International Law Outline

NANDA INTERNATIONAL LAW
I. International and Comparative Law
a. Comparative Law – Law of other nations; not binding on U.S., but persuasive authority
i. Supreme Court engaged comparative law in 3 controversial areas (affirmative
action, death penalty, and same sex marriages) – looked at the European Court of
human rights.
b. International Law – These are laws that are binding (like treaties, etc.)
i. Public – law governing foreign transactions of individuals and corporations
ii.Private – legal relation between states
iii.Misleading – foreign transactions highly in the public sector, and states to state
transactions highly private
II. Sources of International Law – Article 38 of the Statute of the International Court of Justice
defines the sources of international law. Look at them in order (hierarchy), to find the law.
a. T reaties and other bilateral/multinational agreements to which sovereigns are
signatories, and which govern the issue.
b. C ustomary international law (CIL) .
i. General practices of states, accepted as if they were law.
ii.Followed not out of habit or expediency, but because considered law.
c. General principles – Broad concepts that can be applied (like estoppel, good faith in
negotiations, etc.)
i. Principles that reoccur anywhere in the world, and is accepted by any jurisdiction
that care about the principles of international law.
d. Judicial Decisions – Judicial decisions don’t create a binding precedent, so looked at in a
cautious way. Past decisions considered, but not in a binding way like in the U.S.
e. Jurist Publication s – Publications like law review not binding, but can be persuasive
III. Enforcement of International Law
a . Ways to settle Disputes
i. Set up an independent arbitration panel (other than ICJ)
1. Countries of the world would set up an agreement to enforce all arbitration
agreements. So if one state doesn’t want to abide by decision, its assets
can be frozen by other countries seeking to enforce the arbitration
agreement
ii.Most international disputes are settled through negotiations or arbitration
(meditation)
iii.In addition to ICJ, there’s the international criminal court, European court of
human rights, etc. (ad hoc tribunals)
iv.Also sometimes domestic courts
b. Outside Enforcement – sanctions, diplomacy, politics, shame, refusal to trade (economic
sanctions), military intervention
i. Different effect in different parts of the world – The more powerful you are, the
more likely you are to not abide by international law
1. Less pressure on US to take treaty seriously (smaller, weaker countries cant
really hurt US by not trading, etc, so no deterrence for US)
ii.Most states abide by international law most of the time
c . Long Term interest in abiding by International law:
i. Fear of isolation
ii.To have legitimacy and persuasiveness
1. More powerful states can take a bigger hit to legitimacy without
compromising power
iii.Self-interest – in terms of long-term outlook to present itself as a law-abiding
society
1. Interest state has in good reputation, maintaining a sense of identity
d . Short-term interest in abiding int’l law
i. Rule of law needed for organization in society
ii.Reciprocity (self-interest also) – If you break your agreements, no one will enter
into agreements with you. Agreements are mutually beneficial
iii.Also to have a right for our citizens, we need to give the same right to other
nation’s citizens
iv.Normative: Right/moral thing to do
IV. European Convention on Human Rights :
a. McCann v. United Kingdom (pg. 3)
i. Facts : 3 known Irish terrorists were in Spain. UK authorities were alerted to their
presence, and they were killed during a confrontation. The estates of the deceased
brought an inquest against soldiers and govt, believing it was a wrongful killing, to
the ECHR.
ii. Analysis : UK Court only requires a killing to be justified, but Court looks at Article 2
para. 2 of the European Human Rights Convention (treaty), which requires that
deadly force be absolutely necessary for it to be lawful. Although the soldiers were
justified, the court must use the int’l law, and says the killing was not absolutely
necessary (there was negligence and incompetence in the operation).
iii. Damages : Although UK very powerful, they still had to pay the terrorists’ families
compensation, – they still have to abide by the int’l tribunal.
iv. Notes: European Convention of Human Rights – product of post-WWII politics, in
wake of Nazi atrocities. Countries get together to enforce human rights. This is a
court of last resort, meaning you must exhaust domestic remedies first before
coming here.
V. The 1789 Alien Tort Claims Act : US enforcement of foreign violations of international law
a. Filartiga v. Pena-Irala (pg 17)
i. Facts : Filartiga’s son was tortured & killed by Pena, an official (all parties from
Paraguay, and event took places in Paraguay), in retaliation for father’s political
beliefs. They could get no justice in Paraguayan courts (lawyer arrested etc.). So,
they sue in U.S., but they’re dismissed for lack of jurisdiction. Issue of jurisdiction
of U.S. courts is on appeal.
ii.The suit is between 2 foreign nationals, so how does the U.S. have jurisdiction?
1. Under the Alien Tort Statute, U.S. has jurisdiction to hear tort claims brought
by an alien where there has been a tort “committed in violation of the law of
nations or a treaty of the United States.” Torture was clearly a violation of
int’l law (aka “the law of nations”), and the U.S. did have jurisdiction over
the case since the claim was lodged when both parties were inside the U.S.
2. This case interpreted that the Alien Tort Statute to granted the U.S.
jurisdiction to enforce human rights law domestically.
a. Very controversial. Should U.S. be a world police by trying foreign
citizens in the U.S.? – Well, the idea is that if you commit such a
heinous crime, then any tribunal should be able to try you b/c the
whole world would agree how bad the crime is (jus cogens). U.S. court
enforces int’l law, not domestic law.
iii.Now, there is a convention on torture, but there wasn’t at time of this case. How
does U.S. evaluate this without a clear cut prohibition on torture? Court looks at:
1. Law professors determinations of the law
2. Public law
3. General usage
4. United nations charter
5. Universal Declaration of human rights (not binding– aspirational only but
shows custom)
6. Declaration on torture – not binding, but evidence of how custom would
evolve
7. European convention outlaws torture
8. Inter-American convention on human rights (again, custom)
9. Domestic laws – many countries have banned torture
iv. Outcome/Enforcement : U.S. courts awarded Filartiga $10mm. But problem with
enforcement – Pena left U.S. This is still a problem with int’l law. U.S. won’t send
troops to Paraguay to make them pay. Still a victory – legal recognition of torture
being wrong (political statement).
THE LAW OF TREATIES
I. Treaties, Generally : International agreements are governed by the Vienna Convention on Treaty
Law. Under it, states can do anything they want to agree to, unless it violates a peremptory
norm.
a. Many countries don’t have governments that work. But, presuming there is a
government that works, one country can make an agreement with another government.
b. Treaties and contracts are analogous (but not perfectly so)
i. A K can have 2 provisions that say different things
ii. So, a treaty can too (ex. Part I is self-executing, while Part II not)
II. Vienna Convention on the Law of treaties (1980)
a. Addresses international problem on how to deal with treaties. A treaty on treaties.
b. It codified the pre-existing customary int’l law on treaties, with some necessary gapfilling
and clarifications.
i. Before this, int’l customary law was used. Now a more precise roadmap to guide
jurisdictions on how to write and apply treaties.
c. Applies only to treaties between states (doesn’t include international organizations)
d. US has signed it, but not ratified it. But since it is customary international law, US can be
bound based on that. This is highly persuasive in US, and around the world.
III. What is a treaty according to the Vienna Convention (p. 926 Art II)
a. Art 2 (a) “treaty” means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation;
b. Art 2 (b) “ratification,” “acceptance,” “approval,” and “accession” mean in each case the
international act so named whereby a State establishes on the international plane its
consent to be bound by the treaty;
IV. When is a treaty binding?
a. There is a gap of when its signed, and when it comes into force (when it’s ratified)
i. The process for ratification can be in the treaty itself, or the usual process is that
it’s signed by certain parties, like in U.S., sent to Congress to ratify.
ii. Art 18 – once a treaty is signed, only obligation you have it to not defeat the
purpose of the treaty, but there is no affirmative duty until it’