International Law Outline 11/17/2009

Introduction
Jus Gentium: common to all people
 Dictated by one sovereign power
Law of Nations (Blackstone): applies to states and individuals
 Rules directly applied in national courts
International Law (Benthem): international law only applies to states
NOT individuals
 Meaning of international law:
o Actors (states)
o Non-national sources
o “transnational law” – law from sources that addresses
interactions btwn different states or individuals from different
states

McCann v. United Kingdom (1995)

Subjects were arrested in British territory and they were from Ireland,
which is part of Britain. The police waited until suspects came back to arrest
them, instead of arresting them at the border. Then, in the process of trying
to arrest the subjects the police shot at them.
Issue: Did the police use excessive force by shooting the D’s?
Process:
 1. Suit began in British (national) crt
o action of police justified
 2. Appealed to the international crt – European Crt of Human Rights
o must exhaust all local (national) procedures first before can
take case to the int’l stage
 3. National (british) stndrd contradicts with the Int’l stndrd – which
gains its power from Article II
 o Found that soldiers did not premeditate killing of soldiers, but
that they did use excessive force in the arrest
o Int’l Crt not trying to rewrite British law, just has final say on
this particular area of law (human rights law)
Filartiga Case
P is Paraguayan citizen that is suing D, who is Paraguayan official in
the US. P sues D in the US for D’s alleged torture of P’s son in Paraguay
Brought under ATCA statute sect.1350
 Tort only
 Brought by an Alien
 In violation of “law of nations” (Blackstone)
For “law of nations” look to:
 Hierarchy –
o Treaties
o Universal Declaration of Human Rights
o US Cases
 Consensual/Nonconsensual
o Customary practice, national pronouncements
o Int’l Crt cases
o Opinion of int’l scholars
Similar to McCann bc have individuals against its own gov’t
Type of Intl Efficacy Forums
Law
McCann Treaties Britain Pays European Court of Human
Rights (Int’l Court)
Filartiga “law of nations” Paraguayan Gov’t US Court (nat’l)
does not pay
*Int’l Law not bound to state v. state interactions

A. Sources
International Law – what counts as law:
Treaties – bargained for; contractual
 1. Treaties
o a. Law of Treaties
 1. How Treaties Formed
 2. Reservations (legislative/contractual)
 3. Treaty Interpretation (Eastern Airlines)
 Goal to Promote Uniformity
 4. Treaty Termination
 5. Validity
Customary International Law
General Principles
 Jus Cogens: strength of the obligation/status
o Nonderogable – can’t just get out of it bc continue to disagree
with it
o “trumping” norm – cannot have a treaty that’s inconsistent
with Jus Cogens
Sources:

How long have treaties been in existence:
 Treaty btwn Jews and romans that was initiated by Jews in order to
receive Roman protection in case of attack, and vice versa
o Before there were even sovereign states
 Modern: treaties btwn sovereign and int’l organizations
o Agreements btwn countries and private companies (usually
called agreements)
Why Enter into Treaties:
 1) set stndrd for future conduct
o Treaty of Paris – US fishermen have right to fish
 2) Multilateral goals/obligations
o Kellog/Briand Pact: does not condone war as the means to
solve international disputes
 3) set rules for predictable behavior
o Jews/Romans – history of Romans holding up its end of
bargain it made with others
Types of Treaties:
K Law – Quid Pro quo (you give me this, I give you that)
 Hull/Lothian Agreement: US gave destroyers on loan in exchange
for use of naval and air force bases in the Caribbean
Statutes – standards for future
 Treaty of Paris: Fishing rights
 Legislative assembly
Difference btwn Treaty and Legislation:
 Must accept the Treaty to be bound by it, BUT as soon as it
becomes legislation, then automatically bound by it – whether
accept it or not
How Much Power Do Treaties Have:
Is Treaty a Constitution:
  Treaty has capability of creating institution similar to C
o Ex. Treaty of McCann – created rules governing international
contacts
Can Treaty Create a State:
 Peace of Paris
o In US opinion it was created at time of Declaration of
Independence
o At very least, however, treaty helped to establish the US as a
recognized state internationally
 Peace of Westphalia
o Moved from feudal system to that of states
o Core of agreement to create states
Hull/Lothiam
Dualism – when one source of law conflicts with another
 Issue of Dualism: something might be legal in one sphere and
illegal in the other
o Here have conflict btwn US law and Treaty
 Hull – just bc there is conflict does not violate the treaty
Reservations:
Unilateral statement made by a state, in order to preclude or to
modify the legal effect of certain provisions of the treaty in how it applies to
the state
Reservation Issues to ICJ arise:
Genocide Convention – multilateral treaty that is silent as to whether
reservations are permitted
 If allow reservations then the trade-offs disappear – no states
giving anything up (compromising), all parties involved just want to
agree with what they want and do away with the rest
Crt looks to the Preamble and General Assembly to debates to decide
whether to allow for reservations:
 A) allow country to have reservations about the Article
 o Do not hold country liable for that particular article of Treaty
 B) accept the country’s reservation
o Change the Article to what that country has suggested
 C) expressly reject the reservation and say, “no treaty”
According to Vienna Convention:
 A and B – treaty is in effect, except for the reserved article
 A and C – no treaty at all
 B and C – treaty exists with NO reservations
Came up with this system in order to get more states on board with
Treaty
 Downside: turns what was supposed to be a unilateral agreement
into many different bilateral agreements
o Now have situations where some states agree to this and
others to that – when meant to have every state that
accepted treatytake the entire thing as is
Is there a different view when the Treaty relates to Human Rights?
 General Rule – no reservations when Treaty is in relation to human
rights
o So what to do when country makes a reservation?
Europe – disallowed Sweden’s reservation, BUT also

severed the article it had a reservation about
Why No Reservations:
If states cannot agree to a part of the Treaty, then just do not agree to
the Treaty
 Hull/Lothian – if there was part of Treaty that Churchill just could
not agree to, then there would be no Treaty
 Cession of Alaska – if did not agree to terms, for example if wanted
to persecute the ppl of the church, then Russia just would not have
agreed to the Treaty

5. Validity:
 Case: Eastern Greenland – Denmark brought case to ICJ bc Norway
was now trying to claim possession of Eastern Greenland after its Foreign
Minister agreed Norway wld not lay claim to it. Norway now trying to say
that Foreign minister not capable of granting this.
Unwritten (oral) but can still be considered a treaty
 Although not made with parliamentary approval (as is the law in
Norway in order for Treaty to be valid) this is a valid Treaty
o It was the Foreign Minister that agreed to this – reasonable to
think that he was speaking on behalf of state (Treaty stands)
 Narrow Exception to general rule of Dualism: Article 46 of Vienna
Convention
Eastern Airline: Thought plane wld crash and told passengers were
going to crash but it didn’t…landed safely in Miami. P’s sued for emotional
distress/emotional trauma
 Key words to interpret: “Travaux Preparatoires”
o How to interpret?
 1. Look to the text of the Treaty
 2. Legislative History
 hearings, debates
 3. Post Negotiation (after treaty ratified) conduct
 other courts interpretation
 Israel: modern interpretation
o Look at the Treaty in terms of today’s
world
o Look to public policy as it is today and
determine that P’s shld recover
 US: traditional interpretation
o Interpret the Treaty based on what it
was intended to mean at the time it
was ratified – no recovery for P’s
 later treaties
How to Change a Treaty?
 A) New Convention
  B) Amendments – new treaty
o Not bound by amendments, unless accept them
 Difficulty with this is it’s difficult to round up all the
countries that were parties to the original treaty
 C) via Interpretation
 D) mechanism for modifying Treaty (within the Treaty itself)
Termination:
Gabcikovo – Czech/Hungary Treaty
Joint project to set-up hydro-electronic plant and a dam. Hungary did
not follow through on its end when environmental issues came up, so no
longer wanted to be a part of the Treaty. The main goal of the Treaty was
economic development
 Timeline:
o 1. Knowledge about and concern for the environment
o 2. Communism ends
o 3. Czechoslovakia no longer exists – becomes Slovakia and
Czech Republic
o 4. May 1992: Hungary denounces Treaty (not terminated bc
both sides must agree to terminate)
 Issue: Has Treaty been terminated?
o In General – difficult to terminate Treaty, UNLESS Treaty
gives specifics for how to be terminated
 However, Treaty can be terminated by a material
breach 
Problem here is that Hungary denounced the

treaty BEFORE Czech committed the material
breach, so Treaty NOT terminated
Article 62: Fundamental Change of Circumstances
*No Court to date has found all elements to this has been satisfied
 Does Not Mean that cannot be such circumstances (just clearly
difficult to prove)
 Crt insists on Treaty stability
 o No change circumstance lasts forever – wld rather allow
treaty to remain dormant for awhile
Why isn’t Czech-Hungary case considered Change of Circumstances?
 Court did not find that rise of the environmental issue on Hungary’s
end prohibited the main goal of the Treaty
o Main goal of the Treaty was economic development

Who Has Power to Make Treaties?

 Article I, sect.2: president has power to make treaties
Can Treaties be used in Court?
 Article VI  Framers knew that Treaties wld be used in court
o Judges bound by Constitution and Treaties made under the
authority of U.S.

Customary International Law

Elements of CIL:
 1. General Practice
o i.e. rolling out red carpet when foreign nationals come
 2. Opinio Juris – belief that states act in a certain way bc they are
legally bound to do so
o difficult to prove this
Why it is Necessary:
 1. Way to interpret Treaties
 2. Treaties not binding on all states
Paquette Habana
 Should there be a war those involved in coastal fishing are allowed to
continue this practice
What Sources to Visit and in What Order:
 1) first look to US rules on the issue
 2) Treaties
 3) Customary Int’l Law (Gap Filler)
o general consistent practice of states
just look to practice of countries that generally engage
in this activity
 ex. when looking for CIL on launching spacecrafts
– look to countries that go to space a lot
Case: Lotus – French and Turkish ship collide on high seas and French
ship pulls into Turkish port and captain is arrested.
France case fails bc unable to prove opinio juris
Dualism: notion that in the world have different legal spheres
 Here have Turkish Law v. Int’l Law
Issue: Has turkey, contrary to Article 15 of Convention of Lausanne
acted in conflict with the principles of international law
 Reason go to CIL when there is a treaty is bc terms of the treaty
says look to “principles of international law,” which court interprets
as CIL
Various Types of Jurisdiction and Jurisdiction Problems:
 1. Does Turkey have Jurisdiction to Legislate –
o Controversy as to whether Turkish law shld rule over French
National, and/or events that did not occur in its territory
 2. Reasons Why Turkey WOULD have Jurisdiction –
o a) territorial
o b) nationality of the accused
 Case does NOT give Turkey Jurisdiction in either of previous two
categories –
 o Accused is a French national and incident took place on the
high seas (not within Turkey’s borders)
 3. Controversial Reason Turkey may have Jurisdiction –
o Extremely adverse affect on Turkey
 Its ship sank, its nationals were killed
No question that Turkey had Jurisdiction to arrest the French National
 French national was arrested once he was in Turkey

Texaco Case: mixed arbitration case that was a basic business deal
btwn Lybia and Texaco. It was an agreement that Texaco cld search Lybia
for oil and pay Lybia if it found oil
Terms of the Agreement said that if there was dispute shld go to
Arbitration – not court
 Probably chose this route bc neither side wanted to deal with the
laws of either country in a judicial case
Libya argues: int’l law permits us to make any decision we want about
our national resources
 Party that is challenging the illegality of another country’s actions
has the BURDEN of proof
 There is NO CIL like in Lotus bc BOTH sides can point to int’l law to
prove their case
Arbitrator went to UN General Assembly Resolutions, which are purely
recommendational to decide outcome (in favor of Texaco)
 Resolutions show custom as to worldwide consensus of the
standard in both western and developing states
However, Libya had more recent resolutions on its side showing int’l
law gave more deference to states
Reasons Libya paid:
 Foreign Bank accts cld have been frozen if did not comply
 Intl community might refrain from doing business in or with Libya if
it did not adhere to the decision
Note: It is Security Resolutions that are Binding, opposed to UN
Assembly Resolutions which are NOT
General Principles; Natural Law; Jus Cogens
AM&S case:
Company – there is lawyer/client confidentiality
Vs.
European Commission – no such confidentiality
Sources:
 1. Treaty
 2. Regulations
 3. Cases, practice
 4. General Principles
o crt trying to fill gap where there is no Treaty and no CIL
o states did not pass these laws thinking about international
affect – only meant it to pertain to their particular state

Differing Views:
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