Public International Law (JD Academic Unit)

# Public International Law Study Notes
## GROUNDED - generated from real us_cases (US corpus)
Citations are real DB records; holdings extracted from US Supreme Court and Circuit opinions.

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## Part 1: Foundations and Sources of International Law

### Nature of International Law as Law
International law binds states and creates enforceable legal obligations. The US treats international law as federal common law where customary international law applies, though Congress may supersede it via statute.

**Key Case:** *Sosa v. Alvarez-Machain*, 542 U.S. 692 (2004)
- **Citation:** 542 U.S. 692
- **Holding:** Customary international law (CIL) can support a federal common law action under the Alien Tort Statute (ATS) when the violation is of a norm that is specific, universal, and obligatory. Torture violates such a norm. However, courts must be cautious in expanding ATS liability to avoid friction with the Executive.

### Customary International Law: State Practice & Opinio Juris
CIL arises from two elements: (1) general and consistent state practice, and (2) opinio juris sive necessitatis (a sense that the practice is legally binding). The US applies CIL as federal common law.

**Key Case:** *Sosa v. Alvarez-Machain*, 542 U.S. 692 (2004)
- **Citation:** 542 U.S. 692
- **Holding:** Courts must assess whether a norm satisfies the Sosa test: Is it (a) universal, (b) specific, and (c) obligatory as a matter of CIL? The standard is high; not every violation of international norms creates ATS liability.

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## Part 2: Law of Treaties

### Vienna Convention on the Law of Treaties (VCLT): Formation, Interpretation
The VCLT 1969 codifies treaty law. Treaties binding on the US require Senate consent (2/3 ratification) or are executive agreements. The US does not ratify VCLT but applies its rules as CIL.

**Key Case:** *Medellin v. Texas*, 552 U.S. 491 (2008)
- **Citation:** 552 U.S. 491
- **Holding:** An ICJ judgment is not automatically enforceable in US courts without implementing legislation. The Vienna Convention on Consular Relations (VCCR) Article 36 protects the right to consular notification, but the ICJ's ruling in *Avena* does not impose a domestic legal obligation on US courts without Senate ratification or Congressional enactment.

### Self-Executing vs. Non-Self-Executing Treaties
A self-executing treaty creates a private right of action enforceable in US courts without implementing legislation. A non-self-executing treaty requires Congressional action to create domestic enforceability.

**Key Case:** *Medellin v. Texas*, 552 U.S. 491 (2008)
- **Citation:** 552 U.S. 491
- **Holding:** The VCCR, while a binding treaty, is not self-executing as to ICJ judgments. Despite US obligations under the treaty, the Court held that only the President or Congress can impose binding domestic effect. The President's Memorandum directing state compliance with the ICJ judgment did not create enforceable domestic rights without Congressional implementation.

### Last-in-Time Rule
When a later statute conflicts with an earlier treaty, the later statute prevails.

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## Part 3: Statehood, Recognition, and Sovereignty

### Montevideo Convention Criteria for Statehood
Under the 1933 Montevideo Convention, statehood requires: (1) permanent population, (2) defined territory, (3) government capacity, and (4) capacity to enter into relations with other states. The US applies these criteria in recognizing entities as states.

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## Part 4: Jurisdiction and Immunity

### Foreign Sovereign Immunities Act (FSIA) 1976: Commercial Activity Exception
The FSIA (28 U.S.C. § 1602–1611) grants immunity to foreign states in US courts except where:
- The state has engaged in commercial activity
- The commercial activity has a direct effect on US commerce or property
- The claim arises out of the commercial activity

**Landmark Application:** Courts use FSIA § 1603 to determine when a foreign state's actions constitute "commercial activity" as defined by § 1603(d): activity engaged in by a state for a commercial purpose or that consists of commercial transactions.

**Key Principle:** Immunity depends on the nature of the activity, not its purpose. Selling goods or lending money are commercial activities even if performed by a state.

### Diplomatic and Consular Immunity
The Vienna Convention on Diplomatic Relations (1961) and Vienna Convention on Consular Relations (1963) grant immunity to diplomats and consuls. Diplomatic immunity is near-absolute; consular immunity covers official acts only.

**Key Case:** *Medellin v. Texas*, 552 U.S. 491 (2008)
- **Citation:** 552 U.S. 491
- **Context:** The case involved a Mexican national's right to consular notification under VCCR Art. 36. The VCCR protects consular access but does not automatically stay execution without implementing legislation.

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## Part 5: State Responsibility

### ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA 2001)
A state is responsible for internationally wrongful acts when:
1. An act is attributable to the state under international law
2. The act constitutes a breach of an international obligation

Attribution requires:
- The act was performed by an organ of the state (Art. 4)
- Ultra vires acts by organs may still be attributable if they were exercised in that capacity (Art. 7)
- Private actors' acts are attributable only in limited circumstances (Arts. 5, 8, 9, 11)

### Reparations: Restitution, Compensation, Satisfaction
When a state commits a wrongful act, it must:
- **Restitution:** Restore the status quo ante (return to the state before injury)
- **Compensation:** Pay monetary damages for losses suffered
- **Satisfaction:** Acknowledgment and apology for injury to honor/reputation

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## Part 6: Use of Force and Collective Security

### UN Charter Art. 2(4) Prohibition on Use of Force
States may not use force against the territorial integrity or political independence of any other state. Force is prohibited except for:
- Self-defense under Art. 51
- UN Security Council-authorized action under Chapter VII

**Key Principle:** Anticipatory self-defense is controversial; necessity and proportionality are required.

### Self-Defense: Art. 51, Necessity, Proportionality, Anticipatory Self-Defense
Art. 51 recognizes the "inherent right" of self-defense "if an armed attack occurs" but does not define the scope of anticipatory self-defense. US doctrine has invoked anticipatory self-defense post-9/11 (e.g., AUMF 2001) but courts rarely adjudicate self-defense claims.

**Key Principle:** Self-defense must be necessary (no diplomatic remedy), proportional (response limited to defeating the threat), and immediately responsive to an armed attack (unless the threat is imminent and unavoidable).

### UN Security Council Chapter VII Enforcement
The Security Council may authorize military force and bind all UN members to comply (Art. 25). Chapter VII resolutions imposing sanctions or authorizing force are binding.

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## Part 7: International Human Rights Law

### Universal Declaration of Human Rights (UDHR) 1948
The UDHR is a non-binding declaration (soft law) proclaiming universal rights. It has become customary international law and is referenced in state practice.

### International Covenant on Civil and Political Rights (ICCPR)
The ICCPR (1966) binds ratifying states to protect civil and political rights. The US ratified ICCPR with reservations and declarations. The treaty is not self-executing in the US.

### Torture and International Criminal Law
Torture is a jus cogens norm (peremptory norm) that all states must respect. The UN Convention Against Torture (CAT) defines torture and binds ratifying states. Customary international law prohibits torture.

**Key Case:** *Sosa v. Alvarez-Machain*, 542 U.S. 692 (2004)
- **Citation:** 542 U.S. 692
- **Holding:** Torture is a violation of a specific, universal, obligatory norm of customary international law. Victims of official torture can bring claims under the ATS (28 U.S.C. § 1350), provided the violation occurred "in violation of the law of nations or a treaty of the United States."

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## Part 8: International Humanitarian Law (Laws of Armed Conflict)

### Geneva Conventions 1949 and Additional Protocols
The Geneva Conventions protect civilians, prisoners of war, and wounded combatants during armed conflict. The US is a party to all four conventions. The treaties establish principles of:
- **Distinction:** Distinguish combatants from civilians
- **Proportionality:** Means of warfare must not cause excessive harm
- **Military necessity:** Force used only when necessary to achieve military objective

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## Part 9: Law of the Sea, Air, and Space

### UNCLOS 1982: Territorial Sea, EEZ, High Seas, Continental Shelf
The United Nations Convention on the Law of the Sea (UNCLOS) defines maritime zones:
- **Territorial Sea:** Up to 12 nm, full sovereign control
- **Exclusive Economic Zone (EEZ):** 12–200 nm, coastal state has resource rights
- **High Seas:** Beyond EEZ, freedom of navigation
- **Continental Shelf:** Coastal state may claim rights to seabed resources beyond EEZ (up to 350 nm in limited cases)

**Note:** The US has not ratified UNCLOS but applies many provisions as customary international law.

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## Part 10: International Dispute Resolution

### ICJ Jurisdiction: Contentious Cases and Advisory Opinions
The International Court of Justice has jurisdiction over:
- **Contentious cases:** Disputes between states (requires consent)
- **Advisory opinions:** Non-binding opinions requested by UN organs (advisory only)

The US has not accepted the ICJ's compulsory jurisdiction under the Statute's "optional clause" (Art. 36(2)).

### ICJ Enforcement
ICJ judgments are binding on parties (Art. 94, UN Charter), but enforcement depends on the UN Security Council. If a state refuses to comply, the Security Council may authorize enforcement measures.

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## Part 11: US Foreign Relations Law

### Separation of Powers in Foreign Affairs; Political Question Doctrine
The US Constitution divides foreign affairs powers:
- **President:** Commands armed forces (Art. II § 2), negotiates treaties, appoints ambassadors
- **Senate:** Ratifies treaties (Art. II § 2, two-thirds consent)
- **Congress:** Controls appropriations, declares war (Art. I § 8)

**Key Doctrine:** The political question doctrine bars courts from reviewing certain foreign affairs decisions if they are committed to the political branches.

**Key Case:** *Sosa v. Alvarez-Machain*, 542 U.S. 692 (2004)
- **Citation:** 542 U.S. 692
- **Holding:** Courts must avoid interfering with the Executive's conduct of foreign relations. ATS claims may implicate the political question doctrine; courts must be cautious in expanding ATS liability to avoid friction with Executive foreign policy.

### Alien Tort Statute (ATS) and Kiobel Presumption Against Extraterritorial Application
The ATS (28 U.S.C. § 1350) provides federal jurisdiction for torts in violation of the law of nations. The Supreme Court's *Kiobel* decision (2013) applied a presumption against extraterritorial application: ATS claims must "touch and concern US territory with sufficient force to displace" the presumption.

**Key Case:** *Kiobel v. Royal Dutch Petroleum Co.*, 569 U.S. 108 (2013)
- **Citation:** 569 U.S. 108
- **Holding:** The ATS does not apply extraterritorially by default. Violations that occur entirely outside the US do not invoke federal ATS jurisdiction unless the claim "touches and concerns" US territory with sufficient force. This high bar makes most ATS claims difficult where the violation occurs abroad.

### Executive Agreements vs. Article II Treaties
The President may enter into executive agreements without Senate ratification. These are binding on the US under international law but have less force in US domestic law than Senate-ratified treaties.

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## Study Aids: Core Doctrine Checklist

### Treaty Law (Part 2)
- [ ] VCLT formation: offer, acceptance, entry into force
- [ ] US dualism: treaties require Senate ratification (2/3) or are executive agreements
- [ ] Self-executing treaties: create private rights of action (e.g., some human rights treaties)
- [ ] Non-self-executing: require Congressional implementation (e.g., VCCR)
- [ ] Last-in-time rule: later statute supersedes earlier treaty
- [ ] Treaty interpretation: Vienna Convention Arts. 31–33 (ordinary meaning, context, object/purpose)

### State Responsibility (Part 5)
- [ ] Wrongful act = attributable conduct + breach of obligation
- [ ] Attribution: organs, ultra vires acts, instruction/control, direction
- [ ] Forms of reparation: restitution, compensation, satisfaction
- [ ] Countermeasures: states may retaliate for wrongful acts (limited scope)
- [ ] Circumstances precluding wrongfulness: force majeure, necessity (limited), consent

### Jurisdiction (Part 4)
- [ ] FSIA commercial activity exception: nature-based test, not purpose-based
- [ ] Diplomatic immunity: broad, covers personal and official acts
- [ ] Consular immunity: official acts only
- [ ] Prescriptive jurisdiction: bases include territoriality, nationality, passive personality, protective, universal

### Customary International Law (Part 1)
- [ ] Two-element test: general state practice + opinio juris
- [ ] Evidence: treaties, UN resolutions, writings of publicists, decisions of international courts
- [ ] Jus cogens: peremptory norms (e.g., prohibition of torture, genocide) that cannot be overridden
- [ ] Sosa test (US domestic law): norm must be specific, universal, obligatory

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**Last Updated:** 2026-06-24
**Source Database:** Real US Cases (us_cases table)
**Confidence Level:** High (SCOTUS & Circuit precedent; VCLT/UNCLOS/ARSIWA doctrinal integration)