Preface to the Fourth Edition

This casebook is designed for an introductory course in international law.  It builds on the traditional theories and concepts of public international law, but it also addresses new institutions and other developments, especially the relationship between international and domestic law and the increasingly blurred line between public and private law.  It analyzes as well how public international law frequently affects private activity, both individual and business.  This casebook, however, does not cover in detail international trade, investment, or other economic transactions.

This Fourth Edition represents a major updating and revision of the casebook.  For example, the Fourth Edition contains a case study focusing on the terrorist attacks of September 11, 2001, and the U.S. and international response to those attacks; materials on Iraq through the war there in March-April 2003; descriptions and excerpts of recent decisions by the International Court of Justice, including Congo v. Belgium on official immunity and the LaGrand decision concerning the Vienna Convention on Consular Relations; and new materials on the Alien Tort Statute (or Alien Tort Claims Act), the state sponsor of terrorism exception to the Foreign Sovereign Immunities Act, and the principle of universal jurisdiction.

Every chapter has been updated with new and fascinating issues and materials, and the Notes and Questions have been thoroughly revised throughout the casebook.  We also shortened the book by deleting or editing previous materials.

BACKGROUND

The United States and its people increasingly are enmeshed in international transactions and are influenced by developments abroad.  The governments of the United States and more than 190 other nations deal daily with a host of issues between one another, with international institutions (like the United Nations, the International Monetary Fund, and the World Trade Organization), and with regional organizations (such as the European Union and the North Atlantic Treaty Organization).  The problems range from essential, if mundane, matters (like postal agreements) to those of great economic significance (such as currency exchange rates and retaliatory tariffs).  The issues even extend to matters of life and death (e.g., the use of military force and efforts to combat the proliferation of weapons of mass destruction).

Each day public and private entities move across U.S. borders billions of dollars worth of currency and goods, hundreds of thousands of people, and tens of thousands of ships, planes, and other vehicles.  They also engage in a tremendous amount of communication to and from the United States, through telephones, fax machines, e-mail messages, and the Internet.

This international activity usually occurs in carefully structured ways, most often without serious incident.  The structure is provided by a complex and evolving mix of international and national law.  It is administered and enforced by international and national entitities, both public and private.

As a result, U.S. lawyers in all parts of the country are increasingly affected.  They need to understand the relevant international law and how it can affect the activities of their clients—whether the client is a government or private party.  For example, can an individual citizen invoke a treaty in domestic litigation?  Does a U.S. law against terrorism or against price-fixing extend to activity outside the territory of the United States?  How can individuals resort to international tribunals, such as international arbitration?

OBJECTIVES

In introducing students to international law, this casebook has five major objectives:

1. The casebook should make students think about the sources of public international law, its principal theories and concepts, and recent developments in the law.  In analyzing sources, particular attention is paid to treaties and customary international law, which students probably have not studied before in depth.  Traditional theories and concepts, such as the various theories for exercising prescriptive jurisdiction, the act of state doctrine, approaches to foreign sovereign immunity, and justification for the use fo military force, are then addressed in appropriate sections.

Historical materials are often used to help define the scope of a principle and to trace its development.  Current materials are then extensively drawn upon to note present status, to stimulate students’ interest in the issues, and to suggest what the future might hold.  Excerpts from the 1987 Restatement of the Foreign Relations Law of the United States (Third), including its comments and reporters’ notes, are often used because the Restatement generally represents a consensus among a wide range of U.S. international lawyers.  Even when the Restatement’s views are contested, they can provide a useful starting point for discussion.

2. This casebook also analyzes the supporting institutions that help public international law facilitate the burgeoning international activity.  The system is addressed as it has actually developed and as it is likely to develop in the future.

The years immediately after World War II witnessed tremendous creativity and accomplishment in establishing an international system.  The United Nations, International Court of Justice (or World Court), World Bank, and International Monetary Fund (IMF) were established.  While the International Trade Organization never got off the ground, the General Agreement on Tariffs and Trade (GATT) was signed.  This progress stimulated hopes by some observers that a new international order was at hand.

Hopes for a new order were also kindled in the 1960s and 1970s as colonialism neared its end and many new countries appeared—usually less developed economically than Europe or North America but strong in their convictions.  The end of the Cold War in the 1990s then held out possibilities for greater international cooperation.  Throughout these post-World War II years, the growing foreign trade and investment, accompanied by sweeping changes in technology and communications, contributed to a world that has become increasingly interconnected.

The reality of the world today is not, however, a simple structure, but rather a complex mix of international and national law, administered and enforced by a variety of entities.  Some of the post-World War II institutions like the World Bank and the IMF have grown and adapted very effectively, and a weak GATT has been succeeded by a strong World Trade Organization (WTO).  On the other hand, the United Nations and the International Court of Justice have not lived up to their proponents’ expectations.  Although the end of the Cold War and the initial U.N. response to the 1990 Iraqi invasion of Kuwait revived hopes for the U.N.’s future, these hopes were since dampened by the legal and diplomatic debate over Iraq in 2002-2003.

At the same time, other formal and informal arrangements have emerged and assumed important roles.  These other arrangements include regional organizations like the European Union and the Association of Southeast Asian Nations (ASEAN), frequent use of international arbitration, and a vast array of multilateral and bilateral agreements for various purposes from protection of diplomatic personnel, to promotion of foreign investment, to the enforcement of arbitral awards.

3. The casebook recognizes and studies the interaction between public international law and national agencies and courts.  It is not uncommon for such entities to look to international law on jurisdictional and interpretive questions, as well as on certain substantive issues such as human rights.  The status of international law in the U.S. domestic legal system raises many issues of theoretical and practice importance.

4. Students will also be made aware of how public international law increasingly affects private activity, both individual and business.

For example, a national court might draw in part upon international human rights norms to find multinational corporations or individuals liable for large damage judgments for their activities in foreign countries. Or WTO international trade rules might allow an injured country to impose retaliatory tariffs on imports of hundreds of millions of dollars of goods produced by companies in the country that was found to be violating the rules.  On a less dramatic scale, the question of sovereign immunity of foreign governments is not only of interest to governments and their diplomats, but can also be crucial to an American company dealing with a foreign supplier owned by a government.

As a result, the future lawyer should understand how the rapidly increasing body of international law—including multilateral and bilateral agreements—is made, how it can be changed, and how it can affect his or her client’s interests.  As student should also understand how governments make decisions and how diplomacy operates.

5. Although this casebook focuses on international law, it also aims at educating U.S. lawyers.  Consequently, it often considers international law from the American perspective, including substantial sections on the U.S. Constitution and U.S. laws that have international impact.  At the same time, because American lawyers must appreciate the different principles and possible strategies under foreign legal systems, materials from other legal systems are included to illustrate contrasting approaches.

OVERVIEW OF THE STRUCTURE OF THE BOOK

This casebook is designed primarily for an introductory course in international law that involves tow to five semester hours.  However, there are sufficient materials to allow professors, within limits, to select their own emphases and to choose among the materials.

Chapter 1 starts with the standard definition of international law, contrasts it with more familiar forms of domestic law, and introduces the ways in which international law is formed and enforced.  A section on historical background briefly examines the development international law and institutions.  The third section considers how international law is really law.  The fourth section provides some of the various scholarly approaches to international law, including international relations theory, economic analysis, critical legal studies, and feminist jurisprudence.

The chapter concludes with a new case study on the terrorist attacks of September 11, 2001, and the U.S. and world reactions to them.  This case study illustrates how international law actually works.

Against this background, Chapters 2 and 3 introduce the basic building blocks of international law—treaties and custom—in the international and the U.S. domestic context.  In Chapter 2 students learn what a “treaty” is and some of the basic rules of treaty law.  The chapter also covers the formation of customary international law, including the controversial U.S. General Assembly.  There is then a brief examination of the law-making role of international organizations and of non-governmental organizations—both multinational corporations and nonprofit groups.  Finally, there is a section on the general principles of law of major legal systems as a further source of international law.

Chapter 3 considers the status of treaties and customary international law within the U.S. legal system.  It begins by considering the scope of the U.S. treaty power and the circumstances under which treaties are enforceable by private parties in U. S. courts.  It then considers the foreign relations powers of the national government more generally, and the constitutional law that governs interactions between Congress and the President in foreign relations.  The chapter next discusses the status of customary international law in U.S. courts, with particular emphasis on the use of such law in international human rights litigation.  The chapter concludes by examining the role of the individual U.S. states in foreign relations and the circumstances under which their foreign relations activities will be deemed to be preempted.

Chapter 4 examines the major, distinctive means by which international disputes are settled.  It starts with the process of international negotiations, turns to the International Court of Justice (ICJ), and then analyzes the development of regional courts (especially the European Union’s Court of Justice) and the increasingly important role of international arbitration.  As recent examples of international dispute resolution systems, materials are included on the North American Free Trade Agreement (NAFTA) and the WTO.  Finally, there is a section on the role of domestic courts and the enforcement of foreign court judgments.

Chapter 5 defines “state” and introduces some of the consequences of statehood, including the issue of recognition by other countries and a new government’s obligation to be bound by the past agreements of prior governments.  This chapter also considers the key international and regional organizations that appear as actors throughout this book, ranging from the international institutions (such as the United Nations, IMF, and World Bank) to regional economic or security organizations (such as the European Union and the North Atlantic Treaty Organization).

Chapter 6 considers the immunity that states have from suit in the domestic courts of other states, focusing especially on the immunity provided for in the U.S. Foreign Sovereign Immunities Act.  The chapter also considers international and U.S. law relating to the immunity of diplomats and heads of state.  Finally, the chapter discusses the “act of state doctrine,” a common law doctrine applied by U.S. courts that limits their examination of actions by foreign governments.

Chapter 7 examines the international bases for a state to regulate private conduct within and outside its territory and the evolving international rules limiting extraterritorial application of law.  For comparison purposes, the chapter concludes with a section that considers briefly the principles of “private” conflicts of law.

Chapter 8 considers the limitations on state activity against aliens and alien property within its territory, and the expansion of these rules to protect the state’s own citizens under the regime of international human rights treaties and institutions, looks at the history of U.S. involvement in international human rights law, and examines regional human rights law and institutions.

Chapter 9 deals with the international law of the sea.  It briefly considers the centuries-long development of customary international law and the 1958 Geneva Conventions.  The focus is then on the Law of the Sea Convention, which came into force in 1994 and has been adopted by almost all the countries of the world, except for the United States, though the United States has accepted many of the Convention’s provisions as customary international law.

Chapter 10 introduces the emerging international regimes covering environmental matters.  The recent and limited customary international law principles are being rapidly supplemented by bilateral and multilateral treaties.  The chapter addresses two situations in particular; first, the relatively successful international effort to deal with ozone depletion through the Montreal Protocol and other measures, and second, the continuing struggle to respond to global warming with the Kyoto Protocol and other approaches.

Chapter 11 explores international law regarding the use of force.  After introductory historical materials, the chapter examines the justifications for the use of force that emerged in the period after World Wars I and II, especially the legal norms found in the U.N. charter.  The justifications are first considered for an individual state’s use of force against another state of terrorists, and then for collective actions through the United Nations and regional organizations.  Various examples of uses of force are considered, including the conflicts in Vietnam, Kosovo, and Iraq.  The Iraq case study is a substantial one that begins with Iraq’s invasion of Kuwait in 1990 and continues through the war in Iraq in 2003.  There is also a major section on individual responsibility and international humanitarian law, including materials from the Nuremberg Tribunal, the Geneva Conventions on 1949, and the new International Criminal Court.  Finally, there is a brief section on U.S. domestic law (including the War Powers Resolutions) and a concluding section on international efforts to combat the proliferation of weapons of mass destruction.

Each chapter contains a broad range of materials to illustrate the issues and principles.  As suggested by the detailed table of contents, these materials include background information, treaties and other international agreements, domestic laws, and decisions by courts and arbitral panels.

Each chapter also contains frequent questions and short problems for students, often based on recent events or reasonable hypotheticals.  These questions and problems are designed to focus students’ attention on the major issues and rules, and to challenge students to apply the relevant law from the perspectives of different clients and to explore alternative enforcement strategies.

While the materials in each chapter include key excerpts of important documents, the texts or excerpts of many basic documents are provided in a separate Documentary Supplement.  These documents include, among others, the U.N. Charter, the ICJ Statute, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the Treaty of the European Community, many other multilateral treaties (such as important human rights conventions, the Law of the Sea Convention, and the Montreal Protocol on the Projections of the Ozone Layer), the U.S. Constitution, and the key U.S. laws (such as the Foreign Sovereign Immunities Act and the International Emergency Economic Powers Act).  There are also many supporting documents for the substantial case studies on the terrorist attacks of September 11 and on Iraq (e.g., U.S. congressional resolutions and U.N. resolutions).

Also, to help readers keep abreast of current developments in international law, we have listed many sources (including Web sites) in the casebook and the Documentary Supplement.  We would also note here the various online and hard copy materials of the American Society of International Law.  Its Website is www.asil.org. In addition, there will be a special Web site containing updates to this casebook, at http://www.lawinternational.org.

In short, our approach is a blend of the traditional and the new.  It should provide the basis for a rigorous course in the fascinating subject of international law.

Professor Carter and Professor Trimble originally conceived this casebook and co-authored the first three editions.  Having left the academic world, Professor Trimble has chose just to comment on this Fourth Edition, Professor Carter has been primarily responsible for the revisions and updates to Chapters 1A-B, 1E, 2, 4, 5, 7, 9, 10, and 11.  Professor Bradley has been primarily responsible for the changes in Chapters 1C-D, 3, 6, and 8.  The Fourth Edition has benefited from substantial communication between Professors Carter and Bradley, with each making comments on and contributions to the other’s chapters.

Our efforts on this edition and on the new Documentary Supplement were helped considerably by the comments received from many people who have used the earlier editions—faculty, students, and others.  As before, we very much welcome your comments on this edition.

Barry E. Carter
Phillip R. Trimble
Curtis A. Bradley

May 2003

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