International Law
Drexel University School of Law
Saunders, Pammela

International Law 2016 – Pam Saunders
 The relationship between int’l law & domestic law in Mortensen v. Peters
•          Q1:  As between int’l law & domestic law, which has primacy in a domestic court?
–         Monism: same legal system; int’l law trumps
–         Dualism: different legal systems; domestic law trumps
–         Harmonization: reconcile both laws
•          Q2:  How does int’l law become a part of domestic law?
–         Permeation: à IL automatically part of domestic law
–         Incorporation à legislation or executive action
•          Lord Dunedin: Q1: Dualist; Q2: incorporation
•          Lord Kyllachy: Q1: Harmonizer; Q2: n/a
•          Lord Salvesen: Q1: Monist (in dictum); Q2: permeation
Sources of International Law
•          Traditional sources—ICJ Statute, Article 38:
–         a. int’l conventions … establishing rules expressly recognized by the contesting states;
–         b. international custom, as evidence of a general practice accepted as law;
–         c. the general principles of law recognized by civilized nations;
–         d. judicial decisions and the teachings of the most highly qualified publicists . . . .
•          Newer sources:
–         Standard-setting activities of intergovernmental organizations (IOs)
–         “Soft law” – norms of conduct  understood as legally non-binding
Whaling Regime Background
– Old practice made more deadly by 20th century technology
–          Whaling states respond to near-extinction by adopting treaties in 1931 and 1937
–          When these proved unsuccessful, US convened international whaling conference resulting in 1947 Convention for the Regulation of Whaling (ICRW)
•          Convention does the following:
–         Establishes International Whaling Commission (IWC) made up of one representative from each Member State
–         Provides a Schedule of regulations that can be amended (including catch limits) by ¾ majority of voting members
•          Since its creation the ICW:
–         Established (in 1950) a Scientific Committee, composed of scientists nominated by member states
–         Used quotas to attempt to limit taking of whales
–         Imposed a general moratarium on commerical whaling (to take effect 1985-1986)
–         Established 50-million-square-mile Southern Ocean Sanctuary (in 1994)
•          Different states responded in different ways with pro whaling and anti-whaling states have blocked attempts to amend or eliminate it
•          New states have entered IWC – even those without direct interest (landlocked)
•          Equal balance between pro and anti-whaling states
•          One particularly contentious issue has been Japan’s whaling under “scientific research exception”
•          The ICRW consists of 11 articles and is only a few pages long
•          Its aspirations are great: “to establish a system of international regulation for the whaling fisheries…” (Preamble)
•          Does this by creating a “Framework” wherein the Convention creates the Commission and empowers it to act upon ¾ vote
•          Similar to many modern treaties, such as environmental, trade, etc.
Definition of a Treaty
Between 2 or more states governed by international law
Defenses to Treaty Formation: Coercion  (pp.48-52)
•          VCLT Article 51:  Coercion of a Representative of a State
•          VCLT Article 52:  Coercion of a State by the Threat or Use of Force
Article 53, VCLT: Treaties conflicting with a peremptory norm
  “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general int’l law. For the purposes of the present Convention, a peremptory norm of general int’l law is a norm accepted and recognized by the int’l community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general int’l law having the same character.”
                peremptory norm = jus cogens
VCLT, Article 31
•          “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”
•          Key interpretive tools:
–         Text
–         Context
–         Object & purpose
VCLT, Art. 32
“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty [travaux preparatoires] in order to confirm the meaning resulting from the application of Art. 31, or to determine the meaning when the interpretation according to Art. 31:
a)       leaves the meaning ambig

nal Law (CIL) (today)
•                                 3.  “Soft law” (next time)
Customary Int’l Law (CIL)
                                       CIL “results from a general and consistent practice of states followed by them from a sense of legal obligation.” Restatement (Third) of Foreign Relations Law of the U.S.
                                       Two elements:
                                       (1) State practice à examples p.74-75
                                       (2) Opinio juris à practice followed out of a sense of legal obligation
The Paquete Habana (1900)
•          US Supreme Court sits as a “prize” court for prizes captured during the Spanish-American War of 1898.
•          A “prize” is “a vessel or cargo, belonging to one of two belligerent powers, apprehended or forcibly captured at sea by a war-vessel or privateer of the other belligerent, and claimed as enemy’s property, and therefore liable to appropriation and condemnation under the laws of war.”
•          What is the alleged rule of CIL in this case?
•          “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”
State practice in The Paquete Habana
·         Treaties (not involving the US)
·         Royal and Executive Proclamations
·         Letters written by royal officers
·         Survey of commentators of civilized nations
·         Domestic Judicial Decisions
·         Violations/Breeches/Deviations and whether they are treated as illegal
Opinio Juris in The Paquete Habana
·         Inferences
·         US proclamations
CIL rules governing expropriation of foreign direct investment (FDI)
                                       Key contested legal issue: