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International Law
Temple University School of Law
Hollis, Duncan B.

HOLLIS – INTERNATIONAL LAW OUTLINE – Fall 2012:
Critiques of IL:
·         Compliance Problem
·         “no respect” problem
o   It's not that they don't respect, there are just a lot of things to argue about
·         Too amorphous/too hard to define
·         5 C's problem:
o   No Constitution
o   No Court
o   No Congress
o   No Cops
o   No Code
§ 102 Restatement- Sources of International Law
A.    A rule of international law is one that has been accepted as such by the international community of states
a.       in the form of customary law;
b.      by international agreement; or
c.       by derivation from general principles common to the major legal systems of the world.
B.     Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.
C.     International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.
D.    General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.
Statute of the International Court of Justice – Article 38
A.    The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a.       international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b.      international custom, as evidence of a general practice accepted as law;
c.       the general principles of law recognized by civilized nations;
d.      subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
 
Case Studies of Consular Notification:
Javier Suarez Medina
·         VCCR- Article 36(1) – deals with the relations between foreign nat’ls abroad and their consulate
o   The person being arrested has to be told they have a right to talk to their consulate
o   If D wants, you have to tell the consulate
o   The D’s gov’t doesn’t have to do anything
Breard v. Greene
·         Breard scheduled to be executed following his conviction for murder. P filed for habeas relief in federal court, arguing arresting authorities wrongfully failed to inform him that, as a foreign national, he had the right to contact the Paraguayan consulate pursuant to the VIENNA convention.
·         LATER IN TIME RULE- When a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.
 
 
LeGrand
·         Similar to Breard – state executed prisoners – ICJ said US was in violation of the VCCR – ICJ said the remedy was the US had to “by means of their own choosing” review the process in light of that failure.
·         Int'l law treaty obligation under VCCR- states must inform detained foreign nationals of right to access consulars
·         Art. 36(2) full effect of VCCR
·         Fed Courts rely on later in time statutes (Anti-Terrorism & Death Penalty Act)- came after VCCR
Avena & Other Mexican Nationals (Mexico v. US)- 2004
·         Court says US shouldn't execute prisoners- no one should be executed while looking at case
o   ICJ says US in breach of Art. 36(1)(d)- failed to give nationals consular notification rights
o   Mexico wanted new trials, but ICJ says US giving review & reconsideration is enough
·         Why review by State Courts?
o   US tries to go to political measures (board of pardons/governors give review)
o   ICJ says no, courts must give review- Courts are best suited to review the judicial process
·         Must give review and reconsideration of failure of consular notification and review must be done by Courts
Osbaldo Torres:
·         Oklahoma review of case (why Governor commutes sentence)
o   Governor looking out for rights of US citizens abroad (reciprocity)
·         Court recognizes VCCR incorporated as US Law through supremacy clause
·         ICJ has jurisdiction over interpreting treaty (US proposed rule)- therefore US bound to follow treaty- US law now
Sanchez-Llamas:
·         Raised his claim & asked for suppression- Not sentenced to death
·         52 named Mexican nationals in other cases- there is no stari decisis so each case is heard on its own merits (only binds US on those particular Mexican nationals, not later nationals)
o   A number of defendants test the waters- does the principle that any foreign National not told about consular information hold across other cases?
·         SCOTUS says this is not needed
o   Treaty is not self-executing- Fed gov't did not give any procedural law to this remedy
o   Doesn't agree w/ ICJ on full effect -Procedural default rule overrides this rule of the ICJ
Medellin v. Texas: 2008
·         US agreed to give ICJ jurisdiction and abide by decision in AVENA
·         White House's role in this case:
o   Asks Texas to adhere to AVENA decision & comply by using state courts
o   Texas says that it is a Fed problem and doesn't believe Memo is binding
o   1 week after President's memo- US withdraws from Optional Protocol on consular relations
§  Means US doesn't want ICJ hearing the issues & telling US what to do
State Criminal Proceedings v. US Treaty obligation:
·         Does Avena decision warrant direct compliance? (US Treaty obligation directly)
·         Not self executing
o   Does covering Memo from President give direct compliance? (US Pres have power to give effect?)
§  Pres does not have power to do this
·         Self-Executing Treaty:
o   Who does the treaty speak to?
§  Does it speak to the Courts and ask them to do something in particular?
·         A rule a court could take directly and apply, then could be self-executing
§  Or does it speak to someone else (Congress)?
·         If seems to need another step in between for courts to enact, then non-self-executing
·         Not enforceable by courts unless Congress has taken steps
o   Courts says this is a provision of authority in a treaty to ICJ- issued pursuant to treaty obligation
·         Article 94 of UN Charter- This case turns, not on Avena or VCCR – on UN charter
o   NO- proper construction of Art. 94 is that each member state will work within its own political structures to work towards compliance
o   Court says there is a binding obligation to give review, but not in position to give full effect, Congress can do that – In the meantime Medellin executed
·         There are treaty obligations binding US to abide by ICJ decisions- but not obligations on Texas as a matter of law b/c:
o   Non-self-executing treaty
o   President lacked authority via a memo to convert Aveda decision into binding law
·         80 other treaties that have dispute settlement clauses where US must go to ICJ
o   Seems to suggest ICJ decisions will not be US law absent some enacting legislation
o   International law is relevant- not always dominant, but it does have an impact
 
Background:
Peace of Westphalia- 1648
·         Signal event -Beginning of use of sovereignty to establish a system of world unity- sovereigns beholden to no other
·         Congress of Vienna- 150 years later
·         League of Nations – 100 years after Congress of Vienna
o   Ends w/ WWII
United Nations Charter-
·         Based on sovereign equality of nation states
·         Leaves unchanged the basic premise (nation state & sovereignty)
·         Though now it is no longer Euro-centric – Third world
·         UN charter outlaws force (war)- exceptions- self defense or w/ security council approval
6 lasting lessons:
·         Religious Equality
o   Allows toleration of different versions of religions & free religious practices within their territories – How a state treats people within its territory affects other states
o   Art. 16 in Congress of Vienna- religious equality becomes an entrance fee to get in (human rights in UN Charter)
·         Peaceful Settlement of Disputes
o   Want states to settle peacefully- If there is a fight, do not go to hostility
o   UN- refrain from hostility and force
·         Free Trade
o   Now it is often about tariffs and free usage of navigable water ways etc
o   Free trade is the base point (low barrier)
·         Sovereignty
o   Start of sovereignty as basis of state relations
o   Previously a vertical system- Pope, Holy Roman Emperor, then kings, princes etc
§  Becomes a horizontal system, states are on same playing

nterest)
 
Harold Koh- Why do Nations Obey International Law?
·         Transnational Legal Process 
o   Regular interactions between national boundaries
o   This forces an interpretation(s) of what the law is
o   States have an internalization of the rule
§  Will reinforce the old rule, or will sometimes lead to new rule
·         Not necessarily inconsistent with other theories
o   Can explain how the law came to be, but is not good at being predictive- So process focused
 
 
 
 
 
THE SOURCES OF INTERNATIONAL LAW
Formal Sources- (constitution) – rules that delineate the procedures and methods for creating rules of regular application.  Provide blueprint for…
Material Sources- existence of a rules, which if proved, have the status of legally binding rules of application (statutes, common law, regulations, treaties etc. )
Incidences of obligation- rules of specific application. Rules operating between specific entities (contract)
In IL distinction is much murkier
·         System does have one formal source that is well recognized – general consent of states creates general rules of application
·         There is must debate on other sources of IL – but everyone agrees on this one form
·         Debate is about whether this is one among others or if it is THE only one
Article 38 – Statute of the International Court of Justice:
·         Material sources of IL
o   International conventions
o   International custom
o   General principles of law
o   Judicial decisions (teachings of the most highly qualified publicists[academics])
§  No stare decisis – can influence or reveal the state of the law
§  Most agree that these are the basic forms of material law
 
Treaties and Other International Agreements
·         Establish rules expressly recognized by the contesting states
o   Some treaties are just deals, but there are law making treaties
·         First- Debt for nature swap treaties- dedicate a million acres of rain forest for preservation- US relieves the debt
·         Second- Genocide convention- not to engage in willful targeting for political grounds for extermination
o   Second is more law making- obligation does not cease & many states sign on- general consensus
o   Some treaties establish general rules of application
 
Basis of Obligation – Pacta Sunt Servanda
·         Deuteronomy 20: 10-18
o   What standard of conduct did God expect of Israelites towards their neighbor
·         Joshua 9: 3-21:
o   Gibeons, a people from near by act as if they are from far away- lie to Joshua
o   They do not destroy enemies because of an oath to God's law (treaty)
o   Treaty had divine law premise – This is what gave them their force
·         Peace of Westphalia secularizes the treaty system
o   Divine law basis is gone, all we have left is previously agreed to commitment
·         Pacta Sunt Servanda- Treaties ought to be obeyed
o   Baseline norm- general principle of IL
o   THE general principle of IL
§  Agreements must be kept
o   Natural law foundation to Treaty law – if you accept this law, everything flows from it
Legal Status of Eastern Greenland: – Who can make a declaration on behalf of a state?
·         Ihlen Declaration:  Example of unwritten treaty
·         Interdependent declarations given in formal setting with agents making representations & promises that are intended to bind each other as a result.
·         Problems with this rule?
o   He said she said problem
o   Recording problem