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Public International Law
Villanova University School of Law
Gordon, Ruth

Public International Law

Fall 2011

Ruth Gordon

THE NATURE OF INTERNATIONAL LAW

An International Law Sampler

– International Law:

o “as the body of rules and principles of action which are binding upon civilized states in their relations with one another.”

o Hard Law: rules meant to be followed

§ Formal sources of law such as Treaties

o Soft Law: Norms setting out preferred outcomes/aspirations

§ Instruments that are not formally legally binding

§ Mutual declarations at end of conference

· May contain non-binding statements of principle

– McCann v. United Kingdom (European Ct. of Human Rights 1995) (Rule made my Treaty)

o Points:

§ Individuals’ human rights claims against U.K. Government

§ International legal rule made by a treaty

§ Adjudicated by an international court

§ Enforced by a regional international legal system

o Background: Intelligence suggested that a team of IRA members were planning a bombing attack in Gibraltar. The IRA members easily crossed the boarder from Spain without any resistance from authorities. British officers shot and killed the IRA members upon their attempts to intercept the members, when the officers believed one member to be reaching what was thought to be a detonator.

§ Issue: Whether the killings were a breach of Article II in the European Convention on Human Rights. (“…whether the killings by the soldiers were reasonably justified in the circumstances as opposed to whether they were “absolutely necessary” under Article II para. II)

§ European Court of Human Rights: Held that the individual officers did not violate Article II, but that the operation as a whole violated Article II

o Notes:

§ European Court of Human Rights—international court, which was created by a treaty

§ Law—1950 European Human Rights Convention—a sovereign state may exercise its sovereignty not only by making domestic law but also by making international law. Thus, Article II obligated the United Kingdom in IL b/c of U.K.’s own consent

§ Aftermath:

· U.K. paid the judgment—public opinion was a big part of the decision to do this

– Filartiga v. Pena-Irala (2d. Cir. 1980) (Rule made by Customary IL)(Held individual violated law of nations)

o Points:

§ Paraguayan Citizens IHR claims against a Paraguayan Government Official

§ Customary or fundamental international legal norm

§ Adjudicated by a municipal court

o Alien Tort Statute: “all causes where an alien sues for a tort only [committed] in violation of the law of nations”

· “Construing this rarely-invoked provision, we hold that deliberate torture perpetrated under color of authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.”

§ Background: Paraguayan Citizen brings suit against Paraguayan government official in U.S. District Court under alien tort statute. Citizen alleged that the citizen’s father was tortured and killed to his political affiliations. This killing was done under the government’s color of authority

§ Issue: Whether torture is considered customary international law.

· The Court looked to:

o (1) International Treaties

§ UN Charter (U.S. Treaty)

· “… makes it clear that in this modern age a state’s treatment of its own citizens is a matter of international concern.”

§ International Covenant on Civil and Political Rights

o (2) Regional Treaties

§ American Convention on HR

§ European Convention for Protection of HR

o (3) U.N. Declarations

§ Universal Declaration on HR

§ Declaration on Protection from Torture

o (4) Judicial Decisions

o (5) Domestic Practice and Constitutions

o (6) Writings of Jurists

o (7) State Practice and Belief regarding legal obligations

TREATIES: “always look for a treaty because this is the path for the least resistance”

– Summary:

o Many shapes, sizes, and objectives. MUST:

§ (1) Be in writing

§ (2) Between States (i.e., NOT corporations)

§ (3) Governed by International Law

o Number of Parties:

§ 2 to 190

o Negotiations

§ May be informal

§ May be multilateral conference that lasts for years

o Reservations

§ Possible if compatible with principles and purpose of the treaty

§ UNLESS: the treaty says no reservations or limited reservations

o Termination:

§ Vienna Convention has default rules:

· Impossibility, Fundamental Change in Circumstances, Material Breach, etc.

– ICJ Article 38:

o “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:”

§ (1) International Conventions

§ (2) International Custom

§ (3) General Principles of law recognized by civilized nations

§ (4) As subsidiary means & Subject to Article 59

· Judicial Decisions

· Teachings

§ (5) Ex aequo at bono (upon the parties agreement)

· According to what is good & right (equity)

o **Parties have never agreed to this

– Notes: Article 38

o No “common law” effect. The decisions of the International Court are only binding between the parties and in respect to that particular case

o * Sometimes treaties may be trumped, especially by natural law or jus cogens.

– Treaties:

o Synonyms: treaty, convention, agreement, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, memorandum of understanding, modus Vivendi.

o Who makes treaties?

§ “the right of entering into international engagements is an attribute of state sovereignty.”

§ (1) States

§ (2) Inter-governmental Organizations

· Ex) United Nations

§ (3) Some sub-state actors

o Types:

§ Bilateral: More like a two-party contract. The treaty only binds the two parties

· Ex) Hull-Lothian Agreement

§ Multilateral: More than two-parties

· Multilateral treaties increase the chances that the law will move into customary practice (Customary International Law)

o Ex) 1982 Convention on the Law of the Sea

o Putting it into Force: Enforced upon “good

o Other Relevant treaties and scholarly writings

o *Ensure that the treaty’s purpose is protected with the interpretation

o (3) Look to other general rules of construction if difficult of ambiguous

o (4) Construe the language more liberally than private agreements

o (5) May look beyond written words

§ History of the treaty

§ Negotiations surrounding the treaty

§ Practical instructions adopted by the parties

– Treaty Termination

o (1) What does the treaty say about termination?

o (2) Consider other means

§ Mutually agree to walk away

§ New Treaty

§ Fundamental Change in Circumstances

§ New Preemptory Norms

o Case Concerning the Gabcikovo-Nagymaros Project (I.C.J. 1997) (“The Dam Case”)

§ Background:

· Hungary and Czechoslovakia entered into a treaty providing for diversion of the Danube River (bordered the two States).

· May 1989: Hungry suspended its work after responding to public concerns—there was evidence that the project would adversely affect water quality, plants and animals.

· Czechoslovakia was convinved that Hungary would abandon the project and began its own solution called Variant C.

· May 19, 1992: Hungary unilaterally denounced the treaty

· June 1993: Czechoslovakia broke up into Slovakia and the Czech Republic

o Hungary and Slovakia *agreed to submit several questions related to the dispute to the ICJ

· Held: Hungary’s termination had no legal effect. Because Slovakia was a successor to Czechoslovakia, it became a party to the treaty. Although the States are not parties to the V.C., this is still considered Customary International Law

§ Hungary Argued:

· Necessity

o But, this is not for termination. This only makes the treaty ineffective while the necessity exists

· Impossibility (Art. 61)

o The treaty actually included terms that allowed for the treaty terms to be adjusted.

· Fundamental Change in Circumstances

o Political changes were not an essential basis for consent. The new Environmental needs were not completely unforeseen and the treaty provided ways to deal with changes

· Material breach by Czechoslovakia

o Irrelevant because Hungary unilaterally terminated before Czech (TIMING). Czechs acts were in reaction to Hungary’s wrongful acts

· New Preemptory Norms of International Environmental law

o Treaty incorporated changes in environmental law

· Mutual repudiation by both parties

o Both parties must agree