Public International Law Outline

Public International Law Outline

Prof. Gordon

Spring 2011

THE NATURE OF INTERNATIONAL LAW

Sources of International Law – Article 38 of the Statute of the International Court of Justice defines the sources of international law. Look at them in order (hierarchy), to find the law.

Treaties and other bilateral/multinational agreements to which sovereigns are signatories, and which govern the issue.

Customary international law (CIL).

i. General practices of states, accepted as if they were law.

ii. Followed not out of habit or expediency, but because considered law.

General principles – Broad concepts that can be applied (like estoppel, good faith in negotiations, etc.)

i. Principles that reoccur anywhere in the world, and is accepted by any jurisdiction that care about the principles of international law.

Judicial Decisions – Judicial decisions don’t create a binding precedent, so looked at in a cautious way. Past decisions considered, but not in a binding way like in the U.S.

Jurist Publications – Publications like law review not binding, but can be persuasive

Enforcement of International Law

Ways to settle Disputes

i. Set up an independent arbitration panel (other than ICJ)

1. Countries of the world would set up an agreement to enforce all arbitration agreements. So if one state doesn’t want to abide by decision, its assets can be frozen by other countries seeking to enforce the arbitration agreement

ii. Most international disputes are settled through negotiations or arbitration (meditation)

iii. In addition to ICJ, there’s the international criminal court, European court of human rights, etc. (ad hoc tribunals)

iv. Also sometimes domestic courts

Outside Enforcement – sanctions, diplomacy, politics, shame, refusal to trade (economic sanctions), military intervention

i. Different effect in different parts of the world – The more powerful you are, the more likely you are to not abide by international law

1. Less pressure on US to take treaty seriously (smaller, weaker countries cant really hurt US by not trading, etc, so no deterrence for US)

ii. Most states abide by international law most of the time

Long Term interest in abiding by International law:

i. Fear of isolation

ii. To have legitimacy and persuasiveness

1. More powerful states can take a bigger hit to legitimacy without compromising power

iii. Self-interest – in terms of long-term outlook to present itself as a law-abiding society

1. Interest state has in good reputation, maintaining a sense of identity

Short-term interest in abiding int’l law

i. Rule of law needed for organization in society

ii. Reciprocity (self-interest also) – If you break your agreements, no one will enter into agreements with you. Agreements are mutually beneficial

iii. Also to have a right for our citizens, we need to give the same right to other nation’s citizens

iv. Normative: Right/moral thing to do

European Convention on Human Rights:

McCann v. United Kingdom (pg. 3)

i. Facts: 3 known Irish terrorists were in Spain. UK authorities were alerted to their presence, and they were killed during a confrontation. The estates of the deceased brought an inquest against soldiers and govt, believing it was a wrongful killing, to the ECHR.

ii. Analysis: UK Court only requires a killing to be justified, but Court looks at Article 2 para. 2 of the European Human Rights Convention (treaty), which requires that deadly force be absolutely necessary for it to be lawful. Although the soldiers were justified, the court must use the int’l law, and says the killing was not absolutely necessary (there was negligence and incompetence in the operation).

iii. Damages: Although UK very powerful, they still had to pay the terrorists’ families compensation, – they still have to abide by the int’l tribunal.

iv. Notes: European Convention of Human Rights – product of post-WWII politics, in wake of Nazi atrocities. Countries get together to enforce human rights. This is a court of last resort, meaning you must exhaust domestic remedies first before coming here.

The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law

Filartiga v. Pena-Irala (pg 17)

i. Facts: Filartiga’s son was tortured & killed by Pena, an official (all parties from Paraguay, and event took places in Paraguay), in retaliation for father’s political beliefs. They could get no justice in Paraguayan courts (lawyer arrested etc.). So, they sue in U.S., but they’re dismissed for lack of jurisdiction. Issue of jurisdiction of U.S. courts is on appeal.

ii. The suit is between 2 foreign nationals, so how does the U.S. have jurisdiction?

1. Under the Alien Tort Statute, U.S. has jurisdiction to hear tort claims brought by an alien where there has been a tort “committed in violation of the law of nations or a treaty of the United States.” Torture was clearly a violation of int’l law (aka “the law of nations”), and the U.S. did have jurisdiction over the case since the claim was lodged when both parties were inside the U.S.

2. This case interpreted that the Alien Tort Statute to granted the U.S. jurisdiction to enforce human rights law domestically.

a. Very controversial. Should U.S. be a world police by trying foreign citizens in the U.S.? – Well, the idea is that if you commit such a heinous crime, then any tribunal should be able to try you b/c the whole world would agree how bad the crime is (jus cogens). U.S. court enforces int’l law, not domestic law.

iii. Now, there is a convention on torture, but there wasn’t at time of this case. How does U.S. evaluate this without a clear cut prohibition on torture? Court looks at:

1. Law professors determinations of the law

2. Public law

3. General usage

4. United nations charter

5. Universal Declaration of human rights (not binding– aspirational only but shows custom)

6. Declaration on torture – not binding, but evidence of how custom would evolve

7. European convention outlaws torture

8. Inter-American convention on human rights (again, custom)

9. Domestic laws – many countries have banned torture

iv. Outcome/Enforcement: U.S. courts awarded Filartiga $10mm. But problem with enforcement – Pena left U.S. This is still a problem with int’l law. U.S. won’t send troops to Paraguay to make them pay. Still a victory – legal recognition of torture being wrong (political statement).

treaty sampler

Treaty between Jews and Romans- Agreement to help each other if attacked

i. Jews wanted acceptance, respect, protection, strong ally

ii. Romans wanted to gain support of Jews against their enemies

Peace of Westphalia- Peace treaty to end 30yr war

i. Guaranteed right to practice religion

ii. Established the notion of state sovereignty

Treaty of Paris – ending US revolution

i. States had their own sovereign power, which made it difficult to make all obligations – this led to the US constitution and created statehood

Cession of Alaska Russia cedes Alaska territory to US

i. Example of a treaty that worked extremely well

Kellogg-Briand Pact

i. Some see this as an aspirational treaty – that parties didn’t view themselves as legally bound

ii. Murphy says they did see themselves as bound – but no institution was created to implement the treaty

iii. Used at Nuremberg trials – so clearly binding

iv. Treaty was a failure

Hull Lothian Agreement- US will provide critical support to UK during WWII

i. This was an executive agreement – no participation by senate or congress

ii. Based on president’s powers for national defense and foreign policy

iii. Deal – US got naval bases in Caribbean for giving Britain destroyers

iv. Questionable legal basis – Law of Neutrality – quite well developed under Hague Convention on Rights and Duties of Neutral Powers in Naval War and National Defense Act

v. Roosevelt knew that if Germany defeated UK that would be a major risk to US

THE LAW OF TREATIES

Treaties, Generally: International agreements are governed by the Vienna Convention on Treaty Law. Under it, states can do anything they want to agree to, unless it violates a peremptory norm.

Many countries don