Sources of domestic law, sources of international law...

Sources of domestic law, sources of international law...

Statutes Sources of domestic US law: Common law (a tradition of judge-made law not based in statutes and originally derived from custom) Constitution Judicial opinions Administrative regulations

Sources of International Law: Treaties (conventions): formal, legally binding agreements between states * International custom: general practice of states accompanied by a sense of legal obligation * General principles of law: underlying principles of law recognized in the domestic legal systems of most nations * Judicial decisions and the teachings of the most highly qualified publicists (a subsidiary means of determining the law)* * See the Statute of the International Court of Justice, art. 38 jus cogens: literally, compelling law. A norm so fundamental that it overrides treaty law and customary law See the Vienna Convention on the Law of Treaties, art. 53.

Customary International Law: customs and usages of civilized nations. Two elements: General practice of states Sense of legal obligation -- opinio juris Thus: Customary international law can be defined as a general practice of states accompanied by a sense of legal obligation. Persistent objection. Some scholars, but not others, hold that CIL can be negated by persistent objection. Timing is key: persistent objection can block a customary international law obligation before, but not after, its creation.

Example: Paquete Habana (US Supreme Court, 1900) By an ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.

An illustration of customary international law: Filartiga v. Peña Irala 630 F.2d 876 (1980), U.S. Court of Appeals, 2 nd Cir. Judge Irving Kaufman ruling for the Federal Court of Appeals for the 2nd Circuit.

The Filártigas and their story Joelito Filártiga Peter Weiss, Center for Constitutional Rights, Filártigas lawyer Joelito and Dolly Filártiga Joel Filártiga Judge Irving Kaufman

How did this case end up in a US court? Alien Tort Statute of 1789: 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. Question before the Court of Appeals: Was the torture of Joelito Filártiga a violation of the law of nations?

Why Judge Kaufman answered that, yes, the torture of Joelito Filartíga violated the law of nations The prohibition of torture is supported by an international consensus. The evidence: UN Charter, UDHR and other UN declarations, treaties, official statements, national laws and constitutions, all of which amount to a general repudiation of the practice An example of customary international law reasoning

From Judge Kaufman s opinion 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 now prohibited by the law of nations. [T]he torturer has become, like the pirate and slave trader before him, hostis humani generis, an enemy of all mankind.

Significance of the Filártiga ruling Legal significance: It asserts that torture is a violation of customary international law. (And it suggests that other human rights abuses may also violate customary international law.) Practical significance: It encouraged human rights advocates to use the Alien Tort Statute to sue human rights abusers in US federal courts. Political significance: It helped spur the Congress to pass the Torture Victim Protection Act (1991). An individual who subjects an individual to torture or subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages.

Some differences between the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) Only aliens may sue under the ATS. They may sue agents either of the US government or foreign governments. Both aliens and US citizens may sue under the TVPA, but they can sue only agents of foreign governments, not the US government.

Legacy of Filartiga, cont. Victims of human rights abuses could use the 1789 Alien Tort Statute (ATS) and 1991 Torture Victim Protection Act (TVPA) to seek justice in US courts. However, in 2013, the U.S. Supreme Court, ruling 5-4 in Kiobel v. Royal Dutch Petroleum, sharply narrowed the reach of the ATS. It held there is a presumption against extraterritorial application of the ATS, and that the presumption can be overcome only when the matter touches and concerns the United States with sufficient force. Civil, not criminal, remedies. What are the advantages and disadvantages of civil actions (lawsuits) compared with criminal prosecutions?