Int’l Law
NATURE OF INT’L LAW
§ History
o Law of Nations(Jus Gentium) – law “common to all men” = international law
o Public Int’l Law – political interactions of states
o Private int’l law – relates to legal aspects of int’l economy and conflicts and cooperation among nat’l legal systems
o There’s no structure at the top where all nations have to observe it
§ No centralized, exactive, legislative body we can count on in int’l law
· None of the int’l law tribunals, have jurisdiction that is authoritative jd that is compulsory.
o No jd unless you have given your consent (amazing thing is that it works)
· Ex: General Assembly, Security Council of the UN
§ Int’l Law Sampler
o McCann v. UK
§ Overview: Int’l legal rule made by a treaty, adjudicated by an int’l ct, and enforced by a regional int’l system
§ Why did UK comply w/ the punishment by the Human Rights violation?
· Scratch my back and I’ll scratch yours
· Uphold judicial integrity
§ Facts: 3 IRA members were killed and the estate is suing the UK. Asking for damages for the unlawful killings and UK should pay. Soldiers followed IRA members who they thought they were going to trigger an explosion. Shot them in the back and killed them.
· At inquest, it was found it was not an unlawful killing, there was a reasonable fear.
· There was an exception, that you can’t bring the case, there’s no reasonable likelihood of success.
· The request for judicial review was denied.
· TV show showed that the killings were unlawful.
· Now we come to the European Code of Human Rights
o Protocol – comes after a treaty, basically means an int’l agreement. A contract and also a statute.
§ A treaty applies only to those who have given their consent
o Art 2 here gives people the right to life and it may be taken away if it’s absolutely necessary.
§ UK ct was not binding to ECHR, but would give it great weight. They must decide if Art 2 was violated.
§ Holding: How did ECHR come to the conclusion?
· They allowed them to come into the country, they could have stopped them from coming in.
· They could have arrested them when they were coming across the border.
· The soldiers were trained to kill.
§ Dissent: Under these circs, the lawful killing verdict should have been accepted and the ECHR should not have granted the application on that count. The code said they did not try to kill them, but they also found it was unnecessary.
o Filartiga
§ Overview: Shows a customary or perhaps fundamental int’l legal norm adjudicated by a municipal (i.e., domestic court) and enforced (or not) by the ordinary mechanisms of that domestic legal system
§ Court applies customary int’l law since there is no int’l treaty on torture.
§ Facts: Citizens of Paraguay were living in NY. Their son had been tortured to death in Paraguay. Person in charge of the killing, was the inspector of police, moved to US. Inspector killed the son b/c of his father’s disdain for the Paraguay gov’t. Inspector showed the daughter the body and said this was a lesson. Father brought suit in Paraguay, authorities disbarred him. Plaintiff’s served Defendant while he was in the US. Invoked the Alien Tort Act, invoked over 200 years ago,
§ Issue: Is torture a violation of the law of nations and therefore within federal common law? Yes
· Alien Tort Act – District cts shall have original jd of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US.
o Customary int’l law – customary practice states practice, expectations that will continue to do practice and have done it in that way.
§ Ex: Genocide; Piracy; Prisoners of War; Slavery; War Crimes; Torture; Diplomatic immunity;
· Ct define Tortures from state practice, usage of nations, judicial opinions, publicist writings, and UN Charters.
o There was no treaty, but there was a declaration
§ Holding: Official torture violates the law of nations. A person using torture today has become the enemy of mankind. We hold that deliberate torture perpetuated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.
· Once a state enters into a treaty, it’s on par w/ our own statutes or trumps statute. Whichever comes later, rules the other.
· The Paquete Habana
o Where there’s no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted w/ the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
§ If you’re looking at usage and treaty, treaty prevails
§ Executive/legislative decisions can at times simply say that we do not have to file that custom or usage of civilized nations
§ Conclusion: Does the ct have personal jurisdiction?
· Yes, he was in NY. So there’s no question re: personal jd, b/c he was served.
o The question is then, SMJ? How does the code answer the qu
rgovernmental work
o Over period of time might become CIL, or be codified in treaties, or give expectations that countries will follow it
o Hard Law – established principles; formal sources of law
§ Ex: treaties
o Ex aequo et bono – according to what is just and good
§ Beyond law, close to equity, but according to what is just and good
· Never been used
§ Judicial decisions
o US Supreme Court
o ICF
o Intra-American Courts
o States’ courts
o Jurists, publicists and scholars – writings of IL jurists
§ Decisions and resolutions of IGO’s and NGO’s
§ How to settle disputes:
o International tribunals
o ICJ
o Negotiation through diplomatic channes/diplomacy
o Mediation, conciliation, arbitration
§ Standing
o Traditionally, only states had standing in IL; people were objects of IL
o Emergence of the person – individuals are now able to assert claims
§ Enforcement
o ICJ – countries choose to follow ICJ decisions
o Arbitration – Primarily used on private level
o Regional and specialized courts
o Domestic courts
CUSTOM AND THE NON-CONSENSUAL SOURCES OF INT’L LAW
§ A. Customary Int’l Law
o Think of customary international law as an international common law.
§ States through practice, and international lawyers through writings and judicial decisions, have agreed that CIL exists whenever 2 key requirements are met:
· 1: A relatively uniform and consistent state practice regarding a particular matter (Objective part of CIL)
o Determine this by looking at acts taken by states in their diplomatic relations with one another; acts taken internally by states through their legislatures or courts; acts taken by states before international organizations; inaction taken by states where they are confronted with a particular matter.
o In general: state practice must be consistent, but need not be perfect.
§ Should be evident over a long period of time
· Ex: Paquete Habana case
· Too much importance need not be attached to the few uncertainties or contradictions real of apparent for a law to be CIL
· Absolute rigorous conformity with a rule is not required
