International Law Outline
I THE NATURE OF INTERNATIONAL LAW
o Subjective International Law: identification of those entities that are capable of possessing and asserting rights under international law
o Who gets to be a person at the international level?
· Consists largely of absolutely sovereign state
o International Law (Traditional Definition)
· “the body of rules and principles of action which are binding upon civilized states in their relations with one another”(p.24)
o Modernly, international law has moved from a traditional state-centered to a human-centered view of international law where international law exists not only for the protection and advancements of the interests of governments but perhaps even principally for the protection of individuals against the states in which they live.
o McCann v. United Kingdom [p.3]
· Human-oriented vs. State-Oriented
i The majority takes a human-oriented approach
ii The object and purpose of a human rights treaty is to protect human beings. The right to life ranks as the most fundamental provision of the Convention and given that circumstance it will strictly construe the provision of Article 3. (Majority Opinion—p.10)
· Treaty: a written agreement by or among states governed by international law
· Families of three IRA bombers, killed by U.K. special services, filed suit in the European Human Rights Commission, claiming that the government, through the special services, violated Article 2 of the European Human Rights convention
· Article 2 requires that “everyone’s right to life shall be protected by law”
· Court held that the UK government violated Article 2 by not taking all of the necessary steps to ensure that the terrorists’ right to life be upheld
· UK was subject to court’s jurisdiction because it signed and ratified an itn’l convention formally accepting jurisdiction
o Filartiga v. Pena-Irala [p.17]
· Plaintiffs were from Paraguay and were filing a claim against a Paraguayan policeman for torturing and killing their family member; filed in US while defendant was in US
· Plaintiffs argue that torture violates customary international norms
· Acknowledges the rights recognized in customary law, that the UN Declaration of Human Rights is an expression of customary int’l law because it “created an expectation of adherence” which was “gradually justified by state practice”
· Held that freedom from torture is part of customary international law for which § 1350 providers federal jurisdiction; holding that US government has a duty to uphold int’l law, regardless of where and by who it was violated
· Relied on the Paquette Habana’s statement that when there is no treaty, no controlling legislature or judicial statement, etc., one must look to customs of civilized nations
· Court doesn’t give a long history of custom like in Paquette Habana, but instead cites the UDHR, the ICCPR, etc.
· Positivist or natural law?
i Natural law might have emphasized state practice because positivists can only look at laws
· Alien Tort Statute (ATS)—28 U.S.C. § 1350
i Original subject matter jurisdiction for a civil action brought by an alien for a tort only in violation of a treaty of the United States or the Law of Nations.
· Law of Nations (Custom)—where there is no treaty or other source of law a resort must be had to customs and usages of civilized nations (p.20). The idea being that In addition to treaties the practices of states consistently performed over a long period of time out of a sense of legal obligation can create an unwritten form of law that is binding on all states through out the world.
· Paquete Habana (p.92)—resort must be had to customs and usages of nations as evidence of these the works of jurorists and commentators and so you might want the opinions of scholars.
· Custom relies on evidence which can be brought about by affidavits of scholars, resolutions of States, etc.
· Litigation is a tool for engaging in a broader public discourse trying to speak to other audiences and focusing their attention on legal practices and trying to cultivate some public support for a different way for and in that since Filartiga represents a landmark case that lays the way for litigation against tyrants.
o Effectiveness of International Law
o Who have rights under international law?
· Although states remain the key players to the international legal system we find that individuals increasingly can assert rights and take part in the international legal process.
o Looking at the sources of international law we can say that
· Treaties and custom represent the two most important sources of international law but we can also see that as an advocate simply as a matter of practice you might prefer to rely on treaties rather than custom.
o In terms of providing effective remedies often depends on a number of factors including consent, likelihood of retaliation, loss of reputation.
o Almost all states comply with almost all of their obligations almost all of the time.
SOURCES OF INTERNATIONAL LAW
A EXAMPLES, CATEGORIES AND PROCESS (8/27)
o A treaty is the best tool to pull the law in a new direction very quickly.
o The Vienna C
to move away from the old rules.
ii What are the benefits of moving away from the old rule?
a This is like a statute. A statute applies to every member of the community. To the extent that you are trying to get an obligation that everyone will adopt and will function like a statute then you need to promote the broadest possible participation. You can do that be allowing states to opt in at different levels.
· Reservations may threaten the integrity of the convention by allowing states to become apart of the convention for superficial reasons and then allowing them to throw in reservation in which they basically abide by a small percent of the terms of the convention
· In order for reservations to be valid, the reservation must be compatible with the object and purpose of the treaty. In other words, states have to buy into the core obligation of the convention. They also cannot prohibit certain race, religion, etc. The states can only pick and choose between the secondary (peripheral) issues (obligations) which will allow for a natural stopping point for reservations. This majority establishes that a more flexible rule will not threaten the integrity
· The dissent is worried that reservations will undermine the uniformity of the treaty. If law aw is to promote order and not chaos it has to establish a certain amount of uniformity, at least a level of uniformity that is chosen by the community and not left for everyone to pick and choose for themselves.
· Vienna Convention Article 19, 20(5), and 21 (p.931-2)
· Silence is an acceptance of a reservation.
· While the availability of reservations certainly do promote universality, there is a trade off in undermining the level of uniformity, increasing the degree of complexity. The trade off however has been accepted by the Vienna Convention on World Treaties as well as the International Court of Justice which seems more disposed towards the adoption of reservations at least on peripheral issues.
o What are the various rules of interpretation that one might use for treaties and how can rules of interpretation also either undermine or perhaps promote the goal of uniformity?