I.Nature, history, and sources of int’l law
1.Case study: US invasion of Iraq, 2003
A.What role did IL play?
1.Conventional wisdom: none: US tried to get acceptance, then went ahead anyway
2.But: US tried to justify using IL: based on breach of obligations, pursuant to UN resolutions
a)War conducted according to norms
3.IL norms: look to UN Charter, as well as resolutions
a)Why not many invasions occur
b)Consider how the European allies had to sell justification to own people
(1)But is hegemonic power less susceptible to norms than smaller powers
(a)Consider how US can’t get allies without UN authorization
(2)System of cooperation: e.g. sanctions: US couldn’t get them alone
(a)Also to lift sanctions
4.Reconstruction: pertinence of IL
a)Prosecution of war criminals
b)Establishment of new state
(1)Use of int’l orgs.: IMF, World Bank, etc.
(2)Hangovers from old Iraq: debt, etc.
(a)How is new state established
5.Interface between nat’l and int’l law
B.What int’l rules/institutions should deal with situation?
2.Nature and history of int’l law
A.Nature of IL:
1.Background: defining int’l law
a)Traditionally: legal world often divided into two parts/levels: int’l and domestic law
(1)Int’l: prescribes rules governing relations of nation-states: public and private
(a)Public: primarily activities of gov’ts vis-à-vis other gov’ts
(b)Private: activities of individuals, corps., other private entities when they cross nat’l borders
(i)Traditional scope
(a)Choice of law rules
(b)Controversies with some significant connection to more than 1 state
(c)Substantive terms and conditions that had become customary in certain int’l practice
(ii)BUT: extended today to include treaties that were traditionally domestic law (e.g. UN Convention on KK for the Int’l Sale of Goods)
(a)Norms of public IL increasingly regulate or affect private
(2)Distinction between IL and DL/private law is blurring
b)Modern: recognizing increasing blurring
(1)Bierley, Law of Nations (1963): “body of rules and principles of action which are binding upon civilized states in their relations with one another”
(2)ALI’s Restatement of Foreign Relations, § 101 (1987): “consists of rules and principles of gen’l application dealing with the conduct of states and of int’l orgs. and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical”
2.Actors
a)States: political units with gov’ts representing them: core building blocks
(1)Consider differences between states
(a)E.g.: Vatican (observer status at UN)
(i)Cf. to NGOs: no status to
b)Persons: entering stage in certain situations
c)Corporations (MNCs—multi-nat’l corps.): similar to persons, juridical personality with rights and obligations
d)Int’l orgs. (IGO—intergov’tal orgs.)
e)NGOs
f)Charting the actors
(1) (IO—may not belong here (EU would place here))
(2) /\
(3) State State(IO)
(4) /
(5) Persons - - - - MNCNGO (special, unclear)
3.Structure
a)Mostly horizontal system: states—states—IOs—states
b)States: distinguish two types
(1)Monism: states that automatically recognize ratified IL as domestic, binding law
(2)Dualism: states that require some implementing occurrence before IL becomes domestic law
c)Not normal structure: no executive, legislator, etc.
(1)Causes problems: leads to question of sources
4.Sources
a)4 recognized sources, from Statute of the Int’l Court of Justice, art. 38:
(1)Int’l conventions
(2)Int’l custom: as evidence of gen’l practice accepted as law
(a)Gen’ly uniform, consistent, and recognized as obligation
(i)E.g., if all nations accept and act as though territorial borders extend 12 nautical miles out to sea
(3)Gen’l principles of law recognized by civilized nations
(a)Principles of nat’l legal systems
(4)Judicial decisions and teachings of the most highly qualified publicists
(a)As subsidiary means for determining rules of law: idea that scholars and judges are looking at 1st three, not generating themselves
b)Cf. Rest. § 102: rule of IL is one accepted as such by int’l community:
(1)Customary law: gen’l and consistent practice of states followed as from sense of legal obligation
(2)Int’l agreement: create laws for parties and may lead to creation of customary IL where intended for adherence by states gen’ly and in fact widely accepted
(3)Derived from gen’l principles common to major legal systems: may be invoked as supplementary rules
c)Natural law v. positivism
(1)Natural law: not derived from affirmative action of gov’t but from nature as humans
(a)Can figure out laws by reason
(b)More part of IO than other actors
(2)Positive law: generated by law-making entity
(a)More relevant to treaty and custom: by states
5.Compliance/enforcement
a)Compliance: why do states comply: norms
(1)Reciprocity
(a)Including fear of degrading normative values
(2)Comporting with appropriate behavior: reputation
b)Enforcement: how is IL enforced
(1)Sanctions
(2)Int’l courts
(3)Force
6.Is it really law?
a)Tied to compliance/enforcement
b)Two viewpoints
(1)John Austin: law is an order by a sovereign that is enforced by it
(a)IL can’t be law because its unenforceable
(2)Henkin: law pervades every relationship
B.History of public IL and alternative perspectives
1.Introduction
a)Basic assumption: nation-state is primary actor
(1)Nation-state modern development (Renaissance, Reformation)
(a)Based on European model
(i)Not earlier non-Western nation-states
(a)Criticism that continues colonialism and imperialism
b)Commentators
(1)Shearer, Starke’s IL
(a)Modern IL is product of last 400 yrs.
(b)Ancient precursors: Greece, Rome
(i)But no real impact: no law of nations per se
(c)Nations emerged from developments in 15th, 16th C.
(i)Jurists looked at notion of law of nations
(a)Esp. laws of war
(b)E.g.: Gentilis, Grotius (De Jure Belli ac Pacis)
(ii)Developing strains
(a)Law of nature (reason): Grotius
(b)Positivist: (customary and treaty rules)
(2)Shaw, Int’l Law
(3)Barton and Carter, IL and Institutions for a New Age
c)Changes in IL
(1)Emergence of the person
(2)Enforcing IL
(a)Arbitration
(b)Regional and specialized courts
(c)Domestic courts
2.Periods
a)Ancient times: initial emergence of “states” delineating relationships
(1)Examples
(a)Archaeologists have located a tablet from Mesopotamia between two tribes ending war and setting boundary, swearing to gods to foreswear war
(b)Deuteronomy: contains laws of wars
(2)Greece
(a)City-states undertook numerous agreements
(i)Elaborate on many subjects: athletics, trade, etc.
(b)System of arbitration arose: appointed to settle disputes
(c)Natural law: further developed by Greeks
(i)Right reasoning to find appropriate norms
(ii)Incorporated into laws and carried over into contemporary systems
(3)Rome
(a)Developed elaborate system for determining whether it was right to go to war
(i)Just war theory based on Roman antecedents
(b)Treaties not well developed: probably because of belligerence
(i)Senate had right to reject: negotiator would be executed
(4)Impact
(a)Later theorists looked back to ancient laws to develop own systems
(i)Rome and Athens considered centers of civilization
b)Middle Ages
(1)Primary sources of law: tended to be general, not aimed at states: no real state practice
(a)Ecclesiastical, feudal, imperial
(2)Slow development of int’l rules
(a)Maritime rules
(b)Lex Mercatoria: law of the marketplace
(i)Special rules and cts. common to numerous lands to quickly settle trade disputes
(ii)Basis of int’l commerce law
c)Peace of Westphalia: development of IL placed after 30 Yrs. War
(1)Early Scholars: developed theories of relationships of states
(a)Theologians: looked to religion for basis
(i)Gentilis
(2)Grotius: brilliance was to devise systematic treatise on war/peace that was not rooted in theology and had broad appeal
d)Modern Era: with increase in state practice (treaties, law-based action)
(1)Rise of Positivism: rooted in rules to which states have expressly consented
(a)Dominant theory of IL today
(b)Binding law is created in treaties that produce obligations
(i)Not natural law: justice, equity
(2)Emergence of IOs: in late 19th C.
(3)US role
(a)Early republic: not much influence, but Founders concerned with IL
(b)As US became major power in 19th, 20th C., began to have more influence
(i)E.g., arbitration: Alabama Claims Arbitration; development of IOs: League, UN, IMF
(ii)Heavily engaged at same time trying to protect own positions
e)Post-WWII trends
(1)Certain areas of IL more visible after WWII
(a)E.g., human rights, after WWII; environmental law, 1970s
(2)Rise of NGOs as major player
(a)Had existed by mid-1800s, but only after WWII that became big
(i)Esp. in last 20 yrs.
3.Developing countries’ perspectives
4.Is IL really law?
3.Treaties in int’l law
A.Background
1.Treaties are most important source of IL: all int’l agreements are treaties
a)Means by which int’l orgs. created
2.Types: bi- or multilateral
3.Labels: treaty, convention (often for multilateral agreements), agreement, covenant, charter, statute, protocol
4.Significance: whether instrument is treaty or not carries important legal consequences
a)Treaty under IL carries legal obligations and corresponding duties of compliance and remedies
(1)May create domestic legal obligations
b)US law
(1)Treaties: refers only to agreements concluded by president with advice/consent of Senate
(a)Treaties approved by 2/3 of Senate are law of the land and enforceable in court
(2)Executive agreements: other int’l agreements concluded by president: authorized by Congress or independent constitutional authority
(a)May have legal status: domestic incopr. of treaties
(i)Law may refer to IL or use concept of IL for domestic purposes
(b)Case Act (1 USC § 112b): sec’y of state must send to Congress any int’l executive agreement to which US is party
(i)To exert influence on president to prevent secret arrangements
B.Vienna Convention on the Law of Treaties (entered into force in 1980; adopted 1969)
1.Background: comprehensive set of rules governing formation, interpretation, and termination of treaties
a)Over 90 states are parties
(1)US is signatory but hasn’t ratified: not party nor covered by it
(a)But US has stated that most provisions represent customary IL and cts. frequently rely on terms
2.What is a treaty
a)Art. 2: use of terms
(1)Treaty: int’l agreement concluded by states in written form and governed by IL
(a)Means a state has consented to be bound thereby
(2)Elements: states; governed by IL; writing
b)Art. 11: means of expressing consent to be bound
(1)By signature, exchange of instruments, or any other agreed means
c)Art. 18: obligation not to defeat object and purpose of a treaty prior to entry into force
(1)State cannot engage in any action to defeat object and purpose
(a)Upon signing or exchanging instruments prior to ratification
(i)Until intention is clear not to become party
(b)Upon expressing consent to be bound
d)Cf. Rest. § 301 cmt.:
(1)Regardless of designation, all treaties have same legal status except as terms or circumstances indicate otherwise
(a)Intended to be legally binding and to have legal consequences
(2)Writing is not essential to binding nature
(a)Customary law accepts oral agreements
(3)Obligations may be unilateral
(a)Cf. contracts: treaties don’t require consideration
(b)Unilateral statement may have legal consequences
(i)Cf. estoppel
(4)Treaties don’t include contracts by states that are essentially commercial
e)Examples: are these treaties
(1)US-Japan Friendship, Commerce and Navigation Treaty: yes
(a)Art. VII: commercial reciprocity in cos. establishing businesses, etc.
(i)Concrete obligations: reciprocal rights given to foreign nat’ls
(2)Economic Cooperation Agreement: yes
(a)Soft language: to promote, facilitate
(i)Still binding obligations
(3)2001 Declaration of G-7 Finance Ministers: no
(a)Language seems to show not intended to be legally binding
(i)Representatives will make effort to change domestic law
3.Politically binding vs. legally binding
a)Examples
(1)Legal Status of Eastern Greenland, Permanent Ct. of Int’l Justice: remark by Norwegian foreign minister conceding sovereignty over Greenland was binding
(a)Remark in response to Danish concession of Norwegian sovereignty over Spitzbergen
(2)Rome Statute: establishing ICC: US signed but never ratified
(a)Clinton and Bush never submitted to Senate
(i)Bush announced opposition
(a)After 60 ratification needed to effectuate, US informed UNSG that US didn’t intend to become party and had no obligations
(i)Concern over Vienna Convention
b)Political commitment v. legal binding
(1)Practical significance of distinction between political and legal commitments is blurred in some cases
(a)Esp. with absence of dispute settlement and enforcement mechanism
(b)Political commitment: gov’t develop expectations of compliance
(i)Can invoke to rally support and even impose sanctions
(2)Soft law: int’l lawmaking designed not to be enforceable
(a)Issue of good faith and estoppel after reliance
(i)But how can gov’t rely on agreement meant to be non-binding
C.Getting into a treaty
1.Formation: process of making a treaty
a)State wants to enter negotiations
(1)Must appoint authorized representative: art. 7: credentials
(a)Usu. high official
b)Negotiating sessions
(1)Parties adopt a treaty: agree to text
c)Signature period: period specified in treaty for parties to sign
(1)E.g., Genocide Convention: adopted in Dec. 1948, allowed to sign between Dec. 1948-Dec. 1949
(2)Signature doesn’t bind state to treaty: merely intent
(a)E.g., US: president must submit for Senate’s advice and consent before he may ratify
(b)But carries legal obligations
(i)Art. 18: obliged not to defeat object and purpose of treaty
d)Ratification/acceptance/approval: of signature
(1)Treaty will specify core group that must ratify before treaty comes into force
(a)Puts more pressure to sign
e)Entering into force:
(1)Treaty will specify period of time after ratification after which becomes effective
f)Accession
(1)Parties that don’t sign treaty may accede to it later
2.Reservations
a)VC: § 2, arts. 19-23
(1)Art. 19: formulations
(a)(a) Treaty must not prohibit reservation: otherwise allowed
(b)(c) Reservation can’t be incompatible with object and purpose of treaty
(i)But question of who gets to decide object/purpose
(a)Usu. states
(2)Art. 20: acceptance of and objection to reservations
(a)¶ 1: res. expressly authorized by treaty require no subsequent acceptance
(b)¶ 2: traditional rule applies where
(c)¶ 3:
(d)¶ 4: all other cases
(i)At least one other state must accept reservation for it to have force
(a)Other state must explicitly accept or not reject within 12 mos.
(b)All states that accept reservation enter into treaty with reserving country with reservation in force
(i)Between non-reserving parties, original treaty is effective
(ii)Objections
(a)No treaty: other state refuses to accept
(b)Treaty is in force except as to provisions to which reservation made
(iii)Implications
(a)Positive: reservations motivate wide-spread adherence
(b)Negative: reservations detract from depth
b)Any party may voice reservation
(1)Traditional rule
(a)If party voiced reservation to group of other states, then each other state must agree to it
(2)Modern rule:
(a)Developed subsequent to Genocide Treaty: members ratified with reservations
(i)UN asked ICJ for advisory opinion
(a)Starting point for moving away from traditional rule
D.Living under the treaty: observance and interpretation of treaties
1.Pacta sunt servanda
a)Vienna Convention
(1)Art. 26: pacta sunt servanda
(2)Art. 27: treaty prevails over domestic law as matter of IL
(a)But nat’l law can affect domestic interpretation/effect
(3)Art. 30: conflict among successive treaties
(a)Last in time: most recent treaty is effective
2.Rules of interpretation
a)VC
(1)Art. 31: gen’l rules
(a)¶ 1: Interpreted in good faith per ordinary meaning
(i)But what is ordinary meaning?
(b)§ 2: Context in interpretation consists of preamble; annexes; any agreement relating to the treaty made between all the parties in connection with the conclusion of the treaty;
(2)Art. 32: supplementary means of interpretation
(a)Interpreting body may look at preparatory work and circumstances of conclusion only to confirm meaning derived from ordinary meaning
(i)But must first find ordinary meaning obscure or manifestly absurd or unreasonable
(b)Rest. § 325 cmt.: contrast with US cts.: often look to legislative history
(i)Many states prohibit
E.Getting out of a treaty
1.Invalidity
a)Vienna Convention: arts. 46-53:
(1)Includes errors, fraud, corruption of representative, coercionstate’s or representative’s competence; error; fraud; corruption; duress
(a)Analogous to contract rules
(2)Art. 46: state may not invalidate treaty because of domestic law only where manifestly incompatible with what state would do
(3)Art. 52: coercion of a state by threat or use of force
(a)Rule of absolute nullity where threat or force violates principles of IL embodied in UN Charter
(4)Art. 53: jus cogens: peremptory norms of IL
(a)States may not contract around jus cogens
(i)E.g., states may not agree to slavery because violates fundamental principle
2.By terms/consent
a)VC
(1)Art. 54: termination or withdrawal under provisions or by consent
3.Breach
a)Art. 60: termination upon material breach
(1)¶ 2: material breach by one party entitles other
b)Case Concerning the Gabcikovo-Nagymaros Project, ICJ 1997
4.Impossibility
a)Art. 61
5.Changed circumstances
a)Art. 62
b)Application upon change of gov’t
(1)Treaties apply to state, regardless of change of gov’t
(a)But certain situations: secession of region, former colony
(i)Normally new state succeeds to treaties
(a)Except where shouldn’t be applicable
(ii)Former colonies often follow clean slate rule: may choose which treaties to succeed to
4.Customary int’l law and gen’l principles of int’l law
A.Customary IL
1.Background
a)CIL was basis of most IL until recently
(1)Law-making treaties supplanted
(2)CIL will continue to decline to negligible proportions due to work of IL Comm.
(a)Codifying and restating customary rules as treaties
(3)But may still play significant role as dynamic source of fresh rules
(a)Where int’l community undergoes change in new area
b)Custom v. usage: technical distinction notwithstanding popular interchangeability
(1)Usage: twilight stage of custom
(a)Int’l habit of action not yet receiving full legal attestation
(i)May conflict
(2)Custom: begins where usage ends
(a)Usage that has obtained force of law
(i)Must be unified and self-consistent
c)Historical development
(1)Custom has informed IL since ancient times
(a)Sprang from common usages observed by both Greek and Italian city-states
(i)Crystallized by process of generalization and unification of various usages separately observed by each
(2)As Europe developed into highly nat’lized, independent territorial states, process moved to higher and more extensive plane
(a)Earliest rules of IL developed from usages in intercourse of modern European states
d)Judicial application of custom
(1)Nat’l and int’l cts. important in applying custom
(a)Party asserts certain rule of customary IL
(i)Ct. must investigate validity with all possible materials
(b)Declaration of custom
(i)Imprimatur will attest to jural quality of custom
2.Requirements: traditionally need both state practice and opinio juris
a)State practice
(1)Background: objective std.
(a)Material aspects involved in formation: recurrence, repetition, or omission of acts leading to customary rule
(i)Antiquity of acts inform development