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International Law
South Texas College of Law Houston
Taylor, Cherie O.

I. Introduction: What is International Law?  Why do States comply with it?
1. Defining International Law
Definition from Restatement Section 101:
–          “‘International law,’ as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”
Public International Law
–          governs the activities of governments in relation to other governments
Private International Law
–          governs the activities of individuals, corporations, and other private entities when they cross national borders
Entities that create international law:
–          States
–          International organizations (which are composed of states)
Subjects of international law, who bear the rights and duties of international law:
–          states
o   international law developed to regulate states because of:
§  the emergence of states
§  state interaction
§  development of the laws of war
·         Purpose for laws of war: it is in the mutual interests of all states to regulate the conduct of war, and in trying to agree on rules that will make it unlikely that war will happen. 
o   The Classic Model of relations between/among states
§  States are opaque (billiard ball theory – states hit each other one the outside but do not interfere with one another’s internal affairs) and we don’t really look at what’s inside
·         Thus, international law only regulated relations between states, and did not regulate the internal affairs of states
§  Now, international law is also used to regulate the internal affairs of states
–          Individuals
o   The person has become increasingly accepted as an independent actor, subject to and benefiting from international law (this is a recent development)
o   Individuals are not parties to international law – they can be a bearer of duties and a beneficiary of rights, but they are not parties to international law
–          corporations
–          international organizations
o   for the purposes of our class, an international organization is an organization composed either solely or primarily of states, like the United Nations
Sources of international law:
–          Customary international law
o   Article 38 of the ICJ
–          Treaties
o   A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law (something binding under the laws of one state is not international)
o   Treaties are binding and legally enforced upon the parties to it
o   Treaties can be bilateral or multilateral
–          The general principles of law recognized by civilized nations
–          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
Both the Statute of the ICJ, Article 38 lists the sources of international law (see p. 3 in book for more)
–          ICJ, Article 38:
o   “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a)    international conventions…
(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 of the various nations, as subsidiary means for the determination of rules of law
The Restatement, Second, of Foreign Relations, Section 102, defines customary international law
–          Restatement Section 102
o   “(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”  (referred to as “state practice”)
o   so customary law is composed of two elements:
§  it is the general and consistent practice of states
§  the states follow this practice out of a sense of legal obligation
o   it appears that only states make customary international law
o   customary international evolves – if enough states adopt a new practice, which is in violation of customary international law, the new practice becomes the new customary international law
Jus Cogens
–          VCLT, Article 53: “a peremptory norm of general international law which is accepted by the international community of states as a whole as a norm from which no derogation is permitted”
–          Includes genocide, torture, slavery
II. Sources of International Law
1. Treaties
–          Treaties are a source of international obligation for those states that agree to be bound by them
–          As the United States has not ratified the VCLT, treaties are legally binding under customary international law
–          As for states that have ratified the VCLT, treaties are legally binding under Article 26 of the VCLT: Pacta Sunt Servanda
o   “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
o   Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties is a breach of international law
–          A treaty enters into force when:
o   1) The state has consented to be bound
o   2) The treaty has entered into force
–          Restatement Section 96: a treaty requires no consideration – it may create unilateral obligations (example – a treaty of surrender at the end of a war)
–          Some treaties (multilateral treaties) have been called “legislative treaties”
o   These are treaties where states are trying to establish rules that will be followed by as many states as possible (the goal is to establish rules that every state will sign on to)
–          A party is a state that is bound by a treaty; a signatory is a state that has signed but is not bound by a treaty
Vienna Convention on the Law of Treaties (“VCLT”)
–          though the US has not ratified the VCLT, the US regards most of its provisions as customary international law
o   so, because the US is not a party to the VCLT, the US CAN violate the VCLT, but it cannot violate the provisions of the VCLT that are customary international law
–          The VCLT frequently establishes rules that will apply as a default when a treaty doesn’t say how it will operate (Example – Article 24 (entry into force of a treaty))
–          Specific Articles:
o   Article 2 (1)(a): Definition of a treaty – “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”
§  Comments on this article
·         “concluded between states” – customary international law shows that entities other than states can be parties to treaties, including international organization
·          “in written form” – international agreements do not have to be in writing according to customary international la

d maybe one day the crime of aggression); the ICC can try individuals who are nationals of states parties, or individuals who commit the aforementioned crimes in the territory of a state party)
o   Articles 42-68: invalidity, termination and suspension of the operation of treaties
§  Articles 46-52: invalidity of treaties, covering a state or its representative’s competence to conclude treaties, as well as error, fraud, corruption, duress, coercion
§  Article 53: treaties conflicting with jus cogens
·         A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international law
·         If there is a norm that has the status of jus cogens, states may not opt out from it under a treaty
·         There are cases where this provision has been invoked: Inter American Commission on human rights (Surinam and the Netherlands)
o   Article 60: termination or suspension of a treaty as a consequence of its breach
§  BILTERAL treaties: A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
§  MULTILATERAL treaties: A material breach of a multilateral treaty by one of the parties entitles:
·         The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either
o   In relation between themselves and the defaulting state or
o   As between all the parties
·         A party specifically affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state
·         Any other party than the defaulting state to invoke the breach as ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that the material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty
§  Defines a material breach
§  The provisions relating to breach do not apply to treaties or their provisions relating to the protection of the human person contained in treaties of a humanitarian character (the violation of the Genocide Convention by Rwanda is an example of this – you can’t respond to a breach of the Genocide Convention by committing genocide yourself)
§  NOTE: A breach does not automatically induce an effect – it creates a situation which allows another state to decide what to do
·         States may not want to suspend or revoke the treaty for various reasons (it wasn’t a breach of an important part of the treaty; states are picking their battles; etc.)
·         Options other than those listed in Article 60:
o   Keep the treaty in effect but seek damages
o   arbitration