Introduction to International Law
Professor Stephens
Fall 2010
Introduction
· Old fashioned dispute:
o Border dispute, has 2 states as the parties, multiple treaties as the source of law
o International law isn’t always about equity (no consideration of prior history, ethnic origin of people)
§ Chad/Libya: succession issue – if newly formed states were bound by previous colonies (succession issue), agreed to submit it to ICJ
§ Filartiga: case implicates federal statute which grants subject matter jurisdiction where alien sues for tort in violation of law of nations torture laws and US was able to decide case
§ Rainbow Warrior: Greenpeace vessel that travelled to protest some activities placed a bomb on vessel, took issue to UN (neutral party), arbitration (ad hoc tribunal)
Sources of International Law
· The international system lacks a central legislature to enact legislation
o There’s no executive to apply or enforce the law that is made
o There is no centralized judiciary to interpret the law and adjudicate disputes
· ICJ; Art. 38 – The Court, whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply:
o International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
o International custom, as evidence of a general practice accepted as law;
o The general principles of law recognized by civilized nations;
o 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
· Primary ways in which international laws are made:
o Treaties are the preferred form of law – express agreements between/among states or states and internal organizations that’s intended to be governed by international law
§ Their content is relatively easy to determine, they reflect the formal consent of the states that ratified them to be bound by their terms, they may be a more familiar source of law to national policy makers and their constituents than other sources of international law and decisions based on a treaty may therefore find greater acceptance by those to whom the decisions are addressed
§ Basic assumption that states will follow through on their word (treaty obligations should be obeyed). They sign into treaties because it’s convenient (reduces transaction costs, setting a good example, self interest, politics)
§ Process of entering into treaties includes signature (indication of intent to become a party), ratification (a state actually becomes a party to a treaty), or if not signature, then accession (skip signature party and just become a party after treaty has been created)
§ In the US, the executive branch is in charge of the negotiations, the senate gives its advice and consent that has to pass through 2/3 of the senate to be ratified by president and then president ratifies it by doing formal papers
· Treaties are included in our Supremacy Clause in the Constitution and can be passed through the abovementioned advice and consent, or through executive agreements (by president who has supreme law, its binding on federal and state government) and also congressional executive agreements (president negotiates something with another country and one or more bodies of congress enforce it – don’t need the 2/3)
§ The effect of treaties is to raise the political costs of non-co
express consent associated with treaties, it also binds all states that haven’t objected to the rule (while its in the process of formation)
§ Created by states and not international bodies, you’re looking at state practice and opinion juris (sense of legal obligation)
§ Common for states to codify it and make them explicit (some treaties are usually drafted to codify existing rules/customary international law)
§ Sometimes look at UN GA resolutions (usually nonbinding recommendations) as evidence of customary international law
o Soft laws are declared norms of conduct understood as legally nonbinding by those accepting the norms (declarations of international organizations, industry codes of conduct, expert reports, etc)
§ Law that is intended to be non-binding, usually regulations produced by administrative bodies (outgrowth of treaties), rules that countries/states agree to abide by because it works well (cooperation)
§ World Bank guidelines – explicitly decided not to come up with treaty but something with some level of consensus where they can coalesce around and if it takes become customary international law
o General Principles – used a a gap filler where the above processes don’t work, they borrow from national legal systems principles (like res judicata, estoppel, etc) to resolve international disputes
Participants in the International Legal Process
