Baluarte, Transnational Law, Spring 2016
OVERVIEW OF INTERNATIONAL LAW: SOURCES & CATEGORIES
Two main sources of International Law
International Agreements
— Binding on parties to the agreement pursuant to rule of international law
— Treaty, Convention, Charter, Protocol, etc. Customary International Law
— Law that results from (1) consistent practice of states; (2) followed by a sense of legal obligation.
International Court of Justice
Highest Legal Authority of the United Nations
Settles Disputes Between States; Advisory Jurisdiction
American Law Institute
In West Philadelphia, born and raised … [Photo Deleted]
UN Charter Bodies
¡ Security Council
÷ 5 permanent members (US, China, France, Great Brittan, Russia)
÷ 10 members elected by GA to 2 year terms
÷ Empowered to address breaches of peace, threats to peace and acts of aggression
÷ Issues binding “decisions” with regard to sanctions
¡ General Assembly
÷ 1 member state, 1 vote
÷ Initiate studies and make recommendations
÷ No express power to enact legislation, make decisions about
violations of international law, or issue sanctions
÷ BUT, increased practice of legally relevant determinations
US support for Contras in Nicaragua
[Photo Deleted]Restatement 3rd, Sec. 102
The United Nations General Assembly in particular has adopted resolutions, declarations, and other statements of principles that in some circumstances contribute to the process of making customary law, insofar as statements and votes of governments are kinds of state practice … and may be expressions of opinio juris …
UN Charter, Art. 103
In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
Obligatio Erga Omnes
Obligations owing not merely to certain states and their nationals but to and among all of humankind.
They may be customary international law norms, such as freedom from slavery or racial discrimination.
They may be conferred by international agreements of universal or quasi-universal character.
Peremptory Norms Jus Cogens
Norm from which no derogation is permitted — Genocide
— Slavery
— Disappearance
— Torture —Prolonged arbitrary detention —Systematic racial discrimination
Torture: for the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
INTERNATIONAL LAW AND NON-STATE ACTORS
Knaunstait Aktor
Leader of unsuccessful insurgent movement to overthrow government accused of war crimes, genocide and violations of human rights, responds:
— IL only applies to states, or alternatively — to relations between states and persons;
— Actions are culturally acceptable;
— Actions occur around the world;
— Int. Agreements must specify individual liability;
— Only jus cogens norms are actionable in US courts.
Restatement § 101
“International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”
Persons in International Law
“The principal persons under international law are states … individuals and private juridical entities can have any status, capacity, rights, or duties given to them by international law or agreement, and increasingly individuals and private entities have been accorded such aspects of personality in varying measures. For example, international law and numerous international agreements now recognize human rights of individuals and sometimes give individuals remedies before international bodies … individuals may be held liable for offenses against international law, such as piracy, war crimes, or genocide.”
Alien Tort Claims Act (ATCA)
28 U.S.C. § 1350 a.k.a. Alien Tort Statute (ATS)
“The 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 a treaty of the United States.”
Kadic v. Karadzic
1) Genocide
2) War Crimes
3) Torture and Summary Execution
Insights from Nuremberg
— International Military Tribunal (Nuremberg) upholds individual liability under international law.
— U.S. Military Tribunal in The High Command Case recognizes that international common law may trump national law, but that it is the will of the international community.
— The International Law Commission finds that ANY person who commits a crime under international law is liable to punishment.
Knaunstait Aktor
Instructions
¡Join your group and discuss your client’s best arguments for 10 minutes
¡Create a 2-3 minute motions argument in which you make your most persuasive case for/against dismissal
¡First person listed in group presents the argument
Van Dyke Introduction
“T
necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States…”
INTERNATIONAL AGREEMENTS
Vienna Convention
“Treaty” means an international agreement concluded between States in written form and governed by international law.
—Limited to “States”
—Requirement that it be in writing —US not party – many provisions CIL
What makes a state?
Montevideo Convention on the Rights and Duties of States
Article 1
The state as a person of international law should possess the following qualifications: (1) a permanent population; (2) a defined territory; (3) government; and (4) capacity to enter into relations with the other states.
Treaties under VC?
Declaration of Principles on Interim Self-Government Arrangements between Israel and the P.L.O.
An agreement between Radovan Karadzic, President of Srpska (in Bosnia-Herzegovina), and certain states concerning suspension of hostilities.
Agreement between the United Nations and the Government of Haiti concerning the Status of the United Nations Operation in Haiti.
A handshake agreement at the conclusion of talks between the US and Cuba about transnational property ownership.
Observance of VC Treaties
Object and Purpose
Article 18 – must respect treaty pending ratification
Pacta Sunt Servanda
Article 26 – Every treaty in force is binding upon the parties to it and must be performed in good faith
Hierarchy of Law Article 27 – Internal law cannot trump treaty
Restatement Sec. 301
“International agreement” means an agreement between two or more states or international organizations that is intended to be legally binding and is governed by international law.
—Oral or written
—Unilateral agreements (no consideration)
—NO commercial agreements
International Agreements under Restatement?
Agreement between UN Relief and Works Agency and the European Union on the status of certain Palestinians.
Agreement between an insurgent group and the Red Cross on the application of certain laws of war.
Agreement between Bolivia, Peru, and Aymara indigenous people about cross-border migration.
Agreement between Houston, TX and the government of Mexico about student exchanges.
