CH 1 the nature of int’l law
Difference between league and U.N.
1. Can use force let alone good office. S.C. can work on good office and use of force
2. Contribute troops, member countries of UN deploy their armed forces as a part of peace keeping force in areas of conflict
Art. 103 - Supremacy clause, constitutional status, multilateral, Constitution for the int’l community
Overview of sources of international law
Convention, custom, general principle, subsidiary means under Art. 38(1) of ICJ statute (see also Rest 3d § 102, Sources Of International Law, )
as a source of international law, begin with treaty and move to custom (existing and emerging), (finishing with equity) (See north sea shelf case, p162)
treaty ( Art.38.1.a. of ICJ statute, 102.1.b of rest 3rd)
- governed by VCLT or customary law of treaties (v. state responsibility)
- definition (2.1.a) and non-retroactivity (art.4)
- Human rights agreements are governed by VCLT if the agreement falls within “treaty” under Art.2.(1).(a) of VCLT)
- art.26 (pacta sunt Servanda, see also 321 of rest 3rd : binding force of agreement, seems to include oral agreement)
- (1) whether within treaty-making power (2) whether self-executing (P183)
Custom (art. 38.1.b. of ICJ statute, 102.1.a of rest 3rd ) p194
- existing v. emerging
- ICJ 38.1.b “custom” – (i) general practice (ii) accepted as law / Rest 3rd 102.1.a. “customary law” – (i) general and consistent practice of law (ii) sense of legal obligation
- element : (i) actual practice (ii) opinio juris
- “General” : “persistent objector”, before custom formed. Once custom formed, it is mere violation
- “practice” : UN G.A. resolution contributes to the formation of customary international law e.g. UDHR
- infer opinio juris from the fact of a constant and uniform practice
-
à. content of G.A. resolution / codification+extent of accession+no denunciation /
-
-
- emerging custom (p312, advisory, nuke), (p162, north sea shelf)
General principle (art. 38.1.c. of CJ statute, 102.1.c of rest 3rd )
- fill in gap
- e.g. pacta sunt servant
- AM&S case (p158) necessary – protection of legal confidence ,
Subsidiary means (art. 38.1.d. of ICJ statute)
Ex aequo bono, (art. 38.2. of ICJ statute, p162 north sea shelf )
Jus cogens ( comment on 102 rest 3rd, Art 53 of VCLT)
Peremptory norms of international law : permitting no derogation. These rules prevail over and invalidate international agreements and other rules of international law in conflict with them.
Article 38 of ICJ statute (no stare decisis)
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (e.g. Art. 38.(1).(a). of ICJ statute)
b. international custom, as evidence of a general practice accepted as law; (opinio juris)
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
Rest 3d § 102, Sources Of International Law, p191
(1) A rule of international law is one that has been accepted as such by the international community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the world.
(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (opinio juris)
(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.
Rest 3d § 102 comment l. General principles as secondary source of law.
Much of international law reflects principles analogous to those found in the major legal systems of the world. That source of law may be important when there has not been practice by states sufficient to give the particular principle status as customary law and the principle has not been legislated by general international agreement.
Reservation (p199) (see rest 3rd 313)
e.g. US RUDs to ICCPR p960
- Reservations : free speech (art.20) / capital punishment (art.6) / torture.punishment (art.7)
- Understanding : non-discrimination (art.2(1), 4(1), and 26) / federalism (art.50) (Cf. Peil, non-discrimination is reservation? Rather than understanding)
- Declaration : non-self executing / restriction on rights
- p972, HRC comment on reservation, esp. objection
Definition
- Art.2.1.d of VCLT “reservation” : (i) unilateral statement by State, (ii) when signing or ratifying a treaty, (iii) whereby it purports to exclude or to modify the legal effect (or obligation) of certain provisions of the treaty
- same in comment a on 313 rest 3rd reservation
governing rule
- VCLT or advisory opinion (non-legally binding) : treaty definition, non retroactivity
Formulation of reservation (whether or not reservation is allowed)
- Art.19 of VCLT : allowed unless (i) prohibited by the treaty, generally or specifically (ii) the reservation is incompatible with the object and purpose of the agreement
- See also 313 rest 3rd
- ICJ, advisory opinion on reservation to Genocide Convention, compatibility with object and purpose of the convention
- CEDAW Art. 28(2) = Art. 19.c of VCLT, compatibility with o and p of C.
- CERD (Racial discrimination) : reject the reservation if 2/3 of the state parties object to it
Acceptance and objection to reservation Art.20 of VCLT (same in 313 of rest 3rd )
- a reservation, expressly authorized by the agreement, does not require acceptance by the other contracting states
- objection to a reservation does not preclude entry into force of the agreement between the reserving and accepting states, unless a contrary intention is expressed by the objecting state
- a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation ( am, Congo case ?)
Legal effects of reservations and of objections to reservations Art. 21 of VCLT
- modifies the relevant provisions as to the relations between the reserving and accepting state parties
- does not modify those provisions for the other parties to the agreement inter se. When objecting to the reservation but not to the entry, the provision does not apply between the reserving and objecting states
- ICJ, advisory opinion on reservation to Genocide Convention, (p56)
313 of Reat 3rd Reservations
(1) A state may enter a reservation to a multilateral international agreement unless
(a) reservations are prohibited by the agreement,
(b) the agreement provides that only specified reservations not including the reservation in question may be made, or
(c) the reservation is incompatible with the object and purpose of the agreement.
(2) A reservation to a multilateral agreement entered in accordance with Subsection (1) is subject to acceptance by the other contracting states as follows:
(a) a reservation expressly authorized by the agreement does not require subsequent acceptance by the other contracting states;
(b) where application of the agreement in its entirety among the parties is an essential condition to their consent, a reservation requires acceptance by all the parties;
(c) where a reservation is neither authorized nor prohibited, expressly or by implication,
(i) acceptance of a reservation by another contracting state constitutes the reserving state a party to the agreement in relation to the accepting state as soon as the agreement is in force for those states;
(ii) objection to a reservation by another contracting state does not preclude entry into force of the agreement between the reserving and accepting states unless a contrary intention is expressed by the objecting state.
(3) A reservation established with regard to another party in accordance with Subsection (2)(c) modifies the relevant provisions of the agreement as to the relations between the reserving and accepting state parties but does not modify those provisions for the other parties to the agreement inter se.
Article 19 of VCLT : Formulation of reservations
Article 20 of VCLT : Acceptance of and objection to reservations
Article 21 of VCLT : Legal effects of reservations and of objections to reservations
Understandings and declarations
- Comment on 313 of rest 3rd, interpretation of the agreement
Interpretation (p206)
- Art. 31 and 32 of VCLT, 325 of rest 3rd (interpretation of int’l agreement)
- Medellin ,S. court, p938, before p227
- Eastern airline case, (S. Court), p64
- Rest 326. Authority to interpret treaty, p64
- Interpretation of human rights treaty
à traditional treaty accomplishes reciprocal exchange of benefit. Whereas, object and purpose of human rights treaty are protection of basic human rights
à like ECHR stated, in case of doubt, in principle not to be interpreted in favor of state sovereignty (p206)
Article 31 of VCLT : General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Article 32 of VCLT : Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when (unclear) the interpretation according to article 31:
325 Interpretation of International Agreement
(1) An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.
(2) Any subsequent agreement between the parties regarding the interpretation of the agreement, and subsequent practice between the parties in the application of the agreement, are to be taken into account in its interpretation.
Medellin v. Texas
The interpretation of a treaty begins with its text. We also considered, as “aids to its interpretation”, the negotiation and drafting history of the treaty as well as “the post-ratification understanding” of signatory nations.
eastern airline case (S.Court), p64
interpreting a treaty, begin with the text of the treaty and the context / Treaty is construed more liberally than private agreement / we may look (beyond the written words) to the history of the treaty, negotiation, and the practical construction adopted by the parties
international law sampler – legislated (made), adjudicated, and enforced
(am, diplomat in US, under legislated, not under adjudicated, not supposed to violate parking, but though violate, cannot adjudicate)
McCANN v. United Kingdom, ECHR, 1995 (p3)
European Court of Human Rights
- established under the ‘European Convention on Human Rights’ of 1950,
- Domestic courts therefore have to apply the Convention. (like France)
- The Convention, two types of application: individual applications lodged by any person, group of individuals, company or NGO having a complaint about a violation of their rights, and inter-State applications brought by one State against another.
- The nationality of the victim does not limit the right of state to bring claim against the state violating the right. Example: Canadian national in US is tortured in prison. If Mexico becomes aware of this torture, Mexico may bring a claim in the ICJ against US.
- Cases can only be brought against one or more States that have ratified the Convention, and alleged to violate it.
- after domestic remedies have been exhausted;
- An applicant’s allegations must concern rights defined in the Convention.
- The Committee of Ministers of the Council of Europe monitors the execution of judgments
(am)
1. Admissibility
(1) The representatives of the estates of the three must exhaust domestic remedies in U.K.
(2) The three do not have to be citizens or nationals of U.K
(3) Alleging violation of the convention
2. why U.K. show up before the court? because the committee of ministers of the council of Europe would enforce the judgment of the court, whether or not U.K. appear. + Fear of provoking general hostility + fear on the part of nations and sovereigns
3. Legislated – European Convention on Human Rights, agreement between states / Adjudicated – European Court of Human Rights, not by an domestic organ / enforced – committee of ministers of European Council, not by an domestic organ à to all of which, U.K. agreed.
European Convention On Human Rights . Article 2
1. Everyone's right to life (not necessarily abolish death penalty)
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: e.g. self-defense
Facts
- Plan of the Irish Army was to place car bomb at the place of changing of the guards of the UK army.
- The fact they brought in the SAS to deal with the Irish terrorists led people to feel that the purpose was not the capture of the terrorists but rather to kill the terrorists instead. (Special Air Services – the elite of elite commandos of the world)
- Any state in Europe could bring a claim.
- Applicants alleged violation of Article 2 of European Convention of Human rights by excessive force
Holding
- found violation of Art. 2
- no premeditated killing
- killings not absolutely necessary
- awarded no damages to applicants
- awarded costs to applicants ß not pre-meditated /
- There is no doubt that if there was premeditated killings, there would have been damages – as required by Art 2 of the Convention.
- Prevention vs. punishment: what is punishable is inconsistent to prevent criminal
- Particularly with terrorism cases, there is a tension between defense arguments and police argument.
- EC on human rights is not about combat – nor about continual terrorist action. Terrorism was not on the minds of drafters in 1953.
Filartiga v. Pena-Irala, 630 F.2d 876, (2nd Cir.), s(1980, p17)
Background
- Citizens (Filartiga) of the Republic of Paraguay, brought action against a citizen (Pena) of Paraguay, for wrongfully causing the death of their son allegedly by the use of torture.
- Plaintiff sought compensatory and punitive damages of $ 10000,000
- The US District Court dismissed the action for want of subject matter jurisdiction.
2nd Cir. held that
- deliberate torture perpetrated under the color of official authority violates customary international law of human rights and, thus, the Alien Tort Statute provides federal jurisdiction
- reverse the judgment of the district court dismissing the complaint for want of federal jurisdiction .
Reasoning
1. rationale of ATS
(1) constitutional mandate for national (federal) control over foreign relations
2. ATS, simply granting jurisdiction, not as granting new rights to alien (no cause of action)
3. three elements (i) suit brought by alien (ii) tort claim (iii) violation of law of nations
4. one element of ATS : “violation of law of nations”
(1) “under color of official authority”
1) Here, the Pena was inspector general of police in Paraguay
(2) Whether “being tortured and killed in retaliation for his father’s political beliefs” violates “law of nations” under ATS
1) How to identity and prove customary international law : (am relevant treaty?)
2) customary international law is evidenced by
a. in US v. Smith,
a) “works of jurists, writing professedly on public law, general usage and practice of nations, judicial decisions recognizing that law”
b) “crime of piracy as defined by the law of nations”, the crime of piracy is defined sufficiently and constitutionally in customary int’l law which is evidenced by commentators
b. in the Paquete Habana,
a) “works of jurists and commentators”
b) traditional prohibition against seizure of an enemy’s coastal fishing vessels during wartime is “set of rule of int’l law”
c) “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is” (àif apply here, whether torture falls within violation of law of nations, unless found in treaty, executive, legislative, or judicial, then resort to customs and usages of civilized nations)
3) “having examined the sources from which customary international law is derived, the usage of nations, judicial opinions and the works of jurists, we conclude that official torture is prohibited by law of nations” e.g. evidenced by UN charter and UDHR
àe.g. here, ** [ UN charter, UDHR, torture convention, G.A. resolution, American convention, ICCPR, European convention ]
4) “In light of the universal condemnation of torture in numerous int’l agreements, and the renunciation of torture as an official policy by virtually all of the nations of the world (in principle, if not in practice), we find that an act of torture committed by a state official against one held in detention violates customary int’l law of human rights and hence the law of nations.”
5) ATS is applied here, thus grant federal jurisdiction
5. Whether ATS is unconstitutional vis-à-vis Art.3 S.2
(1) US Con. Art.3 Section 2. “The judicial Power shall extend to all Cases, … arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made… “
(2) Pena argued, even assuming violation of int’l law, no federal jurisdiction coz of Art.III of US Con.
(3) “it is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction” - transitory action or foreign suit
(4) “The law of nations forms an integral part of the common law … Therefore, the enactment of the Alien Tort Statute was authorized by Article III”
6. Whether “law of nations” requires legislative act
(1) US Con Art. I § 8, cl. 10, which grants to the Congress the power to “define and punish . . . offenses against the law of nations.”
(2) Pena argued the law of nations forms a part of the laws of the United States only to the extent that Congress has acted to define it
(3) “thus … Chief Justice Marshal stated … in the absence of a congressional enactment, United States courts are “bound by the law of nations, which is a part of the law of the land … in Paquete Habana, … international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”
7. Private cause of action
(1) P based cause of action on declarations, documents and practices constituting the customary international law of human rights and law of nations
(2) In Medellin, even self-executing, not create private cause of action
(3) The court stated : the law of nations, which is constitutional basis of ATS, has been part of the federal common law
à ad federal common law i) provides cause of action and ii) supremacy clause (Paquete Habana, part of our law)
(4) In Doe v. Unocal, the law of nations is part of federal common law
8. Pena argues that the customary int’l law is not self-executing
(1) Here, the question is federal jurisdiction under ATS
(2) Self-executing is an issue of choice of law which will be addressed at a later stage
(3) Ad, assuming addressed at a later stage, given i) here, the law of nations is a part of federal common law ii) the Paquete Habana, “international law is a part of our law, muse be ascertained and administered by court” à self-executing ?
9. Pena agues that if the alleged conduct (torture and kill) is alleged to be the act of Paraguayan Gov., the suit is barred by the Act of State doctrine
(1) The court stated : action by a state official in violation of the Constitution and laws of the Paraguay, and wholly ungratified by that nation’s Gov. could not be an Act of State
10. Pena agues that forum non conveniens
(1) Dr. Filartiga commenced a criminal action in Paraguay, pending for four yrs, the attorney was disbarred without just cause
customary international law ( ICJ statute 38.1.b , restatement s.102.1.a)
(1) actual practice + opinion juris (advisory opinion on legality of use of nuclear weapon)
(2) opinio juris
1) what they say > what they do, in Filartiga
à. why they look to what states say rather than what they do (in practice) ?
à. (i) to prove "accepted as law", (ii) official statement (or announcement) matters in international law deterrence policy
2) UN G.A. resolution
à. In Filartiga, UDHR is, with regard to torture, it amount to customary
à. In advisory opinion on legality of use of nuclear weapon, , determining opinion juris, need to look at its content and the conditions of its adoption, negative votes and abstentions, still fall short of opinio juris, (see also Texaco)
Am
- Official statement (policy) than practice is more influential factor in int’l law, including identifying customary law
- In Advisory opinion on legality of use of nuke weapon, the nuclear states have been officially maintained nuclear weapon
In Filartiga (2nd Cir.),
- the renunciation of torture as an official policy by virtually all of the nations of the world (in principle, if not in practice),
The Eastern Greenland Case, (1933), PCIJ, (Denmark/Norway) p84
- “A reply given by the (Norwegian) minister for foreign affairs on behalf of his government in response to a request by the diplomatic representative of a foreign power, in regard to a question falling within his province, is binding upon the country to which the minister belongs”
Nuclear Tests Case (AUSTRALIA v. FRANCE) (1974), ICJ
- Mere statement by French foreign minister that there will be no nuclear test obligated French not to continue the test.
ATS
(at domestic level + in US court) , (just granting jurisdiction) , (elements : suit brought by alien, tort claim, violation of law of nations)
The victim go to US federal court to bring a suit against the perpetrator (tortfeasor) under ATS. Here the question is whether the ATS grant jurisdiction to the victim
Intro
l (2nd Cir. in Filartiga) rationale of ATS : constitutional mandate for national (federal) control over foreign / ATS, simply granting jurisdiction, not creating private cause of action
Element of ATS
l (i) suit brought by alien, (ii) tort claim, (iii) violation of law of nations
l Here, (i) and (ii) are met coz … . Question is (iii). The perpetrator was “under color of official authority” given that he was inspector general of police in Paraguay. If question here is narrow down, it is
Under color of law
- in Filartiga, inspector general
l Kadic v. Karadzic, 70 F.3d 232, 1995, p1114, Private actor could be responsible for violation of customary international law under ATS in two ways: (i) By directly committing violations of international law that do not require state action, such as slavery, genocide, war crimes, or crimes against humanity, or (ii) By acting in concert with a state actor in violating a customary international law that is actionable under ATS
à. p453, the state include recognized and non-recognized, otherwise, it will shied officials of the unrecognized regime from liability for violation of international norm
- Corporation?
Violation of law of nations
l in Filartiga, whether prohibition of official torture is customary int’l law, thus, constitute violation of law of nations (under ATS)
l How to identify (prove) customary int’l law
à. In Filartiga, , “the usage of nations, judicial opinions and the works of jurists”,,, UN charter, UDHR, torture convention, G.A. resolution, American convention, ICCPR, European convention ]
à. In US v. Smith, “works of jurists, writing professedly on public law, general usage and practice of nations, judicial decisions recognizing that law” ,,, the crime of piracy is defined sufficiently and constitutionally in customary int’l law
à. In the Paquete Habana,, “works of jurists and commentators” ,,, traditional prohibition against seizure of an enemy’s coastal fishing vessels during wartime
à. If practice v. official statement, p1081 , in Filartiga, the renunciation of torture as an official policy by virtually all of the nations of the world (in principle, if not in practice)
à. in advisory opinion on legality of use of , opinio juris, content and conditions of the adoption (see also p117, Texaco)
à. Here, the torture, as violation of law of nations, is evidenced by …
l scope (seriousness) of ‘violation of law of nations’ under ATS
- Sosa v. Alvarez, p245
à. “(the claim should) NOT less definite content and acceptance among civilized nations than the 18th-century paradigms”
à. One day of illegal detention of Alvarez is less definite than 18th century
- Kadic v. Karadzic, 70 F.3d 232, 1995, p453
à(a) the claims the appellants alleged were (a) genocide (2) war crimes (3) other instances of inflicting death, torture, and degrading treatment
àfalls within violation of law of nations under ATS
- Filartiga , 630 F.2d 876, 1980, p17
à torture and death in retaliation for his father’s political belief, à falls within violation … under ATS
- examples of violation of law of nations in US courts, p1088
à. Genocide; slavery and forced labor; extrajudicial killing; disappearance; cruel, inhumane or degrading treatment; prolonged arbitrary detention; systematic and gross racial discrimination; war crimes; crime against humanity
- Rest s702: customary law of int’l human rights
l perpetrator’s defense of contending constitutionality of ATS
à. Vis-a- vis art.3.2.
à. Vis-a- vis art. 1.8.
à. foreign suit is not extraordinary, the law of nations forms part of common law, international law is part of out law (in Filartiga and Paquete Habana)
l other defense
à. Non-self executing
Private cause of action
- in Filartiga, The court stated : the law of nations, which is constitutional basis of ATS, has been a part of the federal common law
- in Doe. Unical, the law of nations is part of federal common law
à. (am, i) supremacy clause, ii) provide private cause of action)
- Cf. In Medellin, even self-executing (treaty, but “law of nations” under ATS is customary), not create private cause of action
Act of state doctrine
- Unconstitutional
Immunity in ATS
- Lafontant , Kadic, Amerada Hess Shipping Corp(p232) , p1090
FCN claim
- Already tried , useless or futile
Scope of violation of laws of nations
“Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character (customary law should be) accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms. This requirement is fatal to Alvarez's claim” Sosa v. Alvarez-Machain, (S. Court) 542 US 692, 725
à. single illegal detention, of less than one day custody of whom was then transferred to lawful authorities in the United States for prompt arraignment, violated no norm of customary international law so well defined as to support creation of cause of action that district court could hear under the ATS (Sosa v. Alvarez-Machain)
à. Examples of violation of law of nations in US courts (p1088) : Genocide; slavery and forced labor; extrajudicial killing; disappearance; cruel, inhumane or degrading treatment; prolonged arbitrary detention; systematic and gross racial discrimination; war crimes; crime against humanity
à. Here, (given rest. 702),
TVPA v. ATS (p56)
Universal Declaration of Human Rights
Note: not binding – but now become part of customary int’l law coz all nations thought highly of it and believed it to be obligatory so much that it has now become binding customary int’l law.
• Art 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
• Art 9: prohibition on arbitrary detention .
• Art 10: everyone is entitled to full equality to a fair and public hearing (right to fair trial)
Convention against Torture and other cruel, inhuman or degrading treatment or punishment
à UN convention against torture, US is a party, ratified it in 1990 / incorporated into domestic legislation, Torture is prohibited
Restatement s702: customary law of int’l human rights
- “A state violates int’l law if, as a matter of state policy, it practices, encourages, or condones:
(a) genocide;
(b) slavery or slave trade;
(c) the murder of causing the disappearance of individuals;
(d) torture or other cruel, inhuman or degrading treatment or punishment;
(e) prolonged arbitrary detention;
(f) systematic racial discrimination; or
(g) a consistent pattern of gross violations of internationally recognized human right.
- *Notes: The consequence of violation of such law – actions brought against (such individuals who violate and state govts who have condoned such activities) may be subject to individual liability under the statute.
- e.g. state responsibility, mostly the counts are covered by treaty
Torture Victim Protection Act Of 1991 TVPA
To carry out obligations of US under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.
§ 1350. Alien's action for tort
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
“Section 1. Short Title. “This Act may be cited as the ‘Torture Victim Protection Act of 1991’.
“Sec. 2. Establishment of civil action.
“(a) Liability.--An individual who, under actual or apparent authority, or color of law, of any foreign nation--
“(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
“(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
(b) Exhaustion of remedies.--A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.
“(c) Statute of limitations.--No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.
“Sec. 3. Definitions.
“(a) Extrajudicial killing.--For the purposes of this Act, the term ‘extrajudicial killing’ means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
“(b) Torture.--For the purposes of this Act--
“(1) the term ‘torture’ means any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
“(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from--
“(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
“(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
“(C) the threat of imminent death; or
“(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”
note 2 p1094
Arar v. Ashcroft, 532 F.3d 157, 2008,
Alien, a dual citizen of Syria and Canada, brought action against United States and various government officials under the Torture Victim Prevention Act (TVPA) and the Fifth Amendment, alleging that after being detained and mistreated, he was removed to Syria so that he could be interrogated under torture by Syrian authorities.
shows how difficult it is to claim under TVPA
against US official -> fail to prove the official's complicity in the Syrais torture
against US --> US argue national security secret
against Syris --> foreign sovereign immunity
8. procedural hurdles in ATS p1089
(1) establish personal jurisdiction
(2) satisfy relevant statute of limitation
(3) forum non conveniens (“FNC” claim)
9. immunity in ATS cases p1090
(1) Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428
- Congress’ intention is that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts (ad – obtaining jurisdiction and exceptions to it under FSIA covers ATS)
(2) Saudi Arabia v. Nelson, 507 U.S. 349, 1993, p1090
- American employee of Saudi hospital brought action against Kingdom of Saudi Arabia, hospital, and hospital's purchasing agent in United States, based on injuries arising from his alleged detention and torture by Saudi Government. The Supreme Court, held that action was not “based upon a commercial activity” within meaning of Foreign Sovereign Immunities Act, precluding exercise of federal jurisdiction over action.
(3) Kadic v. Karadzic, 70 F.3d 232, 1995.
- (ad head-of-state doctrine covers ATS)
- Mere possibility that (defendant, the self-proclaimed leader of unrecognized Bosnian-Serb entity called “Srpska,” might at some future date be recognized by US as head of state of friendly nation and might thereby acquire head-of state immunity) did not transform claims of plaintiff Bosnian victims under ATS and TVPA into non-justiciable request for advisory opinion
(4) Lafontant v. Aristide, 844 F.Supp. 128, 1994.
- (Widow of political opponent of exiled president of Haiti brought civil rights action against president arising out of alleged extrajudicial killing of opponent in Haiti. President moved to quash service of process and for dismissal.)
- Upheld head-of-state immunity in ATS
- Held : immunity could extend to acts such as torture or summary execution
- Head-of-state recognized by United States government is absolutely immune from personal jurisdiction in US courts unless that immunity has been waived by statute or by foreign government recognized by US.
- Absolute immunity accorded head-of-state is based on notion that all states are equal and that no one state may exercise judicial authority over another, is supported by doctrine of comity, and is required to safeguard mutual respect among nations.
- Whether recognized head-of-state has de facto control of government, is irrelevant to issue of head-of-state immunity; courts must defer to executive determination.
- Waiver of head-of-state immunity is analogous to waiver of diplomatic immunity and such waiver must be explicit
- FSIA was not designed to apply to diplomatic and head-of-state immunities, but, rather, was crafted primarily to allow state-owned companies to be sued in US court in connection with their commercial activities (am it is not against state but against head , why FSIA ? )
(5) foreign officials violating fundamental human rights
- “Violation of law of nations” in ATS requires “under color of law” (Cf. some exception in Kadic v. Karadzic) ßà act of state doctrine e.g. “head-of-state”
- Filartiga: action by a state official in violation of the Constitution and laws of the Paraguay, and wholly ungratified by that nation’s Gov. could not be an Act of State
- Head-of-state immunity extend to torture or summary execution (E.D.N.Y. in Lafontant case)
Immunity in ATS cases p1090
- Rules of immunity in the FSIA (foreign sovereign immunity act) apply to actions under the ATS (in Amerada Hess Shipping Corp. (US S.Court))
à. bring a suit against foreign sovereignty under ATS, then FSIA kicks in
à. Even violation of jus cogens is not exception to FSIA. FSIA is still effective. (D.C. Cir.)
- (E.D.N.Y. in Lafontant case ) upheld the head-of-state immunity in ATS
à. Head-of-state immunity extend to torture or summary execution (am to jus cogens)
CH2 Treaties (p27)
l whether the treaty in question covered by VCLT (treaty definition and non-retroactivity)
1. whether the … is treaty under VCLT (art.2.1.a)
1) definition is i) international agreement, ii) b/w states and/or I.O, iii) in written form, iv) governed by international law,
2) here,
2. whether the treaty in question was concluded after the entry into force of VCLT (art.4)
1) here ,,,
3. US is not a party to VCLT, but (i) VCLT is custom (ICJ art.38.1.b) , (ii) US respect the VCLT, (iii) e.g. 321 of rest 3rd : binding force of agreement, (seems to include oral agreement) = art.26 (pacta sunt Servanda,
US never signed, ratified VCLT,. But the State Dept has said that VCLT is the best statement of the customary law of treaties so that for the vast majority of the Convention, the US will follow.
2 kinds of treaty
- those under the US constitution ; and
- those under int’l law treaties. An unwritten agreement may be effective but is not an agreement under int’l law. At domestic law, a treaty is not only written but it must be specifically approved by the advice of the senate.
- A series of executive agreements under the Constitution in order to get around the Senate’s approval for treaties or to get a job done more efficiently. Even at the time of drafting the Constitution, they did not contemplate that all agreements would be treaties.
** **
VCLT Art. 18 (obligation not to defeat the object and purpose of a treaty prior to its entry into force)
- obligates states not “defeat the object and purpose prior to entry into force”
VCLT Art. 26 (“Pacta sunt servanda”)
- Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
VCLT Article 27
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
The Case on Reservations to the Genocide Convention, ICJ, 1951, (p56)
Advisory question presented to ICJ as to whether reservations were permitted by the Genocide Convention
- ** (am, reservation governed by VCLT v. advisory opinion , à. VCLT , definition, non-retroactivity
- dispute, (treaty body) Human Rights Committee, ICJ (Rwanda case)
1. Issues:
(1) Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation,, if the reservation is objected to by one or more of the parties to the Convention but not by others?
(2) If the answer to (1) is yes, then what is the effect of the reservation as between the reserving State and:
1) The parties which object to the reservation?
2) Those which accept it?
(3) (ad, balance b/w achieving universality and integrity of the treaty)
2. Summary of answers:
(1) Question 1: (as a whole, not vis-avis)
That a state which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others,, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; Otherwise, the state cannot be regarded as being a party to the Convention.
à. (VCLT art.20. other restrictions than compatibility, e.g. entirety, constituent,)
(2) Question 2: (vis-à-vis)
1) That if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention.
à. am, difference b.w VCLT / Here, automatically not a party / VCLT, objecting state can oppose the entry into force of the treaty between itself (objecting state) and reserving state (art.20.4.b)+(art.21.3)
à. Under VCLT, if objecting party does not oppose reserving state being a party, then, only the provision does not apply (art.21.3))
2) That if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.
à. Same in VCLT
3. Answer to (1):
(1) a State cannot be bound without its consent, and that consequently, no reservation can be effective against any State, without its agreement thereto.
(2) none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’etre of the multilateral convention.
(3) (although approved unanimously, nevertheless, it is the result of series of majority vote)
(4) Court considered:
1) Type of reservations that may be made; and
2) Kind of objections that may be taken to them
(5) Court found that:
The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many states as possible should participate.
The object and purpose of the Convention thus limit both the freedom of making reservations and that of objecting to them.. it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation
4. Answer to (2):
(1) Each state which is a party to the Convention is entitled to appraise the validity of the reservation and it exercises this right individually and from its own standpoint.
(2) No state can be bound by a reservation to which it has not consented. Each state objecting to it will or will not, on the basis of its individual appraisal within the limits of the criterion of the object and purpose state above, consider the reserving States to be a party to the Convention.
5. Dissenting opinion:
(1) That was not the intention of the States to achieve universality at any price – i.e. that the integrity of the terms of the Convention is of greater importance than the mere universality in its acceptance.
(2) States should be given the right to judge the acceptability of a reservation and to decide whether or not to exclude the reserving State from the Convention.
(3) It would be better to lose as a party to the Convention, a State which insists in face of objections on a modification of terms of the Convention, than to permit it to become a party against the wish of a State or States which have irrevocably and unconditionally accepted all the obligations of the Convention.
6. Notes
(1) Art 2(1)(d) and 19-21 of the VCLT follow the ICJ’s majority decision – that allowing reservations that are compatible with a treaty’s object and purpose when the treaty itself does not preclude or limit the type of reservations that are permissible
(2) Consequences of an invalid reservation:
Beblilos case: that when X’s reservation was invalid because it was overly vague and, hence, of a “general character”, X remained bound by the Convention despite the invalided of its reservation. The reservation was simply severed.
The Genocide Convention: Definition of Genocide
1. Convention defines “genocide” as involving specific acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (art.2)
2. Specific acts include: (art.2)
(1) Killing members of the group;
(2) Causing serious bodily or mental harm to members of the group;
(3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(4) Imposing measures intended to prevent births within the group;
(5) Forcibly transferring children of the group to another group.”
VCLT Art 21 (3),
- When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state,, the provision to which the reservation relates do not apply as between the two states to the extent of the reservation.
Restatement §313 Reservations
Restatement §314 Reservations and Understandings:
(1) When the Senate of the United States gives its advice and consent to a treaty on condition that the United States enter a reservation, the President, if he makes the treaty, must include the reservation in the instrument of ratification or accession, or otherwise manifest that the adherence of the United States is subject to the reservation.
(2) When the Senate gives its advice and consent to a treaty on the basis of a particular understanding of its meaning, the President, if he makes the treaty, must do so on the basis of the Senate's understanding.
US RUDs to ICCPR (HR, p960)
Reservation –
(3) art.7 (torture/punishment) US bound by art.7 to the extent that `cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the US Constitution.
- H.R. Committee views prolonged judicial proceedings involving capital punishment, corporal punishment, solitary confinement might be such treatment .
- Same is true of CAT, US made same reservation to CAT
Declarations –
"(1) That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing.
- Not creating private cause of action
l Solitary confinement in US
1. Whether unlawful internationally
(1) Under ICCPR
1) H.R.Committee views solitary confinement as violation of art.7 (torture/punishment) of ICCPR
2) US formulated reservation. US court held solitary confinement is not torture per se. Solitary confinement is not torture under US constitution
3) Thus, US is not in violation of art.7 of ICCPR
(2) Under CAT
1) US also formulated same reservation as this for CAT.
2) Same reasoning is true of CAT
2. Whether unlawful internally
(1) Under ICCPR
1) US made a declaration that ICCPR is not self-executing
2) Thus, without implementation by Congress, art.7 cannot be invoked in US municipal court
(2) Under CAT
1) CAT also not self-executing, but there is implementation by enacting TVPA
(3) Under TVPA
1) TVPA allows civil suit in US court against foreign perpetrator of torture (extrajudicial killing)
2) Here, not by foreigner
TVPA (torture victim protection act of 1991), (HRp1092)
(1) TVPA (perpetrated by foreign official + US citizen can also bring a suit + statute of limitation + exhaustion of remedies) v. ATS
(2) how US definition of torture narrower from torture in torture convention ? à US reservation to ICCPR, torture, / latter - severe / former - goes further than that, follow US own practice
(3) TVPA (torture/extrajudicial killing) does not exhaust the list of actions covered by ATS
(4) US court, solitary confinement is not torture under TVPA
Eastern Airways Inc. v. Floyd, 499 US 530, (S. Court) (1991), p64
Facts:
- Passenger brought suit against petitioner airlines in US federal court seeking damage for solely mental injury during airline accident; district court dismissed.
- U.S. Court of appeals : we will ignore the treaty and I will let them(passenger) recover the psychological damage,
- Supreme court : took the Warsaw convention very seriously, consequently recover, only if there is physical injury to the individual, psychological injury alone was not recoverable, . ,
Issue:
- Whether Art 17 of Warsaw Convention allowed for recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury.
S. Court holding:
- interpreting a treaty, begin with the text of the treaty and the context
- When ambiguous, other general rules of construction may be brought
- Treaty is construed more liberally than private agreement
- “We may look (beyond the written words) to the history of the treaty, negotiation, and the practical construction adopted by the parties”
à. against art.32 of VCLT – supplementary means of interpretation only when unclear
à. Words in int’l treaty, interpret it more narrowly than in domestic. Why? Sovereignty. Treaty has meaning only to the extent that state agreed to
VCLT Art. 31: General rule of interpretation
VCLT Art 32 : Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (unclear)
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Restatement § 325 Interpretation Of International Agreement
(1) An international agreement is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.
(2) Any subsequent agreement between the parties regarding the interpretation of the agreement, and subsequent practice between the parties in the application of the agreement, are to be taken into account in its interpretation.
Restatement § 326 Authority to Interpret International Agreement
(1) The President has authority to determine the interpretation of an international agreement to be asserted by the United States in its relations with other states.
(2) Courts in the United States have final authority to interpret an international agreement for purposes of applying it as law in the United States, but will give great weight to an interpretation made by the Executive Branch.
Gabcikovo-Nagymaros Case, ICJ, 1997, p74
Significance:
- Drew distinction between “Law of Treaties” and the “Law of State Responsibility”: (Cf.p274)
àa determination of whether a treaty is in force, and whether it has been properly suspended or denounced, is to be made, pursuant to the “Law of Treaties;
àan evaluation of the extent to which the suspension or denunciation of a convention, involves the responsibility of the State, is to be made under the law of State responsibility.
àthe law of state responsibility recognizes limited justifications to exclude wrongfulness, Here, Hungary unsuccessfully argued “state of necessity” as a justification.
- Shows interesting approaches to the dimensions of common and civil law interpretation.
àcivil law much more lenient towards changed circumstances and re-negotiation of contracts
Facts:
- Hungary purported to terminate treaty.
- Slovakia (more conservative than the Czech Republic) went forward with Variant C.
Issue:
- What the legal effects of the notification of the termination of the treaty by Hungary?
Grounds advanced by Hungary to justify its unilateral denunciation of the 1977 treaty:
- (1) State of necessity (law of state responsibility – to exclude wrongfulness)
à: even assuming the state of necessity, unless mutual agreement to terminate treaty, the treaty is not termination, but just is dormant.
- (2) impossibility of performance (art.61)
à: not impossible coz the parties could proceed at any time by negotiation. Further, Hungary already breached the treaty.
- (3) Fundamental change of circumstances (Art.62)
à: the political conditions were not so closely linked to the object and purpose of the Treaty (ade, political conditions here is not fundamental, not essential basis of the consent)
à one party (Hungary) cannot avail himself of the fact that the other has not fulfilled some obligation, if the former party has, by some illegal act, prevented the latter from fulfilling the obligation
- (4) Material breach (Art.60)
àCze-slo, thru Variant C, “Material breach” to suspend the treaty : the violation of other treaty rules does not constitute a ground for termination under the law of treaties.
- (5) By their conduct, both parties had repudiated the treaty. : reciprocal wrongful conduct did not bring the treaty to an end nor justify its termination.
- (6) emergence of new peremptory norm (art.64) jus cogens, not the case here
- Re-negotiation is joint responsibility and the re-negotiation is open to emerging norm like Art. jus cogens, which is not the case here, .
Held, before the ICJ:
- Treaty remained valid.
- Slovakia was responsible for damages to Hungary.
- Hungary was responsible for damages to Slovakia.
- Both sides owed the obligation of reparation or remedial action – the result was that there was a great deal of pressure for parties to renegotiate the agreement – this is the fundamentals of a civil law (i.e. to re-negotiate treaties). Look at the UCC –the pressures to keep the deal together despite breach of the treaty/contract.
P77.99. Vienna Convention is not directly applicable because the treaty was concluded before the Vienna Convention was rectified. (Vienna Art.28) But those rules which are declaratory of customary law are applicable.
Termination of treaty due to material breach Art 60
1. "Material breach" involves:
(1) a repudiation not sanctioned by the Convention;
(2) violation of provision essential to accomplishment of purposes
2. Material breach rule does not permit suspension of humanitarian provisions of treaties
Article 62 Fundamental Change In Circumstances
Element
- (i) circumstances, existed at the time of the conclusion of a treaty (62.1), essential basis of the consent (62.1.a)
- (ii) change, was not foreseen (62.1), radically transform the obligation (62.1.b)
- Exceptions are boundary (62.2), and the change was the result of the breach by the party invoking it (62.3)
Same is true of suspension
Draft Articles on the Responsibility of States
Article 25 Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
à Necessity,
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) The international obligation in question excludes the possibility of invoking necessity; or
(b) The State has contributed to the situation of necessity.
Suppose that a new air transport treaty is negotiated, and has a million dollar limitation of liability provision. The U.S. signs the treaty, as do 25 other states; during the next year, 20 states ratify the treaty, bringing it into force. The US ratifies in year 2, but attaches a reservation stating that it does not accept any limitation of liability and a declaration that actions in US courts will be governed by US tort law. Two states already parties object to the reservation. Two states ratify the treaty the following year, and are silent as to the US reservation. In year 5, a terrible accident takes place and the question comes up whether the US is a party to the treaty. Is it? What effect does the reservation have?
àthe reservation US submitted seems to be inconsistent. US is a party? If severed, it can be against sovereignty.
(ad –first, governed by VCLT or advisory opinion on genocide convention,
incompatible with the object and purpose of the treaty / US cannot formulate the reservation / cf. “none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’etre of the multilateral convention” – advisory opinion on genocide convention / being a party to the treaty without the reservation is against the US sovereignty / US is not a party) .
The Eastern Greenland Case, (1933), PCIJ, (Denmark/Norway) p84
Dispute over claim to sovereignty over Greenland
1. Traditional legal rule of discovery had been modified to require effective occupation
2. Denmark received US accession to Danish claims to Greenland during accession of territory to US
3. At Paris Peace Conference, Denmark asserted that it would not “make difficulties” for Norway’s claim to Spitsbergen
4. When Denmark inquired about Norway’s position on the claim to Greenland, Norway replied the “the question would be considered”
5. Norway later stated it “would not “make any difficulties in the settlement of the question”
à one side asked for assistance and the other side gave some assurance.
6. Norwegian foreign minister informed Danish minister that Norway did “recognize Danish sovereignty over Greenland”
7. Norway later asserted at conferences several years later and in correspondence that “Eastern Greenland must be Norwegian”
Issue
1. Whether the declaration of the Norwegian foreign minister – even if not constituting a definitive recognition of Danish sovereignty – did not constitute an engagement obliging Norway to refrain from occupying and part of Greenland.
Held:
1. The Court regards the statement of the Norwegian foreign minister as binding upon Norway
2. Norway must (1) refrain from contesting Danish sovereignty over Greenland and (2) refrain from occupying Greenland
At first, whoever sees the land first, owns it. The rule evolves, need to establish that people live there.
The Eastern Greenland Case, (1933), PCIJ, (Denmark/Norway) p84
“A reply given by the (Norwegian) minister for foreign affairs on behalf of his government in response to a request by the diplomatic representative of a foreign power, in regard to a question falling within his province, is binding upon the country to which the minister belongs”
Nuclear Tests Case (AUSTRALIA v. FRANCE) (1974), ICJ
Mere statement by French foreign minister that there will be no nuclear test obligated French not to continue the test.
Nuclear Tests Case (Australia V. France) (1974), ICJ, p84
Nuclear Test Cases (Australia v. France), Request for the Indication of Interim Measures of Protection, [1973] ICJ Rep. 99
France wanted atmospheric nuclear test, Australia objected b/c of dirt or pollution. Mere statement by French foreign minister that there will be no nuclear test obligated French not to continue the test.
In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court has found that the claim of Australia no longer had any object and that the Court was therefore not called upon to give a decision thereon.
Even before turning to questions of jurisdiction and admissibility, the Court has first to consider the essentially preliminary question as to whether a dispute exists. The proceedings instituted before the Court concerned the atmospheric nuclear tests conducted by France in the South Pacific. The original and ultimate objective of Australia is to obtain a termination of those tests. France, by various public statements made in 1974, has announced its intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests; the dispute having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment
45. With regard to the question of form, it should be observed that this is not a domain in which international law imposes any special or strict requirements. Whether a statement is made orally or in writing makes no essential difference, for such statements made in particular circumstances may create commitments in international law. Thus the question of form is not decisive. As the Court said in its Judgment on the preliminary objections in the case concerning the Temple of Preah Vihear :
"Where . . . as is generally the case in international law, which places the principal emphasis on the intentions of the parties, the law prescribes no particular form, parties are free to choose what form they please provided their intention clearly results from it." (I.C.J. Reports 1961, p. 31 .)
