Electronic copy available at: http://ssrn.

com/abstract=1583348
1

Sources of International Human Rights and Their Application in the United States
First draft of the first chapter of the Master thesis
Protecting Human Rights Preserves National Security
Michele Maria Porcelluzzi

Si vis pacem, para bellum. If you want peace, prepare for war.
This ancient Roman proverb would no longer be true in a world in which the nations have
recognized the existence of human rights and in which individuals are informed about
what is happening across the world. This ideal world is one which does not consider war
as an expression of human nature or a tool to make money or to settle international
conflicts, butin light of the U.N. Charter
1
as an instrument to defend a country
threatened or attacked by another.
However, the war on terror, fought not by some countries against other
countries but rather by a coalition of many countries against non-state actors, challenges
the post-World War II norms which establish the respect of human rights. Is torture
morally and legally justifiable in some cases? What is the relationship between human
rights and international law? Is international law accurately applied by U.S. courts? Can
the human rights be considered jus cogens? Is it possible to be less free but more safe?
This paper considers the sources of international human rights law and their
application by American courts. Based on the recent decisions of different courts and the
Restatement (third) of U.S. Foreign Relations law
2
, the paper explains how judges apply
treaties and consider the customary law as federal common law. Concerning jus cogens,

J.D. Candidate 2010, Bocconi Law School- Milan, Exchange Student at Duke Law School in Fall 2009. For
their indication of sources, comments and suggestions I thank Prof. Samantha Besson and Prof. Scott
Silliman. This is the first part of my Master degree thesis, my supervisor is Giorgio Sacerdoti, Full Professor
in International Law, Bocconi Law School- Milan. I thank Virginia Franks and David Chiang -Duke Law
students- for their review. I thank also Nicole Yong and Matt Smith .
1
See U.N. Charters, art. 2(4) and 51
2
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
Electronic copy available at: http://ssrn.com/abstract=1583348
2

the paper reports the conflicting opinions of some scholars and argues that few
preemptive norms exist or should be applied by courts. The conclusion reports the
opinions of the author about the purpose of international law in the third millennium and
the new challenge to human rights.
3

Human Rights as International Law, and International Law as the Law of the
United States
[We are] unwilling to witness or permit the slow undoing of those human rights to
which this nation has always been committed, and to which we are committed today at
home and around the world.--John F. Kennedy
3

The term international human rights law refers to that area of international law
concerned with the protection of human rights. The sources of international human rights
are the same as of international law settled by Article 38 of the Statute of the ICJ:
international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
international custom, as evidence of a general practice accepted as law;
the general principles of law recognized by civilized nations;
subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

This chapter analyzes the main sources and how they are applied by U.S. Courts.
Part I -The Treaties
Section 1: International Law
The most important sources for international human rights are the treaties. After
the Second World War and the founding of the United Nations, the production of
multilateral treaties for the protection of specifically enumerated human rights has
increased. In the last sixty years, leaders have elaborated upon and approved numerous
texts concerning human rights, but not all of these are binding for the United States.
For example, the U.N. Charter contain some human rights provisions that do not
require legal obligations on the part of the member states. In particular, Article 55(c) and
56 state that the United Nations shall promote the universal respect, and observance of,

3
Inaugural address, 20 January 1961
4

human rights and that [a]ll members pledge themselves to take joint and separate
action in cooperation with the Organization for the achievement of the purposes set forth
in Article 55. Traditionally, scholars consider these provisions not binding for the
Member State: they are guiding principles or general purposes, or indeed legally
meaningless and redundant
4
.
Likewise, the Declaration of Human Rights adopted by the General Assembly on
December 10, 1948, is not binding because only the resolutions of the Security Council
may involve legal obligations on the part of the States. However, the Declaration has
served as the foundation for many treaties, and numerous scholars consider it to be a
central component of international customary law which may be invoked under
appropriate circumstances by federal and other judiciaries.
Now, in October 2009, there are two binding international bills of human rights
and nine core international rights treaties
5
. These international agreements involve legal
obligations on the part of member states:
International Covenant on Economic, Social and Cultural Rights 1966;
International Covenant on Civil and Political Rights 1966;
International Convention on the Elimination of All Forms of Racial
Discrimination, 1965
International Covenant on Civil and Political Rights, 1966 International Covenant
on Economic, Social and Cultural Rights, 1966
Convention on the Elimination of All Forms of Discrimination against Women,
1979
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984
Convention on the Rights of the Child, 1989
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, 1990
International Convention for the Protection of All Persons from Enforced

4
See Oschar Schachter, The Charter and the Constitution: The Human Rights provisions in American Law,
4 Vand. L. Rev. 643, 646
5
So defined by the Office of the United Nations High Commissioner for Human Rights Source:
http://www2.ohchr.org/english/law/index.htm
5

Disappearance, 2006
Section 2- The U.S. Law
The Constitution of the United States establishes the process for making treaties
and whether they are binding in nature. The President shall have power, by and with the
advice and consent of the Senate, to make treaties, provided two thirds of the Senators
present concur
6
; The judicial power shall extend to all cases arising under the treaties
made
7
; All treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land
8
. The intention of the Framers is clear:
when ratified the treaties become obligatory and the assent of the House of
Representatives is not necessary
9
; early decisions followed this path
10
. However, in
1829 Chief Justice Marshall wrote that if a treaty is carried into execution whenever it
operates of itself
11
, then some treaties do not operate of themselves and need a domestic
law or other exercises of sovereign power to carry out their execution. In that case,
Marshall found that the terms shall be ratified and confirmed, inserted in the Treaty of
Amity signed in 1818 by United States and Spain implied that a part of it had no direct
effect. Marshall arrived at this decision through the analysis of the text of the Treaty
12
.
The analysis of two recent decisions could be useful to clarify the criterion now
used by American judges in order to determine the self-executing character of the treaties
and their relationship with legislative acts of the Congress. The first is Committee of U.S.

6
U.S. Cons. art. II 2
7
Id. art. III 2 cl.1
8
Id. art. VI cl.2
9
President George Washington, Message to the House of Representatives, March, 30, 1796, reprinted in
3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 371 ( M. Farrand ed. 1937)
10
See, each other, Hamilton v. Eaton 11 F. Cas. 336, 340 (C.C.D.N.C. 1792) (No, 5,980), Penhallow v.
uoanes Admln., 3 u.. (3 uall.) 34, 94 (1793).
11
Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829)
12
See JORDAN J. PAUST, International Law as Law of the United States, 70-73, (Second edition Carolina
Accademic Press, 2003) (1996)
6

Citizens Living in Nigaragua v. Reagan
13
, a case decided by the Court of Appeals of D.C.
Circuit in 1988.
In 1986 the International Court of Justice found that United States violated
international law by financing Contra guerrillas in their war against the Nicaraguan
government and by mining Nicaragua's harbors. The United States, however, ignored the
verdict, refused to pay the damages to Nicaragua and continued to finance military
operation in that country. US Ambassador to the UN, Jeanne Kirkpatrick said of the ICJ,
This is a semi-legal, semi-juridical, semi-political body which nations sometimes accept
and sometimes don't
14
.
Plaintiffs, organizations and individuals, showed that the President, financing the
Contras, violated the Administrative Procedure Act (APA), the United States
Constitution, the U.N. Charter and customary international law. The court dismissed the
case because so much of appellants' cause of action is based on international law
15
and
thus the congressional enactments cannot violate but can only supersede prior
inconsistent treaties or customary norms of international law
16
. The court dismissed
also the Fifth Amendment claims, because appellants' factual averments concerning the
Contras' injuries to Americans in Nicaragua cannot support a constitutional claim
against the United States for its support of that foreign "resistance" movement
17
.
Regarding the effects of international law on domestic law, the court held that the
violations of international law have no domestic consequences when the President and

13
859 F.2d 929 (D.C. Cir., 1988)
14
DON MURRAY, Genocide and the muddle that is international law, CBC News on-line. See
http://www.cbc.ca/news/reportsfromabroad/murray/20070227.html
15
Note 13, at 953
16
Supra
17
Supra
7

the Congress act together. The judges found that even if the two political branches
contravene an international legal norm, the court cannot remedy the violation, if the type
of international obligation that Congress and the President violate is either a treaty or a
rule of customary law.
18
So, while in the American Citizen case the Congress did not
make clear its intent to abrogate Article 94
19
of the UN Charter, the Court held that it
will not lightly infer such intent but will strive to harmonize the conflicting
enactments
20
.
In regard to the self-executing character of the UN Charter, the court, citing the
Diggs
21
case, noted that it look[ed] to the intent of the signatory parties as manifested by
the language of the instrument.
22
Then the Court found that the U.N. Charter does not
confer rights on private individuals, who cannot be parties in front on the ICJ, and that
Article 94 is not addressed to the judicial branch of the United States. The judges also
cited Article 59 of the Statue of the International Court of justice, which established that
[t]he decision of the Court has no binding force except between the parties and in
respect of that particular case.
23

Concerning the hierarchy of authority, that is the relation between the treaties and
the statutes of the Congress, the court applied the principle lex posterior derogat legi
priori . Supporting this opinion the court cited the Head Money Cases
24
, ruling that a
treaty is subject to such acts as Congress may pass for its enforcement, modification, or

18
See note 13 at 935
19
Each Member of the United Nations undertakes to comply with the decision of the International Court of
Justice in any case to which it is a party
20
Note 13 at 936
21
Diggs v. Shultz, 470 F.2d 461 (D.C. Cir., 1972)
22
Supra, 466
23
Note 13 at 938
24
112 U.S. 580 (1884)
8

repeal
25
.
The decision Medellin v. Texas
26
is analogous in some important aspects. On
January 9, 2003, Mexico filed a suit in the International Court of Justice against United
States alleging that the United States, in arresting, detaining, trying, convicting, and
sentencing the 54 Mexican nationals on death row () violated its international legal
obligations to Mexico, in its own right and in the exercise or its right of consular
protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna
Convention.
27
Unanimously, the judges held that the United States of America should
provide review and reconsideration of the conviction and sentence.
28

On February 28, 2005, President George W. Bush issued a memorandum to the
United States Attorney General ordering the state court to consider the complaints of the
Mexican prisoners, in accordance with the decision of the ICJ
29
. The Plaintiff, one of the
51 Mexican prisoners expressly named in the ICJ decision, filed an application for a writ
of habeas corpus in the Texas Court of Criminal Appeals, which the Texas Court
subsequently dismissed.
The Supreme Court affirmed the judgment of the state court. In contradiction to
the U.N. Charter (a treaty signed and ratified by the U.S), the ICJ statute, the ICJ
pronouncement and the Memorandum of the President of the United States, the court held
that the ICJ decision is not self-executing. As in the Foster case, the criterion used by the
court for this pronouncement is its analysis of the text of the treaty. The Court found that,

25
Supra at 599
26
128 S. Ct. 1346 (2008)
27
Case concerning Avena and Other Mexican Nationals (Mexico v. U.SA..) 2004 I.C.J. 12 at 11 (March 31),
See also the application of Mexico
28
See Supra at 72
29
See Memorandum of the President of the U.S. for the Attorney General, February, 28 2005
9

in order to be self-executing, it should indicate that the President and Senate intended
for the agreement to have domestic effect
30
. In order to support this opinion, the court
cited United States Citizens and Head Money Cases.
In the judgment the United States argued that even if the ICJ decision is not self-
executing, it becomes law of the land by reason of the issuing of the Memorandum of the
President. Further, the government retained that the President, according to the
Youngstown
31
decision, had an implicit power in order to comply with the ICJ decision,
created by the ratification of the Optional Protocol of Vienna Convention on Consular
Relation
32
and the U.N. Charter. The court instead held that the President cannot
transform a non-self-executing international obligation into a self-executing one: he
needs the approval of the Congress, which can implement a non-self-executing treaty
33
.
The Supreme Court too strictly applies the dualistic principle; decision by
decision, the Court has deformed the Constitutional provision. In Medellin v. Texas the
Court held that a Treaty is self-executing only when a clear statement contained in the
text of the treaty or approved by the two thirds majority of the Senate and the President
indicates so. However, in the Foster decision the terms were inverted: Judge Marshall
found that only when the text of the treaty implied an implementation is it non-self-
executing. Yet this much older decision appears more in compliance with the
Constitution provision and the will of the Framers; in fact, if only few treaties have
domestic effect, why does the Constitution require not only the signature of the President
but also the approval of the Senate with a large majority (two-thirds)? What is the value

30
Note 27 at 1364
31
343 U.S., at 635,72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (Jackson, J., concurring)
32
Which establish the compulsory jurisdiction of the ICJ for the resolution of disputes arising out the
application of the Vienna Convention
33
Note 27, at 1368-1369
10

of this authorization if the treaties are applicable by the courts only if there is a clear
statement? Justice Breyer
34
was right in his dissenting opinion in Medellin, where he
maintains that hardly any international agreement contains a clear statement about its
self-execution. Thus I think that it is necessarily an elastic dualistic system: respecting
the sovereignty of the United States, and in compliance with the Constitutional provisions
all and only the treaties signed by the President, approved by the two thirds majority of
the Senate, not containing a clear statement about an implementation by the Congress are
law of the land.
However, the two cases analyzed are different in one important aspect. In the U.S.
Citizen case the plaintiffs were not cited in the ICJ decision, they were involved only
physically in the acts of the Congress which financed the Contras only because they
lived there, but were neither parts nor objects of the ICJ judgment. Oppositely, Jos
Ernesto Medellin was one of the 51 Mexican prisoners expressly mentioned in the
decision; of course he is not a part in the ICJ judgment, because only the state can be
part in a judgment of ICJ, but he is the object of the decision. Thus it was reasonable
that the state court or the Supreme Court applied the Avena decision.
Regarding the rank of the treaties: all of them are not similar to the domestic
legislative acts, and sometimes the last in time rule should not be applied. Some
treaties, like those which enumerate a human right or the U.N. Charter, are more
important than, for example, an international commercial agreement. If a self-executing
treaty that obligates the U.S. to respect a particular human right could not prevail against
an ordinary law which violates this right, what would be its utility? In this case there
would be, surely, a violation of international law but what about the remedies in foro

34
Note 27 at 1383
11

domestico? However, if the ratification of a treaty establishing a right could not be
modified or abrogated by the Congress, the U.S. would lose a part of its sovereignty.
Paust
35
suggests a solution to this dilemma citing two very old decisions; in
Holden v. Joy
36
, Justice Clifford wrote, Congress has no constitutional power to settle
or interfere with the rights under a treaties, except in cases purely political.
37
In 1899,
Justice Gray, supporting the Jones v. Meehan
38
courts decision wrote, The construction
of treaties is the peculiar province of the judiciary; and, except in cases purely political,
Congress has no Constitutional power to settle the rights under a treaty, or to affect titles
already granted by the treaty itself.
39
Thus it seems that Congress can modify,
reinterpret or repeal a treaty granting a human right only for political causes which the
Courts can verify.
Part 2 The Custom
Section 1- The Human Rights and the International Customary Law
From reading the international law textbooks and numerous articles about
international customary law, a student can compare it to two human sentiments: love and
friendship. Everyone knows what these important components of life are; however, few
people can explain what love or friendship mean, and the opinions expressed often are
opposite. Similarly, the scholars recognize that custom is a source of international law, in
compliance with Article 38 of the Statute of the ICJ, but there are many different
opinions about the elements required and the exact provisions. This part explains the
opinions of the main academic commentators in order to clarify the differences between

35
Note 12 at 74
36
84,U.S. (17 Wall.) (Sup. Court, 1872)
37
Idem at 211
38
175 U.S. 1 (Sup. Court, 1899)
39
Idem, at 32
12

them. Further, this part attempts to answer the question Are the human rights part of the
international customary law?.
The definition of customary lawgeneral practice accepted as law
40

traditionally includes the two elements: the general practice (an objective element) and
the opinion juris sive necessitates (the subjective element), that is the appearance that
the states follow the practice from a sense of legal obligation.
41
Before the Second
World War, the rules recognized as customary law were few, and they concerned only the
relations between the states (for example, the immunity of foreign states and their
diplomatic agents, the prohibition of piracy, etc.).
However some scholars do not accept this definition. Kelsen and Gugennheim in
the first half of the twentieth century tried to dispense with the objective element,
theorizing that customary international law arises from state practice alone.
42
Then they
look to the past, identify the State behavior and then, in an inductive process, they infer
what the norms are.
The post-World War II era, the creation of the UN, and the sentiment that human
rights needed to be protected not only with treaties (which for some scholars are
insufficient), have led to the creation of new theories for international customary law, in
order to identify human rights as custom.
Numerous academic commentators
43
, for different reasons, maintain that the 1948

40
Statue of the ICJ, art. 38
41
Note 2, 102 (n)
42
Kelsen H, Theorie du droit International coutumier (1939) 1 Revue international de la thorie du droit,
Nouvelle Srie 253 ; Guggenheim P, Les deux elements de la coutume en droit international, in La
technique et les principles du droit public: Etudes en lhonneur de Georges Scelle (1950), Vol 1, p. 275
43
See e.g. Humphrey JP, "The Universal Declaration of Human Rights: Its History, Impact and Juridical
Character", in Ramcharan BG (ed), Human Rights: Thirty Years After the Universal Declaration (1979)
pp2l, 37; Sohn 1, "The Human Rights Law of the Charter" (1977) 12 Texas Int LJ 129, 133 ;McDougal MS,
Lasswell H and Chen I, Human Rights and World Public Order (1980) pp273-274, 325-327; D'Amato A,
13

Universal Declaration of Human Rights is now part of international customary law. In
particular, Paust
44
argues that the term general practice does not refer only to the
States behavior, but to the practice of all participants in the international legal process,
including the international organizations. Regarding the opinion iuris, he affirms it is not
important that the States or their officials feel a sense of legal obligation related to a
practice, but he wrote that the subjective element is to be gathered from patterns of
generally shared legal expectation among the humanity.
45

Applying this rule, he affirmed that the resolutions approved by the General
Assembly of the UN can be sources of customary law, almost comparing this UN organ
to a world parliament which voices the opinions of the people. Although this world
democracy would be a beautiful image, it is not the reality: the General Assembly does
not represent the people, but rather the government, of most of the member nations.
Regarding his definitions of opinion iuris and state practice, they depart too far from the
traditional meanings to carry much weight.
According to other views, only some human rights obligations exist as customary
law. Schachter
46
, for example, analyzes the UN resolutions and declarations, finding
numerous references to duties arising out of the Universal Declaration and some
national constitutions, finding that many of them contain human rights provisions and
some embody ICJ decisions.
47
Then Schacter considers that the infringements of some
human rights are generally tolerated by the international community. The author, then,

International Law: Process and Prospect (1986) pp123-147. nayar kMC, Puman Rights: The UN and US
lorelgn ollcy", (1978) 19 Parv lL!, 813, 816-817
44
See PAUST, note 12, at 3-7
45
Idem, at 4
46
Schachter, "International Law in Theory and Practice: General Course in Public International Law", 178
Recueil des cours 21,333-342 (1982-V).
47
E.g., Barcelona Traction Case, ICJ Rep 1970, p.33
14

infers that some provisions can be considered as customary law; in particular, he shows
that some conduct has been universally condemned as violative of the basic concept of
human dignity. The provisions identified by Schachter as customary international law
are the prohibitions of genocide, slavery, torture, mass killings, prolonged arbitrary
imprisonment, systematic racial discriminations and any consistent pattern of gross
violations of internationally-recognized human rights
48
.
Similar cases are enumerated in the Restatement
49
. The status as customary law of
Schachters human rights is maintained and generally accepted; furthermore, the last
point--(g) a consistent pattern of a gross violations of internationally recognized human
rightsmakes this list open to include new rights that eventually become generally
accepted in the future.
The Carter administration
50
and some academic commentators
51
supported an
alternative approach in order to affirm human rights obligations under international law
independently of specific treaty. According to articles 55 and 56 of the UN Charter, All
Members pledge themselves to take joint and separate action in co-operation with the
Organization for the achievement of the
52
. . . universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex,

48
See BRUNO SIMMA AND PHILIP ALSTON, The sources of Human Rights Law: Custom, Jus Cogens, and
General Priniples 12 AusLl. ?.8. lnLL L. 82 (1988-1989)
49
Note 2 at 702
50
Under President Carter, the U.S. Government acknowledged the obligatory character of the Charter's
human rights provisions and appeared to accept the Universal Declaration as an authoritative
interpretation of those provisions, see eg "Address by President Carter to the United Nations General
Assembly" (1977) 76 Dept. of State Bull. 332
51
See Sohn I, "The New International Law: Protection of the Rights of Individuals Rather Than States"
(1982) 32 Amer Univ LR 1, 17; -and Buergenthal T, "International Human Rights Law and Institutions:
Accomplishments and Prospects"(1988) 63 Washington LR 1
52
Art. 56 U.N. Chart
15

language, or religion.
53
In light of this approach, the Universal Declaration and all the
soft law are considered an authoritative interpretation of the obligation contained in the
UN Charter.
I agree with the traditional theory of the customary international law. The need to
protect human rights and the fact that many national constitutions provide the automatic
incorporation of customary international law
54
has caused the distortions of the definition
of international custom in order to recognize human rights as customary international
law, which is accepted by some scholars as though it were religious dogma. From my
perspective, according to the Restatement and Schachter, only a few select human rights
provisions are truly customary law in compliance with the two aforementioned primary
requirements. These select few rights are the prohibitions against genocide, slavery,
murder or causing the disappearance of individuals, torture, prolonged arbitrary
detention and systematic racial discrimination.
The other theories affirm more easily the binding character of human rights
provisions, but their view of international customary law creates total uncertainty: the
rights recognized as international law under such inclusive theories are not written and
potentially are infinite.
The question Are human rights retained as international custom? is thus the
wrong question to ask. The right question is rather What is the most efficient method in
order to defend human rights?. Human rights are not like a car or other material good:
they cannot be exported and cannot be imposed only with rules agreed to by a part of the
global community (for example, Western nations). In my opinion, the most efficient

53
Art. 55 U.N. Chart
54
For example, art 10 Italian Costitution: The Italian legal system conforms to the generally recognized
rules of international law.
16

method to advance respect for human rights is instead improving education, sensitization
and promotion of these rights in academic institutions throughout the world. The world
would thus have new legislators, governments and judges more likely to create and apply
norms respecting international rules of human rights. In sum, the best solution to the
biggest problem of international law, its enforceability, is the creation of a strong culture
of respect of human beings and of positive relations between the States.
SECTION II The Customary Law as United States Law
Is the customary international law part of American law? Most scholars affirm
that it is part of federal common law; however, some academic commentators criticize
this position
55
. In order to understand these two theories, the following sections analyze
some important decisions of U.S. courts.
Before 1938, federal courts applied customary international law in some decisions
in the absence of statutory or constitutional authorization. They considered it sometimes
as an element of natural law; other times, as part of the common law or the law of the
land.
Scholars supporting the modern position maintain that before 1938, customary
international law had the status in the United States of general common law.
56
In a
dissenting opinion, Justice Holmes wrote that the general common law was a
transcendental body of law outside of any particular State but obligatory within it unless
and until changed by the Statute.
57
Thus general common law was similar to the custom
in some civil law legal systems and was not supreme law of the land as were treaties.

55
E.g., Restatment, note 2 at 702
56
CURTIS A. BRADLEY, The Juvenile death penalty and international law, 52 DUKE L.J. 485 (2002) at
552
57
Black & Ehite Taxicab & TRansger CO. V. Brown & Yellow Taxicab & Transfer CO., 276 U.S. 518, 533
(1928) (Holmes, J. dissenting)
17

In 1938, in Erie Railroad v. Tompkins
58
, the Supreme Court held that the general
common law cannot be applied and that the Court should apply only the law of the state,
except in matters governed by the Federal Constitution or by Acts of Congress.
59
What
about the customary international law? An article about the implication of this decision
for international custom in the U.S. legal system was written, one year later, by Jessup
60
.
He cited
61
the Paquete Habana decision (International law is part of our law
62
), an
opinion authored by Justice Marshall ([T]he court is bound by the law of nations, which
is a part of the law of the land
63
), the Kansas v. Colorado decision (Sitting, as it were,
as an international, as well as a domestic tribunal we apply Federal law, state law, and
international law, as the exigencies of the particular case may demand
64
), and the words
of Justice Gray in Hilton v. Guyot:
International law . . . including not only questions of right between nations,
governed by what has been appropriately called the law of nations; but also
questions arising under what is usually called private international law . . . is part
of our law, and must be ascertained and administered by the courts of justice, as
often as such questions are presented in litigation between man and man, duly
submitted to their determination.
65

Finally, he inferred that international law (we can imply international customary law) is
federal common law.
66
This is a fundamental article for the scholars who support the
modern position, and I agree with this analysis.
Jessups article was cited in the Supreme Courts 1964 decision Banco Nacional

58
304 U.S. 64 (1938)
59
Id. at 78
60
hlllp C. !essup, 1he uocLrlne of Lrle 8allroad v. 1ompklns Applled Lo lnLernaLlonal Law, 33 Am. !. lnLl L.
61
Supra at 741
62
(1900) 175 U. S. 677, 700
63
The Nereide (1815), 9 Cr. 388, 423
64
(1907), 206 U. S. 46, 97
65
(1894) 159 U. S. 113, 163
66
See Note 61 at 742
18

de Cuba v. Sabbatino.
67
In that case, the plaintiff, a Cuban national bank, filed a suit
against the expropriation of a ship of sugar made by the Cuban government. The Court
found, applying the same rationale which Jessup applies in his article regarding
international law
68
, that the act of state doctrine was federal common law and thus that
expropriation could not be questioned by U.S. courts. Based on this decision, scholars
who support the modern theory imply that customary international law is federal law,
and its determination in binding on the state courts.
International customary law was applied, I think correctly, in the Filartiga
69
case.
In this case the plaintiff, a Paraguayan immigrant to the U.S., filed a suit in the Eastern
District of New York against another Paraguayan for wrongfully causing the death of
Filartigas 17-year-old son, Felipe. The plaintiff contended that his son was tortured and
killed by Pena, a state official in Paraguay, in retaliation for the plaintiffs political
actions and beliefs. Filartiga brought the action under the Alien Tort Statue, 28 U.S.C.S.
1350, which establishes: The district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of the law of nations or a treaty
of the United States. The issue, than, is if it is a violation of the law of the nations,
then of the international law, for an official of a foreign country to torture and kill a
citizen of that nation.
The Court held that courts must interpret international law not as it was in 1789,

67
376 U.S. 398 (1964)
68
Soon thereafter, Professor Philip C. Jessup, now a judge of the International Court of Justice, recognized
the potential dangers were Erie extended to legal problems affecting international relations. He cautioned
that rules of international law should not be left to divergent and perhaps parochial state interpretations.-
Supra at 425
69
Filartiga v. Pena-Irala, 630 F.2d 876
19

but as it has evolved and exists among the nations of the world today.
70
In 1789, there
were few norms recognized as international customary law, primarily concerning
offenses against ambassadors, violations of safe conduct (which were probably
understood to be actionable), and individual actions arising out of prize captures and
piracy (which may well have also been contemplated). However, I think correctly, the
Court decided to apply the contemporaneous international law.
In 1980, the United States was not part of a treaty against the torture, but the
Court of Appeals found that official torture is now prohibited by the law of nations. The
prohibition is clear and unambiguous, and admits of no distinction between treatment of
aliens and citizens.
71
Please note that some scholars think that this decision was
influenced by the publication of the tentative draft of a treaty in 1980
72
. I think that in
this case and in similar cases the application of international customary law in American
courts is established by the Alien Tort Statute.
In 1987 the Restatement (third) was published by the American Law Institute.
The Reporters compared customary international law to treaties: both sources are federal
common law and thus the supreme law of the land
73
. However, a reporters note
specifies that [c]ustomary law does not ordinarily confer legal rights on individuals or
companies.
74
The Restatement thus clearly supports the modern approach.
In Committee of U.S. Citizens Living in Nicaragua v. Reagan the plaintiffs argued
that continuing funding of the Contras, also after the ICJ decision, violated customary

70
Supra, at 881
71
Supra, at 884
72
See Goldsmith, Jack Landman & Curtis Bradley. "Customary International Law as Federal Common
Law: A Critique of the Modern Position," 110 Harvard Law Review 815 (1997), at 835
73
See note 2 111 (d)
74
Note 2 111(4)
20

international law. The Court, then, cited Paquete Habana
75
. In that case, the owner of
fishing vessels captured and condemned as a war prize sought compensation from the
U.S. on the grounds of customary law. The Court applied international law, but specified
that: where there is no treaty, and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of nations.
76
Then the Court
denied the claim because a norm of customary international law cannot supersede or
modify a statute approved by the Congress.
In 2004 the Supreme Court decided an important case regarding the application of
the customary international law and the Alien Torts Act. In Soza v. Alvarez-Machain
77

the petitioner abducted Alvarez, who was in Mexico, and delivered him to federal agents
in the United States where he was arrested because the U.S. District Court for the Central
District of California had issued a warrant for his arrest. Returned in Mexico, after he was
acquitted, Alvarez began a civil action against Soza. What matters here is that Alvarez
sought damages from the United States under the FTCA, alleging false arrest, and from
Sosa under the ATS, for a violation of the law of nations.
Regarding the issue related to the Alien Tort Act, the Court enumerated and
explained all the precedent decisions, starting with Erie R. Co. v. Tompkins. It found that
there are limited enclaves in which federal courts may derive some substantive law in a
common law way.
78
The Alien Tort Statue, then, is one of these enclaves, for which
the Court should apply the law of nations. Following the path of Filartiga (even if on this
point Justice Scalia dissents), the Court applied contemporaneous international law and

75
175 U.S. 677 (Sup. Court, 1900)
76
Supra at 702
77
542 U.S. 692 (Sup. Court, 2004)
78
Supra at 729
21

held that the modern federal court may recognize more violations under modern
customary international law than those which existed when the ATS was enacted
79
.
Further, the Court found that the prohibition against arbitrary arrest was a defined rule of
international customary law. However, in this case the Supreme Court held that the
Alvarez detention, less than a day long (after he was delivered to U.S. agents), did not
violate a norm of international law. The Court, then, reversed the judgment of the Court
of Appeals.
What are the other consequences of the modern theory? Concerning the legal
status of international customary law in relation to statutes and treaties, the modern
scholars argue the last in time rule prevails. But the Restatement
80
objects that the
international customary law arising from acts of the President (and the sole act of the
President) cannot prevail over a law of United States Congress.
As federal common law, then Supreme Law of the land the norms of
international customary law preempt state law. The modern scholars affirm that the
Constitution, granting foreign relations power to the federal government, provides its
international law norms with preemptive character.
The traditional scholars affirm that Customary Law is not federal common
law. In particular, they argue that considering international customary law as federal
common law is a threat for the principle of separation of powers because the political
branches would be bound by the judicial interpretation of it.
Further, they affirm that the Constitution does not explicitly provide international
customary law with preemptive power over state law; in contrast to the Commerce

79
See supra at 749
80
See note 2 115
22

Clause, which states that the United States Congress has the power to regulate commerce
with foreign nations, among the states, and with the Native American tribes
81
.
The academic commentators who support the traditional view affirm that
customary international law is not the law of the United States, is not part of the federal
common law, and, like Justice Scalia, argue that the Alien Tort Statute does not permit
the recognition of contemporaneous international norms.
In other words, we can define the traditional theory as a strictly dualistic:
according to the traditional scholars only the law approved by Congress and treaties
which are clearing self-executing (by reason of a clear statement) are the law of the
land to be applied by the judiciary. In contrast, the modern theory supports a monistic
system: all the customary international law is federal law and can be applied by the judge.
In my opinion, in light of the decisions enumerated in this paper, customary law is the
federal law of U.S. However, I do share some of the concerns of the traditional school
with regard to the uncertainty of the law: custom is not written, and this gives the judges
a law-making power. But I do not think that the best solution is concluding that the
customary international law cannot be applied at all; rather, I agree with Justice Souter
who in Sosa wrote, [J]udicial power would be exercised on the understanding that the
door is still ajar subject to vigilant door-keeping.
82

Section III- The Jus Cogens
According to the Vienna Convention on the Law of Treaties
83
, a jus cogens norm
is a norm accepted and recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified only by a

81
U.S. Const. Ar. I 8 cl. 3
82
Note 77 at 729
83
Vienna Convention on the Law of the Treaties, art.53, May, 23, 1969, 1155 U.N.T.S. 331
23

subsequent norm of general international law having the same character. Unlike the
customary international law, the definition of a preemptive norm lacks the general
practice of the state. Originally it was considered only as a limitation on international
freedom of contract: thirty-two years before the signing of the Vienna Convention,
Verdross wrote that a State can be bound by a Treaty which makes it no longer able to
protect at all () the life, the liberty, the honor, the property of men on its territory,
84
or
some fundamental human rights.
Later some commentators argued that jus cogens was not only a rule concerning
the validity of the treaties but also a limitation on non-treaty conduct. There are many
opinions about the sources and the content of preemptory norms. This section
85
analyzes
various opinions and concludes that jus cogens exist and can be applied not only in the
law of the treaty.
The theories which reject the notion of jus cogens, even if supported by different
justifications, have in common a voluntarist view of international law according to which
a State cannot be bound by rules freely accepted as legally binding.
Among the theories which affirm the existence of jus cogens, some scholars
consider it as international public order
86
, rules which state the fundamental values of the
international community. Other academic commentators believe preemptory norms arise
from the natural law: jus cogens is a law needed by all (jus necessarium pro omnium)
87
.

84
von verdross, lorbldden 1raLles ln lnLernaLlonal Law", 31 AJIL (1937) 571, at 574
85
For a general discussion about these theries, see Robert KOLB, Theorie du Ius Cogens International,
2003 REV. BELGE DE DROIT INTERNATIONAL 5, 14-28
86
See, e.g., A. GOMEZ 8C8LLuC, Le lus cogens lnLernaLlonal: sa geneese, sa naLure, ses foncLlons" ,
RCADI, vol. 172, 1981-lll, pp. 170 eL a., C.A. CP8l1LnCn, !us cogens:Cuardlng lnLeresLs lundamenLal
Lo lnLernaLlonal ocleLy", 28, Vir. J. Intl L. , 643
87
See, e.g., F.A. VON DER HEYDTE, ASDI, vol. 25, 1968, pag. 18 I. DETTER, The International Legal Order,
Aldershot, 1994
24

According to Verdross
88
, jus cogens is part of the general principles of law recognized
by civilized nations established by the Statue of the International Court of Justice. As
law recognized by civilized nations they do not represent an erosion of sovereignty
but are limits universally recognized and accepted in order to preserve the dignity and the
well-being of humanity.
I agree with Simma and Alston
89
who conclude that the obligation to respect
fundamental human rights is an obligation under general international law, but these
human rights are not all those established by the Declaration but those specified by
binding treaties and few others protected by preemptive norms.
The most important problem is determining the contents of jus cogens. On their
limits depend the seriousness, the recognition, and the application of the preemptory
norms. Criticizing the uncertainty of the jus cogens, Andrea Bianchi
90
compares the
preemptive norms to some mythological figures. In an ironic article published in 1990,
Anthony DAmato
91
wrote that jus cogens is an asset, enabling any writer to christen
any ordinary norm of his or her choice as a new
92
preemptive norm. He concluded his
article by affirming that the theory of jus cogens must answer the following questions:
What is the utility of a norm of jus cogens?
How does a purported norm of jus cogens arise?
Once one arises, how can international law change it or get rid of it?
93

In my opinion the jus cogens norms have the purpose of establishing some rules which

88
See note 83
89
See Note 47 at 105
90
Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 EJIL 491 (2008)
91
AnLhony uamaLo, Its a ird, its a plane, its jus ogens! , 6 Conn. !. lnLl L. 1 (1990-1991)
92
Supra at 1
93
Supra at 6
25

cannot be derogated, even in an emergency. After centuries of wars and violence, after
the Second World War, the genocides in Cambodia, Rwanda and Bosnia, we have
learned that there are some rights which must be unassailable. The historical events of
the last fifty years have taught us that the traditional sources of international law are not
sufficient to prevent major slaughters: Srebrenia, in the center of the Europe, was the
theater of the biggest European genocide after the Second World War, with 8,373 men,
women and children killed by the Army of Republika Srpska (VRS) under the command
of General Ratko Mladi during the Bosnian war.
A norm of jus cogens arises from different kinds of evidence like numerous
resolutions of the U.N. and other international organizations condemning violations of a
specific rights as gross breaches of international law and statements by numerous national
officials criticizing other States for serious violations of specific rights. Normally, the
formation of a jus cogens norm-contrary to customrequires a long period in which
numerous official declarations which strongly condemn violation of a precise right are
issued. A shocking world event implying the gross violation of one or more specific
rights could shorten this laps of time. For example, during the Middle Age the destruction
of an ethnic or racial group (what we call genocide) was considered lawful in order to
preserve religious values. The Armenian Genocide during the First World War, and the
Holocaust during the Second, let us understand in few years that similar acts are threats to
humanity.
During this time the norm is implicitly or explicitly recognized by the States as
fundamental for human existence.
After the Second World War numerous official acts condemned the genocide,
26

including a Convention on the Prevention and Punishment of the Crime of Genocide,
adopted by the United Nations General Assembly in December 1948 as General
Assembly Resolution 260.
Due to their nature, the preemptive norms cannot be changed or abrogated. For
example the prohibition against torture cannot be derogated because:
The result of torture depends on a mans predisposition and on calculation, which
vary from man to man according to their hardihood and sensibility, so that, with
this method, a mathematician would settle problems better than a judge. Given the
strength of an innocent mans muscles and the sensitivity of his sinews, one need
only find the right level of pain to make him admit his guilt of a given crime
94
.

As early as 1748 Cesare Beccaria, an Italian lawyer, in his book Dei Delitti e delle pene
(On Crimes and Punishments) wrote these words against torture. In September 2009
Shane OMara, Professor of Neuroscience at Trinity College Institute of Dublin,
convincingly demonstrated that a tortured man is most likely to lie
95
. These motives are
enough to affirm that torturing is imposing useless suffering
96
.
Lasting, regarding the prohibition of slavery, in 1926 it was officially condemned
with a Convention concerning the slavery. Article 4 of Universal Declaration of Human
Rights prohibits slavery and the slave trade in all their forms and a lot of binding
conventions or declarations condemned slavery
97
.

94
Cesare Beccaria, On Crimes and On Punishments and other writings, Cambridge University Press, p. 42.
95
See Shane OMara, Torturing the Brain: On the folk psychology and folk neurobiology motivating
enhanced and coercive interrogation techniques,
http://blogs.sciencemag.org/scienceinsider/Torturing%20the%20Brain%20TiCS%202009%20SOM%20no
n-proof%20version.pdf
96
In my thesis I will write a chapter about the use of torture in the War against the Terror
97
For example: Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar to Slavery of 30 April 1956. Convention on the Elimination of All Forms of
Discrimination against Women of 18 December 1979, Art. 6 ,34 ,35 Declaration from General Assembly
on the Elimination of Violence against Women of 20 December 1993. Optional Protocol to the Convention
on the Rights of the Child on the sale of children, child prostitution and child pornography of 25 May 2000.
(Committee on the Rights of the Child ). Convention against Transnational Organized Crime of 15
27

In sum, in my opinion jus cogens norms arise with the repetition of official
condemnation of an act, but their importance for the survival of human beings make them
unchangeable and not-abrogable.
Then, I think that the content of jus cogens are the norms which prohibit
genocide, slavery and torture.
What are the implications of my theory? When and how can jus cogens be
applied? First of all, an international agreement that violates a preemptive norm is void
98
,
according to the Vienna Convention on the Law of the Treaty. Further, the administrative
judges can declare void an act of a State that violates a jus cogens norm. For example, if
the government of a nation orders a genocide, the administrative judges of that nation can
declare that act avoid.
Concerning international responsibility, surely the violation of a preemptory norm
implies it; however, the International Court of Justice in the case concerning Armed
Activities in the Territory of the Congo between the Democratic Republic of Congo and
Rwanda held that a jus cogens norm may not provide a basis for the jurisdiction of the
Court if an explicit reservation to a treaty excludes the submission of a particular kind of
dispute to the ICJ. Yet I respectfully disagree with this decision. In my view, in order to
grant effectively the respect of a preemptive norm, a jus cogens norm always implies the
inherent jurisdiction of a Court: national, if one party of the judgment has no international
personality (it is not a State or an International Organization), an international court (like

December 2000. Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the
United Nations Convention against Transnational Organized Crime. (New York, 15 November 2000)
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime. (New York, 15
November 2000)
98
Vienna Convention on the Law of the Treaties, art.53, 54 and 66, May, 23, 1969, 1155 U.N.T.S. 331
28

the International Court of Justice) if all of the parties have the international personality.
Yet even if I do not agree with it, the decision represents an evolution of the notion of jus
cogens and of its use by the International Court of Justice: this is the first occasion on
which the ICJ has given its support to the notion of jus cogens Judge ad hoc Dugard,
nominated by Rwanda, wrote in his separate opinion. In 1996 in the Advisory Opinion on
the legal use or threat of use of Nuclear Weapons, the Court used the term
intransgressible principles of humanitarian law.
99
In other decisions the ICJ used the
notion of erga omnes obligation instead of jus cogens norm. But in the Armed Activity
decision, the Court recognized the existence of jus cogens norms comparing them to the
obligations erga omnes regarding the relationship between preemptory norms and the
establishment of the Courts jurisdiction: both do not trump the consent requirement to
establish the jurisdiction of the Court.
Analyzing this evolution I could consider myself as long-sighted: my theories
would not be applied now by the ICJ, but possibly, I hope, they will applied in coming
years.
A jus cogens rule cannot be a legal basis for a penal sanction. According to the
principle Nulla paena, nullum crimen sine lege poenali scripta, a preemptive norm
cannot be used by a court in order to impose a punishment: the jus cogens norms are not
written, then the judge would arbitrarily decide the punishment.
A State which violates a jus cogens is instead civilly responsible for
compensatory damages towards the victims, and the preemptive nature of the rule trumps
the jurisdictional immunity as a sovereign state. In the case Ferrini v. Federal Republic of

99
Armed Activities in the Territor of the Congo, (New Application:2002) (Democratic Republic of Congo
v. Rwanda), Jurisdiction and Ammissibility [2006] ICJ Rep 1, at paras 64 and 125
29

Germany
100
, the plaintiff was imprisoned in a Nazi concentration camp and sued
Germany for reparations. The Italian Supreme Court affirmed the existence of the Italian
courts jurisdiction. First, it recognized the German acts in Italy during the Second World
War as international crimes. Then the Court affirmed that the protection of human rights
is provided by norms which cannot be derogated and prevail over all other conventional
and customary norms, including those which relate to State immunity.
101
Note that here
the Court described preemptive norms, but it did not call them jus cogens. In order to
support his opinion, the Italian judges cited art. 146 of the 1949 Geneva Convention IV
relative to the Protection of Civilian Persons in Time of War, which establishes that
States are obliged to suppress the breach of fundamental human rights. They further cited
article 155 of the same Convention, which obliges the State not to recognize the
legitimacy of those circumstances which gave rise to its commission.
102
Finally, the
Court noted that, unlike similar cases decided by foreign courts
103
, in this case the
criminal acts were committed in the country in which the legal action was brought. This
decision was proper because it has the purpose of protecting effectively jus cogens
norms--the prohibitions against torture and arbitrary arrest.
The Jus Cogens in the U.S. Court
The Courts of the United States are most likely to recognize the jus cogens as
international law sources, but the violation of a preemptive norm is not considered as an
exception to the immunity from the jurisdiction of U.S.
In Committee of U.S. Citizens living in Nicaragua v. Reagan, the plaintiff alleged

100
Cass., sez. Un., 11 March 2004, n. 5044, RDI 2004, p.540 ; 128 International Law Report, 659
101
128 International Law Report, 668
102
Supra
103
See, e.g., Al-Adsani, e Houshang Bouzari, 61; Superior Court of Justice Ontario (Canada), 1 maggio
2002
30

that the continuing funding to the Contras was a violation of a preemptive norm
establishing that the parties who have submitted to an international court shall abide by
its judgment. In order to verify this affirmation, the Court applied the same criteria of
customary international law: state practice and opinion juris. Finally, the judges held that
the purported preemptive norm is not a jus cogens rule, but such basic norms of
international law as the prohibition against murder or slavery () may well restrain
our government in the same way that the Constitution restrains it. I agree with the
decision of the Court even if I respectfully dissent from the part in which it applies the
elements of customary international law in order to verify the existence of the jus cogens
norm.
Instead in Alvarez-Machain v. United States
104
, judgment of appeal of the Soza v.
Alvarez Machain case, the Court of Appeals of the ninth Circuit held that whereas
customary international law derives solely from the consent of states, the fundamental
and universal norms constituting jus cogens transcend such consent
105
. I fully agree with
this conclusion.
Contrary to the Italian Supreme Court, the U.S. judges do not retain that the
violations of jus cogens norms are exceptions to the rule of immunity of foreign
sovereigns established by Foreign Sovereign Immunities Act of 1976.
106
The case
Sampson v. Federal Republic of Germany is similar to the Ferrini case. The plaintiff was
imprisoned by the Nazis during the Second World War and filed a suit against Germany
claiming reparations. The Court held that even if Germany violated jus cogens norms, the
Court lacked jurisdiction because Congress did not create an exception to foreign

104
331 F.3d 604
105
Supra at 613
106
28 U.S.C.S. 1330, 1602-1611,
31

sovereign immunity under the Foreign Severeign Immunities Act.
107

In my view, according to the Italian Corte di Cassazione, the violation of jus
cogens norms trumps the immunity of a State in order to grant an effective protection of
fundamental rights. This is not an erosion of sovereignty, it is only the logical
implication of the existence of preemptive norms, which grant a select few fundamental
human rights.
Conclusion: In faithfulness bringing forth justice
108

To every action there is always an equal and opposite reaction
Newtons Third Law
Analyzing my paper, a reader can understand that I do not consider International
Law as a simple instrument to rule foreign relations, but an important body of norms
which should grant the pacific coexistence of States. However I do not theorize the end of
the sovereignty of States in favor of rules decided by International Organizations or the
imposition on all the Nations of numerous rules not accepted by them. My theory goes
beyond the principle established by the Westphalia peace, cuius regio eius religio, the
view in which the law of a State is like an iron sphere which cannot be pervaded by
external rules.
I think that there are some norms valid for all men and all States, independently of
race, religion or culture. The consequence for violations of these norms is not only a
religious sin or a moral condemnation; instead is a necessary response to an injection of
hatred that poses risks for the existence of human beings.

107
250 F.3d 1145, (7
th
Cir., 2001)
108
Isaiah, 42,3
32

In my opinion Newtons third law is not valid only for dynamic, but also for the
human behavior. What is the reaction of a people that is victim of a genocide? Or of
massive torture? Is it not true that violence creates violence? For these reasons the rules
that I retain as jus cogens norms cannot be derogated even in case of emergency. The
violations of this rights create hatred. The hatred gives birth to the violence. The violence
is a threat for the national security of a country and for all people.
The notion of a preemptive norm is the legal concept which brings these rules
into force in International Law without the risk that they be modified or rejected by a
nation. In fact two of the others primary sources of international law, treaties and
International Customary Law, can be easily modified or derogated.
Regarding the relationship between International Law and domestic laws (in
particular, the U.S. legal system), I am in favor of a flexible dualistic system: the Treaties
come in force because they are ratified and the International Customary Law because
there is a domestic law (ordinary or constitutional) which authorizes its application; no
ratification or authorization is requested in order to apply the jus cogens norms which can
be interpreted also in light of the treaties.
Further, in order to grant the effective protection of human rights, it is important
that the Treaties which establish them should not be abrogated or modified by a normal
legislative act: in fact they should bind not only the executive power but also the
legislative.
In conclusion, the principal purpose of International Law, in order to defend all
people and all human beings, is avoiding this injection of hate: in faithfulness bringing
forth justice. That is settling common rules among the nations mainly through the
33

agreement of States but also through those few norms essential for the pacific coexistence
of peoples.
The purpose of International Law is also to keep ones head when all about
are losing theirs
109
, not permitting that the fear of the others should justify the violations
of fundamental rights, because they that sow the wind, they shall reap the whirlwind
110
.



109
Ryuard Kipling, If
110
Hosea 8,7