Public International Law, Professor Blum SPR 2012
UNIT I: THEORETICAL UNDERPINNINGS OF PUBLIC INTERNATIONAL LAW
Historical Approach to International Law
· International norms used to be guided to by religion. Moral beliefs were rooted in shared customs, and these were exported through the Crusades, the rise of the Roman Empire and the Christian Church
· Natural law was thought to be given by God. Jus gentium is the law of the people, which man decides upon. Later, natural law was thought to be derived not from God but from reason. Jus gentium supplements natural law.
· As territories expand, so does commerce and trade. This requires new perspectives and international understandings of consistent trade principles and customary law
· Hobbes’ Leviathan introduces the concept of voluntarism which is the idea that sovereign nations can only be bound by international law then they willingly submit to be bound. Once nations submit to be bound however they are not free to change their minds all willy-nilly.
· The nation-state begins to take precedence in the late 18th and early 19th centuries
· Positivism is a doctrine that is a call it what it is kind of doctrine. This theory of international law is not about morals; it is about formal rules and standards.
· Around this time, international law becomes like a science. Multi-lateral agreements are written and signed. Studies are conducted and the field expands. The first international organization comes into existence
· New industry and technology breeds competition which leads to WWI and WWII. The League of Nations is created to help prevent these catastrophic wars but without the membership of the United States and Russia, the League is doomed to fail. Of course, WWII losers Italy, Germany, and Japan were not permitted to join.
· In the place of the League of Nations, the United Nations comes up. The idea is that we can no longer afford to adhere to the Westphalian system of international law because it means ignoring what a country does within its own borders
· In 1948, Eleanor Roosevelt provides the international community with a menu of rights that must be respected. What happens in one country affects us all
o Principles of self-determination. De-colonization. Independence, particularly for African nations. Women’s and minorities’ suffrage movements. Race and gender critiques of international law emerge.
o Feminist jurisprudence argues against the current structure and language of international law
· Today multilateral treaties govern everything from human rights to trade to commerce to intellectual property
· International law includes bilateral and multilateral treaties, declarations from international organizations, customary law, and international and regional court rulings.
· The thought is that sovereignty doesn’t just mean power over a people—it means responsibility to those people. If you fail to meet those responsibilities then someone else will step in and handle it
The Role of Law in International Relations and Politics: Comparative Views
· Realism. This is a Hobbesian theory that focuses on competition among states. It is premised on the belief that the foundation of civilization is anarchy. Every state must therefore do what is in its best interest by relying on itself and building alliances. International law will only ever be a reflection of existing power structures
· CDR=common but differentiated responsibilities. Everyone has to do something to make the world a better place, but your country must do more (or less) based on its wealth, impact, resources, etc.
· Institutionalism. There is an information-gathering program that will allow you to conduct investigations and learn if other countries should be viewed as a threat or suspected. Belief that international law can be useful to build strong regimes. Realists will not trust the veracity of this information
· Liberalism. States are influenced by their people, domestic politics, and news as well as by their corporations, executives, and government
· Constructivism. There is the belief that the currency of power is that of ideas. Ideas have power and they can affect how we act. International law can be a vehicle to promote and spread powerful ideas throughout the world
· Some believe that international law isn’t real law because there is no real enforcement mechanism; there is no legislature to respond to issues; it is a voluntary and consent-based system; and there is no separation of powers because those that create the rules also adjudicate the issues
Overview of the United Nations
UNIT II: THE LAW OF TREATIES
The doctrine of sources tells us how law is created and where it comes from. Article 38 of the ICJ statute is the most authoritative on this point. Sources of international law include treaties, customary international law, general principles of international law, judicial decisions, and scholarly commentary.
Treaties are the most important source of international law. They may be referred to as treaties, conventions, agreements, covenants, charters, statutes, or protocols. The important thing is not the name but the nature of the document. International organizations are created by treaty.
The vast majority of treaties are bilateral treaties. About 2,000 treaties are multilateral and several hundred are open to the entire international community.
àBilateral treaties often govern things like extradition, taxation, and borders.
àRegional treaties include things like the African Union?
àMultilateral treaties cut down on the total number of treaties in existence but they also require more negotiation and compromise
Treaties are both contracts and legislation. They only bind those states that are parties.
Treaties can be created for purposes of coordination or collaboration. Treaties of coordination seek to put a section of the international community on the same page i.e. aviation codes. Treaties of collaboration seek to unite the international community to achieve a common goal i.e. an agreement to reduce harmful environmental emissions.
The Vienna Convention on the Law of Treaties (VCLT)
This document governs how treaties can be entered, enforced, and dissolved. It is a treaty itself and it entered into force in 1980. The US is not a party to the VCLT but we are a signatory and we generally comply with its provisions. In addition, the VCLT is now customary international law so we are bound anyway.
What is a Treaty?
Article 2. “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”
àArticle 2 establishes that treaties can only be
(1) formalized between states,
(2) must be written documents,
(3) are binding international documents and
(4) are governed by international law.
Determining whether a document is a treaty is essential to your analysis! If it is not a treaty, it is not governed by the VCLT.
According to the Restatement on Treaties, treaties are NOT essentially commercial or intended to be governed under national law.
Treaties CAN be unilateral (no consideration). Sometimes, unilateral, oral statements can be legally binding, even though they are not treaties. Typically these statements are only binding when they are addressed to a particular audience and show intent that the speaker meant them to be binding.
Agreements intended to be voluntary, rather than legally binding, are not treaties, but they may be political commitments.
àThese political commitments can have strong support and if they are violated, international law may provide a remedy
Entering and Enforcing Treaties
Article 18. Once a state signs a treaty, they are bound not to defeat the object and purpose of the treaty.
àALWAYS ask yourself what is the object and purpose of the treaty!
àSigning a treaty is different from being a party to a treaty. Being a party to the treaty means that the state will comply with all of the treaty’s terms. It is not always clear what the “object and purpose” requirement means.
àMuch of the time ratification of a treaty will also require domestic action, but this will be stipulated by each particular treaty
Article 26. This article contains the principle of pacta sunt servanda--all treaties that are in force are binding upon their parties and are to be performed in good faith.
Article 27. A state cannot rely on internal, domestic law as an excuse as to why they have failed to uphold their international obligations. This will not preclude international liability.
Articles 31 and 32. Interpretative methods for treaties—the ordinary meaning of terms governs unless it would be found to be ambiguous, obscure, absurd, or unreasonable. Only then can legislative histories (travaux preparatories) be consulted for supplementary meaning. Prior agreements and treaties in connection with the treaty and accepted by the other parties to the treaty can be used to help interpret the meaning of a treaty. Subsequent practices and agreements concerning the interpretation of the treaty among the parties can also be consulted. Finally, any relevant rules of international law binding upon the parties can also be consulted.
àWhen the treaty provisions and the VLCT are in conflict, the treaty wins.
àTreaties are to be interpreted in good faith. Analyze what would make the treaty most effective.
àThe VCLT puts a premium on the text of the treaty above intent. (Intent will be more important for bilateral treaties. It will also be easier to figure out with only two parties involved).
àWhen there are multiple versions of the same treaty, the narrowest version will govern i.e. sometimes the treaty may be written in several languages.
àLook to the text of the treaty as a whole. Are all provisions general or are some very specific?
Article 53. This article defines those international norms that are jus cogens. A treaty in violation of a norm that is jus cogens is invalid. These norms do not derive their power from international law but rather are so widely accepted as basic rights that no state can contravene. These are peremptory norms deemed to be so fundamental that they are inviolable.
àFor example, genocide, slavery, racial discrimination, war crimes, unauthorized use of force, and torture are prohibitions that are deemed to be jus cogens.
Article 64. If a new principle emerges as jus cogens, then existing principles in a treaty that are in conflict with that principle are automatically void.
àDoes humanitarian intervention count as a new norm?
Article 102 of the UN Charter requires that treaties be registered with the UN. If the treaty is not registered, the states are not able to rely on it during ICJ proceedings.
Many multilateral treaties require a minimum number of ratifications before they will come into effect and become binding.
There is a presumption that treaties are not retroactive and that they are territorial.
Can a state un-sign a treaty? The US has tried…
Special Understandings: RUDs
Reservations
· Reservations are unilateral statements made by a state to modify or exclude certain provisions as applied to that state. They are expressions not to be bound by a particular provision and they purport to change the legal effect of the treaty.
· Article 19. Reservations are allowed under the VCLT so long as the specific treaty does not prohibit reservations i.e. the Rome Statute to the ICC. The state can make a reservation only when signing, ratifying, accepting, approving, or acceding to a treaty (cannot be made after joining).
· Reservations promote the doctrine of voluntarism
· After a reservation has been tendered, other states have the option to accept the reservation, denounce it, or do nothing.
o If the country accepts the reservation, it will apply reciprocally to the agreeing parties. The provision will be modified for the state that submits the reservation and for that state’s interactions with all other countries that accept the reservation.
o If the reservation is deemed impermissible because it undermines the purpose of the treaty, then there is no need to accept the reservation or denounce it because it is invalid anyway.
o A state can include in its reservation its intention to be bound by the treaty whether or not the reservation is accepted or it can condition its accession on the reservation’s acceptance.
o When a reservation is made but objected to by another state, or deemed to be an essential provision of the treaty, is the state still a party to the treaty or is acceptance of the treaty conditioned upon the reservation? Can other state choose to ignore the reservation and view the state as a party anyway? Who decides this?
§ Traditionally, when an impermissible reservation is made, the party is not seen as a party to the treaty (voluntarism—no willingness to be bound). However with respect to human rights treaties, the state will be bound anyway and their reservation will just be ignored.
Understandings and Declarations
· These do not change the legal effect of the treaty. They merely signal or clarify what a party believes the meaning of its obligations to be.
· Either of these statements can be added after joining a treaty.
Effects on Third Parties
Rights can be conferred to third parties but obligations cannot be imposed on third states without the states’ consent (Article 34). A treaty that has adverse effects on a third party does not rise to the level of obligations. An obligation is more like an affirmative duty.
Amendments and modifications to a treaty are not allowed to worsen the rights of third parties. (Article 41). This is at a lesser level than that stipulated for above.
Dissolution of Treaties
A treaty may be invalidated due to
· error (Article 48),
· fraud (Article 49), corruption (Article 50),
· coercion (Article 51), or
· threat or use of force (Article 52).
o This is limited to physical force only i.e. economic coercion doesn’t count, and neither does use of force authorized by the UN Security Council, or in self-defense.
Article 60. A treaty can be terminated in whole or in part in the event of a material breach. When the treaty is bilateral, the wronged party will decide how to proceed. When the treaty is multilateral, all the parties may agree to terminate, only the party affected by the material breach may choose to terminate, the offending party may be terminated from the treaty, or any other party believing that the breach radically changes the positions of the parties going forward may choose to terminate. Some treaties will require a court to adjudicate to find that there is a material breach before any action can be taken.