International Law

Ch. 1: The Nature of International Law

History of International Law
Often compared to law of nation of states
Can seem ambiguous in nature
Early stages are steeped in history
Secular Writings
Religious Writings
Law of War & Peace By: Hugo Grotius (1625)
Founded modern rules of Law of Nations aka International Law
Discussed laws of war between nations
Common practices of those nations in times of war
Public International Law
Legal relations between the sovereign states (nations)
Political interactions of states (nations)
Private International Law
Laws governing foreign transactions between private individuals ad corporations
International economy & conflicts & cooperation amongst national legal systems
International law
Different in that there is no one sovereign to enforce the law over all nations
General moral code accepted by all
Enforceable moral sanctions accepted by all
Fear of invoking hostility from other nations is what generally keeps all nations from
breaking the laws
For whatever reasons, International Law is generally observed by states (nations)
Applied in courts both domestically and internationally
An International Sampler
McCann v. United Kingdom (1995)
Soldiers intercepted and killed 3 terrorists plotting to detonate a bomb
Soldiers were sued for unlawful killing of the terrorists
Many different accounts of the actual shootings
Soldiers were found not guilty
On appeal, government was sued for violations of Article 2 of Convention for poorly
carrying out the arrest and detainment of the 3 terrorists
Court determined that there was violation
Allowing the terrorists into Gibraltar
Poor tactical planning at the time of the actual interception and arrest
Possibly erroneous/faulty intel
Filartiga v. Pena-Irala (1980)
Plaintiffs from Paraguay sued another Paraguayan official for the torture and killing of their
family member
District court dismissed for lack of federal jurisdiction
Court of Appeals reversed dismissal under federal question
Question: Did the conduct alleged by Plaintiffs violate the law of nations rules against
torture
Alien Tort Statute
District court has original jurisdiction over cases involving violations of the
international law of nations
Even though they won the case, they never received a dime of the money.
They probably knew they wouldnt get paid greater issue of raising awareness of the
torture tactics being used

Ch. 2: Treaties
Sources of International Law
One of the first places legal professionals look to ascertain international laws.
Material Source Physical place where one might look to find a particular treaty
Formal Source A fashion in which international legal professionals agree that international
law may be made
Tries are binding upon the parties involved
Statute of the International Court of Justice
Article 38
Places responsibility on international judges to uphold and apply international treaties,
conventions, and general principles when presiding over disputes arising in the
International Court of Justice
Treaty Sampler
Treaty between Jews & Romans (160 B.C.)
To protect one another in times of war
To keep the peace
To not aid enemy countries during war
Similar to the NATO treaty of today
Westphalia (1648)
End of the 30-Years War
Respect of the mutual countries practices (specifically religious)
Protestants versus Catholics
Established peace between the participating countries
Agreement to squash all previous issues
Treaty of Paris (1783)
Between U.K. & U.S. @ end of Revolutionary War
Mutual recognition of the sovereignty of the colonies
Allowed for the colonies to have fishing rights
And private property confiscated would be returned to its rightful owner
Was binding only on the U.S. and England (no other countries)
Cession of Alaska (1867)
Between the US & Russia
US paid 7.2 million to Russia to acquire all Islands creating Alaska
Observance and preservation of Orthodox Russian Churches
Any military forts/bases would be turned over to the US
Any one who chose to stay and not return to Russia would be considered and given all the
rights and privileges as US citizens
This did not include the native tribes of the region
Kellogg-Briand Pact (1928)
Between multiple countries
US
Britain
Germany
South Africa, etc
Renouncing the use of war as an Instrument of National Policy
Prime example of epic treaty failure
Clearly no one has held up its of the deal today
Why?
Because even though they said no more war to solve issues, the countries never
actually got around to identifying exactly how and issues would then be addressed!
(duh!)
Possible punishment for violations

 Economic sanctions
Severance of diplomatic relations w/ other countries
Possibly military action from others
Memoirs of Cordell Hull
Great Britain wanted destroyers from the US
This was a violation of US code
Law of Treaties
Treaty law is to International as Contracts is to Municipal (civic)
Reservations to Genocide Convention Case (1951, ICJ)
Some nations had reservations regarding terms and articles of 1948 Convention Against
Genocide.
Convention required 20 acceptances for effect; reservations & objections caused concern
for UN Gen. Assmb.
Request to ICJ to give opinion on several questions:
If nation ratifies or accedes to convention w/ reservation, is said nation still regarded as
party of the Convention, while maintaining reservation, if some nations object and
others accept?
No absolute answer. Court maintains that, like any K, Nations have the right to
agree or object to terms. However, in regards to the Convention, freedom to make
reservations and objections to reservations are limited by the nature of the
Convention to uphold the rights of every human being. Reservations & objections
must be evaluated case-by-case. Those reservations compatible with Convention
purpose: yes; those not compatible: no.
If yes, what is the effect of said reservation b/t aforementioned nation &:
Those who object to reservation?
No nation can be bound to a reservation to which it didnt consent Only rel.
b/t reserving & objecting nations will be affected, no one else. May or may not
affect whether objecting nation considers reserving nation to be party to
Convention
Those who accept reservation?
Those accepting reservation will, naturally, consider reserving nation to be
party to Convention.
Dissent:
Every nation participating in Convention should have right to evaluate reservations
made by other nation(s), and to determine whether reserving nation(s) should be party
to Convention
Notes:
Reservations that do not speak to the heart and core purpose of the treaty, may generally
be allowed
Reservations to treaties which are found to be invalid
Interpretive Declarations:
A nation will make declarations regarding the manner in which it interprets the
terms of a treaty, the way in which it will apply those terms, and the manner in
which it will conduct itself, according to its interpretation.
If a nation ratifies a treaty, it is only bound to the treaty so long as it sees fit. A nation
may enact the proper measures to withdraw from a treaty.
Some treaties may prohibit reservations entirely, then what?
i.e., Law of Sea Treaty
Some treaties are so complex that to allow reservations would undermine the entire
fabric of the treaty
Treaties that take decades of negotiations and compromises on behalf of
numerous countries

 Eastern Airlines, Inc. v. Floyd (1991, US S.C.)

Facts: Plane from Miami to Bahamas lost engine power and almost had to land at sea.
Flight crew managed to get one engine to start, flew back safely to Miami airport. No one
hurt or injured. Victims sue airline for injury due to emotional distress.
Question: Does Art. 17 of Warsaw Convention allow recovery (damages) for
mental/emotional injury suffered by passengers on international air carriers? (must there be
physical injury?)
Dist. Ct. says no. Dismisses
Court of Appeals says yes. Reverses
Sup. Ct. says no. Reverses again (final)
Analysis: Treaties construed more liberally, court looks beyond plain meaning of
language, to history and negotiations, to determine intent of parties. Warsaw text translated
from French (authoritative text binding version). Warsaw Convention requirements:
There was aircraft accident
Passenger suffered (lesion corporelle)
Injury happened boarding, during travel, or leaving aircraft
Court considered meaning of lesion corporelle and combined expectation of all
participating nations; looked to French text to deciper.
While French law would have applied its own tort law to encompass mental injury,
most other nations most likely would have rejected that broad view.
Most nations at time of drafting did not recognize recovery for mental injury
Convention drafted to protect individual airlines from liability and foster
growth of international airline industry.
Conduct of the time tended to indicate narrow interpretation
Holding: Mental anguish not sufficient. Must be physical injury. Airline not liable.
Notes:
Because the original Convention text was written in French, it was the French
interpretation, which was binding and used in the analysis. This is the general rule of
treaties
Why was Warsaw Convention drafted?
To help in the growth of the international air trade, while limiting the liability of
airlines.
Air travel was relatively new then, and the industry was small
Case: Gabcikovo-Nagymaros Project (1997 ICJ)
Facts: Treaty created b/t Hungary & Czechoslovakia to build dam and water plant on
Danube (1977). Amidst discord, Hungary drops out of deal, unilaterally denounces treaty
(May 1992). Czech. builds separate dam and diverts water to power plant (Oct. 1992).
After Czech breaks up (Slovakia & Czech Republic), Hungary & Slovakia pose question to
ICJ Hungary claims, according to law of treaties, that 1977 treaty is terminated due to
denouncement in 1992.
Question: Because of Hungarys unilateral denouncement of the treaty, is the treaty still
enforceable? (Was the termination proper?) Further, what are the legal effects of the
denouncement made in May 1992?
Issue will either be governed by Law of Treaties, or
Is treaty in force/ has it been properly denounced or suspended?
Law of State Responsibility
Does the suspension/denouncement of a convention, if deemed incompatible with
the law of treaties, involve the responsibility of the State which proceeded to it?
Analysis: This is a question of Law of Treaties. Since neither nation provided for rules of
termination in language of agreement, treaty is controlled by Vienna Convention.
Hungary claims:

 State of necessity: If state of necessity exists, nation may be exempt form

implementing treaty. Inapplicable. Only applies to nations who have failed to
implement a treaty. Is not grounds for termination.
Termination must be mutual
Once state of necessity resolves itself, nation has responsibility to enact/comply
with treaty
Hungarys Environmental concerns did not qualify as state necessity
Impossibility of performance: If particular object, necessary to enactment of
treaty, permanently disappears or is destroyed, then treaty is terminated for
impossibility. Inapplicable.
Hungary unilaterally pulled out of agreement and failed to fulfill obligations,
thus causing the missing essential objects necessary to the treaty cant then
invoke termination because of its own breach.
Fundamental changes in circumstances: Hungarys new political and economic
climate also not relevant changes in circumstances to change the terms of the treaty
or relieve it of its obligations. Developments in environmental knowledge also not
sufficient. Provisions in treaty made accommodations for new developments
Entitlement to terminate: Czech. may have violated other general international
laws, however, only material breaches may justify termination by injured nation.
Czech. breached only by building other dam. Hungary terminated prematurely,
before dam was even built. Further, dam was built in response to breach by
Hungary.
Bilateral repudiation of agreement: Inapplicable. Both parties failed to comply
with terms of treaty, but termination must be by mutual agreement, not by unilateral
party. Czech. never agreed to termination of treaty. They resisted.
Holding: Termination by Hungary not proper; had no legal effect.
Eastern Greenland Case (1933 PCIJ)
Facts: Govnt of Denmark sues Govnt of Norway for publishing proclamation asserting
rights to territories in Greenland, which Denmark claimed it already owned. Denmark
claim based on treaty w/ USA after cession of Antilles form Denmark to US. Danish
Minister claimed Minister of Foreign Affairs of Norway, declared Norway would not resist
Denmarks assertion of power over all of Greenland (Ihlen Declaration). Denmark would
also not resist Norways assertion of power over Spitzbergen
Question: Is the declaration a valid assertion/proof of Denmarks claim to Greenland? Is
Norway obligated to refrain from occupying any part of Greenland?
Analysis: Language of communications b/t Danish Minister and Norway Minister illustrate
willingness of Norway to settle Greenland matter w/ Denmark in front of Intl Commission
(US, Britain, France, Italy), and vice versa Denmark will settle Spitzenberg matter w/
Norway. Neither will object to the other.
As Official of Foreign Affairs on behalf of Norway, Ihlens declaration became binding
upon Norway. He acted in his official capacity on behalf of his nation. This promise
was unconditional & definitive.
Holding: The declaration was binding & Norway is obligated to refrain from occupying
any part of Greenland rightfully belongs to Denmark
Ch. 3: Custom & Non-Consensual Sources of International Law
Customary International Law
Implicit source of Intl Law
Complied Ks
Paquete Habana (1900 US S.C.)
Facts:
Fishing smack running in & out of Havana
Reg. fishing on coast of Cuba;

 Sailed under Spanish flag owned by Spanish subject of Cuban birth living in Havana
Master/crew had no interest in vessel but entitled to 2/3 of catch
Each vessel sold @ auction Paquette $490 & $800
Issues:
Are the fishing smacks subject to capture?
Rule:
Customary that coast fishing vessels recognized as exempt from capture as prize of war
No complete collection/single published work
Look to history of the rule
Earliest acts of Govnt approved by King
Reasoning:
Agreement b/t France & England
No bothering French vessels so long as they dont cross King of England
Fishermen are not enemies (even in a time of war)
Then ordinances enacted good faith being abused
American revolutionary War: England & France abstained from interfering w/
maritime issues
Treaty b/t US & Prussia not to get involved
& when US @ war w/ Mexico
Navy Dept.
Customary Intl Law 3 Issues:
Manner of determining rules of customary intl Law
The way customary Inl Law is incorporated into the municipal law of the US
The proper relationship b/t the US Ct.s & the Executive branch in legal matters
touching on Intl relations
Positivist Theory
Customary Intl law based on the belief that states act in a certain way b/c theyre
legally bound to do so
Implicit agreement of the past (precedent)
Followed by custom & states feel obligation
Holding:
SC held:
Intl law is part of US law
General policy of the Govnt to conduct the war in accordance w/ the principles of
Intl law
Establishing Customary Law:
Dom. Ct. decisions
Discovery (practice)
Policy decisions, declarations, announcements, practices
Lotus Case (1927 PCIJ)

Texaco/Libya Arbitration (1978)

General Principles of Law
When no treaties or other laws of customs exist, judges may look to other consensual/nonconsensual source
AM & S Case (1982 ECJ)
Does A/C privilege exist in this case? yes
Natural Law & Jus Cogens
US v. Smith (1820 US S.C.)
Equity
Form of judicial discretion
Corrective of that which is legally just Aristotle

Types (pg. 167):

Intra Legem Falling within the rules of Intl Law
Praeter Legem Application of equity to fill in gaps in law
Contra Legem Used in direct contradiction with the law
Cayuga Indians Case (1926)
Public Arbitration cheaper and quicker than PCIJ trial
Facts:
British claim against US on behalf of Cayuga Indians land claim
Cayugans fought for British during Rev. War lost land
Cayugans ceded land to NY, moved to Canada
NY covenanted to pay $1,800 annually for land to Cayugans IN Canada
NY began paying $$ to Cayugans in NY
Wish to be reimbursed full payments for all money not properly paid in Canada
Issue(s):
Defining Cayuga Nation as a formally recognized state
May look to multiple sources of law British, New York, Cayugan, etc.
Why use of equity in determining outcome
Rule:
When a situation legally so anomalous is presented, recourse must be had to generally
recognized principles of justice and fair dealing in order to determine the rights of the
individuals involved.
International law should be applied with equity
Analysis:
Court discussed split of Cayuga nation and the effects of the treaty on not just the nation
as a whole but on the individuals who make up that nation. They must be treated
equitably
Holding:
After the split, the Cayugans permanently settled in Canada and therefore should have
been paid all funds there.
Meuse Case (1937 PCIJ)
Facts:
Netherlands is suing Belgium for possible violations of treaty b/c Belgium is feeding
water into canals from an area forbidden by the treaty language
Issue:
Whether court should act on the violation of one treaty party at the behest of another
country who is also violating the same treaty
Rule:
Where one party is failing to abide by the responsibilities given to it by the terms of a
treaty, it cannot then assume the advantage of similar failures of another party.
Analysis:
Both nations were failing to adhere to the terms of the treaty, in the same fashion. This
will not be entertained in court. Equity is equity He who seeks equity must do
equity.
Holding:
Court dismisses case since both nations are in violation of same treaty.
Options:
Go back to the drawing board reconsider treaty terms
One nation comply with terms of treaty, then go back to court
Stop taking the water, then sue!
Terminate treaty entirely
North Sea Continental Shelf Case (1969 ICJ)
Ch. 5: International Courts & Tribunals

 U.N. Charter, Art. 96

Vest power in ICJ to render advisory opinions
Only at request of specific international orgs.
Gen. Assemb. Or Sec. Counc. May request ICJ to issues advisory opinion on any legal
question (Wall Case)
The advisory opinions are not legally binding
Often serve same function as Court judgment
The Palestinian Wall Case (2004 ICJ)
Request for advisory opinion regarding legal consequences of Israeli wall built in
Palestinian territory.
Gen. Assemb. Concerned with possible threat to international security
Gen. Assemb. already ruled wall illegalso why go to ICJ?
Gen. Assemb. is not judicial body their rulings are strictly political
statements
Going to ICJ would remove political stigma on controversy gives more
weight to Gen. Assemb. campaign against wall
Rule:
ICJ must first determine if it has proper jurisdiction before issuing advisory opinions
If court determines that jurisdiction is proper, Court has DISCRETION to address
question but should only refuse to rule for compelling reasons
Will not decline to give opinion simply because one State party has not given
consent
Will still issue opinion if necessary for the UN Gen. Assemb. to properly
exercise its everyday functions
Hearing will occur and opinion will be issued even if one State refuses to
appear in court or offer evidence
Advisory proceedings do not have actual parties but allow for participating nations to provide
evidence relevant to the issue a bar
Over the last few decades, a number of smaller, more specialized international courts have
developed
More limited state memberships
More expert areas of competence
These smaller courts are the main reason why the ICJ, while still import, will never have
absolute judicial discretion over International matters
Most nations will never agree to ONE international court
Southern Bluefish Tuna Case (2000)
Australia & New Zealand suing Japan in International Tribunal for the Law of the Sea
(ITLOS) Japan conducting experimental fishing of tuna in violation of UN Convention
on Law of the Sea
Pursuant to terms of treaty, ITLOS declined to hear case due to lack of jurisdiction on the
merits of the case
Parties to a case my unilaterally submit case to third-party proceeding which will be
legally binding
Ch. 6: Individuals & International Law
Posivistic view: Individuals originally deemed objects of International Law (19th & early 20th
cen.)
Individuals can only be protected by their nation states
No intl legal rights or duties
Enter development of doctrines of state protection/state protection 3 limitations:
Individuals only protected by national states national links are elusive
Even more confusion regarding national links of corporations
Objective view allows for abuse of individuals by states
No state would protect individuals against itself in intl law

 Ex. Nazi Germany abusing the Jews Cause of WWII

The Nottebohm Case (ICJ 1955)
Facts:
Nottebohm is German by nationality, moves to Guatemala to build a successful banking
business
As WWII begins, Nottebohm returns to Germany, applies for naturalization in
Liechtenstein, becomes a proper National, returns to Guatemala on passport to conduct
business.
To avoid being tied to Germany during such a hostile time)
Guatemala refuses to acknowledge Ns new nationality, WWII begins, his German
citizenship is becoming a liability and he is deported from Guatemala, to the US, his
business and assets seized
B/c Guatemala is now hostile against Germany (because of war)
Liechtenstein sues Guatemala on behalf of Nottebohm at ICJ
Issue:
Is Liechtensteins claim on behalf of N admissible in ICJ?
Was N properly and legally naturalized in Liechtenstein, to give weight to claim?
Because Guatemala refuses to recognize the title to the exercise of state
protection afforded to N by Liechtenstein, Court must determine if granting N
nationality in and of itself would require Guatemala to recognize
Liechtensteins exercise of protection.
Because this was a unilateral act by Liechtenstein, was Guatemala required
to adhere to it?
Rule:
It is within the discretion of each nation to determine its own naturalization process, not
a decision for intl law
However, not every state action is automatically recognized across intl borders;
thats the issue here
In cases of dual nationality, intl arbitrators most often give preference to the real &
effect nationality
Analysis:
Several factors considered in determining real & effective nationality:
Habitual residence of individual
Center of interests
Primary family ties,
Participation in public life,
Attachment towards specific nation
Nations may be wary of recognizing state protection on behalf of an individual who, for
all intents & purposes, has severed ties w/ that specific state (only a citizen in name, not
in quality)
Judicial decisions are loath to recognize citizenship of individuals with no genuine
connection/link to the specific nation in question
Holding:
Guatemala is not required to acknowledge Ns new nationality
No genuine connection to Liechtenstein
No permanent home
No attempts to build family there
Quick nationality request/process
Almost immediate return to Guatemala afterwards
Liechtenstein cannot offer protection to N
State responsibility

Ideal that any nation state should be held accountable for the actions committed against
individuals
Individual statelessness
Denial of national citizenship recognition amongst all nations
The ultimate punishment no rights or protections ANYWHERE
Consensus b/t civilized nations: statelessness not to be imposed on any individual as
punishment
Individuals as Intl Law Subjects
Natural Law Theory
Both individuals & states were subjects of Intl law
Legal Positivism
Intl Law = rules w/ states as subjects
Municipal Law = individuals are subjects of a single state
This view failed to acknowledge that men break the intl laws, not abstract entities
should be held accountable as individuals
Realistically, intl applies not just b/t nations but to individuals as well
There are intl rights & obligations transcending state boundaries
Final ruling:
Intl Law = law b/t nations AND the individuals of those nations
International Human Rights Law
Pertains to individual rights & obligations intlly
At Municipal Law
Individuals should be protected from abuses by state governments (John Locke)
Basis under which Dec. of Ind., Bill of Rights, US Const. were formed
Inspired Constitutions of many other nations as well
Protection of human rights has been left to country legislatures (UK) courts (US)
Nuremberg (1946)
Trials of Nazi war criminals after end of WWII
Allied Powers & other nations established Tribunal for Trial of War Criminals whose
offenses had no specific geographic location (Charter)
October 18, 1945 indictment lodged against 25 Nazi defendants
Charged with war crimes, crimes against humanity, membership in criminal org.
Charged under Art. 6 of Tribunal Charter
Trial began Nov. 20, 1945
Charter is binding law upon Tribunal for purposes of trying war criminals
Germany surrendered to countries subscribing to charter, therefore subject to that
law
Ds contend that since charter was created after WWII, there can be no punishment (ex
post facto law/punishment)
But there were other treaties that Ds were well aware of were completely
cognizant of intl law against waging war
Kellogg-Briand Pact Germany signed it
Didnt make war illegal
Signing parties simply agreed to use peaceful means as opposed to war
Hague Convention (1907)
Outlines rules of how to wage war
Ds contend Intl law extends solely to nations but not individuals
Claim state protection under doctrine of state sovereignty
But individuals are responsible/ subject to intl laws; cant be tried individually
Ds further contend that they acted under orders from Hitler cant be held
responsible

10

Rule:
Rules of international law extend to individuals as well as nations
Individuals cannot commit acts on behalf of a nation & then seek
protection/immunity from that nation, once that nation has stepped outside the
boundaries of intl law
Holding:
Even if Ds acted under orders, still responsible for actions however, argument
may be considered in mitigation of punishment
GUILTY!
Human Rights & the UN
IHR officially reached intl level w/ creation of Univ. Decl. of HR 1948
Decl. enumerates universally recognized human rights
Evolution of HR
Pt. 1: Began w/ enforcement of UN Charter lead to adoption of Intl Covenants on
HR (1966)
Also note:
Genocide Convention
Convention on Elimination of Racial Discrim. (CERD)
Pt. 2: Development of UN HR Institutions
CERD
Created under Intl Cov. on Civil & Political Rights & Intl Cov. on
Elimination of all Forms of Racial Discrim.
Inter-American Commission & Court of HR
Created under American Convention on Human Rights
European Convention of HR
Pt. 3: Implementation after Cold War Era
UN Institutions couldnt become fully effective until mid 80s
Focused on effective measures ensuring state compliance w/ intl obligations
Had to have proper legal authority to enforce HR laws
States were more willing to support creation of HR institutions, but less
willing to comply w/ obligations
Political factors made it more difficult for states not to comply
European Court of HR developed w/ collapse of Sov. Un.
Inter-American HR system developed after European system
Couldnt become fully operational until after end of Cold War
Still encounters social & economic issues (poverty/corruption)
With adoption of democratic policies as opposed to military regimes,
system has seen real successes recently
African HR system
Still facing great problems: oppressive govnts, poverty, corruption, disease
Problems addressed by African Commission on Human & Peoples Rights
Greatest victory to date = abolition of Apartheid
Issue encountered by all institutions = lack of financial resources
Budget-cutting by govnts done on purpose to limit power of institutions to
make change
Better to say we have no money than we dont care about these issues
Damian Thomas v. Jamaica (2000)
D was charged and convicted of murder (age 16) wrote petition,
unrepresented
Held in adult prisons against Art. 24 of Intl Covenant on Civil & Political
Rights (ICCPR) petitioning to HR Committee to be moved to juvenile
facility

11

 Claims physical abuse by wardens

Sates are required under Charter Optional Protocol of ICCPR to investigate
serious claims of violations State failed to do so even after receiving
Committee request
Because D submitted abuse claims after Jamaica formally Protocol prior,
Committee considered claims inadmissible.
Committee admitted remaining allegations b/c case was submitted before
Jamaica denounced protocol still subject to its jurisdiction
Committee found state guilty, requested memo on corrective measures taken
w/in 90 days.
Jamaica became first nation to denounce Option Protocol of ICCPR (1997)
Stripped rights of individuals to petition Committee major setback in the
movement for HR development
May encourage other nations to do the same
Done in response to wave of petitions filed during 80s (specifically by death
row inmates)
Could resume domestic practices w/out obstacle
Nation still remains member of ICCPR, just not subject to Protocol
No avenue of legal redress by individuals
IHR Eras
Prof. Buergenthal:
1945-1966: Norm-Building
1966-1989: Institution-Building
1986-Present: Implementation-Building
European HR established the earliest most effective HR system
Implemented EHR Cov. 1970s
US has not signed on to the Inter-American Court of Human Rights
HR Systems deemed vastly ineffective
Lack of funding
Bureaucratic obstacles
UN HR bodies lack any enforcement power decisions arent legally binding
upon countries
On resource is public shaming of intl govnts
European HRL
Nuremberg sparked European movement for establishment of HRL
Nov. 4, 1950: signing of European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECPHRFF) in effect Sept. 3, 1953
Power given through two mandatory clauses (originally optional):
Art. 34: giving individuals & states rights to petition Euro. HR sys.
Art. 32: giving euro. Ct. of HR jurisdiction to hear and try cases already
addressed by Commission
Historically, Euro. HR were entrusted to exec. & leg. branches, not cts.
Euro. Ct. HR
Strasbourg France most successful HR ct.
Jurisdiction extends to 47 nations
1950s-1970s: establishment and growth of the ct.
1980s-90s: greatest growth & maturation of ct. sys.
Biggest wave of petitions accepted to ct.
Today, Ct. rendered 11,000+ judgments
Sunday Times Case (ECHR 1979)
UK Distiller Co. sold sedative to expectant mothers 100s of babies born deformed
389 claims pending against Distiller (1971)

12

 Besides 1 case, no action was taken in others where writs had been issued
1971, Distiller proposes settlement of trust fund for all victims ALL parents must
accept 5 refused negotiations ensued & revisions made terms changed from
LL must accept to substantial majority settlement reached of 3.25 million
Newspapers began running stories threatening to ruin settlement agreement Atty.Gen. threatened papers w/ contempt if more articles published
Sunday Times writes article writes footnote stating a future article Atty.-Gen. gets
injunction against future article
Article outlined failure of Distillers to properly test drug before manufacturing
Distiller had reports that drug would cause defective births, but still advertised drug
as safe to mothers Ignored reports that liquid form was poisonous and could be
lethal
Distillers formally sued Paper for contempt b/c litigation still pending in settlement
negotiations
House of Lords held that publication of article would prejudice the judicial process
maintained injunction against paper until settlement complete
Paper filed claim with Commission citing violation of Art. 10 of convention freedom
of expression
In rendering decision, Ct. weighed public interest against language of Art. 10 2 which
provided exceptions to the freedom of expression rule
4 interests to consider:
Publics right to be informed
Distillers right to have impartial and fair trial
Papers right to freedom of expression
Govnt right to ensure a legitimate and fair judiciary/judicial system
Held that in this case, the public had right to know about situation & that the
pending litigation didnt make the facts of the case any less pertinent to the public
at large. Injunction served no legitimate aim & wasnt necessary for the
maintaining of judicial authority in the matter. Violation upheld.
Soering Case (ECHR 1989)
Facts:
D is German national detained in English Prison awaiting extradition to US for
murder of his gfs parents in VA
D admitted to killings in sworn affidavit b/c victims disapproved of relship w/ gf.
Claims conspiracy w/ her indicted on capital murder charges
US request extradition of D and gf Extradition Treaty 1972 b/t US & UK
warrant issued per terms of treaty 8
British Embassy responds to US request: Britain abolished death penalty, requests
US make assurance, per treaty, not to execute D if sentenced to death, or make
assurance that US govnt recommend no death sentence
German Pros. questions D in prison D claims no intent to kill, no concrete
memory of murder & no conspiracy w/ gf Germany issues warrant requesting
extradition to Fed. Repub. per 1872 treaty w/UK
VA Attorney Updike writes letter to US Director of I.A. of DOJ stating that D cant
be tried on admissions alone; no way to compel US witnesses to crim. ct. in
Germany
US sends UK diplomatic note requesting extradition pref. over Germany
GF extradited to US first, plead guilty, sentenced to 90 years
UK sends letter to Germany stating US sent formal request first & would be given
preference so long as US gives proper assurance of no death penalty
Updike made two sworn affidavits promising UK no death penalty
VA authorities later inform ECHR that Updike will seek death penalty

13

 Ch. 9: Law of War

Realists

14