mundheim wrote:You may not be a "simpleton" in other disciplines, but you clearly have no knowledge, much less expertise, in international law -- and there is no way that you are a lawyer.
The seemingly simple questions I posed to you are in fact very complicated and the subject of hundreds of United States Supreme Court and federal appeals court decisions, volumes upon volumes of treatises and law review articles.
Consequently, I will have to proceed in two posts: (a) in this post I will provide you with a primer on International Law; and (b) in the next post, I will dissect your cut and paste job above and refute it in toto.
Let's begin the clinic :
I. What Is International Law?
International law, or the law of nations, consists of those rules and principles which govern the relations and dealings of nations and of international organizations with each other, as well as with some of their relations with persons, whether natural or juridical. See Restatement (Third) of Foreign Relations Law of the United States § 101; State of New Jersey v. State of Delaware, 291 U.S. 361, 54 S. Ct. 407, 78 L. Ed. 847 (1934).
The "law of nations," which is also known as "international customary law," is formed by the general assent of civilized nations. Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3 (D.D.C. 1998).
Norms of the "law of nations" are found by consulting juridical writing on public law, considering the general practice of nations, and referring to judicial decisions recognizing and enforcing international law. Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).
International law is closely entwined with domestic laws which affect the international situation. The name given to this phase of law is "Foreign Relations Law," which consists of international law as it applies to the United States; and domestic law that has substantial significance for the foreign relations of the United States or has other substantial international consequences.
II. Who Decides What Is International Law?
A rule of international law or a provision of an international agreement derives its status as law in the United States from its character as an international legal obligation of the United States.
A rule of international law or an international agreement has no status as law of the United States if the United States is not in fact bound by it.
For example, any rule of customary law from which the United States may have dissociated itself during the process of its formation or a provision in a treaty that is invalid or has been terminated or suspended.
Thus, if states generally accept the principle that mining in the deep sea-bed is permitted only pursuant to the international regime established by the 1982 Convention on the Law of the Sea, the United States will not be bound by that principle, having continued to dissent from it.
See Restatement (Third) of Foreign Relations Law of the United States, § 111, comment b.
Cases arising under treaties to which the United States is a party, as well as cases arising under customary international law, or under international agreements of the United States other than treaties, are "Cases . . . arising under . . . the Laws of the United States, and Treaties made . . . under their Authority," and therefore within the Judicial Power of the United States under Article III, Section 2 of the Constitution.
Civil actions arising under international law or under a treaty or other international agreement of the United States are within the jurisdiction of the United States district courts. 28 U.S.C. § 1331.
For the purpose of Section 1331, all valid international agreements of the United States, whatever their designation and whatever the form by which they are concluded, are "treaties of the United States."
See Restatement (Third) of Foreign Relations Law of the United States, § 111, comment e.
Treaties, which sometimes are entitled “conventions”or “covenants,”are proper evidence of customary international law because, and insofar as, they create legal obligations akin to contractual obligations on the States parties to them. Like contracts, these instruments are legally binding only on States that become parties to them by consenting to be bound. See Lord McNair, The Law of Treaties 162 (1961) (“N]o State can be bound by any treaty provision unless it has given its assent ....”.
Under general principles of treaty law, a State's signing of a treaty serves only to “uthenticat[e]”its text; it “does not establish [the signatory's] consent to be bound.” Ian Brownlie, Principles of Public International Law 610-11 (5th ed. 1999).
A State only becomes bound by-that is, becomes a party to-a treaty when it ratifies the treaty. See id. at 611; Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35, 19 L.Ed. 571 (1869) (observing that the United States is bound by a treaty only once “he Senate, in whom rests the authority to ratify it, ... agree[s] to it.”; Dreyfus v. Von Finck, 534 F.2d 24, 27 n. 3 (2d Cir.1976) (stating that the United States is not a party to an unratified treaty).
Accordingly, only States that have ratified a treaty are legally obligated to uphold the principles embodied in that treaty, and the treaty only evidences the customs and practices of those States.
In the United States, ratification occurs when “two thirds of the Senators present concur”in ratifying a signed treaty presented by the Executive. U.S. Const. art. II, § 2, cl. 2.
Thus, the United States becomes a “party” to a treaty - that is, becomes contractually bound to obey its terms - only after a treaty has been ratified by the Senate.
IV. Decisions of Multinational Tribunals
With respect to the International Court of Justice, Article 59 of the ICJ Statute expressly states that “t]he decision[s] of the Court ha[ve] no binding force except between the parties and in respect of that particular case.” ICJ Statute, June 26, 1945, art. 59, 59 Stat. 1055, U.S.T.S. 993.
With respect to the European Court of Human Rights, the Court is only empowered to “interpret[ ]”and “appl[y]”the rules set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Apr. 11, 1950, 213 U.N.T.S. 221, E.T.S. No. 5 (“European Convention”-an instrument applicable only to its regional States parties-not to create new rules of customary international law. See European Convention art. 32 (stating that the Court's jurisdiction “extend[s] to all matters concerning the interpretation and application of the Convention”; see also ICJ Statute art. 38 (listing judicial decisions as “subsidiary,”rather than primary, sources of customary international law).
Neither the International Court of Justice, nor the European Court of Human Rights, a regional institution, is empowered to create binding norms of customary international law, and thus their decisions are not primary sources of international law; however, decisions of European Court may constitute subsidiary or secondary sources of customary international law insofar as they restate and reapply regional convention. Flores v. Southern Peru Copper Corp., 406 F.3d 65 (2d Cir. 2003), republished at, 414 F.3d 233 (2d Cir. 2003).
Neither of these tribunals is empowered to create binding norms of customary international law.
V. United Nations General Assembly
The United Nations General Assembly has been described aptly as “he world's most important political discussion forum,”but it is not a law-making body. I The Charter of the United Nations: A Commentary 248, 269 (Bruno Simma ed., 2d ed.2002). UN General Assembly resolutions and declarations do not have the power to bind member States because the member States specifically denied the General Assembly that power after extensively considering the issue-first at the Dumbarton Oaks Conference, held in Washington in 1944, then at the Yalta conference in 1945, and finally at the United Nations' founding conference, held in San Francisco in 1945. Id. at 269 (describing the rejection at Dumbarton Oaks and San Francisco of proposals to accord General Assembly resolutions the power to bind member States); cf. Stanley Meisler, United Nations: The First Fifty Years 13-14 (1995) (discussing the Yalta voting formula and the veto power in the Security Council, which alone would be empowered to issue resolutions binding on States).
The authority to make pronouncements that could be legally binding was reserved to the Security Council, in which each of the identified Great Powers of the post-war era would be permanent members and hold a veto power. See, e.g., Dolivet, The United Nations: A Handbook on the New World Organization at 45-57 (discussing the composition and function of the Security Council); Meisler, United Nations: The First Fifty Years at 14 (noting that acceptance at the Yalta Conference of the veto power in the Security Council was a sine qua non of the founding of the United Nations); Francis O. Wilcox, The Rule of Unanimity in the Security Council, 40 Am. Soc'y Int'l L. Proc. 51, 52 (1946) (same, discussing the San Francisco Conference).
Under the Charter of the United Nations, the Security Council was afforded the power (in circumstances where no veto is exercised by a “permanent member” to issue binding resolutions, United Nations Charter, ch. VII, whereas the General Assembly was granted the power only to “make recommendations to the Members of the United Nations or to the Security Council or to both,”United Nations Charter, ch. IV, art. 10 (emphasis added).
In sum, as described in The Law of Nations, the classic handbook by Professors Brierly and Waldock of Oxford University:
“A]ll that the General Assembly can do is to discuss and recommend and initiate studies and consider reports from other bodies. It cannot act on behalf of all the members, as the Security Council does, and its decisions are not directions telling the member states what they are or are not to do.”
J.L. Brierly, The Law of Nations 110 (Sir Humphrey Waldock ed., 6th ed. 1963) (second emphasis added).
VI. Customary International Law
“Custom is the oldest and the original source of international law as well as of law in general,”the substance of which “s to be found in the practice of states.” 1 Oppenheim's International Law 25-26 (Sir Robert Jennings & Sir Arthur Watts, eds., 9th ed. 1996).
The practice of states, in turn, “embraces not only their external conduct with each other, but is also evidenced by such internal matters as their domestic legislation, judicial decisions, diplomatic dspatches, internal government memoranda, and ministerial statements in Parliaments and elsewhere.” [i]Id. at 26.
In short, customary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.
First, in order for a principle to become part of customary international law, States must universally abide by it. Filartiga, 630 F.2d at 888 (holding that customary international law includes only “ell-established, universally recognized norms of international law” (emphasis added); see also Kadic, 70 F.3d at 239 (quoting Filartiga, 630 F.2d at 888); id. at 243 n. 8 (addressing whether a principle had “ripened into universally accepted norms of international law”(emphasis added)).
Of course, States need not be universally successful in implementing the principle in order for a rule of customary international law to arise. If that were the case, there would be no need for customary international law. But the principle must be more than merely professed or aspirational.
Furthermore, a principle is only incorporated into customary international law if States accede to it out of a sense of legal obligation. See, e.g., Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 307-08 (2d Cir.2000) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”(quoting Restatement (Third) § 102(2)) (internal quotation marks omitted) (emphasis added)).
Practices adopted for moral or political reasons, but not out of a sense of legal obligation, do not give rise to rules of customary international law. See Hain v. Gibson, 287 F.3d 1224, 1243-44 (10th Cir.2002) (noting that customary international *81 law does not include those practices that States have adopted “or moral or political reasons (as opposed to any sense of legal obligation)”(internal quotation marks and citation omitted)); North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), 1969 I.C.J. 3, 44 (“n]ot only must the acts concerned amount to a settled practice, but they must also be ... carried out in such a way[ ] as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it”.
Finally, customary international law addresses only those “wrong[s]”that are “mutual, and not merely several, concern” to States. Filartiga, 630 F.2d at 888 (emphases added); see IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.1975) (Friendly, J.) (defining customary international law as those “standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se”(citation and internal quotation marks omitted)).FN23 Matters of “mutual”concern between States are those involving States' actions “performed ... towards or with regard to the other,”X Oxford English Dictionary 154 (2d ed.1989) - matters that, as Judge Friendly aptly noted, concern the dealings of States “inter se,”Vencap, 519 F.2d at 1015. Matters of “several”concern among States are matters in which States are separately and independently interested. See XV Oxford English Dictionary 97 (2d ed.1989) (defining “several”as having “ position, existence, or status apart[,] separate, [or] distinct”from one another).
In sum, those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern, constitute the body of customary international law. But where the customs and practices of States demonstrate that they do not universally follow a particular practice out of a sense of legal obligation and mutual concern, that practice cannot give rise to a rule of customary international law.
And no -- I didn't copy the above fromone place.
Do you get the sense that you may be in above your head, N?
(To Be Continued with Part II, The Dissection and Refutation)
I don't have time to read all that babble, I just skimmed through it, and I pretty much knew the major points already. Much of it was implicit in the post and questions I offered. It's common knowledge to anyone who keeps up with current events, but thank you for the superfluous tutorial. No, I don't feel like I'm in over my head at all, to answer your question concisely. All you did is recite tedious definitions which anyone of any age could look up. How about applying your dazzling knowledge and intellect in a creative and insightful way to the actual points I made. You can impress me that way if that's your goal. And why do you know my first initial? Are you stalking me?