International Law Outline

11/17/2009 2:34:00 AM

Introduction Jus Gentium: common to all people y Dictated by one sovereign power Law of Nations (Blackstone): applies to states and individuals y Rules directly applied in national courts International Law (Benthem): international law only applies to states NOT individuals y Meaning of international law: o Actors (states) o Non-national sources o ³transnational 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: y 1. Suit began in British (national) crt o action of police justified y 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 y 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

y y y For ³law y Tort only Brought by an Alien In violation of ³law of nations´ (Blackstone) of nations´ look to: Hierarchy ± o Treaties o Universal Declaration of Human Rights o US Cases y Consensual/Nonconsensual o Customary practice. Law of Treaties  1. Sources International Law ± what counts as law: Treaties ± bargained for. 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 Law Efficacy Britain Pays Paraguayan Gov¶t does not pay Forums European Court of Human Rights (Int¶l Court) US Court (nat¶l) McCann Treaties Filartiga ³law of nations´ *Int¶l Law not bound to state v. state interactions A. How Treaties Formed  2. contractual y 1. Validity Customary International Law General Principles y Jus Cogens: strength of the obligation/status . Treaties o a. Treaty Interpretation (Eastern Airlines) Goal to Promote Uniformity  4. Reservations (legislative/contractual)  3. Treaty Termination  5.

and vice versa o Before there were even sovereign states y Modern: treaties btwn sovereign and int¶l organizations o Agreements btwn countries and private companies (usually called agreements) Why Enter into Treaties: y 1) set stndrd for future conduct o Treaty of Paris ± US fishermen have right to fish y 2) Multilateral goals/obligations o Kellog/Briand Pact: does not condone war as the means to solve international disputes y 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. BUT as soon as it becomes legislation. I give you that) y 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 y Treaty of Paris: Fishing rights y Legislative assembly Difference btwn Treaty and Legislation: y Must accept the Treaty to be bound by it. then automatically bound by it ± whether accept it or not How Much Power Do Treaties Have: Is Treaty a Constitution: y Treaty has capability of creating institution similar to C .o Nonderogable ± can¶t just get out of it bc continue to disagree with it o ³trumping´ norm ± cannot have a treaty that¶s inconsistent with Jus Cogens Sources: y How long have treaties been in existence: y Treaty btwn Jews and romans that was initiated by Jews in order to receive Roman protection in case of attack.

Treaty of McCann ± created rules governing international contacts Can Treaty Create a State: y Peace of Paris o In US opinion it was created at time of Declaration of Independence o At very least. treaty helped to establish the US as a recognized state internationally y 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 y 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. ³no treaty´ According to Vienna Convention: y A and B ± treaty is in effect.o Ex. 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: y A) allow country to have reservations about the Article o Do not hold country liable for that particular article of Treaty y B) accept the country¶s reservation o Change the Article to what that country has suggested y C) expressly reject the reservation and say. however. 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 y If allow reservations then the trade-offs disappear ± no states giving anything up (compromising). except for the reserved article y A and C ± no treaty at all .

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. for example if wanted to persecute the ppl of the church. BUT also severed the article it had a reservation about Why No Reservations: If states cannot agree to a part of the Treaty. then there would be no Treaty y Cession of Alaska ± if did not agree to terms. then just do not agree to the Treaty y Hull/Lothian ± if there was part of Treaty that Churchill just could not agree to. Unwritten (oral) but can still be considered a treaty y 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) y Narrow Exception to general rule of Dualism: Article 46 of Vienna Convention .y B and C ± treaty exists with NO reservations Came up with this system in order to get more states on board with Treaty y 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? y 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. Norway now trying to say that Foreign minister not capable of granting this. then Russia just would not have agreed to the Treaty 5.

Look to the text of the Treaty  2. P¶s sued for emotional distress/emotional trauma y Key words to interpret: ³Travaux Preparatoires´ o How to interpret?  1. Legislative History hearings. Post Negotiation (after treaty ratified) conduct other courts interpretation y 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 y How to Change a Treaty? y A) New Convention y B) Amendments ± new treaty o Not bound by amendments.Eastern Airline: Thought plane wld crash and told passengers were going to crash but it didn¶t«landed safely in Miami. Knowledge about and concern for the environment . so no longer wanted to be a part of the Treaty. unless accept them  Difficulty with this is it¶s difficult to round up all the countries that were parties to the original treaty y C) via Interpretation y 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. The main goal of the Treaty was economic development y Timeline: o 1. debates  3.

UNLESS Treaty gives specifics for how to be terminated  However.2: president has power to make treaties Can Treaties be used in Court? y Article VI   Framers knew that Treaties wld be used in court o Judges bound by Constitution and Treaties made under the authority of U. General Practice o i. Treaty can be terminated by a material breach   Problem here is that Hungary denounced the treaty BEFORE Czech committed the material breach. Communism ends o 3.S. Czechoslovakia no longer exists ± becomes Slovakia and Czech Republic o 4. rolling out red carpet when foreign nationals come .y o 2.e. 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. Customary International Law Elements of CIL: y 1. sect. so Treaty NOT terminated Article 62: Fundamental Change of Circumstances *No Court to date has found all elements to this has been satisfied y Does Not Mean that cannot be such circumstances (just clearly difficult to prove) y 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? y 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? y Article I.

2. Reasons Why Turkey WOULD have Jurisdiction ± o a) territorial o b) nationality of the accused y . Int¶l Law Issue: Has turkey. Does Turkey have Jurisdiction to Legislate ± o Controversy as to whether Turkish law shld rule over French National. 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: y 1. Way to interpret Treaties y 2.´ which court interprets as CIL Various Types of Jurisdiction and Jurisdiction Problems: y 1. 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: y 1) first look to US rules on the issue y 2) Treaties y 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 y Here have Turkish Law v. contrary to Article 15 of Convention of Lausanne acted in conflict with the principles of international law y Reason go to CIL when there is a treaty is bc terms of the treaty says look to ³principles of international law. and/or events that did not occur in its territory y 2.

Libya had more recent resolutions on its side showing int¶l law gave more deference to states Reasons Libya paid: y Foreign Bank accts cld have been frozen if did not comply y 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. 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 y 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 y Party that is challenging the illegality of another country¶s actions has the BURDEN of proof y 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) y Resolutions show custom as to worldwide consensus of the standard in both western and developing states However. its nationals were killed No question that Turkey had Jurisdiction to arrest the French National y French national was arrested once he was in Turkey y Texaco Case: mixed arbitration case that was a basic business deal btwn Lybia and Texaco. Controversial Reason Turkey may have Jurisdiction ± o Extremely adverse affect on Turkey  Its ship sank.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) y 3. opposed to UN Assembly Resolutions which are NOT .

General Principles. Regulations y 3. European Commission ± no such confidentiality Sources: y 1. Treaty y 2. 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: . Jus Cogens AM&S case: Company ± there is lawyer/client confidentiality Vs. Natural Law. Cases. practice y 4.

11/17/2009 2:34:00 AM .

11/17/2009 2:34:00 AM .

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