Cases to Know Flashcards

Question

MaCann v. UK

Answer 1

Dualism: municipal and international laws are entirely separate legal systems – international law is binding but federal law is not automatically superseded - UK (any treaty obligation must be implemented by parliament to be binding) – two step system Monoism: international and domestic law are all part of the same legal system , may elevate international law to level of supremacy over any conflicting domestic law - If it IS integrated, automatically binding and has automatic legal force within a government system US: somewhere in between, due to self-execution and non-self-execution of treaties - Most agreements are executive agreements and by constitutional practice have been accepted as within the prerogative of the executive

Answer 2

1992: US v. Alvarez-Machain: SC held a US government kidnapping in Mexico DID NOT violate the terms of the US-Mexican extradition treaty (met with outrage); eventually AM (Mexican doctor) was acquitted (Ker-Frisby Doctrine) 2004: Under either FTCA or ATS may Mexican bring claim against the US government for abduction by the DEA? Held: FTCA claim (against US gov’t): arrest took place outside US, so exempted - ATS claim (against individual kidnappers): ATS did not create a separate ground of suit for violations of the law of nations (limited categories of claims: piracy, offenses against ambassadors, violations against safe passage) and this offense did not fall into one of those categories Rule: New violations may become definite enough in modern international law to qualify for ATS protection BUT “courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of 18th Century paradigms we have recognized.”

Answer 3

1995: (ECHR) Killing of suspected terrorists (IRA) in Gibraltar – use of deadly force absolutely necessary? Held: actions taken by the police were in violation of Article 2 of the Convention Layers of Action: must exhaust domestic remedies first Efficacy: domestic politics/public opinion can often have an influence on outcomes/states ultimate willingness to conform to international standards Sovereign states have an interest in consenting to jurisdiction to build legitimacy and credibility in dealing with other states

Answer 4

June 26, 1945 1. The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States; b. International custom, as evidence of a general practice accepted as law; c. The general principles of law recognized by civilized nations; d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto

Answer 5

Circa 160 BC Mutual defense treaty – very similar to NATO Attack against one is attack against all.

Answer 6

1648 (Ended 30 years war) Established treaty-based system of peace and cooperation, successful for 100 years - Provided for coexistence of Catholics and Protestants Established pacta sunt servanda – treaties are to be obeyed and observed

Answer 7

1928: precursor to the Nuremberg Trials - Prohibited war and war crimes - Nothing accomplished, but became an influential source of “soft law” Soft law: not binding – usually GA recommendations and resolutions Hard law: GA resolution, strong presumption that a law-declaring resolution is a correct statement of law if adopted WITHOUT a negative vote or absention

Answer 8

1933: Territory dispute between Norway and Denmark concerning verbal assurances made to each other Issue: Effect of diplomats statements/declarations? Held: Statements/declarations could not be construed as constituting a binding agreement between two states, could be construed as an agreement by Norway NOT to contest Danish sovereignty over Greenland and to refrain from occupying part of it

Answer 9

1951: UN seeking advisory opinion from ICJ Issues: 1. Can a state be a party to a treaty when its reservation is objected to by one/some of the other parties (but not all)? 2. What is the effect of the reservation on the agreement/parties? Held: - Reservations are ok (Under Article 19 of Vienna Convention) unless: o Reservation is prohibited by the treaty o Treaty provides that only specified reservations may be made o The reservation is incompatible with the object and purpose of the treaty

Answer 10

1991: USCt – case of interpretation of treaty Issue: whether Article 17 of the Warsaw Convention (which dealt with transportation) provides for recovery of damages for purely mental injuries, unaccompanied by physical injury Held: Air carrier not held liable under Article 17 when an accident has not caused death, physical injury, or physical manifestation of injury NB: looked at French text, definition, expectations of the parties, purposes of treaty, negotiations framework, subsequent conduct of parties, etc Section 3 of Vienna Convention: treaties shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of their treaty in their context and in light of its object and purpose

Answer 11

1997: plans to divert the Danube River Issue: whether Hungary’s notification brought the treaty to an end Held: material breach hadn’t happened at the time of the Hungarian refusal to be bound NB: unusual in that there was no specific provision for termination within the treaty, parties have an obligation to renegotiate but no way to terminate unless there is mutual assent

Answer 12

1900: Custom and Non-Consensual Sources of International Law (fishing vessels captured/seized during time of war) NB: Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations - By common consent of mankind these rules have been acquiesced in as of general obligation. Frequently cited for: manner of determining customary international law, way in which it is incorporated into municipal laws of the US, and the proper relationship between US courts and the executive branch in international legal relations For general practice to be considered binding law: (requirements) - General acceptance (subjective factor) - Over an appropriate or adequate period of time (durational – objective) - Legally binding – opinio juris

Answer 13

1950 – ICJ Peruvian revolution leader seeking asylum in Colombian embassy Held: Colombian Government had not proved the existence of a custom that required Peru to allow de la Torre to gain asylum in Colombia (allowed Peru to hold him for trial for military rebellion) Rule: a universal custom can be regional without interfering with a larger global custom

Answer 14

1982: ECJ, protection of written communication between attorney and client is generally recognized – scope and criteria for applying it vary Issue: if there is a gap in international law, how ought it to be defined? Held: turned to general principles of law to fill the gap; looked at comparative law to see how they ruled on the issue General principle of law: one so fundamental that it is a basic tenet in virtually every major legal system

Answer 15

1977 Facts: Libya nationalized several American oil companies that were operating within Libya; Concessions provided that contracts were to be governed by laws of Libya common to principles of international law Issue: did Libya actions violate the concession contracts between the state and the private company? Held: Yes, Concessions were binding on the parties and Libya violated them and is legally bound to perform the contracts and give them full effect

Answer 16

1819: Pirates!! Court finds a basis for prosecution even though the definition of piracy had never before been articulated Court in 1820 was in the habit of turning to the Law of Nations and: - Applying it directly so as to define something that otherwise was intended to be defined by one of the branches of our own government AND - Allowing the Law of Nations to be applied directly to an individual Piracy is the first and historically obvious example of a crime that can provide for universal jurisdiction

Answer 17

Proposals: 1. A treaty norm is void if it is either in violation of a compulsory norm of general international law or contra bonos mores 2. A treaty norm is contra bonos mores if a state is prevented by an international treaty from fulfilling the universally recognized tasks of a civilized state 3. If the immorality of a treaty norm is contested, the dispute has to be submitted to the decision of an arbitration or of the Permanent Court of International Justice

Answer 18

2002: ICTFY – torture - Prohibition of torture imposes upon states obligations erga omnes – obligations owed toward all other members of the international community, each of which then has a correlative right - Has evolved into a peremptory norm, which non-derogable and is at the top of the international hierarchy of rules; fundamental standard which is absolute - Individuals: remain bound to comply with the principle: individuals have international duties which transcend the national obligations of obedience imposed by the individual state Re-affirms Nuremburg regarding individual international duties

Answer 19

1984: US support of contras, including mining of harbor – illegal use of force or collective self defense? Jurisdiction due to provision of treaty (compulsory) Rule: no collective self-defense justification because Nicaragua didn’t commit armed attack, the victim states didn’t request help, and the US didn’t report; no necessity nor proportionality either Principle of Non-Intervention: forbids all states to intervene directly or indirectly in internal or external affairs of other states; wrong when it uses methods of coercion

Answer 20

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations

Answer 21

1837: US citizens abet Canadian insurrection against British, British attack ship docked in US port Self-defense requires: 1. An instant overwhelming necessity 2. Leaving no choice of means and 3. No moment for deliberation 4. Proportionality – nothing unreasonable or excessive

Answer 22

1928: German delegation of SW African colony went to bordering Portuguese colony, fiasco ensues, Germans killed, Germans retaliate Reprisal: an act of self-help on the part of the injured state – after an unsatisfied demand – responding to an act contrary to the law of nations on the part of the offending state Requirements 1. Initial act must violate international law (legit provocation, i.e. necessity) 2. Injured state must make a demand before responding 3. Proportionality Retorsion: an act that, though unfriendly, would have been entirely legal even if not taken in response to another state’s action (economic sanctions, withdrawal of ambassador) - Countermeasure: catch-all euphemism now used to encompass unilateral non-judicial self-help remedies

Answer 23

2006 Issue: whether the crime charged (prosecuted on) has to be on the basis that it is in violation of the law of war Government argued Article 3 of Geneva Convention didn’t apply to Hamdan because it was only supposed to apply to a conflict of known international character Court disagreed – the term conflict not of an international character is used in contradistinction to a conflict between nations – a non-international armed conflict is distinct form an international armed conflict because of the legal status of the entities opposing each other

Answer 24

Conditions for lawful self-defense (imminent threat view) 1. Defending state must be the victim of a significant armed attack 2. Armed attack must be either underway or victim must have at least clear and convincing evidence that more attacks are planned a. If no attack yet, clear and convincing evidence required to show incipient attack 3. Defending state’s target must be responsible for the attack 4. Force used must be necessary for purpose of defense and proportional to injury threatened Bush Doctrine (qualitative threat view) 1. Deterrence paradigm no longer effective 2. Imminent threat doctrine adapted to anticipatory action a. Even if uncertainty remains as to the time and place of attack, US will act preemptively to forestall or prevent hostile acts 3. Justified largely based on threat of WMD 4. UN rejects: non-imminent situations by definition allow for alternate means of action Threshold: internal conflicts must involve MORE THAN situations of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence

Answer 25

1. Aimed at protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets 2. It is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering; States do not have unlimited freedom of choice of means in the weapons they use

Answer 26

1990: state responsibility issue – French agents bomb Greenpeace boat in NZ NZ and France enter arbitration: 2 agents were to spend 3 years on French military base; agents left before term was up without NZ’s consent Applied customary law of treaties and of state responsibility - Court cites France for failure to try to do more to adhere to requirements of the agreement, pay a fine - Loose interpretation of term “three years” and start time

Answer 27

1969: Law of the Sea Treaties (ICJ) – delineate jurisdictional waters between Denmark, Germany, and Netherlands Law of the Sea Treaties: 1982 treaties, US not a party but has accepted most of the provisions - Coast  12 miles: territorial waters (basically same as land) - 1224 miles: contiguous zone: not exclusive sovereignty, may have authority with respect to health, immigration, sanitation - 24200 miles: exclusive economic zone – coastal state has authority with regard to oil, fisheries, oil and minerals on continental shelf, etc o Can extend up to 350 miles offshore, depending on continental shelf - 200 miles +: “high seas” – no sovereignty by any country Held: applied equitable principles - helped Germany Rule: general principles and equity are used as gap fillers

Answer 28

1995: Parliament enacted Promotion of National Unity and Reconciliation Act - Provided for creation of Truth and Reconciliation Commission (TRC) Committee on Amnesty = quasi-judicial body - May grant amnesty if it is satisfied the applicant has committed an act constituting “a gross violation of human rights” and made “a full disclosure of all relevant facts” - Act must be associated with a political objective committed in the course of conflicts of the past o Look at motive of offender, context of act, whether it was committed in the course of or as part of a political uprising - Political offense: o Directed against the political institution of the state o Committed in the course of a political uprising o Taken action as a member of a political faction

Answer 29

2008 Facts: petitioner denied his right upon arrest to be informed of his separate right to contact his nation’s consul. After his trial, ICJ in Avena held that US had violated Vienna Convention by not informing Mexican nationals of their right to consult. Issues: whether the ICJ opinion in Avena is legally binding upon domestic courts of the states (here, Texas); whether President’s Memo require the States to provide review and reconsideration of the claims of the 51 Mexican nationals in Avena Held: while ICJ judgment in Avena creates an international obligation on the part of the US, it does not of its own force constitute binding federal law that preempts state restrictions on the filing of successive habeas petitions. - Presidential Memo did not incorporate the treaty, needed ratification by Congress to be binding (because it did not contain self-executing language)

Answer 30

1829: US form of dualism Important in crystallizing the idea that some treaties would be automatically applicable within US jurisdictions and some would not (self-execution) “shall be ratified and confirmed to the persons in possession of the land” - fairly dispositive that this is a non-self-executing treaty – legislature muse execute before it becomes a law Barring that language, most treaties in the US are presumed to be self-executing under the Supremacy Clause

Answer 31

2002: death penalty for a minor US has persistently objected to the development of a customary international legal principle prohibiting the execution of juvenile offenders NB: persistent objections are impotent against peremptory norms, which are non-derogable No longer at issue in this country

Answer 32

1996: Yugoslavia - Argues there was no armed conflict in the region in which he is alleged to have committed crimes - Armed conflict: exists wherever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups, or between such groups within a state Threshold: internal conflicts must involve MORE THAN situations of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence International Character: Tadic’s Bosnian-Serb forces acted as de facto organs of another state, justifying application of international (rather than internal) standards - Control required by international law may be deemed to exist when a party to the conflict has a role in organizing, coordinating, or planning the military actions

Answer 33

1. Start with Art 2(4) and the idea that force should not be used 2. Discuss Article 51 exception and its requirements: a. Requires a request (Nicaragua) b. Requires a self-defense, or “collective” self-defense c. Action must be reported to the SC 3. Discuss three views on the use of force a. Constructionist (Caroline / Henkin) b. Imminent threat (4 conditions) c. Preventive/Preemptive (Bush Doctrine) 4. Discuss validity within each school of thought 5. If the UN has acted, Discuss Chapter VII and UN’s peacekeeping powers a. Enforcement action 6. Discuss Chapter VIII Regional Arrangements if Applicable

Answer 34

Participants: 1. States 2. International organizations (UN) 3. Nongovernmental Organizations (Red Cross, IOC) 4. Corporate entities 5. Individuals (human rights)

Answer 35

Stimson Recognition is NOT permissible under international law IF a government took power unconstitutionally or contrary to the covenants and obligations of the Treaty of Paris. An entity need not be treated as a state if it has attained the qualifications for statehood by violating international law. ``` Estrada Estrada (foreign minister) Mexico argued it was no business of the U.S. to interfere/influence the government of Mexico by use of a recognition power. (U.S. and some European countries had withheld recognition in order to garner influence ``` More a matter of effective control rather than recognition by some countries

Answer 36

De jure: recognition by other states – is the government widely accepted by other states? Implies government is lawfully in power even if it retains little actual power De facto: government in control, but illegally so – most commonly used when there are unstable circumstances and a political reluctance to fully recognize the government. Two types: 1. After expelled former authorities and establishes it own functionaries, so as to represent the actual sovereignty of the nation (generally recognized) 2. Portion of inhabitants of a country have separated themselves from the parent state and established an independent government (depends on ultimate success) 3. See Church of Cyprus

Answer 37

Traditional approach: 1. In effective control of the state without the assistance of foreign intervention 2. It has the consent, or at least the acquiescence of the people; and 3. It shows willingness to comply with the state’s obligations under international law

Answer 38

The right of people in a territory to decide the political and legal status of that territory. Historically seen as a principle and NOT a right – in the UN charter as a principle Scope of Right: 1. Usually fulfilled through internal self-determination (pursuit of political, economic, social and cultural development within existing state 2. External: unilateral secession – establishment of a sovereign and independent state 3. International Law views External Self-Determination with skepticism, with three exceptions: a. Colonial people b. Oppressed people c. Those to whom internal self determination is denied

Answer 39

Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII

Answer 40

ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE AND ACTS OF AGGRESSION - Security Council determines necessity of intervention - Article 41: measures not involving the use of armed forces o Interruption of economic relations o Communication o Severance of diplomatic relations - Article 42: if 41 inadequate, may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security - Article 43: negotiated agreements for all members of UN to “make available” to SC armed forces, assistance, etc - Article 47: established a Military Staff Committee to advise/assist SC - Article 51: self-defense

Answer 41

1. General Assembly 2. Security Council a. 15 members; 5 permanent b. Other 10 rotating elected by GA for 2-year terms c. Permanent members have veto power over any nonprocedural decision 3. Secretariat: Secretary-General, chief administrative officer of UN 4. ICJ: Principal Judicial Organ (see Article 36 for jurisdiction) 5. Trusteeship Council a. Responsible for administering trusteeship territories that are not yet self-governing 6. Economic and Social Council a. Supervise the work of commission, committees and expert bodies in the economic and social fields

Answer 42

European Court of Human Rights Created by the European Convention for the protection of Human Rights and Fundamental Freedoms (1950) Jurisdiction over 47 states, functions as a European Bill of Rights (originally optional, as of 1998, mandatory) Article 34: gives individuals and states the right to petition the ECHR Article 32: gives ECHR jurisdiction to hear and try cases already reported on by the Commission

Answer 43

Forcible abduction is not a sufficient reason why a party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense. Circumstances in which a person is brought in for trial are irrelevant to trying an individual – trial may take place regardless. See U.S. v. Alvarez-Machain (1992)

Answer 44

1969: codifies the law of treaties; US not a party, but regarded as customary Establishes the rules about making and interpreting agreements, their observation, modification, and termination. Article 2: Treaty: international agreement concluded between states in written form and governed by international law - Reservation: unilateral statement where a state purports to exclude or modify the legal effect of certain provision of the treaty in their application to that state Reservations: Articles 19, 20, 21: provides for reservations with some exceptions Article 31: Interpretation in good faith and in accordance with plain meaning

Cases to Know Flashcards

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