    mile in anticipation of an invasion that has never come, littered the Strait ofCorfu with mines. Then it didnt tell anyone. Some British ships got blownup, and they also fired at British ships from shore batteries.

    b. The ICJ held that elementary considerations of humanity are bindingas customary international law. Therefore, laying mines require you to tellthose who sail there. Failing to notify violates elementary considerations ofhumanity.

    Back to Contents2007-2010 Nathaniel Burney

    JUDICIAL/SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW.

    Here in the U.S., we use stare decisis, unlike civil law countries. Article 59 of the Statute ofthe ICJ, however, says that ICJ decisions are binding only on the parties to thedispute.

    And yet, ICJ cases are cited over and over as representing international law. Notbecause of stare decisis, however, but because it was a well-reasonedcase that countries keep pointing to as evidence of international law.

    It is not law just because the ICJ says so in one case. It may come to be regarded

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    as law, however.

    Often, arbitration tribunals and municipal courts (such as the US S. Ct.) are also cited assources of international law, even though their decisions are not binding on othercountries.

    Foreign law journals (notU.S. law-school journals) and the U.S. Restatement of

    International Law are often cited.

    These are never enough by themselves they are only academic opinions of whatthe law is. They are still of some use, nevertheless.

    UN General Assembly Declarations & Resolutions.

    The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law

    Filartiga v. Pena-Irala (2d Cir. 1980).

    A Paraguayan official tortured to death a 17-year-old Paraguayan boy,because of the boys fathers political beliefs. The kids father andsister sued in U.S. District Court! Under the 1789 Alien Tort

    Statute, under which only aliens may sue, for a tort in violation ofthe law of nations (international law).

    Note We also have the Torture Victim Protection Act, which alsoprotects Americans.

    The District Court dismissed the case for lack of jurisdiction. the 2d Circuit,however, concluded that if torture violated the law of nations, andalien could sue another alien in U.S. courts and collect damages.

    To see if torture violates international law, the 2d Circuit turned to two UNGeneral Assembly declarations.

    The Universal Declaration of Human Rights, one of the first acts ofthe UN, and arguably one of the greatest documents of all

    time (unanimous, abstentions from South Africa, USSRand other SSRs, Yugoslavia, and Saudi Arabia), and whichhas been embellished over time.

    The 1975 Declaration on the Protection of All Persons fromTorture.

    A Declaration creates an expectation of adherence, and so far as theexpectation is gradually justified by national practice, a declarationmay by custom become recognized as laying down rules bindingon all countries.

    These mere declarations have been foundations for treaties andconventions which took these rights and built on them andcodified them as international law. All of them say that

    torture is a human rights violation. (Time was, torture wasjust good police work, but no more. Now it is universallyrenounced.) Not only is this customary international law,but it is a fundamental principle that cannot be limited.

    So the 2d Circuit entered a judgment, and assessed compensatory &punitive damages. The defendant escaped the US before the

    judgment could be enforced, but if he or any of his property returnsit is subject to jurisdiction. (We actually deported him.Communications between the agencies are not fantastic.)

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    This was not a suit against the Paraguayan government because of anofficial actor Paraguay had denounced the defendant, eventhough he had been acting under the color of authority.

    As result of this case, the Alien Tort Statute has been used morefrequently. See the judgment entered against Radovan Karadzic

    [70 F.3d 232 (2d Cir. 1995)] for genocide. (That case has a gooddiscussion of the sources of international law and affirms that theseare real rules binding on us, and states that certain forms ofconduct violate the law of nations regardless of whetherundertaken by those acting under the auspices of a state or only asprivate individuals.)

    Western Sahara Case (1975) General Assembly Resolutions cited for the propositionthat free-association and self-determination are norms of international law.

    Texaco Overseas Petroleum et al. v. Libyan Arab Republic(1977) The legal value of UNresolutions can be determined on the basis of the circumstances under which theywere adopted, and by analysis of the principles they state.

    Arbitration decision. Texaco went to Libya, planned for the worst and got anagreement that Libya wouldnt nationalize the oil fields or refineries.

    Note A contract between a corporation and a foreign government is notinternational law. Its much better to get an agreement betweenthe US government and the foreign government. Otherwise,international legal standards wont apply unless there is some otherway to get international jurisdiction, and you can easily wind upgetting screwed by the foreign government.

    Aside Be wary of even the most highly-paid corporate lawyers advice oninternational law matters. In the experience of professional

    diplomats, many if not most corporate lawyers are clueless aboutthe realities of international law.

    Texacos lawyers put in the contract that the applicable law was Libyan law that wasin accord with international law principles, and any blanks would be filledwith international law, and disputes would be decided by internationalarbitration, not by the Libyan courts.

    Libya tried to nationalize the fields and refineries, so they went to the InternationalArbitration Court. The court said that UN resolutions are of varying weight.Not all represent clear agreement. But Resolution 1803 of 1962 was aclear agreement that Libya would have to compensate Texaco. It had nounfettered right to take the facilities without compensation.

    They had to find Libyan law, but Surah 5 of the Koran was part of it, and it said you

    had to perform your contracts.

    Note There is no generally-recognized right to property in international law.

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    II. THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW

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    AND

    THE RELATIONSHIP OF INTERNATIONAL LAW TO U.S. FOREIGN RELATIONS LAW

    The US is truly a nation of laws, especially as compared to many other countries throughout

    the world. A problem with that, however, is that often our law is contrary to international law.That is not an excuse for a violation, by the way. We may be obligated by our lawto not perform a promised duty, yet we will be liable for the breach. Shouldnt haveundertaken the obligation. Sometimes it happens because of internecinesquabbles, but youre still going to have to compensate for the violation.The principle that a state cannot plead its own law as an excuse for non-compliancewith international law has long been established and generally recognized. In 1887,e.g., Secretary of State Bayard said: It is only necessary to say, that if aGovernment could set up its own municipal laws as the final test of its internationalrights and obligations, then the rules of international law would be but the shadow ofa name and would afford no protection either to States or to individuals. It has beenconstantly maintained and also admitted by the Government of the United Statesthat a government can not appeal to its municipal regulations as an answer to

    demands for the fulfillment of international duties. Such regulations may eitherexceed or fall short of the requirements of international law, and in either case thatlaw furnishes the test of the nations liability and not its own municipal rules.

    Article 13 of the Draft Declaration of Rights and Duties of States adopted by theInternational Law Commission in 1949 says: Every State has the duty to carry outin good faith its obligations arising from treaties and other sources of internationallaw, and it may not invoke provisions in its constitution or its laws as an excuse forfailure to perform this duty.

    That standard makes sense. Nazis couldnt defend their actions by saying they didwhat the Reichstag said to do, and neither can you.

    Some other countries constitutions say that international law is part of their law,and that in the event of a conflict international law trumps as a matter of municipal

    law.In Germany, e.g., if you can prove an international law violation, you win inGerman court. International law takes precedence over municipal law.

    See also Italy, Austria, Greece, and France.

    Other systems, like the US, dont acknowledge international law as precedentalover municipal law.

    See Switzerland and the Netherlands.

    Lots of systems leave open the question of which rules prevail.

    Also, in many countries, the substance of international law is not an issue of fact forthe jury, but a matter of law for the court.

    We are bound to international agreements, even though our convoluted municipallaw may result in failure to keep our end of the deal. In the United States, there areconflicts at times between our law and international law.

    Customary international law is NOT the supreme law of the land here. Onlytreaties are.

    So customary international law loses to municipal law. But first doall you can to interpret the law in such a way that there is no

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    conflict.

    Customary international law is still important it just isnt asstrong as treaty law.

    Treaty law is even more complicated.

    Treaties prevail over inconsistent state laws.The Constitution prevails over inconsistent treaties.

    When a treaty conflicts with a federal statute, the most recent oneprevails. And the treaty would have to be either self-executing oralready executed by Congress.

    Back to Contents2007-2010 Nathaniel Burney

    You have to break this all down into customaryinternational law and treatyinternationallaw.The United States is very complex here.

    Customary international law.

    In the Paquete Habana case, our courts applied customary internationallaw, but note that it did not involve law contrary to US law. No controllingtreaty or municipal law existed, and the S. Ct. said that, had a treaty orexecutive/legislative/judicial law existed, it would have trumped customaryinternational law.

    The Constitution refers to international law in Article I 8: Congress has thepower to define and punish offenses against the law of nations. So theframers knew that international law existed.

    Article 6 says the supreme law of the land includes the Constitution, lawsmade in pursuance thereof, and treaties made in the name of the US.Period. Not state law, federal common law, judge-made law, etc. Youcannot plead supreme law of the land to excuse a breach of internationallaw.

    Murray v. Schooner Charming Betsy(1804) An act of Congress is neverto be construed in a way so as to conflict with international law, if thereexists a construction that doesnt conflict.

    When there is indeed a conflict, we must apply the supreme law ofthe land, which the President is sworn to uphold. There is authorityfor the President, when there is a true conflict, to apply US law overinternational law.

    Courts dont involve themselves in conflicts here its a politicalquestion for the executive branch. Under the Act of Statedoctrine, because of separation of powers, the courts just stay outof it.

    There are potential conflicts between the executive and legislature,between the feds and the states.

    The Constitution makes the President extremely powerful Chief Executive Officer of carrying out all executive

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    functions, monstrous powers in foreign affairs,Commander in Chief of armed forces, head of stateembodying the country in international activities.

    The President also has an interesting power to receiveambassadors and other public ministers. This has been

    read to mean that the President alone has the power torecognize another country.

    The legislature also got some international powers: it canborrow money, regulate customs, nationalization, defineand punish felonies, maintain & arm the navy, make rulesfor the conduct of the armed forces, power of the purse forthe executive to pay for what it wants to do, and the powerto declare war.

    Note Regarding declarations of war, there havent beenall that many declared wars in the many conflicts in ourhistory. Some say that a treaty where we say we willprotect another country is a de facto declaration of war.The NATO treaty doesnt require US commitment offorces, only such action as we deem necessary to takecare of a situation, because Congress was and remains

    jealous of its power to declare war.

    The judiciary doesnt have much, but it does haveresponsibility for interpreting the Constitution.

    The 10th Amendment may or may not give the states andthe people some say.

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    Treaty international law.

    Know the difference between Ratifying a treaty vs. Implementing orexecuting it. Different things.

    A treaty that says the parties agree to is binding. A treaty that saysthe parties intendto is not binding.

    Treaties are not made by Congress, but only by the President withratification by the Senate. Nevertheless, those treaties become the law ofthe land, regardless of what the House of Representatives or the SupremeCourt might have said about it. The only check on this power is wherepowers are given to Congress as a whole the power to declare war isone such power, which Congress guards jealously.

    If a treaty makes X a crime, Congress alone has the power to decide thepunishment the treaty provision has to be executed by Congress. Suchprovisions thus are never self-executing.

    Missouri v. Holland(1920) Conflict between a treaty and state law.Unlike acts of Congress, which are the supreme law of the land only ifconstitutional, treaties are de facto law of the land, and are binding on thestates as well as on the federal government.

    We had a treaty with England/Canada protecting migratory birds.

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    Missouri sued to prevent a federal game warden from enforcing thetreaty. The S. Ct. held that state powers fall whenever they conflictwith the treaty.

    This principle has been stated even more dramatically in yearssince. It is a slam dunk: the state loses. UnderBelmont, state

    lines disappear; states dont exist so far as treaties and executiveagreements are concerned. The federal national interest is sosupreme that treaties and executive agreements always trumpstate laws.

    Note The rule doesnt apply when state action is requiredto implementa treaty.

    Reid v. Covert(1957) If a treaty is contrary to the Constitution, then thetreaty fails. The Constitution trumps. Treaties and executive agreementshave the possibility of violating a constitutional provision and thus beinginvalid.

    Watch out for clauses in international agreements that are contraryto the US Constitution:

    Interference with the power to declare war.

    Prohibitions on free speech.

    Restricting the rights of aliens (recall that the Constitutionprotectspersons, not citizens).

    Denying due process of law.

    Denying equal protection.

    Taking private property.

    Limiting the right to travel.

    Just because a treaty is agreed-to, it may still need a little more to make itthe supreme law of the land.

    Foster & Elam v. Neilson (1829) A treaty is equivalent to a legislative actwhenever it is self-executing. That means it operates of itself without aidof any legislative provision. But, when the terms are contractual, theparties must execute it, so it requires an act of the legislature.

    The US needed access to the Gulf of Mexico, and Napoleonneeded money for his wars, and so was willing to sell the wholeLouisiana tract for $15M. But the land had French subjects and

    Spanish subjects. Titles were granted to different people for thesame land, then the US got it all. In order to secure the rights andprivileges of the people on the land, the US, Spain and Franceneeded a treaty to settle it.

    The treaty was alleged to give the King of Spain power to grant titleto land even after the US took control. The language said thatsuch a grant shall be ratified and confirmed. Did that meant itwas automatically ratified, or did it need an additional act ofCongress.

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    The treaty was contractual. Therefore, the contract must beactually performed to get the end result. The treaty merely statedthe intent of the parties to confirm a grant of land. It envisioned anadditional act of the legislature to implement it before the grant wasconfirmed.

    Self-executing treaties vs. Non-self-executing treaties.

    An international agreement cannot take effect as domestic law withoutimplementation by Congress if the agreement would do something that iswithin the exclusive law-making power of Congress.

    Thus, an international agreement providing for the payment ofmoney by the US requires an appropriation of funds by Congress.

    An international agreement cannot bring to US into a state of war.

    An international agreement cannot make something a US crime.

    An international agreement cannot raise revenue by imposing anew tax or tariff, but it can affecttariffs with most-favored-nationand similar clauses.

    If an international agreement is silent as to whether it is self-executing ornot, and the intention of the US is unclear, then look to things said by theWhite House/State Department or by the Senate in ratifying it.

    If a provision is non-self-executing, then the US is under an internationalobligation to adjust its laws and institutions (if necessary) to give effect tothe agreement. (Wed get a reasonable time to do so before being held indefault.)

    Fujii v. California (1950) A California statute forbade aliens ineligible forcitizenship from owning or using real estate. The plaintiff relied on the UN

    charter, in part, claiming that the statute violated human rights. This washeld not to be enough, however. The charter was not a binding set of ruleswithout some other act. (He won on 14th Amendment grounds, anyway.)

    Any agreement which itself requires further legislative enabling action bythe countries is non-self-executing.

    Note Im not talking about ratification by the parties.Ratification is self-execution.

    If you write in a provision describing how the US will fulfill itsobligations on its side, thats fine, but thats not binding as part ofthe international legal obligation.

    You do have some power to go into who implements

    what. Its just a problem when the unilateral obligation isnot rationally-related to the international agreement itself.

    Note well If the agreement makes it enter into force, and the provision isself-executing, then it is binding even if it hasnt yet been implemented bythe legislature.

    Whitney v. Robertson (1888) In the event of a conflict of a treaty withUnited States statute, the one that is most recent in time prevails.

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    The US and the Dominican Republic had a most-favored-nationagreement, where the US would never give another country abetter deal on sugar tariffs. If another country did get a better deal,then the Dominican Republic would get the same treatment. TheD.R. was utterly dependent on sugar exports, so it was importantthat the treaty say theyd always get the lowesttariffs on sugar.

    Congress then let Hawaii export sugar duty-free. The D.R.objected to the duty its had to pay, and paid only under protest.

    The S. Ct. acknowledged that treaties and statutes are both the lawof the land. When there is a conflict, it held, then the later in timecontrols.

    The statute violates the international agreement, sure, but the USlaw is whichever is most recent. The D.R. still has the right toreparations or other satisfaction, though.

    Note A more recent treatyovertakes inconsistent priorlegislation automatically only if it is a self-executing treaty.Otherwise, it overtakes the legislation upon the passage of

    implementing legislation.

    Charlton v. Kelly(1913) A breach of a treaty by one party makes thetreaty voidable by the other party.

    The US and Italy had a mutual-extradition treaty. Usually, statesdont agree to extradite their own natives, but this agreement saidthats what the parties would do. Italy refused to extradite its ownnationals to the US, however.

    An American was going to be extradited to Italy under this treaty,and argued that because Italy had breached the agreement it wasvoid, and so there was no need to extradite him.

    The Supreme Court held that a material violation of an internationalagreement doesnt automatically void the agreement. A treaty isbinding until abrogated, so it was still binding and the US had toperform.

    The executive branch decides when a treaty has been abrogated.In this case, they felt that it wasnt worth it. So the American gotextradited to Italy.

    Back to Contents2007-2010 Nathaniel Burney

    III. EXECUTIVE AGREEMENTS

    95% to 99% of all international agreements to which the United States is a party areExecutive Agreements.

    The Constitution doesnt refer to executive agreements, but they have been enteredinto from the beginning.

    Not the same as a treaty, but in terms of international law there is no difference.

    In terms of municipal law, the difference is that executive agreements arenot submitted to the Senate for approval. Treaties must be.

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    The 1972 Case Act requires that Congress be given a chance to look atexecutive agreements within 60 days. 1 U.S.C. 112b. All that happens,though, is that Congress recognizes the existence of the executiveagreement there is no need for congressional approval.

    If an executive agreement conflicts with the Constitution, the Constitution prevails.

    If an executive agreement conflicts with state law, state law loses.

    United States v. Belmont, 301 U.S. 324 (1937) The Soviets nationalizedeverything in Russia. American companies property was seized. ThePresident froze soviet bank accounts, as always, so that an agreementcould be made where the soviets would drop their claims to the accounts,which would then be distributed among the United States citizens whoseproperty had been taken. Pennies on the dollar, but at least it would besomething. In exchange, the President recognized the soviet government.

    Belmont was a private banker doing business in New York state.The United States sued to recover the soviet deposits with him.The lower court held that this would conflict with the interests ofNew York state, so it couldnt be done.

    The S. Ct. held that the feds have sole and complete power overinternational affairs, so even if the result of federal action would becontrary to the controlling public policy of the state, the state stillloses.

    New York didnt have the power to recognize foreign governments.Only the President could do that.

    United States v. Pink, 315 U.S. 203 (1942) same holding. Wheneverthere is a conflict between an executive agreement and state law, state lawloses. These are huge executive powers.

    Nevertheless, it is important to establish good relations with stateauthorities who do things, because they are probably going to violate someexecutive agreement along the line if theyre unaware of it.

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    When the President needs an executive agreement, he can do one of three things:

    1. If the agreement is crucial to international and national agreements, he shouldget a treaty.

    UN membership, NATO, extradition, taxes, postal matters. Only the reallybig commitments, nothing else.

    2. The President may just sign the agreement as an executive agreement, basedeither

    a. on his sole powers under the Constitution, or

    b. with congressional acquiescence if based on shared powers.

    Regardless of which basis it is, neitherkind of executive agreementrequires congressional approval.

    The statute books are full of acquiescences by Congress to let the

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    President make executive agreements in certain areas.

    So what happens when, even though the basis is sharedpowers, Congress was silent, and the President still did it?

    What happens when Congress is vocally opposed to it,and the President still does it?

    3. Sometimes, in certain economic agreements, the President knows he could do atreaty or an executive agreement, but instead he does a fast-trackagreement.

    The President makes the agreement, and it goes to the House and Senatefor a strict thumbs-up or thumbs-down. They cannot make anymodifications.

    These are rare. NAFTA, GATT.

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    Purely Executive Powers, versus Shared Powers.

    There are some, albeit very few, areas where the President has powers that hedoesnt have to share with Congress. Congress opposition or acceptance isirrelevant regardless of how Congress votes, the President alone can do thesethings, such as:

    Recognition of foreign governments.

    Receiving ambassadors.

    Most presidential powers here are shared with Congress. So most executiveagreements are Congressional-Executive Agreements. Congress has eithersupported it or acquiesced to it. The President does it with Congress blessing.

    Recall Youngstown Sheet & Tube, Trumans steel seizure case. Truman

    committed many troops to Korea, 50,000 of whom would die there, withouta peep from Congress yea or nay. While that was going on, asteelworkers union strike was planned. Hours before the strike, Trumanordered the executive branch to take over the steel mills and keep themrunning. The S. Ct. said his power to do this had to come from either theConstitution or a statute. No statute, not even any act of Congress existedfrom which this power could be implied. Justice Jacksons opinion broke itdown well (he was freshly back from the Nuremburg tribunal). There waslots of overlap between the powers of the executive and the legislaturehere, which created a zone of twilight (soon the be the name of a TVshow) in between the areas where each branch clearly trumps. Thelawyers job is to decide whether the President can go ahead or not. Thiscase had many different opinions, only three of which allowed the President

    to go ahead and do it. So Truman lost the President did not have thepower to seize the steel mills. Only Congress could do it.

    When there are shared powers, it is important to know whether Congresshas spoken on the area.

    Usually, Congress winks at the executives actions, or activelysupports them. But this isnt always the case.

    Merely because Congress has powers in an area, that doesntmean that the President doesnt.

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    Apply this analysis to conflicts in foreign affairs:

    Take, for example, the nonproliferation of nuclearweaponry. Nothingis more important tons of it is pouring overborders. Nuclear devices are all over. They arent technically

    weapons, but theyre just as deadly. Chemical & biologicalweapons are out there, too, and theyre no joke either.

    Because we arent part of an exclusive club here anymore, Congress justifiably is anxious that something bedone about it and fast.

    So Congress gives the executive branch funding andmarching orders to do something about it.

    Executive agreements are handy tools for doing somethingabout it.

    What if Congress hasnt spoken on a subject, and the President makes anexecutive agreement?

    The President has a good record here, so its still okay.

    If Congress vocally opposes it, however, and the executive agreementconflicts with a statute, then theres a problem.

    The standard is notthe same as a conflict between a statute and atreaty. If the President lacks the sole constitutional authority tomake this executive agreement, and Congress shares theauthority, then Congress prevails.

    Only once has a court addressed this problem. In 1948, the 4thCircuit decided Capps, where Congress had passed a law toprotect farmers.

    The law said that should the President detect a possible

    trade problem, then the President was to order aninvestigation. If the investigation turned up a problem,there were certain things he could then do.

    Our ambassador to Canada noticed that a lot of potatoeswere pouring in to the United States from Canada. TheSecretary of State made an executive agreement withCanada to permit unlimited potatoes, but only for seedpurposes, not for eating. The Secretary of State took itupon himself to do this without going through the stepsCongress had laid out.

    This is clearly a shared power commerce and trade.Congress had spoken dont do X without doing Y.

    Of course the Secretary of State likely had no knowledgeof the statute, as it was only a few months old. The courtnevertheless still held that the executiveagreement failedbecause Congress had said not to do it.

    There was much citing ofYoungstown.

    There was another case in 1981, Dames & Moore v. Regan, but itreally wasnt on point here. So Capps remains the only precedenthere.

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    Back to Contents2007-2010 Nathaniel Burney

    IV. STATES

    Definition.

    The nation-state is the fundamental entity of international law. States are not theonly actors there are also people, corporations, international organizations, etc. but states are the big ones.

    A government is notthe same thing as a state.

    A government is a separate entity from the state.

    Four Requirements:

    1. DEFINED TERRITORY, OVER WHICH THE SOVEREIGN EXERCISESCONTROL.

    Not every single river, stream and rock need be defined. Borderdisputes are common.

    Emerging states It is a common principle that emerging statesinherit the territorial borders they had before. Usually, the onlyother alternative is bloodshed.

    The former Yugoslavia did have a border agreement atfirst each entity would retain the borders it had prior toindependence. Had the nations of the world enforced thatborder agreement, much of the bloodshed and atrocitieswould have been avoided.[1]

    Still, the all bets are off approach seems to be theexception, rather than the rule, for emerging states.

    2. DEFINITE POPULATION OF PEOPLE.

    Can be a few hundred only, but you do need some people.

    3. UNDER CONTROL OF ITS OWN GOVERNMENT.

    If another state governs you, youre not a state yourself.

    4. CAPACITY TO ENGAGE IN INTERNATIONAL DEALINGS WITHOTHER STATES.

    More on the 4 requirements:

    States can give up any of these. Liechtenstein, for example, has given p allforeign-affairs power to Switzerland, yet it is still a state.

    There was a U.N. meeting to determine who was to pay for a

    certain project. The Swiss ambassador ran over to the Liech. seatand argued that the U.N. should pay for it, then ran back to theSwitz. seat to argue that the beneficiary nations should pay for it.

    You have to make decisions on whether an entity is a state or not, if youare to know what to do in a situation.

    Usually, this is not a problem. But sometimes...

    The question of statehood arises particularly in the followingsituations:

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    Break-up of an existing state into a number of states.

    Secession or attempted secession by part of a territory ofan existing state.

    Cases where foreign control is exerted over the affairs of astate, whether by treaty, unilateral imposition of authority,

    or delegation of authority.

    Cases where states have merged or formed a union.

    Claims by constituent units of a union or federation to theattributes of statehood.

    Territorial or non-territorial communities which have aspecial international status by virtue of treaty or customarylaw, and which claim statehood for certain purposes.

    The Restatement (Third) 206 states that the capacities, rights and dutiesof states include the following:

    Sovereignty over its own territory, and general authority over itsnationals.

    Status as a legal person, with the capacity to:

    own, acquire, and transfer property;

    make contracts and enter into international agreements;

    become a member of international organizations; and

    pursue, and be subject to, legal remedies.

    The capacity to join with other states to make international law, ascustomary law or by international agreement.

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    Recognition of States.

    Recognition is unnecessary for you to be a state, but it helps.

    Salimoff(1933) Recognition neither creates nor constitutes a state.

    There is no duty to recognize a state, even if it meets the 4 requirements.

    Recognition is discretionary.

    Even if you dont recognize a state, you may still be obliged to treat itsauthorities and actions as if it is a state.

    Is there ever a duty notto recognize a state?

    Yes, in certain circumstances. As when the general international

    consensus is that control has been wrested by force or threat of it.

    Like when Iraq invaded Kuwait, the United States and U.K.embassies remained there for a very long time in horrid conditions,to emphasize the nonrecognition of any incorporation into Iraq, andnonrecognition of the puppet government.

    Other situations where you dont recognize a state:

    Where recognition would be premature, as when anemerging state is still in the throes of civil war. Wait until

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    its really independent.

    Illegal states, founded on a violation of international law.Rhodesia, for example, was a fake South African apartheidhome-rule reservation.

    States long for recognition, and savor it when they have it. They need foreignrecognition, even though it isnt necessary for statehood.

    When the United States rebelled against England, we wanted recognitionfrom other countries. Other states were eager to recognize us, the Dutchfirst (to stick it to the English). France wanted to, but couldnt, because thesmart British took control of the cities. In retrospect, they should have goneafter Washingtons army, but they didnt. Then Saratoga, the first time thebrits got their butts kicked, showed that the rebels had something to backup their independent entity. Only then could France intervene (and eventhen it was way premature). And without the French fleet in the HamptonRoads, there would have been no surrender, and there would be no UnitedStates.

    Recognition was a major issue in our Civil War, as well. The Confederacyat first fought a defensive war. Then Lee said that the best way to win thewar and get foreign recognition was to invade the north. This wascalculated to get British and French recognition. The blockade of thesouthern ports had put vast numbers of the British population out of work,and there was great starvation. The average subject, though, was still soappalled by the idea of slavery that no matter how much it hurt the Britishrefused to recognize the Confederacy, though they came very close. (Eventhough they were starving, human rights still mattered.) The driving forcebehind Antietam and Gettysburg was foreign recognition by the French,British, Prussians, etc. (as well as that little thing called winning the war, butthats a subject for another discussion).

    In the United States, recognition is a political power left up to the President alone.

    There has to be a government in charge, for there to be recognition.

    A government may be a hard thing to find, as in Somalia in the 1990s, eventhough it is there.

    Finland wasnt recognized for a while, because all sorts of peoples livedthere. Yugoslavia had the same situation, but went the opposite directionand became so... balkanized... that it is not one state any more.

    Because a government is not the same thing as a state, there is adifference between recognition of a state and recognition of a government.

    Also, you can do both yet still have limited or severed diplomatic relations(these mean little, other than that you dont like each other). SeeRecognition of Governments, below.

    (Proposed) FIVE ADDITIONAL CRITERIA FOR RECOGNITION, developedfollowing the Yugoslavian crisis that began in 1991. Recognition would beaccorded in light of the states adherence to:

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    1. Peaceful and democratic determination of the countrys future.

    2. Respect for all existing borders, both internal and external and changeto those borders only through peaceful and consensual means.

    3. Support for democracy and the rule of law, with emphasis on the key roleof elections in the democratic process.

    4. Safeguarding human rights, based on full respect for the individual andincluding equal treatment of minorities.

    5. Respect for international law and obligations, especially adherence to theHelsinki Final Act and the Charter of Paris.

    See, Slovenia had broken off and whipped the Serbs thoroughly.They got their own territory, people, post offices, etc. But the EEC,the US, and the UN said they had to do the above as well.

    These criteria are NOT part of customary international law!

    They are expedient, not law, and the EEC has gone back onrequirements in many cases.

    This may be the beginning of a custom, but it isnt law yet.

    Recognition isnt guaranteed, even if it would be okay.

    Macedonia meets all 4 requirements for statehood. The UN peacekeepersare there with the consent of the government. It looks like a state, acts likeone. Yet nobody has recognized it, because Greece doesnt like the name(they have a border province with the same name, and they dont like theimplications, unsurprisingly). And the flag resembles Alexander the Greatsseal, so the Greeks dont like that either. So Greece hasnt recognizedMacedonia, and it gets mad at anyone who even thinks of it. (Soimmediately Turkey and Bulgaria recognized it.) But nobody else hasrecognized it. Lesson: Governments are made up of people. Bitter, petty

    people.

    Even though a state is not recognized, not a de jure state, it still may haveresponsibilities and obligations as a de facto state.

    Nonrecognized states can and do engage in activities that affect otherstates.

    Back to Contents2007-2010 Nathaniel Burney

    Recognition of Governments.

    It is possible to recognize a state its borders and people at least yet notrecognize the governing authority. Like the United States did with Vietnam.

    Foreign governments that are not recognized cannot sue in United Statescourts.

    Guaranty Trust Co. of New York v. United States, 304 U.S. 126(1938) Which government is to be regarded as the recognizedrepresentative of a foreign sovereign state is apolitical question,not judicial. It is to be determined by the executive, whose decision

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    will be conclusive on all domestic courts.

    There is no requirement under international law to recognize a foreign government.There are certain legal ramifications in your own country, but thats all. So goahead and slap that government in the face by not recognizing it.

    You can also recognize a government yet choose not to have diplomatic

    relations with it. For example, we recognize Castros government in Cuba,we just dont have any embassies there.

    Standards for Recognition of Governments:

    Thomas Jefferson set the early stage for this following the FrenchRevolution, instructing the U.S. envoy in Paris that it accords with ourprinciples to acknowledge any government to be rightful which is formed bythe will of the nation substantially declared.

    For a long time, regardless of how the government was formed,whether by revolution or whatever, if it was formed by the will of thepeople then we recognized it.

    During the 1800s, we had the simple standard that every nationpossesses a right to govern itself according to its own will, tochange its institutions at discretion, and to transact its businessthrough whatever agents it may think proper to employ.

    In the 20th Century, the United States got upset at the Latin-Americangovernments. There was a period of time when we didnt recognizegovernments ofrevolutionarycountries (like Mexico).

    We developed an interesting dichotomy between de factogovernment and de jure government.

    De facto the government that is actually there.

    De jure the proper government, the lawfulgovernment. The one we like best.

    This has resulted in a ton of awkward, difficult situations andproblems.

    The 1930 Estrada Doctrine (from the Statement of MexicanForeign Minister Estrada) was that there is no need for recognitionof governments. Being the de facto government is enough. (Still,Mexico never recognized Franco as the de jure government ofSpain.)

    The movement now is to just focus on the de facto government.

    When has a government emerged to the point where you can recognize it?

    Have to be careful. If you do it too soon, you may be impermissiblyintervening in a civil war.

    There were two warring camps over who represented the people ofSpain in 1936. The Nazis and Italians supported Franco as thelawful government, but they did so way prematurely (when the fallof Madrid was anticipated by many observers). Such premature

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    recognition can constitute impermissible involvement in theconflict. (Of course the Nazis had no problems with violatinginternational law left and right. They actively got involved in theconflict anyway.)

    There is definitely a subjective element to this. Its still an

    emerging area of law.

    Restatement (Third) 203 Although you dont have to formally recognize thegovernment of another state, you still have to treat as the government whateverregime is in effective control of the state (unless its control came about in violationof international law).

    What is the status of a government during the murky period of nonrecognition?

    Tinoco Claims Arbitration (1923) Britain asserted claims against CostaRica for acts of the predecessor Tinoco regime, which had come to powerby a coup and maintained itself in control for two years. Britain didnt

    recognize the Tinoco regime. When it fell, the restored governmentnullified all of the Tinoco contracts, including an oil concession to a Britishcompany. Britain argued that the Tinoco government was the onlygovernment in Costa Rica when the liabilities were created, and that itsacts couldnt be repudiated. Costa Rica argued that the Tinoco regime wasnot a government, and that Britain was estopped by its nonrecognition ofTinoco anyway. The sole arbitrator (Chief Justice William Howard Taft)held that a government which asserts control throughout the country withthe acquiescence of the people becomes the de facto government thenonrecognition of it by major powers has no effect on whether or not it isthe government. Also, the claim of estoppel was wrong because the Britishnonrecognition didnt dispute the existence of the Tinoco regime, and alsobecause the successor government had not been led by British

    nonrecognition to change the governments position.To hold that a government which establishes itself and maintains apeaceful administration, with the acquiescence of the people for asubstantial period of time, does not become a de facto governmentunless it conforms to a previous constitution would be to hold thatwithin the rules of international law a revolution contrary to thefundamental law of the existing government cannot establish a newgovernment. This cannot be, and is not, true.

    It didnt matter that the government wasnt recognized. Youcouldnt deny that it had been in control.

    This had been a deal between a British company, not thegovernment, and Costa Rica. Britain stepped in to protect the

    company (rare, and its usually a bad idea for a corporation tocontract with a government anyway).

    Ordinarily, changes in government dont change the statesobligations. The President signs for his state, not for himself. TheShahs agreements are still binding on Iran, and they have to gothrough the procedures to remove them if they dont like them.

    RememberTinoco in dealings with nonrecognized entities theyare still the effective government of their states.

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    Control can be brief. Here, Tinoco only had thirty months.It cant be just for a day, though.

    You also cant take over a portion of a state and speak forthe whole state (with the small exception of obligations thatare normally incurred by government anyway).

    Once in a while, unrecognized governments do things like sign agreementswith foreign governments, maintain diplomatic corps, etc.

    Nonrecognized governments can engage in acts that will be recognized by UnitedStates courts.

    Salimoff & Co. v. Standard Oil of N.Y., New York Court of Appeals 1933 Even though the Soviet government was not recognized by the UnitedStates, soviet confiscation of property within the territory of the USSR wasbinding on the United States courts.

    The property in question, oil land, was in the USSR. The de factopower in control of the Russian territory was the Soviet

    government. The land had been confiscated from Salimoff & Co.,who claimed that the Soviet government was a band of robbers.The Soviet government was not yet officially recognized by theUnited States, so what was the validity of its acts? The case wastaken to court in New York State.

    If a nonrecognized government is allowed to sue, thenyoud be recognizing it. Here, however, neither party wasthe Soviet government; the only parties involved werebusinesses.

    The first thing to ask in a situation like this is Is a foreigngovernment (or its agency) a party directly involved?There are a whole array of analyses that will go wrong if

    you dont ask this first.1. Is the foreign government involved?

    2. Is it a party to the court proceeding?

    The USSR met all four requirements of statehood, and the Sovietgovernment de facto existed. Recognition does not create thestate. So the New York court held that the Soviet governmentsactions did pass title of the oil lands, and it was legally binding inUnited States courts.

    Note that this was only property located within the USSR. Wedidnt permit the Soviets to confiscate assets abroad, such as bankaccounts in the United States.

    Salimoff, read in conjunction with Tinoco, also means that successors ofnonrecognized governments are bound by their actions.

    Upright v. Mercury Business Machines, New York appellate division 1961 Just because a government isnt recognized, that doesnt invalidateprivate obligations arising out of dealings with that government.

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    The defendant company issued a note to pay for typewriters fromEast Germany (very cheap, because East Germany didnt feed itsworkers). The note got passed around, and citizen Upright tried tohave it honored.

    The defendant company rebuffed the poor schmo, claiming that

    East Germany was not a recognized government, and themanufacturer of the typewriters was an instrument of thatgovernment.

    However, the fact that the government was not recognized doesntinvalidate the typewriter sales transaction, even though themanufacturer was controlled by that government.

    Fairness is also an issue here you cant transact with themanufacturer and then refuse to honor your own note, regardlessof the validity of the manufacturer. You made the note, you honorit.

    National Petrochemical Company of Iran v. M/T Stolt Sheaf(2d Cir. 1988).

    Bizarre exception to the rule that nonrecognized governments cannot getaccess to United States courts.

    Iran was trying to sue in United States courts over black-marketshenanigans. The State Department wanted Iran to be allowed to sue, onthis one occasion only.

    The executive has great powers here, to which the judiciary deferred.

    On international law matters, a State Department amicus is actuallygiven weight by the courts.

    A foreign government in exile is nota de facto government. It may be de jure,

    however.

    It doesnt control a defined territory, thus it is not a state.

    It can be treated as a de jure government, however. The Polishgovernment in exile was very effective during WWII, acting out ofLondon.

    You have to choose whether to take the status of de jure government inexile.

    The PLO decided not to, because although it couldhave beenrecognized as such, that would be admitting that they werentactually in control.

    The Palestinians have been doing everything they can to look likea state theyve got a flag, currency, passports, etc. But theyarent necessarily in control of their own territory, and theyre notreally able to engage in foreign relations. Maybe theyll be anindependent state sometime, but Israel wont let that happen untiltheyre satisfied on security. (Israel still makes agreements withthe Palestinians regarding extradition, however.)

    State Succession.

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    The rights and responsibilities a state takes from its predecessor are onlythose which it can convince other states that is has succeeded to.

    If a state has just undergone a change in government, therights/capacities/obligations of the state are unchanged.

    Only a concern if the state acquired sovereignty over a territory from

    another state (absorbed another state or part of it, or became independent).

    Back to Contents2007-2010 Nathaniel Burney

    Self-Determination.

    The right of peoples to self-determination is undeniably a right under customaryinternational law, but the hard part is defining Self in self-determination.

    One source of customary international law here is the United NationsDeclaration of Principles of International Law Concerning Friendly Relations

    Among States in Accordance with the Charter of the United Nations (1970).

    The right to split away and form your own new government

    is onlyrecognized in terms of ending colonialism or ending foreignsubjugation.

    The declaration is not meant to authorize or encourageany action which would dismember or impair, totally or inpart, the territorial integrity or political unity of sovereignand independent states conducting themselves incompliance with the principle of equal rights and self-determination of peoples, and thus possessed of agovernment representing the whole people belonging tothe territory without distinction as to race or creed.

    This is a big exception.

    Self-determination is not just the right to break free and establish a new territory.

    There is also a middle course, a right of minorities to be themselves without beingpunished a right to participate in cultural, linguistic, etc., groups.

    The problem is, that leads to more separatism. If every ethnic, religious orlinguistic group claimed statehood, there would be no limit tofragmentation. Peace, security and economic well-being for all wouldbecome even more difficult to achieve.

    Separatist groups may not have the right to rebel. Nor may they be entitledto foreign assistance. (They do, of course, have human-rights rights.)

    Back to Contents2007-2010 Nathaniel Burney

    Sovereignty over Land, Sea, and Air.States are sovereign, and cannot interfere with other states without permission.Sovereigns are responsible for everything and everyone inside their territory.Citizens owe real allegiance to their sovereign state (IRS goes wherever you go, forexample).

    UN Charter Article 2, 7, says that you cant interfere with what asovereign does in its own territory, with the exception of enforcement.

    Acquisition of Territorial Sovereignty.

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    How do you acquire territorial sovereignty? How do you get control overthis plot of land?

    Borders are not set in stone, and there are many border disputesaround the world. But most border disputes are settled bynegotiations, not with tanks.

    Borders have amazing legal ramifications. On one side ofan imaginary line drawn through the woods, youll bepunished for behavior that may be positively encouragedon the other. Usually, without GPS or a surveying team,you cant determine which side of a border youre on.

    To maintain your territory, you dont have to physicallyoccupy every square inch of land 24-7, but not a day goesby without some action to maintain your borders.

    Title, in most cases, descends from discoveryof the land.

    Island of Palmas Case (1928) oft-cited case here. Righton the international boundary between the Dutch EastIndies and the Philippines sat the Island of Palmas. It hadbeen discovered, but not settled, by Spain. It had beentreated as Dutch by the Netherlands for centuries. TheUnited States got Spains Pacific holdings, and the Treatyof Paris specifically included this island (well, on the maponly, it wasnt listed in the document, but includingsomething on a map thats part of a document isdangerous this way. And the Dutch werent party to theTreaty, so they wouldnt be estopped by the map anyway).So was the island Dutch or American?

    Spain had based its territorial claim on discovery(well, at least they were the first Europeans tosight it). But all they did was see it, they didnt set

    foot on it.The Dutch claimed that it was theirs, based on acontinuous and peaceful display of sovereignty.Well, they hadnt occupied it either, but the Dutchgovernment had been having official relations withthe tribal leaders there, and theyd had dealingswith the island from time to time. During thecouple of hundred years that this was going on,there was nary a peep out of Spain.

    By discovery, Spain got inchoate title.

    Thats just a preliminary right. You haveto do something else within a reasonable

    period for title to vest. In this case, theydhave had to occupy the island.

    At the very least, Spain should haveobjected to the Dutch activities. By failingto do so, it was estopped from claimingsovereignty over the island. And thus sowas the United States when it took overSpains territories.

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    Spains claim of contiguity was a red herringhere. (Its ours because its close to us.) Thatsnot a factor when islands are at issue. Maybe,however, if part of a land mass.

    Legal Status of Eastern Greenland Case(1933).

    In 1814, Denmark lost Norway and Swedenbecause it had sided with Napoleon and lost(ironically, Swedens new ruler had been a fieldmarshal for Napoleon). Denmark still retainedcontrol over Iceland, Greenland, and some otherislands.

    For many years, nobody objected or disputedDenmarks claim to Greenland, not until the firsthalf of the 20th century. However, in themeanwhile, Norway secretly coveted Greenland.This was a big deal 840,000 square miles of

    territory.In 1921, Norway disputed Denmarks claim. In1931, Norway landed a military force on the island,saying that it had been terra nullius, and that nowthey occupied it. I dont see anybody here, andits mine now.

    Denmark disputed this claim, and in good Nordictradition submitted it to ICJ arbitration.

    Denmark based its claim on a peaceful andcontinuous display of sovereignty (having readthe Island of Palmascase). Itd been continuouslyasserting its rights, and nobody had disputed it

    until 1921.

    TWO REQUIREMENTS FOR PEACEFUL ANDCONTINUOUS DISPLAY:

    1. Demonstrated will to be sovereign,AND

    2. Display that sovereignty throughaffirmative actions not just by sayingthat nobody else owns it.

    Denmark had done little, but they had done whatthey could they put their claims in internationaldocuments from time to time. From 1815 to 1914,

    there was no doubt about their claim, and evenbetween 1921 and 1931 Denmark had still doneenough for the arbiter to decide in their favor.

    According to the court, Norway wouldhave lost anyway, on 2 other unrelatedgrounds.

    Norway had failed to object whensigning a multilateral agreement

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    on herring, where the Danes hadstated that Greenland was theirs.What they should have done waseithernot sign it, ormake areservation (up in the corner,state that your country does not

    assent to that assertion).

    Norway hadexpresslypromisednot to contestDanish sovereignty overGreenland.

    Norways express promise not to contest Danish sovereignty over Greenlandwere oral. Just some vague statements between ministers at a cocktail party. Howcould that possibly be legally binding on Norway?

    Norways Minister for Foreign Affairs sent an official memo back to hisgovernment on July 22, 1919, stating: I told the Danish Minister to-daythat the Norwegian Government would not make any difficulty in thesettlement of this dispute.

    The PCIJ considered it beyond all dispute that a reply of this nature givenby the Minister for Foreign Affairs on behalf of his Government in responseto a request by the diplomatic representative of a foreign Power, in regardto a question falling within his province, is binding upon the country towhich the Minister belongs.

    Understandably, lawyers get antsy when the appointed diplomatsstart talking out of turn.

    Norway replied that under its constitution, the foreign minister could notenter into a binding international agreement on matters of importancewithout approval of the King in Council. But the PCIJ rejected that claim. Itwas sufficient, the Court found, that the foreign minister acted within his

    province in replying to an inquiry of the Danish government.DONT DO BUSINESS ORALLY. PUT IT IN WRITING. Dont take the riskof getting stuck like this, especially because the conversations cantaccurately be reconstructed.

    Burkina Faso v. Republic of MaliFrontier Dispute (I.C.J. 1986) There are lots ofproblems in Africa resulting from political borders being drawn across tribal andgeographical boundaries. They can live with the borders as drawn, or make themall contested (in which case bloodshed is unlimited). Here, bloodshed was avoidedby an ICJ settlement.

    Malis President made a statement to the press that Mali wouldnt care ifBurkina Faso got the disputed territory. His handlers quickly covered forhim, saying that it was a marvelous example of his witty nature. The ICJheld that it wasnt binding anyway, because the statement was made tothepress, not in diplomatic channels.

    El Salvador v. Honduras (I.C.J. 1992) A riverbed was the border. The riverbedshifted. So now where was the border? (This happens all the time on the RioGrande, too.)

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