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International Law
Rutgers University, Newark School of Law
Bennoune, Karima

I.         UNIT I: Introduction
A.        Is International Law, law?
1.         Critics
a)         Skeptics have argued that there can be no international law since there is
(1)       no international legislature to make it
(2)       no effective international judiciary to interpret and develop it, or to resolve disputes about it, and
(3)       no international executive to enforce it
b)         not “real law” because it is commonly disregarded, states obeying it only when they wish to, or when it is in their interest to do so
2.         John Austin – denial of international law
a)         Legal Positivism
b)         does not classify international law as law because law is equivalent to commands of the sovereign and it does not make sense that states could command them because states are sovereign
3.         H.L.A. Hart – The Concept of Law
a)         Distinction between morality and international law
b)         states often reproach each other for immoral conduct or praise themselves for living up to the standard of international morality
c)          different defining characteristics
(1)       distinctive form of moral pressure by which moral rules are supported – appeals to conscience
(2)       international law: consists of appeals to fear or threats of retaliation
d)         International law arguments are technical in nature (based on a strict legal interpretation)
e)          The rules of international law (like municipal law) are often morally quite indifferent – commonly contain specific details and draw arbitrary distinctions
f)           Morality cannot be changed by the legislature
(1)       there is nothing in the nature or function of international law which is similarly inconsistent with the idea that rules might be subject to legislative change (lack of a legislature is just a defect which one day may be repaired)
4.         Henkin – International Law: Politics and Values
a)         law is deeply connected to politics
(1)       law is made by political actors, through political procedures, for political ends
(2)       international law is the normative expression of the international political system
b)         take for granted that international law is law by suggesting that it is complied with almost all the time
(1)       (“Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”)
B.        Binding: Why Do States Comply with International Law?
1.         Henkin – How Nations Behave
a)         Critics – lack of executive authority to enforce and lack of effective sanctions against the violator
(1)       Response: Extra legal sanctions – other ways outside the law making states comply with the law itself
b)         not simply a question of national interests (only if it is in their best interest to do so)
(1)       costs outweigh the advantage of not following
(2)       it is in their long term self interest to comply (non-compliance will provoke reciprocal non-compliance by other states)
c)          Undesirable consequences
d)         states hold the rules to be legitimate – states will respect rules that they agree with and support
e)          Policy – international law is important in shaping the understanding of the shared expectation in exercising a deterrence in whether to comply with a law or not
2.         Harold Koy – Why do nations obey international law?
a)         Trans-national Legal Process: 3 phases:
(1)       interaction of actors
(2)       interpretation of global norm applicable to situation
(3)       internalizing of interpretation to others parties own system- the aim is to bind the other part to obey the interpretation as part of its internal value set
b)         transmission belt – norms created by international society infiltrate into domestic society
c)          Israel and Oslo Accords
d)         these institutions become carriers of history and evolve in path-dependent routes that avoid conflict with the internalized norms – these habits lead nations into default patterns of compliance
e)          the key factor is repeated participation (not simply their interest or identity)
3.         Compliance
a)         due to self interest
b)         culture of compliance – states operate in accordance with international rules because they have been socialized to do so – adopted the beliefs and behavioral patterns of the culture that surrounds them
c)          Legitimacy (determinacy, symbolic validation, coherence, adherence) – strong pull on states to comply
d)         through treaty regimes: national interest, efficiency, and regime norms
(1)       model of compliance based on management to induce compliance not through coercion, but through interactive processes of justification, discourse, and persuasion – ensure transparency, resolve ambiguities, and strengthen states’ capacity to comply
C.        Enforcement
1.         Mechanisms to ensure compliance (Damrosh)
a)         voluntary compliance
b)         sanctions for disobedience
(1)       although some are relatively soft, also force of public opinion
(2)       role of non-governmental organizations publicizing violations
c)          coercive sanctions
(1)       self-help measures like countermeasures and economic sanctions
d)         Example: a State that is a victim of a material breach of a treaty can generally suspend or terminate the treaty; and the threat that it would do so serves as a deterrent to breaches, as a sanction against breaches, and to some extent as remedial mechanism
e)          non-forcible remedies available in national courts  
f)           forcible measures which provide even stronger forms of compulsion (self-defense)     
g)         centralized enforcement mechanisms (non-forcible and forcible)
(1)       ie – collective economic sanctions
h)         some centralized organs for the enforcement of international criminal law against individuals
2.         Horizontal of Decentralized Enforcement
a)         the main sanctions of international law are operated horizontally between states
b)         a state that fails to respect international law may find that other states treat it as a lawbreaker and refuse to carry on normal relations with it
c)          want to be perceived as law abiding
D.        Architecture of the System
1.         3 views
a)         Positivist View –

the Cold War
a)         Cold War deformed international law and sovereignty would be even more important after the cold war, but it could go either way because things like national sovereignty could defeat human rights
b)         should be a revival of the norm of national political autonomy – but not the older notion of sovereignty in its entirety
7.         Vagts: Hegemonic International Law
a)         Not shared
b)         Ruling tool of the hegemon
c)          Article 2(a) – “based on the principle of the sovereign equality of all its Members”
d)         Must set aside principle of non-intervention
e)          Because treaties represent constraints hegemons would avoid agreements creating international regimes or organizations that might enable lesser powers to form coalitions that might frustrate the hegemon must set aside the rule enshrined in the Vienna Convention that treaties obtained through coercion are invalid
f)           In the terms of formation of customary law, such a power can by its abstention prevent the emerging rule from becoming part of custom
II.      Sources of International Law
A.        Article 38 of International Court of Justice
1.         Primary Sources 
a)         International Conventions (treaties)
b)         Customary International Law
c)          General Principles of International Law
2.         Secondary Sources (“evidence”)
a)         Judicial Decisions – compromise between common law system and civil law systems (which are much more code based)
b)         Teachings of most highly qualified publicists
3.         Schachter – International Law in Theory and Practice
a)         It has become evident to international lawyers as it had to others that States, which made and applied law, were not governed by morality or natural reason – they acted for reasons of power and interest – it follows that law can only be determined through the actual methods used by States to give effect to their political wills
(1)       remove subjectivity and morality
(2)       Intended to make international law realistic and definitive
b)         Inductive methods
(1)       If sources were to be used objectively and scientifically, it was necessary to examine in full detail the practice and related legal convictions of States
c)          Voluntarism – classic doctrine of state sovereignty applied to the formation of international law – it holds that international legal rules emanate exclusivity from the free will of states as expressed in conventions or by usages generally accepted as law (Lotus Case)