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Public International Law
Villanova University School of Law
Gordon, Ruth

International Law Outline
Ruth Gordon
Spring 2010
 
Chapter 1: The Nature of International Law
 
History of International Law: 2 types:
·                      Legal relations between states
·                      Law governing the foreign transaction of individuals and corporations.
 
1.      Law of Nations/ International Law:
a.      History: different communities having to resolve their differences.
                                                              i.      1625 Law of War and Peace
                                                            ii.      Peace of Westphalia
Idea of Nation-state:
b.      Public IL: governs relations between nation states.
                                                              i.      Treaties are made by nation-states
1.      IL decides what rights and obligations due nation-states have regarding each other?
                                                            ii.      Private International Law: deal with individuals of different nations.
c.       John Austin:
                                                              i.      IL is not positive law because there is no authority to enforce it.
1.      Moral obligations is the only form of enforcement
a.      Problem is that morality can change.
2.      In theory everyone is equal so how do you enforce law if everyone is equal?
2.      McCann v. United Kingdom: European Court of HR
a.      Facts: Families of IRA victims killed by UK prior to trying to bomb in Gibraulter. McCann argued that the killing was not absolutely necessary, the force was excessive, and the UK as negligent in the planning and execution that they were liable even if absolutely necessary.
b.      Source: used IL made by treaty, and was adjudicated in ECHR.
c.       Issue: did the conduct of UK violate Art. 2 of the European Human Rights Convention mandating that it be absolute necessary
d.      Held: Court finds breach of Art II convention.
e.       Reasoning:
                                                              i.      The court was not persuaded that the killing of 3 terrorists was no more than absolutely necessary because the strategy and execution of the UK violated Art II.
                                                            ii.      States that terrorists were dangerous actors however at the time confronted were not an immediate threat, were shot 13 times, and were not warned.
 
3.      Filartiga v. Pena-Irala: US court judging actions of another countries citizens while he is in home country.
a.      Facts: Head of Police (Pena) tortured and killed 17 year old son of political opponent. Father and daughter brought suit when heard that Pena was in NY. Daughter tells INS Pena in NY and serves him w/ wrongful death under the Alien Tort Claims Act.
b.      Held: The court found that there was a violation of CIL prohibiting torture and justiciable under the Alien Tort statute.
c.       Pro Hist: violated
                                                              i.      Wrongful death statute
                                                            ii.      UN charter
                                                          iii.      American Declaration of HR
                                                          iv.      Universal Declaration of HR
                                                            v.      UN Declaration of HR.
1.      Have jurisdiction under the supremacy clause of constitution as treaties and international law.
d.      Alien Tort Claims Act:
                                                              i.      District Court shall have original jurisdiction over:
1.      Any civil action
2.      By an alien
3.      For a tort
4.      Committed in violation of
a.      Law of Nations (AKA customary international law)
b.      Or Treaty of US
                                                                                                                                      i.      No treaty that would apply in this situation.
e.       What are the LAW OF NATIONS?
                                                              i.      SCOTUS consults:
1.      Works of juris writing professedly on public law
2.      General usage and practices of nations
3.      Judicial decisions recognizing and enforcing the law
f.        Sources of Customary International Law:
                                                              i.      UN Charter (treaty)
1.      States should respect HR and fundamental freedoms
a.      Doesn’t say enough about torture, vague
b.      Not wholly self-executed
c.       Does say domestic concerns can be dealt w/ by other nations
                                                            ii.      UN Declarations
1.      Universal Declaration of HR:
                                                          iii.      Declaration on the Protection of All Persons from Being Subjected to Torture
1.      These are not binding resolutions or declarations
2.      Things of lasting importance create an expectation of adherence
a.      If Declaration puts out there what states should due then it might be binding.
b.      If states generally say “no torture” then you might be compelled to abide by that in CIL.
                                                          iv.      Regional treaties:
1.      American Convention of HR
2.      European convention of HR
                                                            v.      International Covenant on Civil and Political Rights
                                                          vi.      Domestic Practice and Constitutions:
1.      US constitution says not cruel and unusual punishment.
                                                        vii.      State Practice and Belief as to what the Legal Obligations are
 
Chapter 2: Treaties
 
A. The Sources of International Law:
1.      Article 38: Statute of ICJ (International Court of Justice): What do we agree are the sources of rules:
a.       International Conventions:
                                                              i.      AKA (treaties, accords, protocols, agreement etc.)
b.      International Customs as evidence of…
                                                              i.      General Practice
                                                            ii.      Accepted as law
c.       General Principles of Law Recognized by Civilized nations
d.      Judicial Decisions and the teaching of the most highly qualified publicists.
                                                              i.       
e.       Ex Aequo et bono:
                                                              i.      “What is equal and good” if parties agree.
                                                            ii.      Never happens
 
B. A Treaty Sampler
2.      Treaties between Jews and Romans:
a.       Wanted protection from outsiders
b.      Romans generally kept there alliances
c.       Important treaties are in writing b/c:
                                                              i.      It is supposed to last forever
                                                            ii.      Treaties are more like statutes
                                                          iii.      Lean on what the terms of the treaty are.
                                                          iv.      Mutual defense alliance
3.      Peace of Westphalia: ended the 30-year war between the Holy Roman Empire and the Kingdom of Sweden.
a.       Idea of sovereignty begins to take effect.
b.      Treaty to limit sovereignty in order to keep sovereignty
4.      Treaty of Paris:
a.       Art I: US is free, sovereign and independent according to UK
b.      2 theories of Sovereignty:
                                                              i.      Constitutive theory:
1.      State does not exist as a subject of IL until other states recognize it.
2.      An element of state consent:
a.       Not a state until we consent to you being a state.
3.      Treaty of Paris: UK recognized US.
                                                            ii.      Declarative Theory:
1.      State creates itself and other states recognize it.
2.      A state if meets requirements of statehood:
a.       Territory, permanent pop. gov., capacity to conduct foreign relations.
3.      Where state recognizes another state, only declaring what it is already a fact and reality.
4.      UK recognizing a state already created in 1776 w/ declaration of independence.
5.      SC proscribes to declaratory theory
c.       Vienna Convention on law of Treaties:
                                                              i.      Treaties cannot create obligations for 3rd party states.
5.      The Cessation of Alaska: US planned purchase of Alaska, appointed a representative to negotiate the treaty with Russia.
a.       Art I: Russia cedes sovereignty to US
                                                              i.      Delineate territory.
b.      Art II: Gave public property to US
c.       Art III: inhabitants given 3 years to return to Russia or become citizens of US
                                     

ate can consider reserving state not party to the Geneva Convention
2.      If accepts reservation as being compatible w/ object and purpose can consider that reserving state is party to convention.
b.      Consequences of Invalid Reservation: incompatible w/ object and purpose of treaty
                                                              i.      Reserving state remains bound by treat, except for part to which reservation related.
                                                            ii.      Reservation invalidity precludes state from being party at all.
                                                          iii.      Sever Invalid reservation from reserving state acceptance
1.      State bound by entire treaty
2.      Include provision objected to?
3.      Belios case:
a.      Reservation severed
b.      Bound by entire treaty
c.       Including provision objected to
d.      Violated that provision
                                                                                                                                      i.      You cannot be bound by a provision you did not consent to.
12. Eastern Airlines Inc. v. Floyd:
a.      Facts: EA flight engines failed and said they were going to ditch plane in ocean, but regained control and were able to land safely.
                                                              i.      Passengers are suing for emotional distress.
b.      Issue: can passengers use for mental distress under Art I of Warsaw Convention?
c.       Analysis:
                                                              i.      Text and Context: in which words are used.
                                                            ii.      Other general rules of construction to construe difficult and ambiguous passages.
                                                          iii.      Construe more liberally than private agreements
                                                          iv.      To ascertain meaning may look beyond the written words
1.      Negotiations
2.      Practical construction adopted by parties.
d.      Warsaw Convention; Art 17: carrier is liable for injury when there is “bodily injury” on an aircraft. Does “lesion corpelle” include mental distress?
e.       What sources is court thinking about?
                                                              i.      French legal materials.
1.      Legislation
2.      Judicial decision
3.      Scholarly writing
a.      Indicates term is not widely used and does not incorporate psychic injury.
                                                            ii.      Nothing in negotiations: contracting parties were trying to foster growth of airline and therefore limited liability to airlines.
f.        SCOTUS: not persuaded by Israeli SC who ruled against airline.
g.      Use Vienna convention and look at text.
h.      Context
                                                              i.      Vienna Convention Art 32: can look at subsequent practice to look at how treaties were interpreted.
13. Case Concerning the Gabikovo-Nagymorus Project
a.      Facts: Hungary v. Czechoslovakia created treaty to divert river. Hungary then suspended work and Czech begin variant to treaty. Hungary then denounced treaty and notified Czech. Next, Czech began diverting water through the variant.
b.      Sources: VC does not apply, but custom does apply in this case.
c.       Default Rules: What you need to prove to get out of treaty.
                                                              i.      State of necessity: gets you a pause, until the treaty can be implemented. Once necessity you have a duty to comply with it.