Hobbes v. Publius on International Law
gln1 at COLUMBIA.EDU
Mon Oct 14 16:20:37 PDT 2002
I fear that Prof. Martin may have misunderstood what I was trying to
express. My point was that the Inter-American Commission's views are not
binding. The European Court does have the authority to give binding
judgments, but not binding on the US, which is not a party to the European
Convention (or even eligible to become one).
Regarding Bankovic, well, we disagree. I don't like every sentence in the
Court's opinion, but I think it is basically correct. But that is
probably too remote from the concerns of the members of this particular
-- Gerry Neuman
On Mon, 14 Oct 2002, Francisco Martin wrote:
> Prof. Neuman wrote:
> > In response to Prof. Martin's suggestions of institutions with authority
> > to determine the international lawfulness of a US invasion, I wish to
> > point out that the Inter-American Commission of Human Rights has authority
> > to express views on violations of the American Declaration of Human
> > Rights, but no authority to make a binding determination of such
> > violations, even if a situation arose in which the legal issue were
> > somehow relevant.
> This is not correct. The American Declaration is a "source of international
> obligations related to the [OAS] Charter," which is a treaty to which the
> US is a party. See IACt.HR's Advisory Opinion OC/10/89 at para. 45. The
> fact that the Declaration does not provide for injunctive or damages relief
> does not mean that the Declaration is not a source of declaratory relief.
> Hence, the IACmHR has issued "reports" declaring OAS member's (incl. the
> U.S.') legal obligations on extraterritorial use of force. See,e.g., Coard
> v. US., Alejandre et al. v. Cuba, Salas and Others v. U.S.
> Prof. Neuman continues:
> >The European Court of Human Rights has the authority to
> > make determinations of violations of the European Human Rights
> > Convention by parties thereto (which includes the UK but not, of course,
> > the US), and those determinations are binding on the parties to the case.
> > How that jurisdiction would enable the Court to address the international
> > legality of the UK's participation in a war in Iraq is difficult for me to
> > imagine at present.
> Even under the EurCt.H.R.'s incorrect holding regarding extraterritorial
> jurisdiction of the ECHR in Bankovic, the UK still would be legally
> accountable for uses of force in Iraqi territory under the no-fly zones by
> virtue that the UK probably has effective overall control of this
> territory. Furthermore, insofar as the rights to life and humane treatment
> governed by the ECHR reflects customary international law obligations for
> the US, such law also would be binding on the US -- although I recognize
> that there were some federal court cases in the 80s that deviated from the
> established law that neither the president nor Congress could violate
> customary international law. But this issue is probably moot given the
> fact that the ICCPR recognizes jurisdiction over extraterritorial attacks
> and that the UN Human Rights Committee often uses EurCtHR case law for
> interpreting the rights to life and humane treatment under the ICCPR.
> Prof. Neuman continues:
> >And that Court is not empowered to make such a determination vis-a-vis the
> See above.
> Francisco Forrest Martin
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