International Law Outline
Prof John Noyes
A. McCann v. UK. (European Court of human rights).
1. Facts: UK authorities ordered to kill UK terrorists in Gibraltar, a British territory. Contradictory evidence.
2. Procedure: inquest by Gibraltar police – jury verdict: lawful killing. Relatives appealed to the ECHR – violation of article 2 (“right to life protected by law. No one shall be deprived unless absolutely necessary in defense of person from unlawful violence”) of the European human rights convention. That had been a premeditated plan to kill the deceased.
3. Reasoning/holding: the focus of the inquest and the standard applied was whether the killings where “reasonably justified” as opposed to whether they were “absolutely necessary”. We must make our own assessment. No premeditated plot. The actions of soldiers do not give rise to violation of article 2. However, the antiterrorist operation as a whole was organized in a manner not respecting the article 2. The terrorists could have been stopped at the border; not making sufficient allowances for the possibility that intelligence might be erroneous; automatic recourse for lethal force – soldiers were not properly trained to assess threats and wound not kill. UK has to pay damages.
a) Although all elements are British, this case is international in 2 respects: the source and forum (ECHR is an international court: established by a TR applying international norms). The UK signed and ratified convention accepting jurisdiction of the court.
b) Theory explaining legally binding effect of an international agreement – a sovereign ST may exercise its sovereignty not only by making domestic law by also by making IL, hence, article 2 obliges UK in IL because of UK’s own consent. So, this convention resembles both contract and statute – provides a generally applicable set of rules for all its members. So, STs are considering and both legislators and subjects of IL. Since STs are sovereign TRs do not bind nonparties.
c) Efficacy of IL. Possible bad effects: UK could be expelled from European institutions, UK could not expect other STs to comply with the convention, the repudiation would spoil UK’s reputation and make it more difficult to conclude TRs in the future.
B. IL conceptions
1. Jus Gentium – LON – universal law that could be applied by Roman courts to foreigners when that specific law of their own nation was unknown and when the Roman law was in opposite;
2. LON – by Grotius – law binding sovereign STs of Europe in their relationships with one another, applied to IND;
3. IL – Jeremy Bentham – same meaning as LON; but subject-based approach: by and for STs only; – doesn’t fit the evidence: Filartiga, McCann, Eastern Airlines…all cases by INDs.
4. Not law – Austin – IL is the law set by general opinion, duties are enforced by moral sanctions: fear of provoking general hostility;
5. Transnational law – Jessup – law from whatever sources applicable to people or transactions in different STs
6. DEFINE DISCIPLINE THROUGH SOURCES/CONCEPTIONS OF LAW.
C. Filartiga – Paraguay torture case. F.2d.
1. Facts: Filartigas sued Pena, all citizens of Paraguay for torturing to death another Filartiga. Action in Paraguay was fruitless. Pena came to US. Jurisdiction: alien tort statute: “district courts shall have jurisdiction of an action by an alien for a tort only, committed in violation of the LON or a TR of the US.
2. Issue: whether the conduct alleged violates the LON.
3. Holding/reasoning: Yes, an act of torture committed by a ST official against one held in detention violates established norms of the IL of human rights and hence the LON, regardless of nationalities of the parties. Supreme Court enumerated appropriate sources of IL which prohibited torture: UN declarations and resolutions, works of jurists, customs and general usage and practice of nations (55 ST survey), judicial decisions recognizing enforcing that law – both European and American.
a) Similar to previous case places and parties are not international; differences – case brought under a different source + forum – both domestic.
b) IL may be applied in national courts;
c) here GP of law are used as a means of substantiating proof of customary IL: after reviewing the pride vision of torture by various international conventions, judge noted a survey that showed that torture has been banned in over 55 national constitutions –comparative study was that I can related along with TRs ST practice and opinions to prove the rule of customary IL prohibiting t;
d) In this case customs blur with the GP. Since in theory customary law is developed as a result of the actual practice of STs.
e) Torturer an enemy of all mankind – Gprinciple?
f) The case shows eclectic and inclusive nature of US perception of non-treating IL – page 106 hornbook
g) Jurisdiction – same
h) Petitioners bring this action to achieve justice, even though compliance is unlikely.
i) In this case NL, JC, custom and GP of law all seem to blend.
1. material and formal.
2. Is it illegal for US to use force in Syria? UN charter: article 2.4: “members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any ST”, but there are 3 exceptions: threat to international peace and safety + UN acts, self-defense, consent. Possible arguments: rebels are legit government not Assad.
3. Since countries have different legal systems, it is problematic to agree upon a single set of IL sources.
4. Statute of the international Court of Justice, article 38: 1)… Shall apply conventions, custom as evidence of general practice accepted as law, GP of law recognized by civilized nations, judicial decisions and opinions of jurists as subsidiary means. 2) Equity if parties agree.
a) Sometimes judges, even on ICJ, also use NL, equity, resolutions of IO, JC.
b) But two sources accepted by all national tribunals are TRs and customs.
c) Hierarchy of sources: 1) TRs pride of place, since they clearly show the rule and are explicitly accepted by STs. However, they do not cover all topics and may be trumped by NL or JC and need interpretation.
5. IO. There was an American enthusiasm in establishing the League of Nations: “a general association of nations for the purpose of affording mutual guarantees of political independence and territorial integrity to big and small STs alike.” But US Senate refused to consent. Because of the 2nd world war the league could not function properly. UN was founded in 1945. And the basic concepts was that the executive arm would be a policeman rather than a magistrate and mediator as in League. The greatest powers were accorded a special position – Security Council (15 members: 5 permanent: US, UK, Russia, France, China; 10 nonpermanent, which could if united constitute a 6th veto). Other STs however where successful in extending startles and responsibilities of General Assembly and the economic and social Council. The decisions of the Security Council are binding upon STs. If there is a conflict between the obligations of the members of UN under the charter and the any other international agreement, charter prevails. Judicial arm – international Court of Justice
6. Secondary law and IL. Big picture, what we are after.
a) Example – TR of Alaska/Peace of Paris – is primarily rule. Secondary rules are underlying strata of primary rules. Here primary rule – US gets Alaska for gold. Secondary: how TRs are made, reservations, interpretations.
b) Paquet Habana – rule: seizure of shipping vessels prohibited during war – secondary rules: ST practice (have to be able to explain where the rule came from). Will look for a long-standing, international and national practice reaching out to foreigners.
1. TR sampler:
a) TR between Jews and Romans – if war is declared against one of the nation the 2nd will come to its aid and not give support to its enemies without anything in return
(1) Reciprocal good faith always seems to have been one of the key competence in ensuring compliance with TRs.
(2) Written form to make sure terms are clear and continue efficacy.
b) Piece of Westphalia – between Holy Roman empire and Sweden – freedom of religion; the reestablishment of eSTs and rights.
(1) STs agreed to limit their sovereignty (capacity to control what’s going on in your borders) to assure their sovereignty. Success of IL had much to do with ILs utility in regulating and cementing the world political system based on more all their sovereign STs
(a) Thomas Hobbs: all humankind requires a common power to keep them in awe and to direct their actions to the common benefit. + Hugo Grotius: no ST is so powerful as not to need the advantages of loss based on NL and positive consent. = Define much of international relations ever since.
c) TR of Paris – between US and Great Britain – forget past misunderstandings, establish beneficial intercourse. Britain acknowledged that US was free sovereign and independent, the parties agreed on US boundaries, agreed on rights of fishermen to fish, restitution of all eSTs and rights belonging to British subjects, Britain will withdraw armies and transfer archives, free navigation for both countries on Mississippi.
(1) Effect of TRs on 3rd parties – TRs do have power on 3rd parties – Mississippi as border.
d) Session of Alaska – looks like a the real eST transaction, US agents receive archives, papers, military facilities; inhabitants may return to Russia within 3 years, if stay rights of US citizens.
e) Kellogg-Briand Pact – by many STs – the renunciation of war as an instrument of national policy as an example for other nations; condemn recourse to war to solve international controversies. It is soft law, movement towards UN and collective responsibility/security. Important attempt to promote global values and give them concrete realities.
2. Functions of TRs:
a) forming military and political alliances
c) creating new STs
d) exchange of territory
e) controlling international violence
3. Types of TRs:
a) By purpose:
(1) aspiration – K-B
(2) contracts – Alaska, H-L.
(3) legislative rules of conduct – PoW
(4) constitutions – framework of principles, organizes government. NATO, UN Charter.
b) By number of parties:
(3) Multilateral. Some subject matters are particularly appropriate for multilateral treatment. It is more likely that rule established in multilateral TR will pass into customary IL.
ot a party; and if, on the other hand, a party accepts the reservation – it can in fact consider that the reserving ST is a party to the convention.
(b) Singapore has a reservation to article 9, which the majority of STs do not think is incompatible, but Netherlands objected to this reservation as incompatible, South Africa has no objections/reservations. Singapore/Netherlands = no TR; Singapore/South Africa = partial TR; Netherlands/South Africa = full TR.
3. Understanding – interpretive STment that clarifies or elaborates upon a TR provision without altering it. Important for interpretation same as:
4. Declaration – STment expressing the STs position or opinion on matters relating the TR, such as whether to accept an optional form of binding dispute resolution.
5. TR interpretation. It is a complex matter because any TR may be interpreted and applied in a variety of settings not only by international but also by multiple municipal courts.
a) VCLT articles 31 – 33: TR shall be interpreted in good faith in accordance with the ordinary meaning of the terms in the TR and in the light of its object and purpose; the text of the TR includes preamble and annexes; in addition to text can use
(1) agreements relating to TR made between all the parties…
(2) Subsequent agreements and practice
(3) relevant rules of IL
(4) supplementary means – preparatory work and circumstances of its conclusion – if ordinary analysis results in ambiguity or absurdity.
(5) Interpretation of TRs in 2 or more languages – equally authoritative, unless parties agree; terms presumed to have the same meaning.
b) VCLT does not apply to
(1) oral agreements
(2) between STs and IO
(3) before it entered into force
c) Eastern Airlines v. Floyd
(1) facts: during a flight some of the engines stopped working; passengers were informed that the plane would be ditched in the Atlantic, crew managed to restart the engine and land safely. A group of passengers sued for mental distress
(2) issue: whether under the proper interpretation of “lesion corporelle” mental distress amounts to bodily injury.
(a) since the original text of the Warsaw convention is in French the court considered 1st French legal materials: legislation and judicial decisions and scholars – LC not widely used and not encompassing physic injuries
(b) analysis of article 17 of the convention does not demonstrate that LC should be translated other than bodily injury
(c) negotiating history of the convention shows the same
(d) a different international transport TR explicitly includes mental distress
(e) narrower reading also consistent with the purpose of the convention: limited liability to foster economic growth
(f) subsequent proposals to modify convention suggest the same
(g) court consults opinions of sister signatories – an Israeli case – favored expansive reading because of policy argument: post-1929 development of aviation industry and evolution of Anglo-American and Israeli law to allow recovery for psychic injury in certain circumstances –BUT NOT PERSUADED! Since all other sources contradict.
(4) Holding: carrier not liable
(a) US is not a party to VCLT, although signed.
(b) TR interpretation is different from interpretation of statutes since no convenient way to cure defects in construction because TRs have dual status. An American court could adopt internal interpretation at variance with our TR partners, but new construction would have no force on the international plane and the US could well be in default of its international obligations. DUALISM? To reconcile – renegotiates new agreement.
(c) STs can amend TRs. An amendment is regarded as a new TR, binding only on STs that affirmatively accepted – articles 39 – 40 VCLT. Sometimes STs provide mechanisms for amending TR provisions that the very normal rules for amendments: super majority voting and the no specific number of STs object
(d) is it good to have uniform interpretation?
(e) How to promote uniformity?
(i) Set up an international court for it
(ii) make TR provisions more determinable – not always works since no one signs
(f) note that the results depend on interpretation of the TR: US court v. Israeli court.