International Law Outline


Schwebel (American judge)



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Schwebel (American judge) – no textual support for ICJ judicial review

  1. Original intent argument

  • Franck (974) – everyone agrees there must be some limits to SC power, cannot be left to SC to interpret

    1. Court might be last-resort defender of system’s legitimacy

  • Jose Alvarez (975-76) –

    1. Don’t think this is comparable to domestic system, to Marbury

      1. Lots of ways that Court can subtly delegitimize SC actions

        1. Put out principles w/o confronting – some form of judicial review

  • SC bound by int’l HR law?

    1. Never said for sure.

    2. Permitted SG to make concessions, particularly re: IHL

      1. “bulletin” – all UN agents respect/are bound by IHL

      2. Not endorsed by SC, but couldn’t happen w/o their approval

    3. Kady – European mid-level appellate court – said SC resolution under Chapter VII can’t violate jus cogens norm

      1. In relation to actions taken in fight on terrorism – had to adopt broad norm of right to property.

      2. Upon appeal – stepped back. Not judging SC. Look to national level measures adopted, make sure they conform.

    4. Canon of interpretation? – apply strong presumption in looking at its decisions that it didn’t intend to violate HR

    5. US Courts – focus on enacting national legislation, ignore SC

    6. UK House of Lords – Article 103 - state itself cannot be held responsible for any human rights violations that follow from doing what SC requires

    7. ECHR – almost totally deferential to SC

  • Session 7 – International Law in the Domestic Arena

    1. Within state, who has authority to make treaties, and under what circumstances?

      1. United States

        1. Three issues: Separation of Powers (exec v. leg), federalism, court supervision of US conduct in foreign affairs

        2. US international agreements

          1. Article II treaties – made by P with A&C of 2/3 f S

            1. Arms control and human rights agreements – always treaties

          2. Congressional-executive agreements – either w/ authorization or subsequent approval of majority of C.

            1. Greatly increased over time – particularly ECONOMIC agreements.

            2. Always hard to get 2/3 (time consuming, large use of political capita) – now, with rise in int’l community/participation, need to enter into some sort of agreements

              1. More PRAGMATIC and PRACTICAL

            3. Debates about validity

              1. May 1945 – House approved const amend that would provide for treaty approval by majority vote.

              2. Interchangeability thesis – C-E agreements legally equivalent to Art III treaties


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