INTERNATIONAL LAW
W.B. Fisch, Fall 2008
Assignment #5
B) General Principles of Law
THE AM&S CASE, p. 128
(ECJ 1982): claim of attorney-client privilege invoked against the EC
Commission’s investigative demand for documents relevant to possible
antitrust violations
1.
Is there an
express rule of Community law providing for such a protection?
2.
Does the
regulation establishing the Commission’s investigative powers explicitly
or implicitly exclude such a protection?
3.
In the absence of
express rules, how does the Court determine whether or not it exists?
4.
What is a
“general principle of Community law”?
5.
In what sense are
“general principles” a “non-consensual source” of
international law?
6.
Should the ICJ be
required to undergo the same process, under Article 38, to identify
“general principles of law recognized by civilized nations”? If not, why not?
7.
Why should the
attorney-client privilege be limited to independent lawyers, and exclude
communications between corporate officers/agents and their house counsel?
a.
Did the Advocate
General or the Court adequately explain this limitation?
b.
Is it relevant
that in most European systems, a lawyer employed full-time by a single
“client” cannot appear in court, even for her employer?
c.
Is this
limitation consistent with the policy underlying the privilege?
C) Natural Law and Jus Cogens
1.
Does the statute
under which the defendant is charged adequately define the offence? (Due process, and scope of Congress’
legislative power)
a.
Does the
constitutional grant of power to Congress in art. I s. 8 require Congress to
define the offense?
b.
Is it sufficient
to incorporate “the law of nations” by reference, without
specifying what that law provides?
2.
In what sense
does the court “use a natural law concept” (eds. intro p. 138) in
deciding this case? What is
“natural law”?
a.
N. 2 pp.
141-2: editors say that the court
shares with Filartiga a “mutual confusion
about what the source of the rule is” – in what sense is this true?
b.
Id.: how well does the search for
“universality” – for “some non-treaty international law
rule geneeral or universal enough to bind apparently
non-consenting states” – fit into the “positivist insistence
in Lotus that all rules of international law must be based on state
consent?
Verdross,
p. 142 (1937)
1.
What is jus cogens? In what sense is it by definition
“non-consensual”?
2.
Verdross mentions two categories:
a.
Agreements to
violate international law (two states agreeing to do what each of them
separately is forbidden to do by international law)
b.
Agreements contra
bonos mores (contrary to good morals)
3.
Where does Verdross find his particular rules of jus cogens?
a.
From
“natural law”?
b.
From the logic of
particular rules?
c.
From
“general principles of law recognized by civilized nations”?
d.
If either of the
latter two, in what sense do the editors maintain that he asserts the existence
of rules of IL “not made by state consent” (n. 1 p. 146)?
e.
compare art. 53 of the
i.
What does
“general international law” mean (i.e., does it include
custom only, or also treaty and general principles)?
ii.
What does the
“international community of States as a whole” mean? What if you have one State which is a
persistent objector?
iii.
What is the
difference between “derogation” and “modification”?
4.
What does the
excerpt from The Southwest Africa Cases, n. 6 p. 147, add? Does it deny that there are any obligations
owed to every member of the international community (obligations erga omnes)?
PROSECUTOR
V. FURUNDZIJA, p. 148 (ICTY 2002): what are the effects of the peremptory norm
prohibiting torture, on (i) individuals who actually
carry out the torture, and (ii) states not themselves engaging in torture?
THE
MICHAEL DOMINGUES CASE, pp. 150-151 (IACt.HR 2002)
1)
Can a jus cogens norm develop and bind even a “persistent
objector”?
2)
If the case
before the