international law 5th edition (2013) carolina academic press professor valerie epps copyright ©...

International Law5th Edition (2013)

Carolina Academic PressProfessor Valerie Epps

Copyright © Valerie Epps, 2013

All Rights Reserved

Copyright © 2013 Valerie Epps. All rights reserved.

International Law

Professor … (add name, plus other course instructions).

The page numbers referenced are to Valerie Epps, International Law (5th edition 2013) and Valerie Epps, Documentary Supplement to International Law (4th edition 2009).


Introduction, p. 3What is International Law?

Classic Divisions 1) Public International Law (IL): Traditional definition of public international law: “IL

concerns the legal relationship between sovereign states.” The only relevant actors were states. After WWII, the number of entities within the scope of IL began to change: the human rights field added the individual and certain groups to the actors in international law. Then multinational corporations, GOs, NGOs, non-state actors, such as paramilitary groups, and multi-national corporations all began to be assigned either obligations and/or rights under IL. The subject matter covered by IL also expanded dramatically.


Classic Divisions continued

2) Private International Law: basically concerns the legal relationships occurring in international business transactions and the legal regimes that govern them, e.g., WTO (World Trade Organization), TRIPS (Trade Related Intellectual Property), intellectual property treaty rights, international trade, transnational commercial contracts, transnational taxation etc. Some people argue that we should not separate the two sides of IL but teach them as a whole…but...we only have so much time, so this course focuses on public IL. Much of what you learn in this course will be applicable and useful in private international law courses, e.g., the law of treaties, international jurisdiction, how international courts work, etc.


So…What is International Law?

First, what is law? If you landed in a new country and wanted

to know if it had a legal system, what sort of structures would you look for to answer that question?


How Is IL Made and Who Makes It?

Is there an international legislature? Is there an international executive? Is there an international judiciary? If not, or if only in a rudimentary sense, how

does IL get made? Can it really be said to be a system of law or is it just a set of hopeful prescriptions?

First, we shall study the mechanisms for making international law.


Sources of IL, pp. 5–32 Who Makes Up IL?

1) Custom What is custom? “A consistent practice of states engaged

in by them out of a sense of legal obligation.” How consistent does the practice have to be? What sort of practices? What is a sense of legal obligation? Does custom bind even those states that disagree with the

custom? What is opinio juris? What is a jus cogens custom? Note: ICJ Judge ad hoc

Dugard in Armed Activities in the Territory of the Congo (Democratic Republic of Congo v. Rwanda) (Jurisdiction and Admissibility), 2006 I.C.J. 6, Separate Opinion, para.4, noted that the Court had acknowledged the existence of peremptory norms (jus cogens) (specifically, the prohibition of genocide) for the first time in its judgment in this case.


Article 38 Statute of the ICJ

Turn to Epps, Doc. Supp. p. 32, or find the Statute of the International Court of Justice (ICJ) on the Court’s website at: www.icj-cij.org

Note the sources of law that may be applied by the ICJ: international conventions, international custom, general principles of law, and judicial decisions (but see art. 59 of ICJ’s Statute, Doc. Supp. p. 35) and teachings of international law scholars as a subsidiary means for determining the rules of law.


http://www.icj-cij.org/

The Paquete Habana, US Supreme Court 1900

http://commons.wikimedia.org/wiki/File:Cuba-Florida_map.jpgWhat was the custom found by the S.Ct. in The Paquete Habana? (This is a decision by a US court but is fairly typical of the way that national courts go about finding international custom). How did the Court go about finding the custom? What persuaded the Court that the custom was binding? Why are US courts obliged to follow international custom? Would the Court have followed the custom if Congress had

passed a law stating that no vessels were exempt from capture as prize of war?

If there is an internationally binding custom, are states free to pass contrary legislation?

If they are, won’t that mean that states are only bound by custom if they want to be so bound?

Are there any international customary laws which states may disregard (derogate from)?


http://commons.wikimedia.org/wiki/File:Cuba-Florida_map.jpg

The Relationship of IL to Domestic (National) Law

Common law and civil law countries usually incorporate IL into domestic law provided it does not conflict with existing national law. A few states make IL supersede national law.

All states enter into agreements with other states (treaties). Some nations require legislation before the treaty will become operative as law but others make treaties operative as soon as the required national and international procedures are completed.


The Relationship of IL to Domestic Law (continued)

Can subsequent legislation override existing treaties? The answer in the US, and a number of other countries, is “Yes,” but other countries make treaties supreme over regular legislation. Note: At the international level, a state may not rely upon its internal legislation to excuse non-performance of an international obligation. (Vienna Convention on the Law of Treaties, arts. 27 & 46, Doc. Supp. p. 27 & 46).


Abdullahi v. Pfizer, Inc.,US Court of Appeals 2009

What was the binding international law custom found in the Abdullahi Case?

What sources of law did the majority opinion rely upon? Read art. 7 ICCPR , Doc. Supp. p. 285.

Is the US a party to the ICCPR? http://treaties.un.org/pages/ParticipationStatus.aspx If so, why didn’t the plaintiff’s lawyers rely on that treaty to clinch the case?

Why did the dissenting judge disagree with the majority?

If Nigerian governmental officials had agreed to go ahead with the treatments without patient or parental consent, thus probably barring actions in Nigerian courts, should Nigerians be able to sue in US courts?


http://treaties.un.org/pages/ParticipationStatus.aspx

The full set of PowerPoint slides is available upon adoption. Email [email protected]

for more information.

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