8/18 1-26
A. History of Intl Law
A. private v public intl law
A. public intl law concerns political interactions of states
B. private intl law relates to legal aspects of the intl econ and conflicts and cooperation among national legal systems
B. Intl Law Sampler
A. McCann v UK: intl legal rule made by a treaty, adjudicated by an intl court and enforced by a regional international legal system
A. Facts: 3 known Irish terrorists were in Gibralter (Spain, but UK territory), military had info about possible terrorist attack and followed the,. Moved as though they were about to detonate a bomb and was shot, subsequently other 2 were shot. There was a bomb in the car. The decedents estates brought action on the UK.
B. Issue: whether the killings by the soldiers were reasonably justified in the circumstances as opposed to whether they were absolutely necessary under Art 2 para 2 of the European Human Rights Convention.
C. Holding: there was a breach of convention, the force used was not absolutely necessary.
D. Reasoning: although evidence showed possible terrorist attack, soldiers should’ve used greater caution. “their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected, even when dealing w the dangerous terrorist suspects and stands in marked contrast to the stdrd of care reflected in the use of firearms.” Suggests lack appropriate care in control and orgztn of the arrest operation. Crt not persuaded deadly force was absolutely necessary so it was a violation.
E. Dissent: inquest jury listened to 79 witnesses, so opinion of lawful killing should be highly valued, use of force did not exceed what was absolutely necessary.
F. Notes: UK crt said soldiers reasonably justified, Euro crt of human rights (fr) req’s killing to be absolutely necessary, and UK under enforcement of ECHR.
A. Why were they not necessary?
A. Premeditated
B. Incompetence
A. Operation itself
A. was negligent and incompetent
A. sec knew about terrorist but could’ve stopped at border
B. Specific Soldiers Incompetent and negligent
B. UK govt owes fam mbrs of terrorists dmgs-although terrorists there were other ways to deal with it
C. European Convention on Human Rights:
A. Background:
A. Product post WWII/Nazi regime
B. Countries get together to enforce human rights
C. regional treaties also passed
D. predates EU-more economic
B. Crt of last resort, must exhaust domestic remedies 1st.
D. European Human rights law:
A. EC of HR is intl crt 2 ways:
A. estbd by intl agreement: 1950 europ convention for the protection of human rights and fundamental freedoms-resembles an intl contract among states. also resembles intl statute, provides generally applicable set of rules for all member states. states are considered legislators of intl law but also subjects of intl law. since states are sov multilateral treaties, unlike municipal statutes, do not bind non parties.
B. substantively the rules the crt applies are intl law: human rights norms made and protected by the same european human rights convention.
B. Nature of Treaties: crt applied substantive rule drawn from 1950 european human rights convention: art 2, protecting the right to life.
-legally binding effect of intl law:
-sov state may exercise its sover by making dom law but by making intl law, UK allowed to apply art 2 bc gave consent.
B. Filartiga v Pena-Irala: customary/fundamental intl legal norm adjudicated by a municipal (domestic crt) and enforced (or not) by ordinary mechanisms of that domestic legal system
A. Facts: Filartiga’s 17 yr old son, Joelito, was kidnapped and tortured by Pena, in Paraguay. P claims it was in retaliation for his father’s political activities/beliefs. F’s attorney was disbarred for no reason. Another man confessed to the murder, claiming found J and his wife together-crime of passion, but never convicted. Also evidence that J was professionally tortured. Dolly Filartiga came to US, found out Pena was in US too and had overstayed visa. P was arrested, pending deportation Dolly lodged civil complaint in US crt for J’s wrongful death by torture, asking for 10mill dmgs.
B. Issue: Whether US crts can punish non-US citizens for tortious acts committed outside the US that were in violation of the law of nations or any treaty to which the US is a party.
C. Holding: Yes. This case extended the juris of US crts to tortious acts committed around the world. Filartiga rewarded $10.4 mil.
D. Reasoning: Torture violated wrongful death statutes, UN Charter, Universal Declaration of Human Rights, Am Declaration of Rights and Duties of Man, other CIL. This case interpreted Alien Tort Statute (which grants d crts orig juris to hear tort claims brought by an alien that “have been committed in violation of the law of nations or treaty of the US”) to grant jurs over claims for torts committed both w/i US and abroad. Torture clearly violation intl law and US did have juris as claim lodged when both parties in US.
-Notes:
-Now convention against torture, after this case.
-ATS: est’d juris for anyone w colorable claim under intl law:
-to give lawyers opp to est that officials who violate the rights of their own citizens could be brought to justice in US crts.
-rarely used statute, big case asserted US juris right to enforce human rights law domestically (controversial)
-Idea=if u commit such a heinous crime, then any tribunal should be able to try you bc the whole world would agree how bad the crime was
-law of nations is both treaty law and CIL
-Crts look to:
-law professors determinations of the law
-public law
-general usage
-UN Charter
-Universal dec of human rights (not binding treaty)
-aspirational doc-what we aspire for the world
-can still be used to show custom
-decl on torture-not binding but evidence of how custom would evolve
-European Convent outlaws torture
-Inter Am convention on human rights (custom)
-Domestic laws-many counties ban torture (including paraguay)
-Enforcement/Efficacy of Intl law:
decision of national crt of US not respected, dmgs were never paid to Filartiga. One might assume ntl crts like US ed are more efficacious than intl crts, but expectation is reversed in practice.
-not enforced=prob w intl law
-us won’t sent troops to P to make them pay dmgs
-still victory for P, legal recognition of torture being wrong was meaningful, etc.
-made political statement
-W/o enforcement can u sanction?
-this is tort claim, should be criminal case, but no intl crt for criminal cases, but recent dvlpmt for intl criminal crt. they brought it as civil claim, more $, easier to succeed.
-reciprocity: what other states hold am’s responsible for it they commit certain acts
8-20 27-28; 92-115
Chp 2: Treaties
A. Sources of Intl Law
A. 2 ways to refer to sources of intl law:
A. Material source of an intl rule
B. formal source of intl law: fashion in which intl lawyers, judges, jurists agree intl law can be made
A. Art 38 of Statute of Intl Crt of Justice
A. Crt shall apply -to decide intl law disputes-
A. intl conventions
B. intl custom-ie general practice
C. general principles of law recognized by civilized nations
D. subject to provisions of art 59, judicial devisions and teachings of publicists of various nations as subsidiary means for determination of rules of law
C. Notes:
A. Sources not listed in art 38:
A. art 38 not mention sources
B. strictly art 38 applies to ICJ, not other intl crts/lawyers
C. in practice judges on other tribunals use other sources not listed:
A. natural law, jus cogens, resolutions of intl orgs
B. Judicial dec’s as sources of intl law: art 38(1)(d) refers to art 59 “dec of the crt has no binding force except between the parties and in respect of that particular case.”
A. some sys limit judicial precedent, but has not prevent intl rt from relying on past decisions
C. Ex Aequo et Bono: art 38 (2) allows crt to decide ex aequo et bono, by what is equal and good, if the parties agree, but never been used.
D. Hierarchy of Sources of Intl Law: “intl conventions” listed 1st in art 38(1), judges
collision between French ship-Lotus- and Turkish ship which sank. Lotus tried to save ple on Turkis vessel, but 8 ple died. Officer on watch for the Lotus-Demons-and the Turkish ship were taken by Turk police for examination and arrested for criminal prosecution of manslaughter w/o notice given to the French consul-general.
-French argued that Turkey had no juris but overruled, and Demons sentenced to 80 days imprisonment and fine. French protested and both countries agreed to bring issue before intl crt at the Hague.
-Issue: whether the rules of intl law prevent Turkey from instituting criminal proceedings against French national under Turkish law. If yes, what pecuniary reparation is due Demons.
-Holding: turkey did not act contrary to existing intl law.
-Reasoning: Turkey just can’t over step limits intl law places on it’s juris, w/i such limits it can exercise juris in its sovereignty.
-French arguments:
-intl law doesn’t allow state juris over a foreigner, where offense was committed abroad just b/c of victim’s nationality, offense was committed aboard a french vessel.
-crt says this not apply bc they assume only affiliation Turkey has to incident are victim’s nationality, however, not true. the offense was committed against turkish vessel, which is part of turkey’s territory, in this context there is not intl rule of law prohibiting turkey’s juris.
-since the collision occurred on high seas, france claimed that the only state whose flag the vessel flew had juris over the matter.
-no rule of cil to prove this, france would have to show a rule is in existence.
-rule specially applying to collision cases has “grown up”- criminal proceedings regarding such cases come exclusively w/i the juris of the state whose flag is flown?
-Notes:
1) positivism and intl law: most cited positivist opinions about nature of intl law, bc rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law. all intl laws based on state consent, state sovereignty was seen as fundamental principle of intl law from which all other intl legal principles and rules are derived.
2) burden of proof: positivist presumption meant that crt put the burden of proof on france to prove that there was a rule of CIL restricting turkish independence rather than making turkey prove prosecution of Demons was sanctioned by intl law.
3) tacit agreement and the formation of rules of CIL: by remaining in territory controlled by some govt, ple give consent to be governed, this consent gives legitimacy to the govt.
4) jurisdiction: authority of states to determine or affect legal relationships of private parties
1) enforcement juris- authority of state to investigate, collect evidence, or arrest
2) legislative juris- the authority of a state to apply its laws (turkey’s authority to apply its own criminal laws to demon’s conduct w respect to the collision on the high seas.)
1) bases of legislative juris:
1) territoriality- where proscribed conduct and its consequences occurred
2) nationality- where state’s citizen violated law
5) reversal of rule in lotus: arguments that would lead to double prosecution, unnecessary delays in maritime traffic.
