Defeis International Law Fall 2010
1. Historical
a. Hugo Grotius – foundation of law came from universal reason rather than divine authority.
i. Three important principles
1. Restitution must be paid for harm done by one party to another
2. Promises given must be kept (pacta sunt servanda)
3. Freedom of the Seas (belongs to all or belongs to none)
a. (this conflicted with Selden’s idea of a closed sea)
b. Binding nature of international law
i. Realists – see international law only as a set of morals that will not impede a state’s goals as there is not enforcement mechanism
ii. Restatement: States treat it as law, consider themselves bound by it, see it as a source of obligation. It is found in many state’s constitutions and domestic systems.
iii. Henkin: almost all nations observe almost all principles of international law and obligations almost all the time.
1. Law is designed not to keep individuals from doing what they are eager to do, if there was no law against murder, most individuals would still refrain from it, because if not then the law would not likely survive, but it does deter (such things like white collar crime).
2. Law is not there to be effective against the Hitlers or the saints, it’s there for those in the middle who are generally law abiding but may have a few temptations.
iv. Legitimacy: Thomas Franck argues that states follow rules that are legitimate (made up of 4 parts on page 17)
c. Sovereignty
i. Henkin finds that modern sovereignty entails independence, equality, autonomy, personhood, territorial authority, integrity, impermeability, and privacy.
1. Main characteristic is autonomy – not subject to external authority without consent.
d. Filartiga v. Pena-Irala (2d. Cir., handout)
i. Federal courts have original district court jurisdiction for alien torts
ii. Court also finds that torture committed by a state official goes against the established norms of international human rights and international law.
2. Sources of International Law
a. ICJ Statute of sources, article 38 (page 55) (no specific hierarchy, but conventions generally accepted as the top)
i. International conventions
ii. International custom, as evidence of a general practice accepted as law
iii. General principles of law recognized by civilized nations
iv. Judicial decisions, teachings of publicists/professors (to be used as ‘subsidiary’ means to determine the law)
v. (The statute also allows for ex aequo et bono, in which the sources are disregarded and it is just decided on equity, if the parties so agree. This would be praetor legem (outside the law) as opposed to intra legem (inside the law, i.e. general principles equity))
b. Doctrine of Sources
i. An objective method for ascertaining and validating international law
1. Leaves out the morality and subjectivism.
ii. Focused mainly on conventions and custom that was accepted as law.
iii. Voluntarism vs. Positivism
1. Voluntarism – international law emanates from the free will of states as expressed in conventions or by customs generally accepted by law
2. Positivism – emphasis on the obligatory nature of legal norms and authoritative value of formal sources. Tends to consider that to be a law, the norm must be capable of application by a judicial body.
c. Customary International Law
i. Elements
1. Consistent General Practice and;
2. Followed by a majority of states and;
3. Acceptance as law
a. Consistent Actual practice (though many customs don’t require this these days, especially human rights where practice differs among states) and;
b. Opinio Juris (sense of legal obligation)
ii. Protest versus Physical Acts (page 78)
1. Both verbal acts (protest) and physical acts can constitute state practice.
iii. Paquete Habana (1900 US, page 61)
1. “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction…”
2. Rule: Where there is no treaty and no controlling executive or legislative act or judicial decision, then resort must be had to the customs and usages of civilized nations.
a. The works of jurists and commentators can be used as evidence of what the law actually is (they are the “witnesses of the sentiments and usages of civilized nations”). The court also looked at treaties, which Spain wasn’t part of, as demonstrating custom.
3. Held, that independent of express treaty or act, peaceful fishing boats are exempt as a prize in war.
4. As other evidence of official practice the court looked at:
a. National law, executive decrees, acts of military commanders, and judgments of national courts.
iv. Case of the S.S. Lotus (1927 PICJ, page 68)
1. Case of whether Turkey had the jurisdiction, under international law, to prosecute a French seaman who contributed to a collision with a Turkish ship on the high seas.
2. As sovereign states, restrictions upon their freedom cannot be presumed
a. The question then was not whether a rule allowed Turkey to prosecute, but rather is there a customary rule preventing Turkey from prosecuting.
i. This view is a state can do anything unless there is a rule preventing it.
3. Jurisdiction (not really law anymore as a result of Law of the Sea which also appears to be custom):
a. The foremost rule of international law is that a state may not exercise its power in the territory of another state. Thus derived is that jurisdiction is territorial and cannot be used outside unless a permissive rule (from custom or convention) permits.
b. But, a state may exercise jurisdiction in its own territory for acts that have taken place abroad, even with a rule permitting it to do so.
4. Custom: the court looks at differences in municipal laws, differing court decisions, and the fact that writers only spoke about single boat accidents and didn’t look at this type of scenario.
a. The role of protest in custom: Important that states protest or acquiesce in the formation of customary international law.
5. Criticism:
a. Case was heavily criticized as being extreme positivism by those that thought that every case can be decided by deriving rules from general principles rather than refusing to presume any restrictions.
i. This view says that judges cannot refuse to decide on the grounds that the law is unclear nor can they resort to residual principles such as sovereignty (page 76)
v. Legality of the Threat or Use of Nuclear Weapons (1996 ICJ, page 79)
1. Question presented as to whether international law permitted threat or use of nukes.
a. Some States criticized this question as using the wrong language in light of the Lotus decision in which permission is not needed.
i. The court disregarded this as there was customary humanitarian law against threatening such force.
ii. But the court seems to accept Lotus in that it could not find a rule for the absolute prohibition of nuclear weapons.
1. (the dissent says nukes are different since they encroach on everyone’s sovereignty)
2. The court sees a growing number of treaties limiting nuclear weapons as ‘foreshadowing’ a custom of prohibition, but that they do not constitute a prohibition on their own as the treaties specifically reserved the right to use nukes in some instances.
3. Custom requires
a. Consistent Actual practice and;
b. Opinion Juris (sense of legal obligation).
4. The court finds that General Assembly resolutions can provide evidence for a customary law or for the emergence of an opinio juris.
a. But the court also notes negative votes and abstentions demonstrate that the resolution falls short of opinio juris.
vi. North Sea Continental Shelf Cases (1969 ICJ, page 90)
1. Non-party to a treaty can be bound by a provision if it becomes a custom of international law.
a. Must be of the character of norm creating though.
i. This is the issue in this case
2. Equidistance for determining mineral rights is not found to be a custom since:
a. it is one of many possible ways to determine land battles, and that it is only to be used if the parties don’t have an agreement and;
b. numerous reservations were made to the treaty (one of the parties here wasn’t a party to the treaty, which is why this case came up)
c. not many ratifications of states that have water access rather than landlocked states joining it.
d. time
i. Time, can, however, be almost instant in creating custom if there is ‘extensive and virtually uniform’ acceptance (also discussed on page 95).
e. Lack of opinio juris – the states picked equidistance out of feasibility and there was never a notion of customary legal obligation to use that method.
3. Defining opinio juris:
a. Subjective
b. States feel that they are conforming to what is essentially a legal obligation.
c. (dissent disagrees with requiring this element because all treaties start out voluntarily and that it is the practice that creates the custom).
vii. Possible ways to show the state sees a legal obligation
1. Express statement
2. Repeated practice creates the inference
3. Possibly: resolutions of international organizations without dissent.
viii. Military and Paramilitary Activities in and Against Nicaragua (1986 ICJ, page 95)
1. This case regards consistent state practices in forming customary rules
a. The court finds that Sta
ns of territory (as opposed to a simple sale of land for a mission)).
i. (This is how to distinguish this concept from Maritime Delimitation, in that intent there doesn’t matter since a territorial question will always be international)
v. Capacity to Enter into an International Agreement
1. Restatement 3rd (page 132)
a. Every State has the power.
b. A person is authorized to represent a state for international agreements if:
i. He has ‘full powers’ papers or;
ii. Authority is clear from the circumstances.
1. Apparent authority appears to bind a state (page 136).
iii. (this is essentially the same as Article 7 of the Convention).
c. Internal law cannot be invoked to relieve consent to be bound unless:
i. The violation was manifest and;
1. Manifest violation if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and good faith.
ii. Concerned a rule of fundamental importance.
iii. (this is similar to article 46 of the Convention; see also Article 27)
2. Self-governing territories
a. Dispute over whether self-governing territories can be distinct from the federal body
b. The WTO allows ‘separate customs territor[ies]’ such as Macao and Taiwan to join, and remain parties even after China took control of them (page 134).
3. Accession – only possible if the treaty provides for it, or if the original parties subsequently decide to permit it.
vi. Limitations on Treaty Content
1. Jus Cogens (Peremptory Norms)
a. While the ICJ statute has no hierarchy in its sources, jus cogens are generally seen as being at the top.
b. Defined in Article 53 of the Vienna Convention on Treaties
i. Norms ‘accepted and recognized by the international community of states as a whole…from which no derogation is permitted…can be modified only by a subsequent norm…having the same character.’
ii. States can generally limit the rules of international law between them in agreements, but jus cogens cannot be derogated from.
c. Examples
i. Three always accepted: slavery, genocide, and apartheid
ii. Some argued: pacta sunt servanda and Charter rule 2(4) (prohibiting use of force on another state).
d. Outside of treaties it is less clear but is presumed that you cannot derogate from at least the three always accepted jus cogens. Even in reprisal for a previous illegal act.
2. Article 103 of the UN Charter – if the obligations under the charter conflict with any other obligations, the Charter wins (i.e., treaty cannot set for obligations in conflict with the Charter, including SC resolutions)
vii. Obligation not to Defeat the Object and Purpose of the Treaty
1. This is Article 18 (not to defeat object and purpose)
2. This applies to states that have signed a treaty but have not ratified it, or ratified it but before it went into force.
a. This obligation is in effect until a state makes clear its intentions not to be a party or that entry into force will be unduly delayed.
3. This is seen as a progressive development and not part of the customary law.
