The Nature of International Law
Decentralized system that coordinates the activities of major powers with few laws and organizations
Vague and conflicting principles in tension with one another
The vague component liberates us to think creatively about the law
Law: order to live our lives
Old law: theory of terra nullius – state can acquire any territory unoccupied by civilized group.
Order served the interest of the societies in power
Power-based system – old system. Based on leverage, Hobbesian principle of strong always win, weak always lose
Rule-based system – new. put the powerful nations, like us near the top of the food chain, at risk. It sounds like a great system until it quits being abstract and begins directing affecting us and limiting our power
The international legal system consists largely of sovereign states
A jurisdictional structure of spheres allows each state’s maintenance of its own sovereignty
1. Protection of individuals under international law
2. International economic law
3. Laws governing use of force/conduct of hostilities
· p. 24 International Law definition: broad in that it encompasses many aspects of international law & narrow in that “civilized” states may exclude some peoples and nations. Has changed into a human-oriented system of international law versus a state-oriented system
· McCann v. United Kingdom (Page 3)
o Representatives of late former IRA terrorists (who wanted to detonate a car bomb to demonstrate resistance to both British and Northern Ireland’s military). British police & SAS (British equivalent of SEALS, etc.) ID deceased as suspects, follow and kill the deceased as shooters were under the assumption that the suspects would detonate the remote control to the car bomb (assumption was wrong).
o Appellants’ claim a violation of Art. 2 of the European Human Rights Convention
o UK claimed the use of force was necessary, the victims’ intentions were unlawful violence, but the ISSUE is whether or not the degree of force was absolutely necessary.
o Court voted 10-9 – very hard to determine if force was absolutely necessary
o Court said UK did violate because they had a way to detain/arrest the suspects but chose not to do so prior to the shooting; they did not adequately train their police with firearm practices. The majority favors a human-oriented system.
o Dissent favors a state-oriented system as the state has already conducted and decided the matter.
· “Standard of Review” – A higher court reviews a decision from the lower court & the standard is how much deference will be given to the prior decision: complete deference or active substitution of the second court’s decision of the merits of the case
· In a close case, the party with the burden of proof typically loses; majority said UK did not prove
· Dissent said Plaintiffs did not establish that there was an unnecessary use of force/violence
· While treaties are important in international law, they often contain interpretative differences that allow lawyers to creatively interpret and use tools of advocacy to argue your case
· Filartiga v. Pena-Irala (Page 17)
o Facts similar
§ Relatives killed by enforcement
o Plaintiffs are sympathetic
§ Dr. Joel, Joelito, & Dolly
o Joelito is tortured and killed, Dr. Joel & Dolly
§ Seek relief in US
§ All events took place in Paraguay
o Applied for political asylum
§ Pena overstays visa in the US
o Dispute between foreign citizens
§ Federal question (tort claim)
o Section 1350 Art. II, section 2 Alien Tort Statute
§ Civil action
o Treaty or constitution
· Law of Nations= resort to customs and usages of civilized nations
o Trustworthy evidence of what the law really is
· Declaration on torture
o General assemblies
· Scholar declarations
· Other states
o Torture prohibited by 55 constitutions
· # of treaties
o Regionally & globally prohibiting torture
· US Govt. Amicus Curiae
o No state which recognizes right to torture
· Effectiveness of International Law
o McCann ordered to pay 38,700 for costs and expenses incurred in proceedings
o British government paid the judgment
o Threat of expulsion from European institutions
o Expectation of others to comply
o Consented explicitly to the rule of law
§ More likely to give rise to effective remedies
· Filartiga was more about politics than money
o Statement to government about prohibition of torture in other countries
Sources of International Law
Modern sources of international law:
Any question about domestic law uses sources like the constitution, a statute, regulations, common law. Answer to almost every legal question included in these
Formal sources: outlined in Article 38 of the Statute of Int’l Court of Justice
BUT only the statute for one court, not binding on any others
ICJ itself sometimes uses other sources not listed in the ICJ statute
Statute is a place to start
Treaties: written agreements between nations
Custom: unwritten laws consistent with the general practices of a state
General principles: based on all states having done this very same thing. Different from custom in that custom is the practice among states in the relations with one another; general principles are things that all states, not in interrelations but in their domestic legal system.
Writings of jurists & qualified scholars: not necessarily a source, rather a confirmation of the usage of the other sources
With two or more sources, you need to look for your answer among more than one place. How do they agree? How do they interlock?
Constitution prevails in the event of a conflict with a statute, et
Creates UN, identifies principle organs (GA, security council, etc), defines relationship between each entity and the UN and also the member states
Establishes an entity, much like the constitution of a country
Helsinki Accords (1970s)
Created the commission on the security and cooperation in Europe (OSCE)
Concluded btw East and West during Cold War
Were not designed to be binding in the same formal sense as a treaty
Not designed to be enforceable. Supposed to be aspirational.
Contractual treaties will generally be the most detailed and specific
Highest level of compliance = highest level of detail
In the event of a conflict btw treaties, last in time prevails. Issue governed by UN charter.
Treaty between the Romans and Jews (Page 29)
Jews proposed treaty because they realized that being allies was a good idea because the Syrians were threatening them and they realized that Rome was extremely powerful
The Romans accepted so they could show good faith in honoring commitments
Contractual treaty but without the finiteness of the contract in the cession of AK case
Kellogg-Briand Pact (Page 44)
Military treaty that governs use of war as national policy
Soft law: non-binding. Mutual declaration.
Aspirational document: “we’ll just try to quit having war”
BUT contemplates recourse in the event of a violation. Could be regulatory/statutory
Article I: vague. What is war? At what point does the threat of force become war? Not renouncing the use of force, just war.
Article II: is pacific means the non-use of force? Only requires you to seek settlement through pacific means – just try to peacefully settle, then resort to force later?
Multilateral treaty dealing with a large # of important issues looking forward over a long period of time among states with antagonistic interests
Poorly drafted – therefore fails.
Writing out a treaty
Level of detail is higher. Removes “wiggle room” and room for interpretation
Helps organize, brings out higher level of rigor and detail in thinking about the relationship
Increases binding nature
What are reservations and how do they undermine uniformity?
Like treating an agreement as an a la carte menu: drawbacks – prohibitions you have on an issue
Ex: I’ll take genocide but I won’t take the punishments for officials, etc.