CH3 customary int’l law
Introduction
1. Actual practice + opinio juris
2. States which are persistent objectors to the norm are not bound by the norm. Verbal objections must be consistent with behavior in order to be considered a persistent objector.
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
The Paquete Habana, 175 U.S. 677, (S. Court) (1900) p93
1. How to identify customary international law
2. How the custom is incorporated into US domestic law (“part of our law”, federal common law)
3. Relationship between custom and treaty, other branches
in the Paquete Habana (US S.Court), in which traditional prohibition against seizure of an enemy’s coastal fishing vessels during wartime was found to be rule of (customary) int’l law,,
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- The custom was evidenced by “works of jurists and commentators”
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- The court stated “International law is part of our law … For this purpose, 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… “ ( Paquete Habana case )
- In Filartiga (2nd Cir.), customary international law, as incorporated into US law, was viewed as federal common law
- In Doe v. Unocal, the law of nations is part of federal common law
- The court view customary int’l law as self-executing and supreme law of the land by supremacy clause (art.6.2) as long as no treaty nor controlling executive, legislative, judicial decision.
- The court seems to conclude “controlling executive, legislative, judicial” prevail over Charming Betsy rule (p991)
- Example of “controlling” executive, legislative, judicial (Mariel boat case p991)
à. Congressional intent evidenced by congressional note
à. Acts of Attorney General (lower level officers cannot render int’l law inapplicable
à. Supreme court decision
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- Even though party does not fully prove custom,, customary law is int’l law, which is not foreign law, but part of US Law, court should take notice of and give effect to it court can decide the issue
Why fish live? Not ‘commercial, not long range fisherman, coastal fish, not armed,
à very narrow rule, S. Court carving out at humanitarian law, Military necessity,
Reciprocity – the rule required ,
“take judicial notice of” exam, customary law, (even though party fail to prove custom)
If it is foreign law, it is just fact. Party has the burden of proof.
But customary law is int’l law, which is not foreign law, but part of US Law, court should take notice of and give effect to it court can decide the issue.
“Commodore Conner, commanding the Home Squadron wrote a letter to Mr. Bancroft, the Secretary of the Navy, inclosing a copy of the commodore's ‘instructions showing the principles, one of which was that ‘Mexican boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested;’ and that those instructions were approved by the Navy Department, of which Mr. Bancroft was still the head,… à Commodore Conner's instructions and the Department's approval thereof … ” (ad this controlling domestic law or policy? No need to look to custom ?)
Ancient usage protected fishing vessels from capture during time of war à the Usage ripened into customary int’l law à (customary) international law is part of US law to be ascertained by the courts, why ? when US came into existence, they adopted English common law, English common law applied customary int’l law as part of the common law.
“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. For this purpose, 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 …”
the asylum case, Colombia v. Peru, ICJ, 1950, p102
asylum : protection granted to individual who persecuted or fear that he will be on account of race or political opinion
Facts
In 1948, a military rebellion broke out in Peru and Haya de la Torre was prosecuted on a charge of military rebellion. Asylum was granted on Jan, 1949, by the Colombian Ambassador in Peru to Haya de la Torre (refugee). The Colombian Ambassador requested a safe-conduct to enable Haya de la Torre, whom he qualified as a political offender, to leave the country. The Government of Peru refused, claiming that Haya de la Torre had committed common crimes and was not entitled to enjoy the benefits of asylum. The two Governments submitted to the Court certain questions concerning their dispute;
1. Colombia maintained that, according to the Convention in force - the Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum the Montevideo Convention of 1933 on Political Asylum - and according to American International Law, she was entitled to qualify the nature of the offence for the purposes of the asylum
à Columbia : she is entitled to qualify the nature of the offence (i.e. political offence) for the purpose of asylum (BY Customary int’l law)
à Held : “Colombia was not entitled to qualify the nature of the offence by a unilateral and definitive decision binding on Peru”
à Reasoning
The Bolivarian Agreement, which is the Treaty on extradition, does not entail the right of unilateral qualification. It is impossible to deduce from the principles of extraditions conclusions concerning diplomatic asylum.
The Havana Convention did not recognize the right of unilateral qualification either explicitly or implicitly.
The Convention of Montevideo - had not been ratified by Peru and could be invoked against that country.
As regarded American international law, Colombia had not proved the existence, either regionally or locally, of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. The facts submitted to the Court disclosed too much contradiction and fluctuation to make it possible to discern therein a usage peculiar to Latin America and accepted as law.
2. Colombia also maintained that Peru was under the obligation to issue a safe-conduct to enable the refugee to leave the country in safety (BY Customary int’l law)
àHeld: the government of Peru was not bound to deliver a safe-conduct to the refugee.
àReasoning
the clause in the Havana Convention was applicable only if territorial State demanded the departure of the refugee from its territory:. That is not the case here.
There was a practice where the diplomatic Agent immediately requested a safe-conduct. but this practice, which was to be explained by reasons of expediency, laid no obligation upon the territorial State.
3. In a counter-claim, Peru argued that the asylum in violation of the Havana Convention, first, because accused, not of a political offence but of a common crime and, secondly, because the urgency which was required under the Havana Convention was absent in that case.
àHeld: the Court noted that the only charge against the refugee was that of military rebellion, which was not a common crime
àOn the question of urgency, the Court, having observed that the essential justification of asylum lay in the imminence or persistence of a danger to the person of the refugee,
4. Held : The requirements for asylum to be granted in conformity with the relevant treaties were not fulfilled at the time when he received Haya de la Torre. (not an issue of Customary)
àWhat Haya de la Torre confronted was, not the violent and uncontrolled action, but legal proceedings. The Havana Convention was not intended to protect a citizen against regular legal proceedings. It had not been proved that the situation in Peru implied the abolition of judicial guarantees
à Besides, If Havana Convention guarantees a person of political offense the privilege of evading national jurisdiction, then it will conflict with non-intervention
àAs for the numerous cases cited by Colombia, the Court was of opinion that considerations of convenience or political expediency seemed to have prompted the territorial State to recognize asylum without such as decision being dictated by any feeling of legal obligation. Asylum in Latin America was an institution which owed its development largely to extra-legal factors
5. Indeed, according to the interpretation which the Court put upon the Convention of Havana, asylum could not be an obstacle to proceedings instituted by legal authorities operating in accordance with the law..
The Lotus Case, France v. Turkey, 1927, (PCIJ), p104
Issue:
- Whether or not the principles of int’l law prevent Turkey from instituting criminal proceedings against the French Lieutenant (Demons) under Turkish Law.
- Questions from compromis:
à Did Turkey violate principles of int’l law by bringing criminal action against French officer under Turkish law? (whether Turkey has jurisdiction over the French by principles of int’l law)
à Does Turkey owe pecuniary reparations? (Note: the right is that of the nation to recover such reparations and not to the individual.)
Facts : There has been a collision on the high seas between two vessels flying different flags, on one of which was one of the persons alleged to be guilty of the offence, whilst the victims were on board the other.
Art. 15 of the convention of L “jurisdiction shall be decided by the principles of int’l law”
France argued that the provision should be interpreted in light of preparatory work. PCIJ held reference to preparatory work only if unclear and here, clear, no need to look to it
(jurisdiction to prosecute foreigner)
France : need to have affirmative (positive) title to jurisdiction, recognized by int’l law
Turkey : no need to have positive title to jurisdiction. Have jurisdiction unless conflicting with int’l law ß positivism
Whether general int’l law contains a rule prohibiting Turkey from prosecuting Demons (in other words, prosecuting D falls within ‘discretion’ or ‘limited by prohibitive rules’) ß by positivism, France has the burden of proof
French arguments
- Int’l law does not allow a state to take proceedings with offenses by foreigners abroad, simply by reason of the nationality of the victim
- Exclusive jurisdiction of the state whose flag is flown as regards everything
First argument
- Even assuming (1) true, this is not the case, coz effects on Turkey vessel too.
- Trend, not only nationality of victim, but also many factors, like elements
Second
- A ship is placed in the same position as national territory
- A guilty act committed on the high seas produced its effects on a vessel
1. No general rule exists that independent acts of states must be affirmatively permitted
Demon was charged with manslaughter (not murder), the difference is ‘Mens rea’
He did not intend. (Dissenting) stated that if it were murder, more likely Turkey has jurisdiction. But it was manslaughter, so Turkey do not have.
Interpretation of “principles of int’l law” under Art. 15 of the Convention of Lausanne of July 24th, 1923 (p108, II, 2nd para)
- France argue : look to legislative history
- Court held, it is clear. No need. Like Marbury v. Madison, it is court who decide the principle of int’l law
- (ad, VCLT art.32, supplementary means only when unclear)
What is principle of int’l law regarding jurisdiction ?
- Exclusive jurisdiction is not conclusive
- The lotus principle, usually considered a foundation of international law, says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition, è not forbidden but permitted è States as sovereigns can only be bound by what they choose to be bound by. They can choose implicitly or explicitly
- (The Lotus principle was later overruled by article 11 of the 1958 High Seas Convention. The only the flag state or the state of which the alleged offender was a national had jurisdiction over sailors regarding incidents occurring in high seas. à if a bunch of states do not like the article? , then amend it, we call it “Protocol” / if, as usual, custom is already made, though the states do not like it, no persistent objector, coz objection need to occur in the course of making custom )
Jurisdiction to Prescribe: Turkey may bases on
(1) Territoriality : O
(2) Nationality : X
(3) Protective : in Netherland, non US citizen counterfeit dollar: yes?
(4) Passive : victim, O
(5) Universal : piracy X
cf. Kenya accuse pirates under universal jurisdiction
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1… : collision on the high seas between two vessels flying different flags, tortfeasor was on board one vessel (France) and victims were on board the other (Turkey).
2… Issue : Turkey exercise jurisdiction over the French tortfeasor (manslaughter), is it in violation of int’l law?
3… Beginning with treaty à Art.15 of convention L – “jurisdiction shall be decided by the principles of int’l law” / France argue looking to preparatory work / PCIJ held no need to look to it coz not unclear
4… to allow Turkey to exercise jurisdiction, whether there is a int’l law authorizing jurisdiction OR whether there is a prohibition on exercising jurisdiction, // France argued affirmative int’l law grant Turkey jurisdiction v. Turkey argued Turkey has jurisdiction unless int’l law prohibiting it // PCIJ – restriction on sovereignty emanates from only its free own will either in convention or custom,,, thus restriction on sovereignty cannot be presumed à Lotus Principle “unless forbidden, permitted”
5… whether there is a int’l law which prohibit Turkey from prosecuting Demons (French) (France has burden of prrof by positivism) / France argued (i) int’l law does not allow a state to prosecute foreigner for offense committed abroad, simply by reason of the nationality of the victim (ii) exclusive jurisdiction of the state whose flag is flown / PCIJ (regarding (i), effect on Turkey vessel, trend consider other factors than nationality) (regarding (ii), effect on a vessel) à no int’l law which prohibit Turkey from prosecuting Demon
- The vote was equally divided, President’s casting vote
The Texaco/Libya Arbitration, 1978, p117
Arbitrator appointed by president of the ICJ. Arbitration between Libya and oil company
(am – arbitration, parties decides what body of law is applicable, here, maybe custom?)
1. Libya claimed national law was sole measure of legality of nationalization
2. Libya cited several UNGA Resolutions on customary norm of sovereignty over resources
3. Arbitrator noted that UNGA Resolution may state norms of customary law
(1) Support for proposed norm must be evaluated (p312, advisory opinion on legality)
(2) UNGA Res 1803 reflected accepted standards
(3) UNGA Res 3171, 3210, and 3281 had many negative votes and abstentions
(4) opposition based on national standards as sole measure of legality of nationalization
4. Arbitrator ruled that Libya violated the contracts
à fact : (expropriation, nationalization), customary norm of sovereignty over resources
à ad : if Libya is defendant, FSIA / if an individual as public capacity, then the act of state doctrine / but maybe fall within exception as waiver or arbitration
FSIA: Exceptions to General Immunity
1. Foreign state has waived sovereign immunity
2. Action to enforce agreement to arbitrate
Choice of law = applicable law the parties agree to (p120)
- The principles of Libyan law were applicable to the extent that such principles were common to principle of international law
- Alternatively, in the absence of such conformity, reference was made to general principles of law
- (Arbitrator) contracts between state and private person is a new branch of int’l law, i.e. international law of contracts,
The basis for justification of nationalization by Libyan Gov. (cf. Barcelona traction is about standing, not about the legality of nationalization = expropriation) (p120)
- (i) if it were administrative contracts, it could give rise to amendment or abrogation
- (ii) sovereignty
- (iii) international law esp., resolutions concerning natural resources
à. Voting conditions and analysis of the provisions concerned
à. Supported by majority of states, but not by any of the developed countries
1) “Mixed” International Arbitration: Here the Deeds of Concession between the U.S. oil companies and the Libyan government provided that an aggrieved party could request the President of the International Court of Justice to appoint a sole arbitrator if the other party refused to make an appointment to a 3-judge panel.
General Principles of Law (ICJ 38.1.c – general principles of law)
Non-consensual Principles role à filling gaps in existing international law
(i), General Principles, e.g. independent attorney/client communications are privileged
(ii) Natural law - Inherently just or right, (iii) Jus cogens, (iv) Equity
Customary law (consensual), you can opt out of it, e.g. persistent objector
General principle, non-consensual principle, you can’t opt out of it
The AM & S Case, (European Court of Justice), (ECJ) 1982, p128 <general principle>
EU Law, we do not call it int’l law. Neither domestic law. It take off in a different way. “Sui generis”
Advocate Gen. stated (1) silence is not conclusive (2) look to national law
Fact :
- EC’s Commission conducted investigation of competitive condition pursuant to Art. 14(1) of the Reg. 17, and required the applicant (AM&S) to produce document, some of which the applicant refused on the basis of legal confidentiality
- AM&E requested the Court to declare the decision by the Commission void, and alternatively insofar as the applicant claim protection on the ground of legal confidence.
Issue
- There is no reference to any exemption or protection which may be claimed on the basis of legal confidence. is this silence conclusive?
- àwhether Art.14 (esp. “necessary”) exclude the application of a principle of Community law (p129)
Holding
- The written communication at issue is, so far as emanate from independent lawyer, confidential and beyond Commission’s power of investigation (p136)
Reasoning
- The Reg. does not exclude the possibility that certain record are of a confidential nature.
- There are Principles common in national law as regards communications between lawyer and client (p134,18.)
- Protect the confidentiality between the communications provided (1) client’s right of defense (2) emanate from independent lawyer (p135,21.)
- Reg. 17 should be interpreted to protect the confidentiality (p135,22)
Notes and Qs p136
1. UK just got into EC Community and was not familiar with EC’s competitive Reg. to avoid violation, not evade ^^ Whether the activities the AM&E is planning to do violate the competition law
3. Interpretation of int’l law, eastern airway case, the judge said “more liberal in int’l law”, which was wrong. less liberal in int’l law coz of sovereignty
4. The argument for non-consensual argument / unless filling the gap, against equity or fairness, so it is inevitable, statute (Reg) invite the court to fill the gap like “necessary”
Summary
- Art. 11 and 17 of Reg. provided that the Commission may obtain information and undertake the “necessary” investigation…
- Whether Commission has authority to investigate even communication between lawyer and client
- Reg. is silent about the scope of “necessary” investigation. Is it conclusive?
- General principle can fill in the gap, here the meaning of “necessary” investigation.
- To identify general principle, look to national laws
- Find out that protection of legal confidential is general principle, and can fill the gap.
- Role of the protection of legal confidence p132
US v. Smith, 18 US 153, (S. Court) 1820, p138
Why on high seas? no state can assert jurisdiction on high seas
Statute p139
- If any person, shall, upon the high seas, commit the crime of piracy, as defined by the law of nations, and such offenders shall be brought into US, shall be punished.
Fact
- Indictment for piracy against the prisoners who seized a vessel by violence and proceed to sea on a cruise
- Jury verdict : if the plunder and robbery be piracy under the act of Congress, then the prisoners guilty
Issue
- Whether this be piracy as defined by the law of nations, so as to be punishable under the act of Congress
- Whether the crime of piracy is defined by the law of nations with reasonable certainty
- Whether the enactment be a constitutional exercise of the authority delegated to Congress upon the subject of piracy
Prisoner’s argument
- Congress is bound to define the piracy, can’t leave it to court
Reasoning
- Congress may as well define by using a term of a known and determinate meaning
- Analogous to definition of murder
- Art.1 power of Congress, empower … -> congress can do it coz Con authorize (Federal statute indicate universal jurisdiction)
- Whether the piracy is defined by the law of nations with reasonable certainty
- Like Filartiga, “rules of law of nations may be ascertained by jurist; or by practice of nations; or by judicial decisions”
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Alfred Von Verdross, “Forbidden Treaties in Int’l Law”, 1937, p142
- Principle : states are free to conclude treaties on any subject whatsoever.
- Issue is whether there is an exception to this rule, in other words, whether int’l law contains “jus cogens”.
- If there is jus cogens, norms of this character can’t be derogated from by the contracting parties
- Those who base int’l law on the agreement of states contests such norms like jus cogens
- But there are some principles which are valid, independently of the contracting states. Like concerning the validity of treaties
- So possibility of norms of general int’l law shouldn’t be denied.
- Aforementioned, however, is not about compulsory norms
- There are two groups of compulsory norms: positive and the other kind
- First, different, single, and compulsory customary int’l law. e.g contracting states restrict on usage of highs by third state. Contracting states prevent third state from exercising sovereignty.
- Second, jus cogens, no contracting states can admit treaties which are in contradiction to the ethics of a certain community (p144)
- Identifying the general principle which is contra bonos mores, is not easy, given different culture, system, and ethics. Nevertheless such principle is found in law of civilized nations: treaty which restrict the liberty of one contradicting party in an excessive or unworthy manner or which endanger its most important rights
- Law of civilized nations is based upon the idea that juridical order should guarantee the rational and moral coexistence.
- What is moral or immoral in int’l community? We must find the ethical minimum recognized by int’l community, not only by particular regime
- Maintenance of law and order, defense against external attacks, … (p145)
Why is it “non consensual” ? what difference from customary int’l law? independently of contracting states. You can’t opt out of it. You can’t object to it.
any kind of treaty, states can make ? if not, why, what is the source of the restriction ? -> jus cognes. Whatever you do in domestic, you can’t legitimize torture in international. (am, in jus cogens, states can derogate from non-intervention principle)
P147.6. In line with what the ICJ held in the South-West Africa cases (Eth. v. S. Mr.; Liber. v. S. Mr.), Second Phase, 1966 ICJ REP. 6, paras 49, 50 (July 18), where it denied that "humanitarian considerations are sufficient in themselves to generate legal rights and obligations," even though they "may constitute the inspirational basis for rules of law."
(Libia and Ethopia, they are not protecting their own nationals)
(– is it draw a line b/w merits and jurisdiction? Like Congo (DRP) v. Uganda?)
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e.g. situation in Kosovo, (not military intervention), whether other states have standing before ICJ on behalf of Kosovo against FRY / if so, ICJ can indicate interim measure and hold that perpetrator state accountable (p142)
- Kosovo was not a state, but a part of FRY, in principle, FRY is entitled to bring a suit on behalf of Kosovo victims
l Contention that int’l community has standing against perpetrating state
- Standing based upon erga omnes in Barcelona traction case(ICJ, p353, general approach) and in Furundzija case(ICTY, p148, prohibition of torture)
à. Definition of erga omnes - Obligation of a state towards the international community as a whole (not vis-à-vis another state) in the field of diplomatic protection
à. All states can be held to have a legal interest (i.e. correlative right) in their protection
à. e.g. acts of aggression, genocide, slavery, racial discrimination
à. Here, In theory, if act of aggression … , other states have standing
à. Prohibition of torture is erga omnes, int’l community has standing against the perpetrating state, irrespective of victim’s nationality
à. Definition of erga omnes : obligation owed towards int’l community, each of which has correlative right
à. Here, (prohibition of genocide is considered as erga omnes), so same analysis is true of genocide in question
l Contention that int’l community does not have standing against perpetrating state
- ICJ rejected a suit to protect a “sacred trust” in Southwest Africa case(ICJ)
à. ICJ held that Ethiopia and Liberia did not have standing to protect the people of southwest Africa (who are not their nationals) (without legal rights and obligation)
à. Humanitarian consideration in itself does not generate legal rights and obligation
à. To generate legal rights and obligation, sacred trust must be clothed in legal forms, i.e. relevant text
à. In the case, can’t find any relevant text which grant other states legal rights and obligation
à. Here,
l Assuming int’l community has standing, on the merits
- Prohibition of torture is jus cogens (peremptory norm) (see Furundzija case(ICTY, p148))
à. Trump treaty and custom, non-derogable
à. Jus cogens character internationally de-legitimize domestic measure (administrative, legislative, judicial) which authorizing or condoning torture
l Assuming ICJ indicated interim measure, held the state accountable (e.g. state responsibility) / the perpetrator state does not comply with it
- Provisional measure is legally binding based on ICJ statute art. 41 (ICJ)
- Art.94 (1) of UN charter “undertake to comply with ICJ decision”
- Art.94 (2) if fails to comply, the other party have recourse to S.C., and S.C. make recommendation or decide measure (art.41 and 42)
l Proceedings initiated by individual victim
- If violation of jus cogens norm, individual victim, if has locus standi, initiate proceeding before competent international body (see Furundzija case(ICTY, p148))
- Or bring a civil suit in foreign country (see Id. ) (– weak suit coz of FSIA)
- (ad, though jus cogens does not grant standing itself, once get into on the merits, it trump all the sources, does not need positive source providing for the jus cogens)
l Int’l community initiates proceeding Against individual who perpetrated the torture (jus cogens norm)
- Individuals have international duties (not to violate jus cogens) which transcend the national obligation (See Furundzija case(ICTY, p148))
- Universal jurisdiction : every state is entitled to investigate, prosecute, punish, extradite individual accused of torture, who are present in a territory under its jurisdiction (Id.) e.g. ATS, TVPA
- (ad – jus cogens provides universal jurisdiction)
***
Prosecutor v. Furundzija, ICT for former Yugo, (ICTY), 2002, p148
- In upholding the conviction of the commander for the torture and rape of Bosnian Muslim woman, the ICT (int’l criminal tribunal) found that torture was a violation of customary int’l law, citing Filartiga case.
- Prohibition of torture imposes upon States obligation erga omnes, that is obligation owed towards all the other members of int’l community, each of which then has correlative right. (definition : owed to every member + thus right of every member)
- If a state violates such obligation, erga omnes, it constitutes a breach of the correlative right of all the members of int’l community. Each has the right to call for the breach to be discontinued. (once violate, the consequence is, breach of every member’s right and thus every state can claim for compliance) ,
- The principle of proscribing torture evolved into a peremptory norm or jus cogens, which enjoys higher rank than treaty or ordinary customary rule. The principle cannot be derogated from by states thru treaty, customary rule, or domestic norm (hierarchy)
- (p149) jus cogens nature of the prohibition against torture / deterrent effect
- Other effect of jus cogens at the inter-state and individual levels
à
à
à
- (Universal jurisdiction) every state is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present under its jurisdiction
(1) Torture and rape violate jus cogens norm of international law
1) You can’t argue that code(?), statutes, and Geneve convention do not define “rape”, can’t argue D shouldn’t be not guilty. this ought to be sanctioned
2) Same argument made at Nuremberg, German officers argue that your defining crime is retrospective, make our actions criminal retrospective, no law existing at the time of our act. / court said that you knew what you were doing were wrong. We deem(make) this principle available to sanction you. rape and torture are bad things.
(2) erga omnes / hostis humani generis
the Michael Domingues case : argument of the US, 2002, p150
Fact
- Michael Domingues, committed murder at the age of 16, sentenced to death, though argued death penalty for juveniles violated ICCPR (Art. 6.5) and customary int’l law. He petitioned the Inter-American Commission on Human Rights where the issue was 1) whether persistent objector may still be bound in customary int’l law 2) whether prohibiting execution of juvenile offender is jus cogens norm
US argument
- First, violate neither treaty nor customary law, then look to persistent objector and to jus cogens
- Generally accepted that a state may contract out of a custom in the process of formation by persistent objection
- (p151) The prohibition has no similar force to prohibition such as those against piracy and genocide
Report of the inter-American commission on human rights (non legally binding )
- The Commission is of the view that customary int’l law has emerged prohibiting execution of juvenile offender (p152)
- Moreover, prohibiting execution of juvenile offender constitutes a norm of jus cogens., so non-derogable
- US, rather than persistently objected, recognized the norm, like federal standard and ratifying fourth Geneva Convention
- Concluded that US failed to respect the life, liberty and security of Michael
(1) International tribunal said it is violation of jus cogens, core law of the world, But Texas did not care about it
(2) Roper v. Simmons case (2005), Supreme court said that it (execution of juvenile) is violation of US constitution. except Justice Scalia, the others seemed to consider international law.
Varieties of Equity p158
- Within or not the rules of international law
- Fill in the law OR against the law
The Meuse Case, PCIJ, 1937, (p158)
Fact
- Belgium do something about Neerhaeren Lock which is against treaty. Netherlands do something about Bosscheveld Lock which is against the treaty.
- (Only) Netherlands ask the Court to say the activity of Belgium is contrary to the treaty and to order Belgium to discontinue the activity. à the court (PCIJ) rejected the Holland claim on the ground of clean hands doctrine, which is principle of equity, in general principle (ICJ 38.1.c)
- Belgium ask the Court to say the activity of Netherlands is contrary to the treaty and to order Netherlands to discontinue the activity. Belgium also argued that Netherlands lost the right to invoke the treaty against Belgium
First issue
- Whether the two locks are to be placed on the same footing
Second issue
- Whether the court must pronounce upon the legality or illegality of the alimentation which result from the operation of either the Neer Lock or Boss Lock.
- If the operation of both locks are in conformity with the treaty, Netherlands’ submission should be rejected. But if the operation of both locks are violative of the treaty, then the issue need to be solved.
Reasoning
- If asked by both parties, then the Court can rule against both of them
- But, here, the court is asked by only one court
- Principles of equity is a part of int’l law
- Art. 38.1.c. general principles of law includes the principle of equity, here, clean hands doctrine
- The principle of equity (esp. clean hands) is that, (definition) where two parties have assumed an identical or reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party (à, where two party assume an reciprocal obligation, one party in a continuing non-performance cannot take advantage of similar non-performance by the other party)
Judgment
- Netherlands claimed river-flow treaty violation by Belgium
- Belgium denied admissibility of Netherlands’ river-flow treaty violation
- Panel found equivalent of “unclean hands” prohibiting Netherlands claim while they operated in violation of treaty
- One of traditional doctrine of equity law, doctrine of clean hands / we cannot adopt Netherlands’ claim because (already violated) / Belgium cannot resist Netherlands’ claim because B’s hands are not clean. / both actors committed wrong
- à if you want to claim ‘equity’ you should be ‘clean hands’.
The North Sea Continental Shelf case, Germany v. Denmark v. Netherland, (ICJ), (1969), p162
Jurisdiction
- special agreement à ICJ 36(1) “compromis”
- question presented by the special agreement to ICJ à “What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea…” (question is not the delimitation itself)
Background
- who got to drill for the oil at the North Sea Continental shelf?
- where the water is shallow (600ft), it is called Continental shelf and very valuable territory(?) for drilling oil.
Each party’s argument as to applicable legal principle
l Danish and Dutch arguments :
à. (i) equidistance principle,
à. (ii) equidistance principle provided in the Continental Shelf Convention, is not only conventional (treaty) rule, but also general international law (customary rule?). Although Germany not a party to the Continental Shelf Convention, Germany is bound by equidistance principle
l Germany argued :
à. equidistance is inequitable for Germany (i.e. not getting a fair share of the coastal territory as it had a concave coast)
à. (Continental Shelf boundary) decision should be (determined) made by ex aequo et bono , .
Reasoning
the North sea shelf case, as a source of international law, begin with treaty, move to custom, and finish with equity.
whether continental shelf convention providing for equidistance rule is binding for all parties including Germany, i.e. equidistance rule is obligatory even vis-a-vis Germany.
- (1) whether convention itself is legally binding on Germany ,
à. Germany is not a party to the convention. Germany is not contractually bound by it
- (2) contention that Germany unilaterally assumed (accepted) the conventional regime (equidistance rule), despite no ratification
à. (i) we have to weigh the formality (i.e. ratification) states carry out, to manifest the intention to be bound by the treaty regime,
à. (ii) without becoming a party, not bound by the obligation, nor claim right under it
- (3) estoppel
à. Here, no evidence which shows that [ Germany accepted the treaty regime thru past conduct, Denmark and Netherlands (the other parties) relied on such conduct, if the Germany change position, it is detrimental to the other parties ]
- (4) contention that equidistance rule is a natural law of the continental shelf, having an a priori (without being questioned) character, i.e. general international law (fundamentalist aspect)
à. Equidistance never been a inherent necessity of continental shelf doctrine
à. (i) no one single method of delimitation proved to be absolute and satisfactory, (ii) art. 6 of the Convention gives priority to delimitation by agreement
- (5) contention that equidistance rule is cumulatively evidenced by various factors. The convention is codification of existing rule (at least emerging) customary law (positive law aspect)
à. While customary law cannot be unilaterally excluded (i.e. formulate reservation), convention permit reservation. Thus it is purely conventional rule
- (6) contention that equidistance rule is, though not customary at the time of concluding the convention, now being a customary rule binding on Germany (- emerging custom)
à. For the rule to arise to customary rule now, the rule (i) has passed into general corpus of international law, and (ii) accepted by the opinio juris,
à. Regarding the states which used the equidistance method but not become the party to the convention, the basis of their action is problematic, might be other reason to use the method than opinio juris
- (5) and (6), ICJ concluded that equidistance rules is not customary at the time of convention, nor customary now
- Thus, convention is not binding, the rules is not customary
- The essential reason why the equidistance is not rule of law, equidistance not always lead to equitable result. Other method may be employed.
- (7) rule of equity
à. By definition, the decision by the rule of equity must be just and equitable.
à. Decision ex aequo et bono under ICJ 38(2) would be equitable
à. Equidistance can lead to inequity
Judgment
- Equidistance not obligatory
- No other single method obligatory
- Delimitation in accordance with equitable principle taking into many factors
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as a source of international law, begin with treaty and move to custom (finishing with equity) (See north sea shelf case, p162)
(1),, convention itself – party
(2) unilaterally accept – ratification
(3) estoppel
(4) general international law – a priori character, priority
(5) codification of pre-existing customary law at the time of treaty conclusion – reservation
(6) subsequent development (of equidistance) as customary law (now), emerging – opinio juris,
(7) equity
whether general international law à priority
whether customary à reservation
whether (the treaty) contribute the subsequent development of custom ?
logic on the issue of whether juvenile death penalty in US violate int’l law
Violation of treaty (ICJ 38.1.a, rest 3rd 102.1.b) : any treaty to which US is a party prohibit juvenile death penalty
Violation of custom (ICJ 38.a.b, rest 3rd 102.1.a) : existing or emerging custom which prohibit it ?
Even assuming there is custom, US is a persistent objector (only if in the course of formation of the custom, once formed, can’t object, just violation) :
Jus cogens ?
