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a brief primer
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International Law
a brief primer
by Nathaniel Burney
The Burney Law Firm, LLC 747 Third Ave., Fl. 32 New York, NY 10017
Article 38 of the Statute of the International Court of Justice defines the sources of international law. Look at them in order, to find the law. First, look to treaties and other bilateral agreements to which sovereigns are signatories, and which govern the issue. Second, look to multinational agreements among sovereigns, which govern the issue. Third, look to customary international law. a. General practices of states, accepted as if they were law. b. Followed not out of habit or expediency, but because considered law. Fourth, look to general principles common to mature legal systems. Fifth, look to subsidiary determinations of law (e.g., Supreme Court decisions). Cases are important. They are used in real life. CUSTOMARY INTERNATIONAL LAW Customary international law is something done as a general practice not because it is expedient or convenient, but because it is considered law, out of a sense of legal requirement (opinio juris). Element 1: General practice. Element 2: States do it out of a sense of legal obligation. What you do becomes precedent. Your actions have a legal effect, even though you didnt actually create a legal document. Any order or document issued by any government entity can be used as precedent! The Paquete Habana case relied on edicts and agreements as far back as 1403. Even when no binding document exists, there is such a thing as estoppel. White House memos can be just as precedental as a treaty! Whenever considering whether something is custom, ask the following: What constitutes state practice? How much practice is required? How much consistency is required? Inconsistent state practices can be ignored if you look at the big trend. Are dissenting and non-participating states bound by custom? Do regional and special customs involve different requirements? May a special custom (one that conflicts with general custom) bind a state that has not supported it? What evidence is required for opinio juris, the requirement that practice be accepted as law? May treaties be invoked as evidence of customary law? May they create it?
International Law a brief primer Nathaniel Burney II. THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW
AND THE RELATIONSHIP OF INTERNATIONAL LAW TO U.S. FOREIGN RELATIONS LAW The US is truly a nation of laws, especially as compared to many other countries throughout the world. A problem with that, however, is that often our law is contrary to international law. That is not an excuse for a violation, by the way. We may be obligated by our law to not perform a promised duty, yet we will be liable for the breach. Shouldnt have undertaken the obligation. Sometimes it happens because of internecine squabbles, but youre still going to have to compensate for the violation. The principle that a state cannot plead its own law as an excuse for non-compliance with international law has long been established and generally recognized. In 1887, e.g., Secretary of State Bayard said: It is only necessary to say, that if a Government could set up its own municipal laws as the final test of its international rights and obligations, then the rules of international law would be but the shadow of a name and would afford no protection either to States or to individuals. It has been constantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties. Such regulations may either exceed or fall short of the requirements of international law, and in either case that law furnishes the test of the nations liability and not its own municipal rules. Article 13 of the Draft Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 says: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. That standard makes sense. Nazis couldnt defend their actions by saying they did what the Reichstag said to do, and neither can you. Some other countries constitutions say that international law is part of their law, and that in the event of a conflict international law trumps as a matter of municipal law. In Germany, e.g., if you can prove an international law violation, you win in German court. International law takes precedence over municipal law. See also Italy, Austria, Greece, and France. Other systems, like the US, dont acknowledge international law as precedental over municipal law. See Switzerland and the Netherlands. Lots of systems leave open the question of which rules prevail. Also, in many countries, the substance of international law is not an issue of fact for the jury, but a matter of law for the court. We are bound to international agreements, even though our convoluted municipal law may result in failure to keep our end of the deal. In the United States, there are conflicts at times between our law and international law. Customary international law is NOT the supreme law of the land here. Only treaties are.
More on jurisdiction over terrorism. Tokyo Convention of 1963, Hague 1971, and Montreal 1971 Tried to define illegal acts on international flights, then tried to elaborate who has jurisdiction over events happening on the plane. Article 4 of the Tokyo Convention 1963 said that only the state of registration has jurisdiction. No other state gets jurisdiction unless crimes are committed against or by a national (or even a permanent resident) of that state. This opened up passive-nationality jurisdiction. A boy born in the West Bank becomes an orphan when his parents are killed, and he goes to the Bakaa Valley to become a terrorist. Then he goes to Syria for a bit, then to Libya. Then he goes to France. After two years in France, he commits a terrorist act in Germany. Because he lived permanently in France over the last 2 years, France can assert jurisdiction even though he isnt a national. Libya has signed a lot of these conventions, so a lot of terrorists are covered by them.
Vienna Convention on the Law of Treaties. An international agreement is defined at the top of the Vienna Convention on the Law of Treaties, which is universally accepted as the codification of the law of everything to do with treaties. The United States hasnt signed it, because we have some problems with appendices to the Convention, but we do obey it. The Vienna Convention on the Law of Treaties is gospel. It is international law with regard to treaties. Covers anything that is it treaty: Parties must be states. Parties must have agreed. Agreement must be in writing. The parties must have intended it to be binding. The agreement must state that the governing law will be international law. International agreements can lack some of these requirements, but that just means they arent treaties. Parties must be states. The U.N. is not a state. A contract between a corporation and a state is not an international agreement. Companies/individuals cannot even make international agreements, much less treaties. Preferable, then, to get an international agreement between your state and the state youre dealing with, at the international legal level, setting the rules for the treatment of companies and contracts. Absent that, your country has no obligation to come to your rescue when the other country shafts you. And that country youre dealing with can shaft you big time, and theres nothing you can do about it. Parties must have agreed. Agreement must be in writing. An agreement can exist without a writing, but the Vienna Convention wont apply to it. Oral agreements are difficult. How do you establish what actually happened? And did the words used establish an intent to be bound?
Basics. There are several sources of human rights. Bilateral agreements establishing substantive human rights. Bilateral agreements establishing procedural human rights (how to enforce the substantive rights). Multilateral conventions establishing substantive human rights. Multilateral conventions establishing procedural human rights. Some provisions of these conventions and treaties (especially those which are fundamental norms) are also customary international law. So even if a state isnt a signatory to a certain treaty it may still be obliged to abide by its provisions. First look to see if there is a bilateral agreement. There may be diplomatic protection of nationals, there may be human rights protections. If that isnt adequate, look to see if the states signed on to a multilateral convention that deals with the rights at stake. What you think people are entitled to is not necessarily the same as what international law says people are entitled to. When the government is involved in violence, torture, etc., rather than mere individual evils, it is a higher level of evil. It corrupts the whole state, by creating a bureaucracy to administer it and to inflict it. Corrupts even innocent people. The exact same evils committed by the Nazi state are still being done worldwide. Human rights are not bestowed by individual states on their people. States cannot dictate what human rights their people have and dont have. The Universal Declaration of Human Rights states that every human being is born with rights. Nobody gives them to you. Also the International Covenant of Civil and Criminal Rights. The rights derive from the dignity of the human person. Law is what makes the difference between the despots whims and justice. Universal, by the way, means universal. Once, there was a time when countries could say dont impose your western ideals on us. But that was before practically everybody got together and agreed to these human rights.
NOTES
But Tito, a Croat, didnt like the Serbs. So the borders were crazy, with the Serbs scattered all over and a hodgepodge of peoples everywhere. For a brief period after independence, the border agreement was there, but then the ethnic cleansing began. The result was three increasingly purged states. Nobody enforced the original plan of regulating the borders, and resulting in the Dayton accord with different borders based on the intervening battles.
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Visitors to Saudi Arabia in the 1970s and 80s, for example, were repeatedly warned never to report a crime, because you would be jailed until the culprit was caught and convicted.
Text Copyright 2007-2011 Nathaniel Burney This document has been prepared for informational purposes only. This information is not intended as nor does it constitute legal advice. Your use of this information does not create an attorney-client relationship.