I. The Nature of International Law:
A) The History of International Law: The principle of International law is that “nations ought to do to one another in peace, the most good, and in war, the least evil possible.” Motesquieu 1748
1) Contrast Public w/ Private Law:
a) Public International Law concerns the political interaction of states (this class)
b) Private International Law relates to legal aspects of the international (economy) and conflicts and cooperation among national (legal systems).
2) Contrast w/ International Business Law:
a) International Law deals primarily with treaties
b) International Business Law has an emphasis on business organizations in various foreign countries. This also deals with treaties.
3) An International Law Sampler: These cases focus on a domestic application of an international ruling.
The Golder Case (p. 3): This case dealt with the European Commission of Human Rights (agreed to by the Council of Europe). This Commission allowed claims by individuals to be screened by them to see if they should be looked into for additional consideration. Great Britain, which prides itself as a model country for defendants rights was taken to task because the British system did not allow the prisoner to make a claim or see a lawyer. The gist is that in Great Britain, once you are in jail, you are subject to an administrative system instead of having access to a lawyer. Golder was accused of taking part in a prison riot, and was denied access to an attorney. Golder, after he was released from prison brought charges against Great Britain. The European Convention of Human Rights (article 6, 8 & 50) applied above the rules that Great Britain would apply according to the findings of this case. There is an obligation, by Great Britain to comply to the opinion. If Great Britain did not adhere to this ruling and the convention of the treaty, the other states which had signed on to the European Convention cannot force compliance directly, but could put pressure on them indirectly. Therefore the state can also put pressure on its citizens to adhere to the law as well.
Filartiga v. Pena-Irala (p. 10): Torture is pretty much outlawed by custom and international law (derived from custom). The question is how can a party in a foreign country get jurisdiction in another country. The courts held that foreign citizens were under the jurisdiction of federal courts in the United States in cases like this. Torture of another person took place in a country outside the United States, and the United States took jurisdiction of the case. This was justified as the torturer is “an enemy of all mankind.”
International Law as Contracts: Most international law conflicts don’t get into judicial tribunals. International law conflicts are usually discussed by looking to treaties. Instead of looking at court decisions, they are looked at by how the treaties were formed, intent, were the obligations contractual.
II. Use of Force: Retaliation and Reprisal: Look at this with a view toward Bosnia and Kosovo
A) The Use of Force and Article 2(4) (p. 418-430)
1) Lou Henkin: Conclusion is that we must look to formalized rules and follow them. This approach to Kosovo
2) Michael Reisman: Conclusion looks at individual cases for world order, and justifies your actions in each case. In the case of Kosovo, this allows that we can go direct to the problem and solve it.
3) The Key to intervention and the suspension of sovereignty of a nation are:
a) Humanitarian Intervention:
(1) Genocide: The killing of a race of people. What about activities that are not criminally illegal, but the end is the same?
(2) Protection of Nationals: Protect our own nationals (i.e. Granada)
(3) Kosovo: This is an exception where there was no genocide, but the people were oppressed and not allowed to live (or in some cases were killed) as human beings.
b) Self-Determination: Allow people to determine their own destiny.
(1) What about minority rights v. majority rights? This is where the law and political science come together.
4) Once it is decided to take actions, what actions are allowed?
a) Necessary actions
b) Proportional to what
sses humanitarian intervention
1) Can we justify what was done by the UN in Kosovo? The main argument brought forth was humanitarian.
2) Is this standard practice by UN?
The Nicaragua Case (p. 430)
This was a suit against the U.S. to withdraw and pay reparation to Nicaragua for its use of force. The U.S. was not there and this was an ex parte case. The arguments that they U.S. was supposedly made were really straw men. The case was argued how the court perceived the U.S. would answer. Witnesses were not brought up to the ICJ in a fair way. Judge Sheibel in his dissent felt that this was not fairly heard and several witnesses were not allowed to testify. The court tried to make it appear that this was a contested case. The usual would be that the U.S. would be seen as defaulting. However, the court wrote fiction v. what actually was NOT argued by the U.S.
The opinion eludes to the idea that there is “customary law to the use of force” and it is similar to Art. 2(4) of the UN charter. There really isn’t much written on this, so it is assumed by the ICJ that the charter “created customary law on the use of force.”
Role of Legal Advisors to Foreign Ministries:
1) Kosovo:
a) Actions of NATO made things worse, by encouraging atrocity.
b) War is only over if collateral damage (hospitals, bridges, etc that were used by civilians) This is true in every war.
c) There is revisionism in Kosovo. There were not as many atrocities by Serbs against the Albanians as claimed or portrayed. This shows how gullible we are to news.
d) Under UN and K4 major atrocities are now being attributed by Albanians against the Serbs and are being watched by occupying forces.
