CHAP 1. THE NATURE OF INTERNATIONAL LAW
About 192 Nations in the United Nations
All of our NATO allies were part of the likeminded group
☞Georgia v. Russia
1) the source of dispute
a) the minority in Ossetia
i) Latvia is 40% of Russia and spread over the old Soviet area as minor ethnics.
ii) same situation in Ukraine
iii) German invaded Poland on same ground
iv) Indonesia v. East Timor
Indonesia was colony of Dutch
East Timor was colony of Portuguese for 400 years
Indonesia became independent and invaded East Timor
Security Council cannot punish Indonesia because of its abundant natural resources. If embargo is done, it will be disaster world economy.
Only UN Council can do is a bunch of resolution
The situation continued for decades and Indonesia
b) Oil pipeline through Georgia
c) UN Security Council cannot do anything due to veto power of Russia
i) China had also similar problems on Tibet
International Court for arbitration became a part of UN in the name of international court of justice
Art 38, of international Court Justice of law shows where is the source of international law
International convention
Not binding but persuasive
Global level consensus is required.
Russia recently conceded the independence of southern Ossetia
A. The History of International Law
1. Two kinds of international Law
(1) public international law; relates to political interaction of states
(2) private international law; relates to legal aspects of the international economy and conflicts and cooperation among national legal systems.
B. An International Law Sampler
1. Two case
(1) McCann Case illustrates
a) an international legal rule made by a treaty
b) adjudicated by an international court
c) enforced by a regional international legal system
☞McCaNN v. United Kingdom
a) fact
i) Three persons Mr. McCann, Ms Farrell and Mr. Savage crossed border to Gibraltar
A) they, member of PIRA, were suspected for planning bomb killing
B) army had the clue to the car bombing
ii) While arresting them, four soldiers shot them
A) there were discrepancies between the witnesses whether the shooting was necessary
* Ireland became independent after WW I
However, England continued to control southern area of Ireland
Northern Ireland fought against Britain for freedom of all of Ireland.
Most of Northern Ireland are Catholics
British soldiers fired to Catholic demonstrators
Since then, British army became a target of terror.
British tried to suppress northern Ireland
Violence escalated and spread to England
Bombing in department store in London
A series of car bombs in London
* Ireland and Britain brought this to international court
British argued IRA violated European Convention
* Wales has similar law to Britain
* Scottland has no legislature, common law system, legal framework is quite different to the framework of England
Now Scottland had parliament
It had great autonomy from England
Different tort law system from England
b) procedure
i) The applicant filed suit against Britain and lost
ii) the applicants filed this with European Human Rights Commission for violating its Article 2 which prohibit unnecessary killing of people
c) holding
i) the soldiers are not responsible
ii) however, the operation was negligently planed and United Kingdom is responsible for the death and ordered to pay for the expenses and costs to applicants.
* the situation is not combat situation but a law enforcement situation.
* the detonation device was not found at the spot (found in somewhere else)
* If government arrested the suspect early, there would be no problem
=> the argument of government is that it was necessary to delay the arrest to find out over whole conspiracy.
* the level of the violence used for arresting was not necessary
=> the act of soldier was reasonable, but was not necessary
=> the language in the Convention required “absolutely necessary”
=> If people do not satisfy the result of this court, they may try to change the language in the Article to “reasonable”
=> But people may also try to change to “absolutely necessary in non-emergency situation and reasonably necessary in emergency situation”
* compensation is required. The remedy is compensation for cost to family.
* The court is last resort
If overall legal system is disrupt, and member of the society can go to this court.
* The action of the British Government
=> They paid.
=> If the government did not pay, it is no longer thought to be the party of the Convention.
* If someone in US wrongfully imprisoned in US, he may sought monetary damage by going to international Court.
* UN Security Council is also powered to enforce judgment of international Convention, but it never exe
ld suffered from torture can sue in US
=> Congress set up the rule under Constitution.
=> Founder of US concerned the violation of nations
* Whether the civil judgment in US court can be executed in Paraguy
=> no, it would not accept the jurisdiction
=> If property found in Switzerland
=> maybe possible to get excuted.
2. Art 51
When member of UN council was attacked, they can act for self defense.
Security Council can use armed force under resolution of Council
5 Countries have the power of veto
US, Russia, England, France, China
China; originally the power was given to Taiwan government. While Taiwan losing the power, current China grabbed it instead.
3. Europe
Most of the countries are member of EU (European Union)
Free flow of goods and services between the countries
Ex) German banks in France
Each country have its own legal system, but lawyer of other country can serve in other countries.
Ex) French lawyer takes German Bar exam.
Dispute in Italy’s protection its tire business
Established standard for tires
Other countries cannot be imported to Italy due to the regulation.
Response of Germany and France was a retaliation by regulating other goods.
Safety, health, trademark can be used to regulate the free flow of goods and services.
Something organizations to deal with these problem is required.
Labor was also great concern.
Polish Union’s solidarity was a concern.
Right to organize labor union became uniform.
Uniform rule is desirable for free flow of labor service
EU generally focus on money (Economic matter)
Tax
Other political problems are dealt in other organizations.
European Court of Justice, European Convention on Human right
Bureaucratic
Not EU organization, but a council of Europe
Deals non economic cooperation like human rights or criminal law.
This org. operate
