Flaherty
International Law
Fall 2010
Introduction
a. History of Int’l law
i. Birth: breakdown of Roman Empire and rise of new, neighboring states.
ii. Monarch became separate from state – ppl no longer seen as appendixes of ruler.
iii. 1648 – Peace of Westphalia – start of int’l law – regulated actions btw sovereign states. Core principles:
1. Whatever sovereign does w/in his territory is NOT business of outsider.
a. Modern day exception: human rights violations – shocks the conscience. A country(ies) can intervene to end violations. i.e. Kosovo.
2. Sovereignty goes w/ territorial integrity – control w/ out outside interference. Depends on defined, recognized borders.
3. Sovereign equality – sovereign actor equal to any other, regardless of size.
a. Source of above principles:
A. Natural law – idea about how ppl, and subsequently, nations should behave.
B. Positivism – law posited by actions and declarations. Relies on historical examples. Custom-like. i.e. if nation did not invade another w/out good reason, this action was basis of rule.
iv. Custom gave way to treaties and idea that states who do not want to be bound cannot be bound.
v. 20th Cen. Changes
1. Resorting to war/force to settle disputes is counterproductive; UN Charter made illegal.
a. UN Charter permits force in:
A. self-defense or if, B. authorized by Security Counsel, or C. consented to by state.
2. Ethnic groups w/out land should have self-determination and minority rights.
3. Int’l institutions to govern certain issues.
4. Emergence of non-state actors.
b. Probs w/ int’l law and challenges:
i. No central legislature, executive, or judiciary. No world police, prison, enforcement auth.
ii. No compulsory jurisdiction.
iii. State sovereignty
iv. Fragmentation/decentralization of law and regime interactions – many regimes i.e. trade, human rights, environ. – these laws governing each regime may conflict w/ one another.
v. Positivism – int’l law is no more than rules to which states have consented.
vi. Compliance – why?
1. Realist – nations comply when beneficial to them; larger states force smaller to comply.
2. Reciprocity – tit-for-tat
3. Shared understandings and norms
c. Int’l Court of Justice (ICJ) statute explains what “law” ICJ applies:
Article 38 – tells court what to look at when resolving int’l disputes. (in hierarchical order):
1. *Int’l conventions i.e. treaties (aka covenant, protocol) – agreements btw sovereign states.
2. *Customs, International Customary Law – sources of law that arise out of practice / pattern of behavior btw states. States doing it and believe it to be binding law.
3. General principles of law recognized by civilized nations – practices recognized by Common law and Civil law systems; usually used as gap-fillers.
4. Decisions/teachings of publicists, jurists, profs. – a last resort. Gap-filler.
ii. #5. Also, soft law- declared norms of conduct understood as legally non-binding by those accepting the norms.
1. Yet, evidences CIL or is precursor to it.
iii. Changed definition of law (b/c there is no police power): law is something that changes states’ policy decisions and considerations.
d. Laws of War
1. Come from treaties – 4 Geneva Conventions
a. Soldiers
b. Sailors/shipwreck
c. POWS – when some1 fighting for nation state is captured.
A. Characteristics:
1. Uniform
2. Carry arms openly
3. Work for unifying chain of command
4. Obey laws of war (i.e. do not kill civilians)
d. Civilians
2. Not protected: spies, pirates, terrorists.
3. Common Article III – “in conflict of int’l character, certain baseline rights shall be respected by every party in the conflict.” In all 4 Conventions. i.e. no torture, judicial process, if put on trial, must be put in regular courts w/ procedural guarantees given to other citizens.
a. Applies to: EVERYONE – including Unprotected Person/Unlawful Enemy Combatant (UEC) – used to define terrorists b/c don’t count as POWS (ie do not carry firearms openly).
ii. 1945 – War is illegal by UN Charter.
e. Chad-Libya war over the Aouzou strip
Facts: 1955 Treaty of Friendship btw Libya and France by which borders on African continent were carved out. Later, Chad and Libya war/dispute over Aouzou strip of land. Finally, resorted to ICJ to interpret Treaty to stop fighting.
ICJ held (1994): Strip belonged to Chad, as determined by treaty, which created permanent borders.
Rule: Law of Successor States – successors to previous gov’s laws must abide by them. Current Chad and Libya govs must abide by treaty made by previous govs.
Reasoning: International order and stability are key in int’l law. So cannot expect that when new gov in power, that state will not abide by previous treaties.
f. Rainbow Warrior Affair
Facts: Greenpeace’s boat, Rainbow Warrior, protesting France’s nuclear testing in region bombed by France in New Zealand port. NZ would not release 2 officials charged w/ bombing (b/c under French law they would not be prosecuted for following orders, and NZ wanted prosecution and justice), and France econ. Sanctions NZ. Submitted issue to Security General as int’l arbiter – informal mechanism.
Holding: Return officials to France, where officials will be prosecuted and serve sentence, France would cooperate w/ NZ in punishment of officials. Greenpeace gets compensation for blown up boat even though not part of arbitration process.
Significance: Individuals held culpable for int’l law violations, not just nation-states. Demonstrates that more than just states are subjects and objects of int’l law – NGOs also, like Greenpeace.
II. Creating and Using Treaties
Keep in mind these concepts: Formation, Interpretation, Termination, Capacity, Invalidity.
a. Definition: agreements btw sovereign states
i. In bilateral treaties, similar to a K.
ii. Multilateral treaties, signed by many states, similar to a Const.
b. Advantageous b/c: 1) formal consent to be governed by treaty / affirmative agreement, 2) agreements codified in writing – proof, clarity (unlike a Gentleman’s Agreement), 3) helps promote good diplomatic reputations, 4) Pactus en servanta – the treaty shall be served – idea that there is an indep duty to abide / good faith compliance.
c. What they do:
i. Create rights and obligations for parties to them;
ii. Usually, quid pro quo arrangements w/ regard to narrow interest OR
1. i.e. trade agreements
iii. Take characteristics of general legislation by establishing broad rules.
1. i.e. Human Rights treaties
d. The Cyprus Conflict
Facts: Cyprus was 80% Greek, 18% Turkish; Greece and Turkey waged war over territory of Cyprus. Led to 1959 –Treaty of Guarantee – 3 outside powers (Brit, T and G) agree to take steps to preserve peace settlement of things break down domesti
tions.
III. Other Sources of International Law
a. Customary International Law (CIL)
i. Two requirements for deriving CIL: Generality & Opinio Juris
1. Generality / General Practice – comes from custom, tradition and norms.
a. How Generality is derived/established. Need to ask:
A. Are there enough states practicing this rule? There is no magic #; the more, the greater the chance it is CIL.
B. Is it uniform practice? Are countries engaging in the same practice or repudiating the same practice?
C. If not many/all countries engaging in the practice, are those engaging in the practice representative of those affected by it? Specifically Affected States.
1. i.e. landlocked countries not affected by coastal shelf policies. As opposed to death penalty, which affects all states.
b. Based on sovereign equality – All Countries Count the Same – no matter the size, population, etc. – to determine Generality.
c. Ways to determine a state’s views regarding a practice: written law, policy statements, actions — BUT, keep in mind actions may not be in line w/ written/stated views and laws.
A. Passive Consent – consent of state established when state remains passive (does not object); once rule forms, state is bound even if not explicitly consent.
1. i.e. Malaysia – did not sign human rights treaties; yet, did not opt out in time and thus deemed to have consented.
B. Doctrine of Persistent Timely Objection – (almost never used) when a state sees a custom / norm growing to form CIL and state does not want to be bound by it, the state objects and would not be bound by the rule once it solidifies.
2. Opinio Juris – sense of legal obligation
a. Where does this sense come from?
A. Subjective views of each state.
B. Persuasive bodies
1. i.e. General Assembly Resolutions
a. States may feel inclined to act in certain manner based on decrees of official international bodies.
b. Can evidence of custom.
b. Problematic – circular reasoning – countries act willingly to establish legal obligation, so b4 it is established how can countries feel legally obligated?
A. So, opinion juris referred to once obligation established.
B. Which means: this second leg of doctrine does little work in establishing CIL.
ii. Examples of Application
1. The Paquete Habana – classical application of CIL –
Facts: During Spanish-American war, US blockades Cuba and captures two Spanish civilian, fishing boats.
Issue: Are these civilian boats subject to capture? No.
No treaty, domestic or int’l laws governing the capture of civilian boats. Yet, Court examined royal proclamations, other ct. decisions, military commands and the like from various western states to determine existence of this custom of not capturing civilians boats. Held that custom has spanned a long time, and been dense enough – so court could infer creation of this CIL. Example of American judges deriving rules from CIL.
