Public International Law comprehensive
solutions to exam questions
Jus Cogens - ANSWER-Jus Cogens refers to certain fundamental, overriding principles
of international law, from which no derogation is ever permitted. In practice, jurists'
attempt to classify certain rules, rights and duties as jus cogens or peremptory norms
have not met with success: while there is near-universal agreement for the existence of
the category of jus cogens norms, there is far less agreement regarding the actual
content of this category.
Examples of jus cogens norms include: prohibition on the use of force; the law of
genocide; principle of racial non-discrimination; crimes against humanity; and the rules
prohibiting trade in slaves or human trafficking.
There is no universal agreement regarding precisely which norms are jus cogens nor
how a norm reaches that status.
Treaties - ANSWER-Treaties show legal rule clearly in written form and are subject to
the explicit acceptance of states and therefore can often be clearer in their terms and
acceptance more than other sorts of international law. Treaties are the most frequent
sort of international law in practice. However treaties may be trumped by other forms of
international law, especially natural law, or jus cogens.
The Vienna Convention on the Law of Treaties (VCLT) - ANSWER-The Vienna
Convention on the Law of Treaties (VCLT) is a treaty concerning the international law
on treaties between states. It was adopted on 22 May 1969 and opened for signature on
23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has
been ratified by 114 states as of April 2014. Some countries that have not ratified the
Convention, such as the United States, recognize parts of it as a restatement of
customary law and binding upon them as such.
a. The Convention codifies several bedrocks of contemporary international law. It
defines a treaty as "an international agreement concluded between states in written
form and governed by international law," as well as affirming that "every state
possesses the capacity to conclude treaties." The most important point in the
Convention is that Article 1 restricts the application of the Convention to written treaties
between States, excluding treaties concluded between the states and international
organizations or international organizations themselves.
i. The Convention has been referred to as the "treaty on treaties"; it is widely recognized
as the authoritative guide regarding the formation and effects of treaties.
, ii. The scope of the Convention is limited. It applies only to treaties concluded between
states, so it does not cover agreements between states and international organizations
or between international organizations themselves, though if any of its rules are
independently binding on such organizations, they remain so. It does apply, however, to
treaties between states within an intergovernmental organization.
MCCANN V UK, 1995, EU Court of Human Rights - ANSWER-Facts: Families of
deceased suspected terrorists of IRA (British citizens) are seeking compensation for
their wrongful deaths. Police shot them in Gibralter (Spanish colony) when they thought
suspects were planning on detonating a bomb. Local remedy procedure was exhausted
through UK national court, jury trial. Jury returned verdict of lawful killing. McCann
appealed to high court of justice in N. Ireland, but dismissed. Then to EU Human Right
Commission, and held unlawful killing as a breach of European Court of Human Rights
Convention Article 2, as lethal force was unnecessary.
Analysis: A case of transnational law, as the treaty addresses interactions between
individuals from different states, or a state with foreign individuals. Must exhaust local
remedies, and appeal as "last resort." This is a typical requirement before a claim can
be brought before an international tribunal. Shows respect for the sovereignty of the
nations. Also serves efficiency purpose. There is a difference of law under UK and EU
human rights law "reasonably justified" versus "absolutely necessary." Facts can be
held to different standards. Ruling: Ct finds that UK fell short in the control and
organization of the operation. It was a 10-9 decision, and the Euro Ct didn't even here
first-hand testimony or evidence. UK Complies With Judgment: Likely did so to uphold
principles of the Convention, as well as to show a willingness to comply w/treaties and
institutional judgments.
European Court of Human Rights - court established by a treaty - 47 European
countries as of 2013. UK was subject to its jurisdiction because it had signed and
formally ratified the international convention explicitly accepting the jurisdiction of the
court.
The ordinary theory explaining the legally binding effect of an international agreement is
that a sovereign state
FILARTIGA V. PENA-IRALA, 2d Cir. 1980 - ANSWER-Facts. A suit claiming that Pena-
Irala (D) had tortured Filartiga's (P) decedent to death while he was a police Inspector
General, was brought by Filartiga (P). All parties were Paraguayan citizens. Jurisdiction
was based on the Allen Tort Statute, 28 U.S.C. S 1350, which provided jurisdiction for
tort committed in violation of "the law of nations." The case was dismissed by the district
court for lack of jurisdiction to which Filartiga (P) appealed.
Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may be
considered to violate law of nations.
solutions to exam questions
Jus Cogens - ANSWER-Jus Cogens refers to certain fundamental, overriding principles
of international law, from which no derogation is ever permitted. In practice, jurists'
attempt to classify certain rules, rights and duties as jus cogens or peremptory norms
have not met with success: while there is near-universal agreement for the existence of
the category of jus cogens norms, there is far less agreement regarding the actual
content of this category.
Examples of jus cogens norms include: prohibition on the use of force; the law of
genocide; principle of racial non-discrimination; crimes against humanity; and the rules
prohibiting trade in slaves or human trafficking.
There is no universal agreement regarding precisely which norms are jus cogens nor
how a norm reaches that status.
Treaties - ANSWER-Treaties show legal rule clearly in written form and are subject to
the explicit acceptance of states and therefore can often be clearer in their terms and
acceptance more than other sorts of international law. Treaties are the most frequent
sort of international law in practice. However treaties may be trumped by other forms of
international law, especially natural law, or jus cogens.
The Vienna Convention on the Law of Treaties (VCLT) - ANSWER-The Vienna
Convention on the Law of Treaties (VCLT) is a treaty concerning the international law
on treaties between states. It was adopted on 22 May 1969 and opened for signature on
23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has
been ratified by 114 states as of April 2014. Some countries that have not ratified the
Convention, such as the United States, recognize parts of it as a restatement of
customary law and binding upon them as such.
a. The Convention codifies several bedrocks of contemporary international law. It
defines a treaty as "an international agreement concluded between states in written
form and governed by international law," as well as affirming that "every state
possesses the capacity to conclude treaties." The most important point in the
Convention is that Article 1 restricts the application of the Convention to written treaties
between States, excluding treaties concluded between the states and international
organizations or international organizations themselves.
i. The Convention has been referred to as the "treaty on treaties"; it is widely recognized
as the authoritative guide regarding the formation and effects of treaties.
, ii. The scope of the Convention is limited. It applies only to treaties concluded between
states, so it does not cover agreements between states and international organizations
or between international organizations themselves, though if any of its rules are
independently binding on such organizations, they remain so. It does apply, however, to
treaties between states within an intergovernmental organization.
MCCANN V UK, 1995, EU Court of Human Rights - ANSWER-Facts: Families of
deceased suspected terrorists of IRA (British citizens) are seeking compensation for
their wrongful deaths. Police shot them in Gibralter (Spanish colony) when they thought
suspects were planning on detonating a bomb. Local remedy procedure was exhausted
through UK national court, jury trial. Jury returned verdict of lawful killing. McCann
appealed to high court of justice in N. Ireland, but dismissed. Then to EU Human Right
Commission, and held unlawful killing as a breach of European Court of Human Rights
Convention Article 2, as lethal force was unnecessary.
Analysis: A case of transnational law, as the treaty addresses interactions between
individuals from different states, or a state with foreign individuals. Must exhaust local
remedies, and appeal as "last resort." This is a typical requirement before a claim can
be brought before an international tribunal. Shows respect for the sovereignty of the
nations. Also serves efficiency purpose. There is a difference of law under UK and EU
human rights law "reasonably justified" versus "absolutely necessary." Facts can be
held to different standards. Ruling: Ct finds that UK fell short in the control and
organization of the operation. It was a 10-9 decision, and the Euro Ct didn't even here
first-hand testimony or evidence. UK Complies With Judgment: Likely did so to uphold
principles of the Convention, as well as to show a willingness to comply w/treaties and
institutional judgments.
European Court of Human Rights - court established by a treaty - 47 European
countries as of 2013. UK was subject to its jurisdiction because it had signed and
formally ratified the international convention explicitly accepting the jurisdiction of the
court.
The ordinary theory explaining the legally binding effect of an international agreement is
that a sovereign state
FILARTIGA V. PENA-IRALA, 2d Cir. 1980 - ANSWER-Facts. A suit claiming that Pena-
Irala (D) had tortured Filartiga's (P) decedent to death while he was a police Inspector
General, was brought by Filartiga (P). All parties were Paraguayan citizens. Jurisdiction
was based on the Allen Tort Statute, 28 U.S.C. S 1350, which provided jurisdiction for
tort committed in violation of "the law of nations." The case was dismissed by the district
court for lack of jurisdiction to which Filartiga (P) appealed.
Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may be
considered to violate law of nations.
