INTERNATIONAL LAW
Fall 2008, W.B. Fisch
Assignment #1

Ch. 1) THE NATURE OF INTERNATIONAL LAW

    A. The History of International Law

• origins (?) in Roman jus gentium
• Grotius and the rise of the modern nation state
• distinction between public and private international law

B. An International Law Sampler

· The McCann Case, p. 3 (ECHR 1975)

o What are McCann and co-applicants complaining about, against whom, and before what tribunal?

o Substantive law

§ What rules of international law did they invoke as a basis for their complaint? Where did those rules come from?

§ If these rules are good things, why would the U.K. want to have them embodied in an international agreement, rather than simply adopting them in an Act of Parliament or under national law?

§ What sanctions would it be subject to, if the international tribunal finds it in violation of the treaty?

§ What opportunity did the petitioners have to present their claims to British authorities? What substantive law was applied in those proceedings, and how was the issue resolved?

§ Why would the U.K. want to have the issues raised by this complaint in an international tribunal, rather than their own courts? Doesn’t this involve a loss of sovereignty, about which the British are notoriously sensitive? Notice that after the ECHR decided against them under the treaty, they paid the judgment!

o Procedural law

§ What procedure is followed under the treaty?

§ Specifically, how are the facts determined, and what impact does the fact-finding process in the UK national tribunals have on the international proceedings?

• Filartiga v. Pena-Irala, p. 17 (2d Cir. 1980)
• Who are the plaintiffs? Who is the defendant, and what is he alleged to have done? Where did he do it?
• Why did the plaintiffs choose an American court in which to sue?
• What is the precise legal issue before the court as Judge Kaufman sees it?
• What source(s) of law do the plaintiffs rely on for their substantive claim?
• does Paraguayan law apply in a U.S. court under these circumstances?
• does U.S. law apply?
• is there a treaty that makes the defendant's conduct unlawful, by which he is bound?
• how does the court know, in the absence of a treaty, whether there is a rule of international law making the defendant's conduct unlawful?