International law

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International law

• Lecture 2
• August 26, 2009

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Overview

• Assignment
• Friday
• Finish McCann Case
• Filartiga Case
• - Start on Sources of International Law
• - Statute of International Court of Justice,
  Art. 38(1) p.195
• Today
• Re-cap from Mondays class
• McCann v. UK

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CONTACT INFO class website

• Professor Halvorssen
• Office Ketchum 121A
• Office hours MWF 100-200pm
• CALL ME ANYTIME (except night before exam)
• Phone [phone](departmental office)
• [phone] (home office)
• E-mail amhalvorss_at_aol.com NOTE AOL.COM
• CULearn
• http//socsci.colorado.edu/halvorss/

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Introduction INTL LAW

• A) Administrative issues (update)
• B) Introduction INTL LAW (review)
• 1) The nature of intl law
• 2) Who are the subjects of intl law?
• 3) What is sovereignty?
• 4) Is it really law?
• 5) The lack of a centralized
• a) legislative
• b) adjudicative
• c) enforcement power
• C) Then well start the McCann case.

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Intl law - definitions

• INTL law Public International Law body of law/
  ground rules that regulate the relations betw
  States. Modern definition includes intl
  organizations (referring intergovernmental
  organizations, not NGOs), and to a certain extent
  individuals.
• Subjects of intl law states, intl
  organizations, and individuals in some contexts
• State nations state - we talk about States
  acting as such
• Intl law is a separate legal system in contrast
  to law of the individual state which is referred
  to as the internal/ domestic/ municipal law of
  the US, Spain, Japan.

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Intl law definitions -2

• SOVEREIGN STATE Autonomous - internal
  self-governing - supreme independent of all
  alien dominion. Right to equality and respect,
  the right to inviolability of territory and
  citizens and other entitlements. States are
  sovereign also in the sense that they are only
  subject to their own will only bound by
  agreements they are a party to.
• United Nations recognizes the sovereignty of the
  state UN CHARTER Art. 2, paragraph 1
• What is a state? 4 criteria
• - population, territory, government, that does
  or is capable of carrying on foreign/diplomatic
  relations with other states.

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Is international law really law?

• Or just moral rules? Can there be a body of law
  governing sovereign states.
• - no intl legislature/ law-making authority
• - no intl executive no centralized enforcement
  agency
• - no effective intl judiciary not compulsory
  and binding jurisdiction to settle disputes (only
  states that give consent)

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Is intl law really law? -2

• Henkin - Almost all nations observe almost all
  principles of intl law and almost all of their
  obligations almost all of the time
• - intl law difficult to make, yet it is made
• - no judiciary as effective as municipal courts,
  there is the ICJ whose judgments are respected
• - inadequacies of the judicial system are in some
  ways supplemented by other bodies, arbitration
  and ad hoc tribunals. Political bodies like the
  Security Council and the General Assembly also
  apply the law, their actions and resolutions
  interpret and develop the law
• - no intl executive to enforce intl law, yet the
  UN has some enforcement powers and there is
  horizontal enforcement in the reactions of
  other nations.
• What matters is whether intl law is reflected in
  the policies of nations and in relations between
  nations.

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BRIEFING A CASE - 1

• 1. The Court (International Court of Justice,
  Arbitration Court, U.S. Supreme Ct, etc.)
• 2. Sources of Law Treaties, statutes, customary
  international law, general principles, earlier
  cases (precedents in U.S. law), etc.
• 3. Facts - relevant and significant facts
• 4. Issues - Questions presented (general
  principle of law put in the form of a question).
  List separately and learn to discuss each issue
  separately and clearly when discussing the
  reasoning of the Court and the decision of the
  Court.

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BRIEFING A CASE - 2

• 5. Holding and Decision - legal principle applied
  to the facts of the case Holding - rule of
  law necessary for the decision (judgment) of the
  court.
• Decision - judgment pronounced by the court in
  settlement of a controversy submitted to it.
• 6. Reasoning of the courts opinion the legal
  arguments the court used to justify applying the
  rule
• 7. Significance of the case (minor point)
• Unlike most traditional law books, where
  concurring and dissenting opinions are given at
  the end of the case, in international law
  discussing these opinions is not necessary,
  unless you are instructed to do so, in advance,
  in class.
• It is important that you spend sufficient time on
  each case and grasp its context, as this is the
  method by which you will understand the concepts
  of law. Two pages should be sufficient, if the
  case is briefed properly.
• Use outline form, numbering each section as
  listed in the order of the outline above.

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McCann v. United Kingdom

• 1. Court WHICH COURT?
• The European Court of Human Rights located in
  Strasbourg, France
• 2. Sources of Law WHAT ARE THE DIFFERENT
  SOURCES?
• European Convention on Human Rights, Gibraltar
  Constitution, etc.
• 3. Relevant facts
• - - As early as beginning of 1988 UK and Spain
  knew of IRA plans for a terrorist attach on
  Gibraltar during the changing of the guard
  ceremony by detonating a car bomb brought over
  the border
• Suspects McCann, Farrell and Savage were witness
  by Detective Constable Viagas in a car park March
  6, 1988 and identified by the Security Services
  then.
• - McCann and Farrell crossed the border March 6,
  but were not arrested
• McCann and Farrell were killed by British
  soldiers on March 6, 1988 shot in the back
  possibly after being warned to stop, the soldiers
  thinking they were about to detonate bombs
  intention to kill to stop threat of detonating
  bombs
• Inquest jury returned a verdict that the killings
  were lawful.
• Families of McCann and Farrell were dissatisfied
  commenced action in High Court, Northern Ireland,
  UK govt issued certificates stating that
  proceedings were excluded because Crown was not
  liable for actions taken outside of UK and
  Northern Ireland, judicial review turned down
  no reasonable prospects of success. UK High Court
  actions were struck off
• The did find a explosive device in a car rented
  by Farrell.
• Their families submitted to their complaints to
  the European Commission of Human Rights
  Commission reported that there was no violation
  of Article 2.

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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.