International law

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International law

• Lecture 3
• August 28, 2009

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ASSIGNMENT

• Monday, August 31 - Sources of Intl Law
• Statute of ICJ p. 915 Art. 38 - - Sources
  of Intl law
• Treaties p. 29-56
• Vienna Convention on the Law of Treaties VCLOT
  - starting at p. 926 just review it
• Wednesday, September 2 Reservations to the
  Genocide Convention Case p.56

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McCann v. United Kingdom

• 4. Issue (1) Do the facts of the case disclose
  a breach by the UK of its obligations under Art.
  2?
• (2) Was the anti-terrorist operation as a whole
  controlled and organized in a manner which
  respected the requirements of Art.2?
• 5. Holding and decision. (1) Yes (2)No, it did
  not fall under the exception to Art. 2 Right to
  Life depravation of life by use of force no
  more than absolutely necessary in defense of
  persons from unlawful violence
• 6. Reasoning Decision not to prevent the
  suspects from traveling to Gibraltar. Failure of
  authorities to make sufficient allowances for
  possibility of intelligence assessment being
  erroneous. Automatic recourse to lethal force.

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McCann v. United Kingdom

• 7. Significance - Any reference to an intl court
  first the municipal ct. here the UK gets a
  chance to right the wrong the domestic legal
  remedies are to be exhausted first, if they
  believe there is no violation of law, then its
  ripe for an intl court.
• We looked at provisions of the European
  Convention - Is treaty law more like a contract
  or like an intl statute? Answer A bit of
  both.
• Why would the UK consent to either the rules
  themselves or the jurisdiction of the European Ct
  of Human Rights? Why comply with a ruling of the
  Ct.? Answer Keeping other states honest,
  proving to their citizens and the world that they
  honor human rights, trying to prevent another
  period of terrible human rights abuses in Europe,
  as during WWII, contributing to regional
  integration.

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FILARTIGA v. PENA- IRALA1980

• 1. Court Federal Court 2nd Circuit Court of
  Appeals
• Appeal of dismissal of a wrongful death action (a
  lawsuit brought on behalf of decedents survivors
  for their damages resulting from a tortuous
  injury that caused the decedents death).

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Filartiga v. Pena-Irala

• 2. Sources
• UN Charter, Universal Declaration of Human
  Rights, UN Declaration Against Torture, American
  Declaration of the Rights and Duties of Man,
  Alien Tort Statute, etc. etc. Convention
  Against Torture went into force in 1987 (after
  our case) US ratified in 1994. US v. Smith
• Paquete Habana, and Hitai v. INS.

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Filartiga v. Pena-Irala

• 3. Facts Relevant facts 1-3 short sentences
• Events or transactions that led one party to
  initiate legal proceedings against the other
  party. Sometimes facts are disputed.
• - Identify plaintiff- the party seeking something
  in the original court- and defendant
• Filartiga brought a complaint against Pena
  alleging that he had wrongfully caused Joelitos
  death by torture when Pena was the police
  Inspector-General in Paraguay. All parties were
  Paraguayan citizens. Jurisdiction was based on
  the Alien Tort Statute, 28 U.S.C. 1350 (Fed.
  Law) provided for jurisdiction for torts
  committed in violation of the law of nations,
  meaning customary intl law (also treaties, but
  not addressed in this case) Dismissed by district
  court for lack of federal jurisdiction (meaning
  it has no authority to decide the case).
  Filartiga appealed.

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Filartiga v. Pena-Irala

• 4. Issue
• Ask who wants what and then go on to ask why did
  that party succeed or fail in getting it. Thats
  what gets turned into a question.
• Question presented What should the principle
  be? - May torture be considered to violate the
  law of nations in the context of the Alien Tort
  Statute, that is regardless of the nationality of
  the parties? This speaks to subject matter
  jurisdiction federal jurisdiction.

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5. Holding Decision

• Yes. Torture violates the law of nations for the
  purposes of the Alien Tort Statute. The
  prohibition against torture has become part of
  customary international law. Decision/ Result/
  Conclusion For these reasons the court concluded
  that torture violates the law of nations. As a
  consequence of the decision Judgment of the
  district court, dismissing the complaint for want
  (lack) of federal jurisdiction, is reversed.

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Reasoning and Significance

• 6. Reasoning/ DISCUSSION/ rationaleTorture
  violates customary international law evidenced by
  UN Declarations authoritative statements from
  the intl community and officially renounced in
  modern usage and practice of nations. Thus there
  was federal jurisdiction.
• Application of the general rule or rules of law
  to the specific facts of the case.
• Fundamental principle jus cogens peremptory
  norms (part of customary intl law)
• 7. Significance of case
• The right to be free of torture is among the
  universally proclaimed human rights also
  vis-à-vis their own government.

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OPTIONAL PAPER

• GUIDELINES FOR RESEARCH PAPER
• Review it!
• Deadline for topic
• September 7

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ICJ Statute art. 38 Sources

• 1. International conventions - Treaties We saw
  last time the European Convention for the
  Protection of Human Rights
• 2. International custom - Customary intl law
• A. State practice
• B. Opinio juris states consider it binding law
  not just doing out of courtesy.
• 3. General principles of law recognized by
  civilized nations / common to the major legal
  systems of the world common legal maxims
  applied in all municipal legal systems
• No. 1-3 are considered binding sources of intl law

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More Sources of Intl law

• 4. Subsidiary sources
• - Judicial decisions (no stare decisis/
  doctrine of precedent a court has to follow
  earlier judicial decisions when the same points
  arise again in litigation)- See Art.59. Earlier
  cases are usually taken into consideration.
• - Teachings by the most highly qualified
  publicists of the various nations
• Additional sources (not mentioned in ICJ Stat.
  Art38)
• 1. Intl administrative law governing the IGOs
  constitutional law of IGOs (we wont be covering
  this)
• 2. Soft law non-binding law
• Resolutions and declarations of Intl
  organizations