Customary International Law (cont.)

February 4

The Lotus Case

What are the underlying facts?What is the main issue presented in this case?

How did France want to frame the issue?How did the Court frame the issue?What is the difference? Why does that matter? (Consider note 2, pg. 115)

The Lotus Case

Be prepared to summarize the three arguments advanced by France, and the Court’s response to each.Be prepared to discuss the issues raised in notes 1 and 3 on pages 115-16.

The Lotus Case

The Court says “that what occurs on board a vessel . . . Must be regarded as if it occurred on the territory of the State” (pg. 111, bottom)Does this rule make sense? (Consider notes 4 and 5, pg. 116-17)

The Texaco/Libya Arbitration

What are the underlying facts?Why is this case being decided by a “sole arbitrator?”

Consider the questions in note 1, pg. 126.

What law governs the dispute between Texaco and Libya? Why?Does international law permit a state to “nationalize” foreign investments?

The Texaco/Libya Arbitration

The arbitrator decided that Libya breached its obligations under the Deeds of Concession

How did the arbitrator arrive at this conclusion?Why are General Assembly resolutions relevant?

The Texaco/Libya Arbitration

Be prepared to discuss the questions raised in notes 3 and 4, pg. 127-28.Why do you think Libya agreed to pay $76 million? (See note 5, pg. 128)

General Principles of Law

February 4

The AM & S Case

What are the underlying facts?What is the Commission?What is the source of the Commission’s investigative powers?What law is AM&S invoking as a limitation on the Commission’s powers?

What is the source of that law?

The AM & S Case

What is the main holding of the case?What is the Court’s rationale?

Is the Court’s analysis persuasive?Was the Court applying a rule of law that derived from State consent?

Be prepared to discuss the questions raised in notes 1, 3, 4, and 7 on pages 136-37.

Jus Cogens

Feb. 5

United States v. Smith

What’s the main holding of this case?Is that holding based on

Customary law? General principles of law?Jus cogens? Natural law?

Does the distinction matter? Why or why not? Consider note 2, pg. 141-42.

Forbidden Treaties

Review the excerpts from the law review article by Professor Von Verdross.

Is his analysis persuasive? Why or why not?

Review articles 53, 64, and 66 of the Vienna Convention on the Law of Treaties (VCLT).

Compare the VCLT concept of jus cogens with Professor Von Verdross’ concept. What are the similarities and differences?

Consider notes 2 and 4, pg. 146.

Prosecutor v. Furundzija

Read the Statute of the ICTY on page 620-29 in the Supplement.In Furundzija, the ICTY Appeals Chamber links the ideas of jus cogens, obligations erga omnes, and universal jurisdiction.

Can you explain the relationship among these concepts? See notes 2 and 3, pg. 153.

Is the Court’s opinion an example of natural law jurisprudence?

The Domingues Case

Read the American Declaration, on page 275 in the Supplement.Is the Inter-American Commission’s opinion in this case persuasive? Why or why not?

Consider note 4, pg. 153-54.

What gave the Commission the authority to hear this case?

Equity

Feb. 5

North Sea Continental Shelf Cases

What’s the main holding of this case?Did the Court reach the correct result?Read Article 6 of the Convention on the Continental Shelf (posted on my web site).

Why didn’t Article 6 govern this dispute?What law did govern this dispute (according to the ICJ)?

North Sea Continental Shelf Cases

Denmark and Netherlands argued that the equidistance principle included in Article 6 was binding on Germany, but not as a matter of treaty law. Consider four versions of this argument.

The principle derives from natural lawArticle 6 was declaratory of pre-existing customary lawThe rule became crystallized when the Convention was signed (or entered into force)The rule was crystallized some time later

Are any of these arguments persuasive? The Court did not think so. Why not?

North Sea Continental Shelf Cases

Be prepared to discuss the questions raised in notes 1, 3, and 5 on page 176-77.