The relationship between intl law and municipal law

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The relationship between intl law and municipal
law

• Lecture 15
• February 16

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Assignments

• Wednesday, February 18
• QUIZ-2
• Rainbow Warrior Case
• ILCs Draft Articles on State Responsibility
• http//untreaty.un.org/ilc/texts/instruments/engli
  sh/draft20articles/9_6_2001.pdf
• Diplomatic and Consular Staff Case p. 294
• Proposal due Monday, Febr.23
• Midterm, March 2 EKLCE 1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson

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Case Whitney v. Robertson

• Relationship TREATIES v. FEDERAL LAWS both are
  supreme law of the land according to the US
  Constitution
• the courts will always endeavor to construe them
  so as to give effect to both
• if the two are inconsistent, LATTER IN TIME
  PREVAILS, provided always the stipulation of the
  treaty on the subject is self-executing.

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Case U.S. v. Belmont

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

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Case U.S. v. Belmont

• 4. Issue May a state policy or state law
  prevail against an international compact
  -executive agreement?

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US Hierarchy

• 1. US Const.
• 2.Treaties (self-executing treaties) Federal
  laws - latter in time prevails
• 3. Executive agreements Executive agreements do
  not prevail over previously enacted federal
  statutes.
• 4. State laws

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STATE RESPONSIBILITYand liability of states

• Source customary international law
• 1)- ILC draft article to codify intl law in this
  area ILCs Draft Articles on State
  Responsibility
• http//untreaty.un.org/ilc/texts/instruments/engli
  sh/draft20articles/9_6_2001.pdf DOWNLOAD THIS
  TREATY or cut and paste YOULL NEED IT
• Example Convention on Intl Liability for Damage
  Caused by Space Objects

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INTERNATIONAL WRONGS

• Responsibility for a wrongful act consequences
  arising from the BREACH OF AN INTERNATIONAL
  OBLIGATION be it breach of an agreement or
  violations of a rule of customary intl law.
  Breach of a domestic/municipal norm does not
  entail state responsibility, unless it also
  breaches an intl obligation.

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Draft Articles on State Responsibility

• Art. 1 Every international wrongful act by a
  State entails international responsibility for
  that State
• Art. 12 Breach of international obligation of a
  State when an act of that State is not in
  conformity with what is required of it by that
  obligation

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Primary and secondary rules

• - primary rules the substantive rules that
  determine the legality or illegality of the
  conduct the breach of which is the source of
  responsibility.
• - secondary rules the necessary corollary of a
  right - the general rules of responsibility
  they determine the legal consequence of failure
  to fulfill obligations established by the primary
  rules and the duty to make reparation - payment
  of compensation for loss caused.

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Who can bring a claim?

• Only states if the wrongful act was against one
  of the states citizens then that person has to
  exhaust the local remedies first before his state
  can bring a claim to the ICJ

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• State responsibility gives rise to the
• duty of
• REPARATIONS Art.31
• Restitution Art.35
• Compensation Art. 36
• Satisfaction Art. 37

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State responsibility

• States cannot plead provisions of internal law in
  justification of international wrongs -
• States are responsible for conditions on their
  territory which lead to the infliction of harm on
  other states.

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Circumstances precluding (prevent) wrongfulness
and responsibility

• consent as long as its not a peremtory norm
  jus cogens.
• impossibility force majeur - unforeseen
  external event (no choice as a ship in emergency
  enters port without permission),
• distress - situation of extreme peril the organ
  of the state which adopts the conduct has no
  means of saving himself or persons entrusted in
  his care conformity with the obligation is
  possible but would result in loss of life

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Precluding wrongfulness and responsibility-2

• State of necessity - only means of safeguarding
  an essential interest of the state against a
  grave and imminent peril - exceptional
  circumstances the existence of the state,
  survival of part of its population, the
  ecological preservation all or some of its
  territory
• Self-defense
• Countermeasures
• reprisals a wrongful act becomes legal one.

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Circumstances precluding wrongfulness and
responsibility

• These are the correct articles in the Draft
  Articles on State Responsibility
• Consent Art.20
• Force majeur Art.23
• Distress Art.24
• Necessity Art. 25
• Self-defense Art.21
• Countermeasures Art. 22
• Reprisals

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