Villanova University School of Law
Public International Law
International Law (IL)/Law of Nations – the body of rules and principles of action which are binding upon civilized states in their relations with one another. Lacks a legislature, executive, or judiciary.
I. The Nature of International Law
a. The History of International Law
b. An International Law Sampler
i. McCann v. United Kingdom
· Intelligence suggested that a team of IRA members were planning a bombing attack in Gibraltar. The IRA members easily crossed the border 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 was reaching for what was thought to be a detonator.
· Court only required a killing to be justified, but court looked at Article 2 of the European Human Rights Convention (treaty), which required that deadly force be absolutely necessary for it to be lawful. Although the soldiers were justified, the court must use the IL, and determined the killing was not absolutely necessary.
· UK, although a powerful state, still required to pay damages and accept its culpability.
ii. Filartiga v. Pena-Irala
· Federal court used Alien Tort Stature (ATS) to find jurisdiction over a claim by Paraguayan plaintiffs against an official of their own government for the torture-slaying of a family member in Paraguay.
· ATS 1350:
o District courts shall have original jurisdiction of any civil action by an Alien for a tort only committed in violation of the law of nations or treaty of the US.
· Court ascertained IL through:
o International treaties
o Regional treaties
o UN Declarations
o Judicial decisions
o Domestic practice and constitutions
o Writings of jurists
o State practice and belief re their legal obligations
· Cited favorably in Sosa to show state-sponsored torture is a violation of the law of nations.
a. The Sources of International Law
· ALWAYS LOOK FOR A TREATY FIRST:
o Can include 2 to 190 parties:
§ Bilateral or multilateral.
o Must be in written form.
o Must be signed then ratified in order to take effect:
§ Signature expresses a state’s intent to be bound.
§ However, the state is not bound until it ratifies.
o Subject to the explicit acceptance:
§ Only states that are signatories are bound.
§ States can accede after treaty is in force.
o Primary/most frequent source of IL.
o Only nations and intergovernmental organizations (IGOs) can enter into treaties:
§ IGOs are considered states (e.g. UN because made up of states).
§ Individuals and NGOs cannot enter into treaties.
o Can be trumped by other forms of IL, such as jus cogens or natural law.
o Treaties often interpreted by domestic courts under guidance of the Vienna Convention (VC) on the Law of Treaties:
§ Adopted in 1969 and entered into force in 1980.
§ Concerns the international law on treaties between states.
§ Generally accepted as CIL and binding on everyone, including non-signatories (e.g. US).
§ Provides clear rules; seen as the “Treaty of Treaties.”
i. Statute of the International Court of Justice (ICJ), Article 38
(1) The Court shall apply:
(a) International conventions (e.g. treaties)
(b) International custom
(c) General principles of law
(d) Subject to Article 59 (ICJ’s decision is limited to parties involved and does not set binding precedent), judicial decisions and teachings of publicists as “subsidiary means” for determining law.
(2) Court can provide a case ex aequo bono, if the parties agree (based on equity, yet parties have never agreed to this).
· Statute interpreted to assert there are other sources of international law beyond treaties, and treaties often need to be interpreted through other “subsidiary means.”
b. A Treaty Sampler
i. The Treaty Between the Jews and the Romans
· Agreement to aid each other if attacked.
· Romans had a good record of respecting their treaty commitments; reciprocal good faith important to ensuring enforcement of treaty obligations. Fact that it was written down was important to signify its validity.
ii. The Peace of Westphalia
· Established state sovereignty:
o States have exclusive rights within their own territory.
o Not to be molested in any manner under any context.
· States agreed to limit state sovereignty to assure sovereignty:
o States will not molest others (limiting sovereignty) in exchange for not being molested by others (acquiring sovereignty).
iii. The Treaty of Paris
· Peace treaty between Britain and US after Revolutionary War.
· Established constitutive vs. declaratory theories of statehood:
§ State does not exist as subject of IL until recognized by other states; other states must consent to it to being a state.
§ US became a state only when Britain recognized it as a state.
§ State creates itself; other states recognize its existence. State is a state so long as it meets statehood requirements:
· Defined territory
· Permanent population
· Capacity to conduct foreign relations.
§ When another state recognizes the state, it is only declaring existing fact and reality.
§ When Britain recognized US as a state, it was only declaring an existing fact; US was already created in 1776 via the Declaration of Independence.
iv. The Cession of Alaska
· US purchased Alaska from Russia. US paid over 7 million.
· Seen as a successful example of a bilateral (includes only two states) treaty.
v. The Kellogg-Briand Pact
· Multilateral Treaty (includes more than two states):
o Could have done a series of bilateral treaties
o Multilateral treaties may contain provisions mak
ion. Purpose behind drafting – what were they seeking to do?
§ They would want airlines to prosper, so to expand the scope of liability would not be in their intentions.
§ Also, the fact that a remedy for emotional injury alone was unknown in many jurisdictions at the time of the Warsaw convention.
o Treaties and scholarly writings
· VC, Article 31: General Rules of Interpretation
o Interpret in good faith in accordance with ordinary meaning given terms in their context and in light of object and purpose
o Context – Look at text and any other agreements relating to the treaty:
§ Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
§ Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
§ Any relevant rules of international law applicable in the relations between the parties.
· VC, Article 32: Supplementary Means of Interpretation
o Recourse may be had to supplementary means of interpretation, including
§ Preparatory work of the treaty
§ Circumstances of its conclusion
o To confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
§ Leaves the meaning ambiguous or obscure; or
§ Leads to a result which is manifestly absurd or unreasonable.
· States parties to treaties may also make amendments – VC, Articles 39-40:
· Typically regarded as a new treaty
· Binding only on states that affirmatively accept amendment
· Multilateral treaties can also create differing procedure than VC to make amendments an easier process.
iii. Case Concerning the Gabcikovo-Nagymaros Project
· Involved a 1977 treaty between Hungary and Czechoslovakia for constructing a system of locks and dams. Hungary unilaterally suspended its part of the project as new evidence emerged regarding the environmental consequences of the project (never do this – too risky!). Hungary breached, which was not justified by “ecological necessity.” Slovakia also violated its obligations. The Court determined the treaty was still in effect and the states should negotiate a resolution.
· States were not parties to the VC yet and nothing in the treaty explained terms for termination. Court used CIL.
· Hungary’s arguments for termination: