1.THE NATURE OF INTERNATIONAL LAW
I. International and Comparative Law
a. Comparative Law – Law of other nations; not binding on U.S., but persuasive authority
1.Supreme Court engaged comparative law in 3 controversial areas (affirmative action, death penalty, and same sex marriages) – looked at the European Court of human rights.
b. International Law – These are laws that are binding (like treaties, etc.)
1.Public – law governing foreign transactions of individuals and corporations
2. Private – legal relation between states
3. Misleading – foreign transactions highly in the public sector, and states to state transactions highly private
II. Sources of International Law – Article 38 of the Statute of the International Court of Justicedefines the sources of international law. Look at them in order (hierarchy), to find the law.
a. Page 27 – The sources of international law (Graving disagrees with this part of the book) – They distinguish btwn material sources and formal sources
1. Formal sources – the main sources of international law (treaties and customs)
a. Int. custom is generally accepted as binding international law.
b. Treaties and customs both require consent (that consent might be harder to show with custom)
c. Jus Cogens – immutable laws of human existence – these laws are non-consensual laws.
1. Graving believes that these are consensual basis as well.
b. Treatiesandother bilateral/multinational agreements to which sovereigns are signatories, and which govern the issue.
c. Customary international law (CIL).
1.General practices of states, accepted as if they were law.
2. Followed not out of habit or expediency, but because considered law.
d. General principles – Broad concepts that can be applied (like estoppel, good faith in negotiations, etc.)
1.Principles that reoccur anywhere in the world, and is accepted by any jurisdiction that care about the principles of international law.
e. Judicial Decisions – Judicial decisions don’t create a binding precedent, so looked at in a cautious way. Past decisions considered, but not in a binding way like in the U.S.
f. Jurist Publications – Publications like law review not binding, but can be persuasive
III. Enforcement of International Law
a. Ways to settle Disputes
1.Set up an independent arbitration panel (other than ICJ)
a. Countries of the world would set up an agreement to enforce all arbitration agreements. So if one state doesn’t want to abide by decision, its assets can be frozen by other countries seeking to enforce the arbitration agreement
2. Most international disputes are settled through negotiations or arbitration (meditation)
3. In addition to ICJ, there’s the international criminal court, European court of human rights, etc. (ad hoc tribunals)
4. Also sometimes domestic courts
b. Outside Enforcement – sanctions, diplomacy, politics, shame, refusal to trade (economic sanctions), military intervention
1.Different effect in different parts of the world – The more powerful you are, the more likely you are to not abide by international law
a. Less pressure on US to take treaty seriously (smaller, weaker countries cant really hurt US by not trading, etc, so no deterrence for US)
2. Most states abide by international law most of the time
c. Long Term interest in abiding by International law:
1.Fear of isolation
2. To have legitimacy and persuasiveness
a. More powerful states can take a bigger hit to legitimacy without compromising power
3. Self-interest – in terms of long-term outlook to present itself as a law-abiding society
a. Interest state has in good reputation, maintaining a sense of identity
d. Short-term interest in abiding int’l law
1.Rule of law needed for organization in society
2. Reciprocity (self-interest also) – If you break your agreements, no one will enter into agreements with you. Agreements are mutually beneficial
3. Also to have a right for our citizens, we need to give the same right to other nation’s citizens
4. Normative: Right/moral thing to do
IV. European Convention on Human Rights:
a. McCann v. United Kingdom(pg. 3)
1.Facts: 3 known Irish terrorists were in Spain. UK authorities were alerted to their presence, and they were killed during a confrontation. The estates of the deceased brought an inquest against soldiers and govt, believing it was a wrongful killing, to the ECHR.
2. Analysis: UK Court only requires a killing to be justified, but Court looks at Article 2 para. 2 of the European Human Rights Convention (treaty), which requires that deadly force be absolutely necessary for it to be lawful. Although the soldiers were justified, the court must use the int’l law, and says the killing was not absolutely necessary (there was negligence and incompetence in the operation).
3. Damages: Although UK very powerful, they still had to pay the terrorists’ families compensation, – they still have to abide by the int’l tribunal.
4. Notes: European Convention of Human Rights – product of post-WWII politics, in wake of Nazi atrocities. Countries get together to enforce human rights. This is a court of last resort, meaning you must exhaust domestic remedies first before coming here.
5. Case by the European court of Human rights established under the European human rights convention, which was a treaty
a. Treaties are like both contracts and legislation
b. This court is located in Strasbourg, France.
1. Doesn’t belong to any particular state
c. The commission that the court is reffering to in this case no longer exists
1. Coroners’ court where the jury gave the verdict
d. Commission that reviewed the jury verdict, then then shed in the High Court, then European court of human rights. Suit – action against the UK in Northern Ireland (this came before the commission)
6. The rule of international law is you must exhaust all local remedies (unless a treaty says otherwise)
7. The ECHR is looking at Art. 2 of the EC on HR
a. This is a treaty “everyone’s right to life shall be protected by law”
8. The court must decide if britain violated the treaty.
9. Three IRA terrorists were suspected of having a ccar bomb to detonate at the changing of the guards. Authorities found out about all of this and in efforts to stop the terrorists, they killed all three. Coroners court and commission said
V. The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law
a. Filartiga v. Pena-Irala (pg 17)
1.Facts: Filartiga’s son was tortured & killed by Pena, an official (all parties from Paraguay, and event took places in Paraguay), in retaliation for father’s political beliefs. They could get no justice in Paraguayan courts (lawyer arrested etc.). So, they sue in U.S., but they’re dismissed for lack of jurisdiction. Issue of jurisdiction of U.S. courts is on appeal.
2. The suit is between 2 foreign nationals, so how does the U.S. have jurisdiction?
a. Under the Alien Tort Statute, U.S. has jurisdiction to hear tort claims brought by an alien where th
b. Striking a bargain
c. Common rules
d. Common goals
V. Beginnings of modern treaty-making
a. Treaty between the jews and the Romans
1. This was made bc of predictable circumstances (Jews or Romans attacking) and to make a contract saying what each side would or wouldn’t do.
b. Peace of Westphalia
1. Regarded as the beginning of modern international law (1648) and the beginning of sovereign nations
2. Protestants and Catholics will leave each other alone and grant freedom to one another (liberty of Conscience)
3. Each of the states of the empire may make alliances w/ other states as long as they are not against the emperor or the empire.
c. Treaty of Paris
1. Recognized the U.S. as a separate, independent, sovereign nation by the British
a. This treaty lays out the metes and bounds description of the original 13 colonies
2. Recognition of the U.S.
a. Was the U.S. recognized as an independent nation under the declaration of independence in 1776 (Declaratory theory) or the treaty of Paris when British recognized us as an independent nation (constituted theory)?
VI. Why do countries agree to limit their sovereignty in treaties?
a. Reputation – respect from other countries
b. Reciprocity – so that other countries will be willing to limit their own sovereignty
c. fear of Retaliation – other countries might retaliate against someone who breaks a treaty obligation.
VII. Grounds for Invalidating a Treaty—
a. Mistake in fact
c. Corruption or coercion of a representative
d. Violation of jus cogens (the fundamental norm of international law—similar to axiom that a contract cannot be for an illegal purpose)
VIII. When is a treaty binding?
a. There is a gap of when its signed, and when it comes into force (when it’s ratified)
1.The process for ratification can be in the treaty itself, or the usual process is that it’s signed by certain parties, like in U.S., sent to Congress to ratify.
2. Art 18 – once a treaty is signed, only obligation you have it to not defeat the purpose of the treaty, but there is no affirmative duty until it’s ratified.
b. No world legislature, so states only bound to treaties which we agree to be bound to
c. Some international agreements not binding because they lack consent; based on consent to be bound
d. Intent to be bound – not aspirational
1.Sometimes writings not treaties because they are aspirational writings, which the parties did not intend to be bound to. But like a plan for what they want to do in the future, intentions, without specific obligations. So a treaty not only has to be a written document, but the parties must have intended to be bound, and not only setting down some aspirational goals.