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Public International Law
Villanova University School of Law
Gordon, Ruth

Public International Law Outline
Ruth Gordon Spring 2017
 
Chapter 1: The Nature of International Law
History of International Law
Private International Law- Foreign transactions between individuals between individuals &/or corporations; whole different system
Public International Law- Rules to govern relations between states; Rights and obligations between each other (inter se)
This is what our course is in
Not always Black and White:
Can be individual v. individual and individual v. state
There are no statutes in international law unless there is a domestic statute
McCann v. United Kingdom
UK, Spanish, and Gibraltar authorities were aware that Provisional IRA were planning a terrorist attack on Gibraltar; estates bring case saying that members of SAS constituted a violation of European Human Rights convention
Exhausted domestic remedies before going to international body (European Court of Human Rights)
International Law made by treaty, adjudicated by international court, then enforced by regional international system
UK complied because they consented to treaty and would have a negative effect if they did not comply
Filartiga v. Pena
Customary international law or fundamental norm, adjudicated by municipal court, enforced by municipal court
Jurisdiction was proper over defendant because of Alien Tort Statute
Key is establishing jurisdiction
How did Alien Tort Statute establish jurisdiction?
Customary International Law- states believe they are legally obligated to do it, you have to find it
Torture is universally denounced as a tort, so there is legal obligation to refrain from it
State Sovereignty
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Chapter 2: Treaties
Customary International Law
When no treaty or controlling executive or legislative act and no judicial decision, resort to customs and usages of civilized nations (Paquete Habana)
General practice of states; accepted as law (ICJ Statute 38(1)(b))
Sources of Customary International Law
International Treaties
Regional Treaties
UN Declarations
Holds weight because General Assembly of UN makes these recommendations
Affirm member obligations under Charter
Cannot contend do not know what Human Rights promised to promote- obligations are more concrete and state are put on notice
Formal and solemn instrument, for rare occasions when principles of great and lasting importance are being enunciated
Creates expectations of adherence
If expectation is gradually justified by state practice, can become recognized by custom as proclaiming binding rules for states
Judicial decisions
Domestic practice and constitutions
Writing of Jurists
State practice & beliefs regarding their legal obligation
Hierarchy in International Law
Not supposed to have one, but treaties are given higher value
Treaties
State signed, agreed to do it
There are sources needed beyond treaties
Treaty Sampler
Treaty of Jews and Romans
Must be in writing, makes it permanent
So that there is no confusionà this is our agreement
Why would Jews do it?
Romans offered protection
Why would Romans do it?
Taxes, representation, building empire, mutual enemies
Treaty of Westphalia
Establishment of states from the Holy Roman Empire
Best known for ideas of statehood and sovereignty
State Sovereignty
Exclusive rights within own territory
Not to be molested in any manner under any pretext
Agree to limit sovereignty to assure sovereignty
Not molest in turn for not being molested
Treaty of Paris
Ended Revolutionary War
Article I
Recognizes US sovereignty
Create or Recognize Sovereignty
Constitutive- not a state until others say you are (Treaty of Paris)
Declatory- state creates itself, with requisites of statehood
This is the one that won out
Constitutive still floats around
Article II
Set boundaries of United States
Treaties and Third Parties
Treaties can only bind parties that sign and ratify*
Unless treaty creates boundary (exception)
Binds all, beyond treaty parties
Article V, VI
Made sure rights weren’t infringed on
Article Vi wants to enforce US Constitution
Treaties are part of the law
Who can make treaties?
States- International Agreements between states
Sub-state actors make agreements
Intergovernmental Organizations, WTO, UN cannot make treaty
Cession of Alaska

Reservation
Vienna Convention: Article 1(d)
Unilateral statements
Exclude or modify legal effect
Only Multilateral
States deal with them on their own
No Compulsory Jurisdiction of the ICJ
General Rules
Cannot bind states without their consent
Multilateral treaties are mutually agreed to by parties
No party can unilaterally frustrate or impair purpose or raison d’être of treaty
Implies every other party must consent to reservation for it to be valid
Genocide Convention is different- want everyone to go along with this
If reservation, only binds that country with reservations
Everyone did not vote yes on everything
States did not want to give up jurisdiction
Treaty may say regarding reservations:
Prohibit reservations
Prohibit reservations to certain provisions
Explicitly permit reservations
Nothing
If reserving, still a party?
Between reserving party and observing party
Not a party
Between reserving and permitting?
Ok
Purpose of Convention
Condemn
Spirit and Aim of United Nations
Principles Recognized
Condemnation Universal
Binding without observing because of Customary International Law and Jus Cogens
Opinions from Court
Majority- State Centric- give state consent
Differ from dissent- say same for all states
Articles 19-21 Vienna Convention
Article 19- Formulation of Reservation
Article 20- Acceptance of and Objection to Reservations
Article 21- Legal Effects of Reservations and of Objections to Reservations
Eastern Airlines v. Floyd
Passengers were suing under Article 17 of the Warsaw Convention
The Court had to translate the case from French
“Autre lesion corporelle”
Says it owes international court at least courtesy of respectful civilization