Fred Green International Law Fall 2011
International Law Outline
I. The Nature of International Law
A. Introduction—History and Nature of International Law:
International Law has two parts:
(1) public—legal relations of states
(2) private—foreign transactions of individuals/corporations
How is international law created?
(1) treaties—the main source of int’l law
(2) practice (custom)
How to enforce international law?
· Compared w/ municipal law, intl law lacks some enforcement mechanisms. For instance, if there is a money judgment, there may be no way to collect the money.
· The UN is allowed to enforce ICJ judgments, but this hasn’t been done except in cases of aggression (like the invasion of Kuwait).
· Sanctions, however, are somewhat viable due to public opinion—most countries want to be a part of the “family of nations.”
· Intl courts are also there to develop norms and standards.
Individuals in International Law:
· Only states can be parties in the ICJ (except for advisory opinions for intl orgs)
Efficacy of International Law—how to make it more effective in the context of sovereignty.
· Sort of a constitution—sets up machinery and rules
· Declarations of the UN—no binding effect
· Security Council Decisions have a binding effect.
· Two types of Resolutions:
o Declaring Existing Law
o Trying to Create law (have to be careful here).
o To tell the differenceà “adopted by consensus” (meaning no vote) or there will be a list break down (vote).
· Four Normative Declarations from the UN:
o On Human Rights (this resolution is generally accepted)
o Torture (Filartiga)—based on fundamental practices/norms.
o Resolution against Apartheid (crime)
· How to distinguish normative from not:
o Consensual elementàWhat if something voted for has been abandoned? You can fill this gap w/ fundamental law, general principles, natural law.
· Activities of the General Assembly can be evidence of state practice.
· Should every country have the same vote? Depends on the topic being addressedà e.g., the Law of the Sea, should landlocked countries get the same vote.
B. An International Law Sampler:
o Another problem to consider: Do you take a case to an international or national tribunal?
§ Filartiga—national tribunal—unsucessful.
§ McCann—intl tribunal–successful
· McCann v. United Kingdom (1995; Euro court of human rights)
3 known IRA were in Gibraltar. The military had information about a possible terrorist attack, and followed them. It was believed terrorists would use a car bomb detonated by a remote control. While SAS were following them, it seemed as though they were preparing for the attack, and wanted to arrest them. As one soldier was about to do so, it seemed to him that one of the possible terrorists moved his hand as if he would press a button to detonate a bomb, and soldier shot him. Then another possible terrorist looked as if she would press a bomb and she was shot as well. 3rd terrorist was also shot dead. It was later discovered that they did have a bomb in a car, and would have been used.
Estate of deceased brought an inquest against the soldiers and UK govt. Jury returned verdict of lawful killing. Decedents' estates then brought the case to the Court of European Human rights.*Inquest – An inquiry by a coroner or medical examiner, sometimes with the aid of a jury, into the manner of death of a person who has died under suspicious circumstances, or who has died in prison .Issue: Whether the killings by the soldiers were reasonably justified in the circumstances as opposed to whether they were absolutely necessary under Article 2 para. 2 of the European Human Rights Convention.
Holding: there was a breach of the convention; the force used was not absolutely necessary. Court believes from evidence, that although it is true there was a possible terrorist attack coming, soldiers should have used greater caution before shooting. “Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected , even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms.” This failure by the authorities suggests a lack of appropriate care in the control and organization of the arrest operation. Court not persuaded that deadly force was absolutely necessary, and so it was a violation.
DISSENT – The inquest jury listened to 79 witnesses, and so their opinion of a lawful killing should be highly valued. The use of force did not exceed what was absolutely necessary.
European court (international body) enforced Article 2 of the Convention on Human Rights (international treaty provision). UK pays the judgment. In UK- outrage. Can give up sovereignty in a treaty, it is not absolute. UK agrees to convention and accept jurisdictions/rules of court (lose sovereignty). [US refuses to join international criminal court for sovereignty issue] Attempts to advance law and protect human rights, advance civilization (respect for rule of law).
Filartiga v. Pena-Irala (2nd Circuit, 1980)
· A Paraguayan boy was tortured to death by Pena. It appeared local remedies were exhausted. The boy’s sister was in the US on a visa and Pena then moved to the US. The boy’s sister brought charges against Pena in the US under 28 USC §1350—Federal courts have jurisdiction over “all causes where an alien sues for a tort committed in violation of the law of nations.”
· Holding 1: Pena’s conduct violated the law of nations b/c freedom from torture is now a part of intl customary law.
· The court looked at scholarly writings, intl agreements and orgs, laws from different nations and the US stance on torture according to the State dept.
· This case is more subjective than McCann—not as clear where rules are.
· The monetary relief awarded could never be enforced.
· BUT: 90% of countries practice torture so how can it be state practice??
o There is a general recognition that torture is wrong, but still not state practice.
o He is recognizing jus cogens.
· Fundamental norms supercede express laws.
· Judge doesn’t make case for state practice but does for jus cogens norm
SOURCES OF INTERNATIONAL LAW: International conventions, treaties, custom (and acceptance of), general principles of law as recognized by civilized nations, and limits to most highly qualified publicists of the nations. Can still decide cases if nations agree otherwise (to find equitable solution).
· In intl law, hierarchy of sources is difficult. (pg30, nt 4) Usually treaties are considered the primary source.
· Article 38 of the ICJ statute (VERY IMPT):
o International Conventions
o Intl Custom: Custom w/ Article 38 is difficult to apply.
o General Principles of Law Recognized by Civilized Nations—
§ There are certain concepts shared by countries—e.g., appellate procedure, no person should be a judge in their own case. (These are things that pervade almost every system).
§ “Civilized nations” now means all countries w/ developed legal systems.
o Subject to Art 59, judicial decision and the teachings of the most highly qualified publicists of the various nations (as a subsidiary means b/c they are intl sources).
§ Judicial/teachings—ICJ is talking about national ones.
§ When there is a conflict—this is when fundamental notions/norms come into play (although ICJ doesn’t specifically recognize these).
§ N. 4 in Filartiga—the Judge narrowly defined this—looking only at lawyers from American law schools.
o If agreed upon by the parties, ex aequo et bono (by what is equal and good)—
§ This has never happened in practice.
§ This means fairness/justice.
§ Shouldn’t the court apply equitable pwrs always?
· The first three in Article 38 are the primary sources for the ICJ. Treaties are probably top in the hierarchy.
· Other sources not listed in Article 38 of the ICJ (see n. 1, p. 29):
o Natural law
o Jus cogens
o The resolutions of international organizations.
· There are ways of getting around Article 38—for example: A declaration issued at a major conference could be considered law by international custom due to state practice.
· Article 38 is supposedly only for the ICJ, but people seem to follow this even in countries who aren’t bound by the ICJ.
· IN US, Treaties rank w/ Constitution (over statutes in hierarchy), Treaties are a part of US law through Constitution—Articles 2 and 6.
Treaties, in general:
· Treaties are conventional law because they represent express consent of states
· Many people during the Cold War thought this was the only source.
· Legally binding effect b/c a state may exercise its sovereignty by making intl law
Types of Treates:
(1) Universal treaty—Charter of the UN, Convention on the Law of the Sea
(2) Regional Treaty—NAFTA
(3) Bilateral Treaty—Most common—Treaties of Friendship/Commerce; FCN or FCE.
UN process for treaty ratification:
(1) Conference or committee starts it
(2) General Assembly may adopt and then
(3) Countries ratify.
(4) no secret treaties.
Vienna Convention on the Law of Treaties (1969):
· Until this, treaty law was customary law.
· P. 868, Art. 2(1)(a), treaties must be:
o Between states
o Must be in writing
· 1986—Vienna Convention—now intl orgs can enter into treaties.
· Article 64—treaties are not valid that violate fundamental norms.
Why enter into treaties?
· further political objectives
· w/ authenticity
· setting up common goals to ensure people will abide by the treaties.
· To let people know.
Why abide by a treaty?
· Treaties become a part of municipal law.
US- president ratifies treaty, with Advice and consent of Senate.
Treaty Sampler (p. 30-58)
· The Treaty Btwn the Jews and the Romans:
o Romans were a state but the Jews were not. This is not like modern era.
o Jews: Promised to aide Rome if war is declared against it and promised not to give food/aid to Rome’s enemies.
o Romans: same promise in reverse.
· Peace of Westphalia (1648):
o Btwn Holy Roman Empire and Sweden—ending Thirty Years War.
o Treaty to re-establish peace and amity btwn the parties.
o Equality among Catholics/Protestants.
o Establish boundaries.
o This marked the beginning of modern intl law.
o A treaty can also
a context w/ any K, however.
· Municipal Courts: see n. 2, p. 68. Why differences in interps?
o Diff cts use different interp methods.
o A ct might find a that a treaty provision implicitly refers to its own municipal law.
o A municipal court might not view the treaty as controlling, in light of competing rules of domestic law.
· Accommodating change in intl law and treaties: n. 6, p. 80
Case Concerning the Gabcikovo-Nagymaros Project (ICJ—Hungary/Slovakia; 1997; p. NOT COVERED IN CLASS, but inbook 80)
· Treaty for damning/diversion of the Danube btwn Hungary and Czech.
· Hungary’s reasons for renouncing treaty:
o Necessity Doctrine—claims new environmental troubles and the fall of the Soviet Bloc.
o Fundamental Changes.
· Court rejected Hungary’s arguments. Political changes not so closely linked to treaty object as to render it radically altered.
· Can’t invoke impossibility where the impossible is created by the non-perf parties. See Vienna Convention Art. 61, p. 886.
· Fundamental Changes must have been unforeseen when the treaty was promulgated.
· Vienna Convention addresses when it is ok to breach a treaty.
· Czech also didn’t perform b/c it put into place a third plan for the region when Hungry didn’t perform.
· Hungary’s notification of terminating the treaty was not valid in terminating.
· Slovakia was party to the treaty as a successor state of Czech.
· Hungary and Slovakia must negotiate in good faith to achieve treaty objectives.
· Unless agreed on another way, Hungry must compensate Slovakia. Slovakia shall compensate Hungary.
· Res Sic Stantibus (Doctrine of Fundamental Change—Vienna Convention article 6, p. 886).
· How are treaties legally terminated? Necessity, change of circumstance, breach by one side, development of new norms of international law.
o Some have a clause.
o Some have objectives, which, once completed, terminate the treaty.
o Other treaties are renegotiated or mutually abandoned (Anti-Ballistic Missile Treaty, e.g.)
· n. 3, p. 79: rebus sic stantibus vs. pacta sunt servanda.
o Key is the fundamental assumption concept on p. 886. No one has ever satisfied this test.
o Treaties must be stable, but need to be written to accommodate change.
The Eastern Greenland Case (Denmark/Norway; PCIJ 1933; p. 89)
· Denmark wanted a judgment saying that Norway’s proclamation (claiming that it had proceeded to occupy eastern Greenland) and steps taken in regards to it were unlawful and invalid. Danes had been trying to get sovereignty over Greenland for yrs. Norway guy told them that its govt “wld not make any difficulties in the settlement of the question” (Ihlen Declaration).
· Ct says the Ihlen cldn’t have meant (or be understood to mean) that it recognized Danish sovereignty over Greenland. But the statement did mean that Norway wld refrain from contesting Danish sovereignty over Greenland as a whole and (thus to refrain from occupying it.)
· The Ihlen statement is binding, unconditional, and definitive.
· The court reasoned by looking at the activities of Norway both before and after the remark—including other of Ihlen’s remarks.
· Art. 2, Vienna Convention (p. 868) says treaties must be written. There was an unwritten agreement in this case. Since it wasn’t an agreement, cld it be a K? Could have been. Though the ct seems to say this was an unwritten treaty. See p. 85, n. 1.
· Did this case say essentially that statements by foreign ministers could be binding on a country? According to intl law, it is irrelevant whether domestic law has been violated or whether a country is bound by domestic law. The party is still bound by intl law.
· Ct does say that there was a legal obligation btwn the coutnires and that good faith was enough to create a norm. The ct says that Norway is estopped based on Ihlen’s statement—even if the statement doesn’t constitute a treaty.
· What if the constitution of such countries requires that treaties be written and ratified? P. 85, n. 2.
· Could the Ihlen Declaration be instead the consummation of a Bargain btwn two parties instead of a treaty? Or a unilateral, but binding, promise in intl law?