International law

1. International law Lecture 2 August 26, 2009

2. 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 Monday’s class • McCann v. UK

3. CONTACT INFO + class website • Professor Halvorssen: • Office: Ketchum 121A • Office hours: MWF 1:00-2:00pm • CALL ME ANYTIME (except night before exam) • Phone: (303) 492-7871(departmental office); • (303) 499-2368 (home office) • E-mail: amhalvorss@aol.comNOTE: AOL.COM • CULearn • http://socsci.colorado.edu/~halvorss/

4. 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 we’ll start the McCann case.

5. 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.

6. 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.

7. 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)

8. Is intl law really law? -2 • Henkin: - Almost all nations observe almost all principles of intl law and almost all of theirobligations 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.

9. 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.

10. 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 court’s 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.

11. 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 gov’t 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.

12. 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.

13. 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 it’s 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.