8/25/09
McCann v. United Kingdom
1. Treaties- Written agreement by or among states governed by international law. One benefits—thought to establish clarity w/ the content of international law and establish what the rights are in black & white.
2. The Court’s approach to the interpretation of Article 2 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions be interpreted and applied so as to make its safeguards practical and effective. (page 10, #146)
a. Standard of review—how much deference will be given to the decisions that the government has already made.
3. UK court only requires a killing to be justified, but looks to Article 2, paragraph 2of the European Human Rights Convention (treaty), which requires that deadly force to be absolutely necessary for it to be lawful. The court must use the international law and says killing was not absolutely necessary
4. Treaties are the conventional law because they represent the express consent of states
5. McCann illustrates an international legal rule made by a treaty, adjudicated by an international court, and enforced by a regional international legal system
Filartiga v. Pena-Irala
1. Shows a customary or perhaps fundamental international legal norm adjudicated by a municipal (i.e. a domestic court) and enforced (or not) by ordinary mechanisms of that domestic legal system
2. “Whenever an alleged torturer is found and served w/ process by an alien w/in our borders, §1350 provides federal jurisdiction.”
a. Broad reading of the Alien Torts Claims Act established here in the grant of federal jurisdiction
b. §1350—Alien Tort Statute: District courts shall have original jurisdiction of any civil action if:
i. Civil action
ii. Alien
iii. Tort
iv. Violation of the law of nations or a treaty of the U.S.
3. The law of nations “may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.”
4. Because of looking at sources from which customary international law is derived (i.e. usage of nations, judicial opinions and the works of jurists) torture is now prohibited by the law of nations
a. Pena’s conduct violated the law of nations because official torture is now prohibited by international customary law (law of nations)
i. “The torturer has become – like the pirate and slave trade before him – hostis humani generis, an enemy of all mankind.”
b. Current usage and practice of international law (i.e. treaties) and the express foreign policy of our own Government (U.S) make it clear that international law confers fundamental rights upon all people vis-à-vis their own governments
i. Right to be free from torture is now among them
c. Arguably the best evidence for the existence of international law is that every actual State recognizes that it does exist and that it is itself under an obligation to observe it.
i. Nature of Customary International Law: In theory, at least, customary international law is developed as a result of the actual practice of sates
d. The court points to G.A. Resolution (UDHR, Dec’l on torture), Scholars, 55 nations recognize it in the Constitution (but in the world, approx. 129 nations), Regional treaties, global treaties
e. The Paquete Habana affirms: Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations. As evidence of these, look to the works of jurists and commentators and look to judicial tribunals for trustworthy evidence of what the law really is
5. Universality principle
a. The international community considers some offenses to be so serious that they are subject to the jurisdiction of all states
b. Filartiga – Torture is a Universal Crime
6. Effectiveness of International Law
a. United Nations Charter: A state’s treatment of its own citizens is a matter of international concern. Prohibition from torture has become part of customary international law now.
i. UN Declarations are significant because they specify with great precision the obligations of member nations under the Charter.
ii. Spurred first by the Great War and then the Second, civilized nations have banded together to prescribe acceptable norms of international behavior—from the ashes of the Second World War arose the United Nations
iii. The declaration creates an expectation of adherence and “insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the states.”
b. International Customary Law: UN Declaration of Human Rights now has been recognized as expressing customary international law because it “created an expectation of adherence” and that expectation was “gradually justified by State practice.” Filartiga
c. Humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest
i. Among the rights universally proclaimed by all nations is the right to be free of physical torture
d. Comply with treaty obligations to show to the rest of nations, even if they don’t want to/not best for them, to show they will comply with other obligations
e. What to talk about effectiveness of what? Immediate relief or something else entirely
Individuals as Subjects of International Law
1. Filartiga involves international human rights claims of Paraguayan citizens against an official of the government of Paraguay
2. McCann concerned individuals’ international human rights against the UK Government
3. States as subjects of international legal process
a. McCann : United Kingdom was subject to jurisdiction of the European Court of Human Rights because it had signed and ratified an international convention formally and explicitly accepting the jurisdiction of the Court.
i. Further, in accordance with the terms f the treaty the UK government had itself submitted the dispute to the Court for Judgment
8/27/09
Sources of International Law
1. Two ways to think of international law sources
a. Material source
i. The place one looks to actually read a rule of international law. I.e. any given treaty may prescribe a specific legal obligation
b. Formal source
i. Article 38 of the Statute of the ICJ
ii. A fashion in which international lawyers, judges, and jurists agree that international law may be made.
iii. Rules of recognition and validating norms
2. Statute of the International Court of Justice, Article 38 (First 3 = primary sources for the ICJ)
a. Intentional conventions, whether general or particular, establishing rules expressly recognized by the contesting states (1 (a))
i. Ordinarily clearly show the legal rule because they are in written form. Treaties are subject to the explicit acceptance of states. Therefore can often be clearer in their terms and more certain in their acceptance than other sorts of international law sources. Generally look to treaties first.
b. International custom, as evidence of a general practice accepted as law (1(b))
i. Asks you to look at the behavior of states between themselves at international level
c. General principles of law recognized by civilized nations (1(c))
i. Certain concepts shared by countries
d. Subject to the provisions of Article 59—judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law (1(d))
e. Note: Article 38 of the ICJ is often taken to be a listing of international law but that has some reservations
i. Article 38 nowhere mentions “sources.” Strictly speaking, it i
i. A violation is manifest if it would be “objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”
7. Even if the Hull-Lothian Agreement were illegal in U.S. law, that illegality would not prevent the US from still being bound in international law to honor its treaty obligation to the UK.
a. The international Court has ruled “it is a generally accepted principle of international law that in the relations between powers who are contracting parties to a treaty, the provisions of municipal law cannot prevail over those in a treat.”
i. Reaffirmed in Article 27 of the Vienna Convention
ii. Separate spheres of municipal and international law is sometimes referred to as “dualism”
8. This was an exec agreement
5. Treaties are the most frequent sort of international law made in practice
6. Partly because they are listed first in the ICJ statute (international conventions), judges of the ICJ and other international lawyers have often given treaties pride of place.
a. Also because treaties ordinarily clearly show the legal rule because they are In written form
b. Treaties are also subject to the explicit acceptance of states
7. Treaties can therefore often be clearer in their terms and more certain in their acceptance than other sorts of international law sources
a. However, Treaties do not cover all topics nor do they include all states as parties.
b. Treaties may be trumped by other forms of international law, especially natural law or jus cogens
c. Treaties always need to be interpreted in practice by judges or commentators who will use other sources of international law in their interpretations
8. Vienna Convention on the Law of Treaties:
a. Entered into force in 1980, primary source for the law of treaties
b. Definition – Article 2, 1 (a) :
i. Treaty means an international agreement concluded between States
1. Convention excludes treaties between states and an international organization or between international organizations
ii. In written form
iii. And governed by international law.
iv. Whether embodied in a single instrument or two or more related instruments and whatever its particular designation
c. Vienna Convention applies only to those treaties meeting the Convention’s requirements for a treaty- which are found in the definition
9. Vienna Convention on the Law of Treaties between States and International organizations or between International Organizations
a. Expands the definition from the Vienna Convention to include agreements not only between states but also those involving international organizations as parties
10. UN Charter – Law creating type of Treaty. Creates a new organization called “United Nations” and functions more like a Constitution
11. Helsinki Accord- Example of documents that look like, are formed like, or written like treaties but are not.
a. Signatures on the documents are not a significant step. Still need negotiations and political ratifications.
