Sources of International Law
· International Law: The body of rules and principles of action which are binding upon civilized states in their relations which one another
o 2 qualifications: Civilized states and In relations with one another: a law for states among states
· Traditionally, only states have rights under International Law, but recent shift to include individual rights in International Law
· Can be enforced through international or domestic courts though without compulsory jurisdiction
· Different sources may say different things. Which prevails?
o In states: Constitutions, statutes, regulations, common law (most binding to least binding)
o Internationally: treaties, customs, general principal (most binding to lease binding)
§ Specific trumps general
§ There are exceptions
o depends on area of issue
· some particular areas of international law may be governed by custom rather than treaties
· Agreed upon expressly in writing
· after WWII and the establishment of the UN, become possible to establish treaties and international law, treaties are the source most often turned to International Legal questions
· treaties are vehicles for
o forming military and political alliances
o creating new states
o exchanging territory
o controlling international violence
· categories of treaties
· Pacta Sunt Servanda: all treaties must be performed in good faith: primary force of treaty law
Cession of Alaska
· land transaction
· Immediate compliance
Treaty between Jews and Romans
· military alliance
· Written on bronze plaques: solemnity, performance
· Ongoing obligation of performance
· Contingent performance
o If a state declares war on one of the parties, then the other party must come to their aide
· Ongoing and contingent performance makes for more disputes
o But if abandon or betray allies, lose credibility and allies – Incentive to perform
US and the UK
· Destroyer for bases
· Time limitation (99 years)
Hull – Lothian Letters
· Bargain for exchange: warships for military bases
· Bilateral, Specific, Defensive alliance, For a particular period of time
· Highest level of compliance
Statutory: law created treaties
International Covenant on Civil and Political Rights
· Establishes a series of regulation in regards to the protection of individual human beings in a wide international community
· 166+ states are parties – widely multilateral
· Broad categories and many provisions
· Obligation is not performed as a distinct point in time, but obligation is on-going without realistic opportunity to amend the treaty
· Conflicting interests more likely
· Governs the use of force
· Creates an institution
· Allocates and limits power among branches
· Defines the power of the institution as a whole
· Defines relationship among parts
· High level of disputes and broader range of issues
· Creates an organization that never before existed in international community
· Creates organs: Security counsel, general assembly, etc.
· Distributes power among organs
· 190+ members, more issues
· Establishes relationship between organization and its constituent members
Statute of the international court of justice
· Treaty establishing the court
· Compromise between east and west soviet block
· West wanted human rights recognition and east wanted border protection
· Designed to not be binding
Peace of Westphalia
· Ended the 30 years war (religious European war where princes in the holy roman empire wanted to adopt religion and impose it on subjects)
· Europe was organized in a hierarchy: princes owed allegiance to the holy roman empire
· Princes were trying to fight for greater political authority in adopting Christianity or Catholicism
· Ushers in the modern political system when holy roman empire goes into decline- Beginning of modern international relations
· Ended hierarchy and made princes equal, sovereign entities that had to relate with each other
· International law becomes the law of which the community of sovereign states began to conduct themselves in legal, predictable ways
· Creating institutions and allocating powers
· K element
o Trading conducts – you stop fighting, we’ll stop fighting
o Debt forgiveness
o Establishment of the peace
· Statutory element
o Establishes the obligation of all princes to respect the religious affiliation of Catholics and Protestants within their territory
Kellog-Brian Pact (1928)
· Condemned recourse to war as instrument of national policy to resolve controversies
o War requires a declaration to be a legal state of war. So this is not condemning violence, but merely declaring war
o Language: hopeful, humane endeavor, morally freighted language
· Statutory law
o Outlaws recourse to war
· Why did it fail?
o Vague, imprecise language
o Non-binding statement of principle
o Legal system requires 2 elements
§ Statement of rules
§ System for enforcing rules
· Why have an aspirational treaty that is not binding?
o Socializing states to believe in concept
o Signal depth of commitment to particular principle
· Soft law instrument: a statement of principle that is not binding. NOT A LAW.
o I.e., General Assembly Resolution
McCann v. United Kingdom:
· Individuals suing state under treaty
· Issue: whether soldiers’ actions took life in violation of written International Law. Examine scope of Article 2.
· Legal Processes:
o Commission Inquest of Human Rights in Gibraltar. Suspects convicted.
o British Courts dismiss case.
o Relatives appeal to European Court of Human Rights.
· Article 2 of the European Convention sets forth the right to life
o Everyone’s life shall be protected by international law
o Save for execution of a court sentence after conviction
o Exception: no more than what is absolutely necessary in defense of person from unlawful violence, arrest or prevent escape, stopping riot.
· Was this use of force absolutely necessary?
o ECHR found no. Should have stopped suspects at border. Should have trained soldiers in disarming suspects.
· Majority: interpreted Article 2 as protecting the rights of individuals, not states. Will strictly construe “absolutely necessary”, meaning British government will bear that as its burden of proof.
· Dissent: traditional interpretation of International law affording states leeway in matters of life and death. “No failings have been shown in the organization in the operation.” Burden of proof is on claimants to show they have been denied the right to life.
· Usually, according to interpretation, who has the burden of proof is going to lose.
· British government was forced to pay damages to relatives of terrorists, to the outrage of everyone. Why?
o Agreed to treaty: expressly conditioned to obey its rules
o Show of good faith to the international commu
Look at text that defines clearly word, phrase: 4 corners doctrine
o And the context in which words were written: legislative history and intent
o French legal meaning of lesion corporelle
· Textualists School of Interpretation
o Begin and end with 4 corners approach
o K approach
· Intentionalist School
o Look at text and other evidence of subjective intent of the parties in regards to provision
o Drafting history
o Can only understand phenomenon by the purpose that they serve
o Understand by object and purpose, not subjective intent of drafter
o Look at objective purpose of document as a whole
· Issue: whether mental distress falls within lesion corporelle
· Canadian sup ct would have taken a strict textual approach. Who’s ordinary meaning do you take? Present? Time written?
· US sup ct: begins with a textual approach, but from a 1929 meaning when it was written (intentionalist approach). They look at legislation from that time that contains to the words lesion corporelle.
o K approach: looking at the intent of drafters.
o Considers French legal meaning of the words at the time
o Treats like a statute when looking at drafting history
· In 1929, Warsaw convention was protecting fledging industry and did not want it sued constantly. Did not intend to include mental injuries.
o Increases uniformity
· When a number of courts use a variety of interpretive tools, it usually results in different decisions that undermines uniformity and intent of laws
o Remedy: give courts a uniform set of rules for interpretation so they could arrive at similar conclusions
· Art 1 Vienna convention on interpreting treaties: treaty should be interpreted in good faith with words in accordance with ordinary meaning in light of the context and in light of object and purpose of document
o Emphasis on textualism and teleological approaches
§ In accordance with ordinary meaning: textualism dominates
§ In light of: teleological approach submissive when above fails
§ Almost never get to drafting history
Terminating Treaties under Arts 60-62 Vienna Convention
o situations which vastly exceed the normal assumptions of risk
Case Concerning the Gabcikovo-Nagymaros Project
· Hungary and Czechoslovakia enter into treaty to make dam by joint effort to generate power and improve navigation
· Hungary suspends work when public protest erupts when political climate changes
· 3 years later Hungary denounces the treaty
· A few months later Slovakia implements a likewise project except it’s carried out on their territory only.
· Issue: whether Hungary unlawfully terminated the treaty. Yes. And Slovakia’s project was unlawful bc 2 wrongs don’t make a right.
· Ways to terminate lawfully under Vienna Convention:
· State of necessity
o Not grounds for termination, but exonerates state from performing, renders treaty ineffective, while necessity exists