INTERNATIONAL LAW
W.B. Fisch, Fall 2008
Assignment #2

Ch. 2) TREATIES

    A. The Sources of International Law: Statute of the ICJ, Art. 38

• to whom is the provision (p.28) addressed? does it state general rules for deciding cases under international law, wherever they are decided?
• how do the sources relied on in Golder and Filartiga (assignment #1) fit into the scheme of Article 38: would the ICJ have looked to different sources?
• what is the status of judicial decisions under Art. 38? why should they be equated with "the teachings of the most highly qualified publicists of the various nations"? (cf. n. 2 p. 28)
• consider the list of sources which the editors say are not mentioned in Art. 38 (natural law, equity, jus cogens, resolutions of international organizations (such as the General Assembly of the United Nations)): how might they differ from the sources that are mentioned?
• international agreements (treaties, mostly)
• customary law
• general principles of law recognized by civilized nations
• Do those differences reflect a particular theory of international law and how it is created?

B) A Treaty Sampler

• Five treaties, spanning more than 2000 years; with respect to each, ask:
• what were the parties seeking to accomplish, and how did the treaty contribute?
• what sorts of sanctions might be available if one of the parties fails to perform?
• how does the treaty compare to the sources of law most readily recognized in domestic law: contract, legislation, constitution?
• Hull-Lothian (Lend-Lease), p. 47: the negotiation process of yet another agreement, described in the memoirs of the U.S. Secretary of State
• what was the role, in the negotiations, of US law prohibiting the sale or even the departure from US ports of ships outfitted for use against a state with which the US is at peace?  Was the ultimate agreement consistent with those laws?
• assume that the ultimate agreement was inconsistent with those laws
• is the U.S. bound by the agreement under international law? If so, what would be the remedy for a U.S. refusal to transfer the destroyers?
• lawsuit filed in U.S. court seeking to declare the agreement invalid (perhaps seeking to enjoin sending the ships to England), would the U.S. court be controlled by international law or domestic law?
• was the agreement constitutional, in view of the fact that it was not submitted to the Senate for advice and consent to ratification?
• was the agreement in violation of the duties of neutrals under the Hague Convention of 1907?  would any power other than Hitler’s Germany have had standing to object to it?