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International Law
St. Johns University School of Law
McGuinness, Margaret E.

 
 
INTERNATIONAL LAW
FALL 2014
PROFESSOR MCGUINESS
 
 
 
Chapter 1: Tracing the Evolution of International Law Through Two Problems:
·   International Law: “Inter” + “national” = the interaction btw nation states. 
·   The Chad-Libya Dispute & Rainbow Warrior: 1. A “traditional international law” case; could have been in curriculum 100 years agoà dispute btw 2 nation states over a particular territory. 2. More contemporary transnational disputeà a lot of different actors (citizens, non-gov’t groups, int’l orgs, etc.). 
·   Norms: Expectations of behavior as a matter of legal rules. Norms might reflect actual binding laws.
·   Actors: Nation states, int’l orgs, individuals (private citizens vs. members of the state), non-gov’t orgs, etc. How do these actors interact?
·   Process: Legal process- law is not just a static thing- it’s reflective in process. Legal norms emerge from this process. What’s the process in the international community? Meetings at the UN.
 
 
1. The Chad-Libya War over the Aouzou Strip: The Aouzou strip is in the middle of the Sahara desert (sparsely populated by nomadic Toubou people + no economic value) and sits on the border btw Libya (disputes location of southern border) & Chad (disputes location of northern border). 1. Chad: Stakes claim on the territory based on 1955 Treaty of Friendship and Good Neighborliness btw Libya & France (former colonial ruler of Chad)- Libya accepted France’s claim to the border & Chad succeeded to all of the rights of France. 2. Libya: Asserts claim to territory based on invalidity of the Treaty (coerced to sign), population has allegiance to Libya, and Libya’s pre-Italian colonial powers (the Ottoman Empire) held prior title to Libya and the Strip (held together, but after the collapse of Ottoman Empire 1918 WWI, the Western Countries split up the territories).
Ø  Disputes over the strip continued & Aug. 1989, both counties agreed to submit the dispute to the International Court of Justice (ICJ- judicial organ of UN in The Hague- states must consent to jurisdiction). *This prob. = international prob. in most traditional sense: actors = states, resource in dispute = territory, legal instruments both sides rely on = treaties, formal arguments = traditional ideas dating back centuries.
Ø  Resolution: 16-1 in favor that the Strip belonged to Chad. 1. Ct. looked at the 1955 treaty and concluded that it WAS aimed at settling all frontier questions. 2. Ct. also considered a subsequent treaty entered into by the countries in 1966, however, there is no mention of uncertainty as to the strip, so ct. concludes that if there was serious dispute over the frontier, it would have been reflected in subsequent treaty. 3. Chad consistently adopted position that its territory includes the strip and filed complaints over Libya’s occupation to Organization of African Unity (OAU) and UN. **W/in weeks of ICJ’s decision- Libya and Chad agreed to abide by it and Libya completed its withdrawal. 
Ø  Why submit this to the ICJ? 1. Cost benefit analysis- cheaper than fighting a war over a piece of land that has little economic value. 2. Reputation: Note: there are 2 audiences- domestic and abroad: wants to show its own people that it will not give up and just submit to demands of another country and also show international community that it is a diplomatic country & law abiding member of the int’l community – have other agreements w/ int’l community- trade, defense, etc. Shows that it will live up to the rules and submit to a 3rd party for adjudication.
Ø  Why did the ICJ succeed? OAU might have been incompetent/weak. Also there’s something about being in the int’l complex that pulls the parties into complying (work out through legal reasoning who has a claim- even works on nation states). Also note: in 1986-1987, US had bombed Libya.
·   Levi, Contemporary Int’l Law: (Europe = birthplace of int’l law). Holy Roman Empire broke down b/c of new econ. forces. New centers of econ. power arose & laws regulating their coexistence/relations = necessary. A system of coordination btw sovereign rulers & states based on sharply defined territory followed. Legal consequences also followed: 1. Absolute power/exclusive jurisdiction of 1 ruler in his territory; 2. Prohibition of interference by other monarchs in a state’s internal affairs; 3. Rise of immunity; 4. Gradual elaboration of equality among states in diplomatic practice.
·   Hugo Grotius, De Jure Belli ac Pacis Libri Tres: (Known as the “father of int’l law; follows natural law & positive law approach—law is created by humans for definite conditions/purposes rather than by a supreme being). He believed that there was a law of nature that could be implemented, not counteracted, by people using right reason.  3 doctrines still applicable today: laws of war are applicable to all parties regardless of the justness of the war, freedom of the seas, & extraterritoriality (exemption of legal jurisdiction) of ambassadors.
·   Oppenheim, Int’l Law: Focused on Christian Europe as heart of origins. 3 conditions for admission into the Family of Nations. 1) Civilized, 2) consent to be bound, 3) existing members must consent to admit the new member
·   Anand, The Influence of History on the Literature of Int’l Law: go back and point to diverse origins.
·   Anghie, Finding the Peripheries: Sovereignty and Colonialism in 19th C Int’l Law: A central feature of positivism was that it said the law of nations only applied to civilized nations.
·   International Law & 20th C: Changes in int’l law started. WWI: 1. Wars affecting population forced countries to accept that unlimited recourse to war was counterproductive to settle disputes- better to regulate through legal arrangements. 2. Europeans/Americans also agreed that some ethnic groups in Europe that lacked their own state were entitled to determine their own political future. 3. Independent states agreed upon a fundamental institutional arrangement to develop legal norms in areas of war and peace and human rights + labor, health and communications à thus creating the League of Nations (created by Versailles Treaty). WWII: Foundation of UN; Independence of colonies; Human rights; Proliferation of treaties; Notion of individual duties.
 
II. The Rainbow Warrior Affair:
·   Facts: 1978, the int’l non-gov’t environmental org. (NGO) Greenpeace purchased a converted research trawler (named it Rainbow Warrior). Greenpeace used it to protest commercial whaling practices, the dumping of nuclear waste in the oceans, and offshore oil and gas ops. 1985, Greenpeace sends it to S. Pacific to support New Zealand’s decision to close its ports to ships carrying nuclear weapons & the schedules to send it to France to protest nuclear testing. While docked in New Zealand, members of French Directorate General of External Security (DGSE) placed a bomb aboard the vessel, which sunk and destroyed the ship and killed a Dutch crewmember. 2 men responsible were captured and charged with murder and arson under New Zealand law- sentenced to 10 yrs for manslaughter (plea). France wanted to work for their release and New Zealand sought compensation for damage, Greenpeace and crewmember’s fam. France then demanded agents’ release b/c they were acting under orders and France was going to take responsibility. New Zealand argued that int’l law doesn’t excuse criminal acts on the grounds that they were acting pursuant to official orders (think Nazi regime- no excuse just b/c acting under orders). (Also didn’t want release b/c under French law, they did NOT commit homicide). In response, France began to restrict New Zealand exports to France/French territories & opposed the imports for all of Europe. New Zealand then files formal complaint to UN and agreed to submit all issues to UN Secretary-General.
·   Who has jurisdiction? 1. New Zealand (on their harbor); 2. The Netherlands (it was a Dutch crewmember); 3. France- 2 French criminals & operating as agents of the gov’t. NOTE: France is the more powerful country- has veto power on the Security Council and a larger economy than New Zealand (New Zealand only exports dairy products and sheep).
·   Holding: 1. Prime Minister of France should convey to Prime Minister of New Zealand a formal apology. 2.  French Gov’t is to pay $7M (compromised figure) to gov’t of New Zealand. 3. 2 French Agents are to ne transferred to the French military authorities and then transferred to isolated island of Hao for 3 years. 4. France shall not oppose continuing imports.
·   On its face, the process + outcome of Rainbow Warrior demonstrate int’l law’s relevance, flexibility and efficacy in resolving disputes à 2 states use 3rd party to resolve dispute; against use of force; state shall be held responsible for not only other states but also institutions and individuals; avoid insulation.
 
Contemporary Notes on Int’l Law:
·   UN: formed when 51 states signed the UN Charter in 1945. The UN Security Council = responsible for maintaining int’l peace and security & intended to oversee a charter-based collective security system.
·   Positivism: Theory that int’l law is no more/no less than the rules to which states have consented.
 
Pages 35-68
 
Chapter 2: Making Law in a Decentralized System:
·   The status of int’l law as LAW is contested: 1. Skepticism: the int’l system lacks central legislature to enact legislation, there is no executive to apply or enforce law that is made, and no judiciary to interpret the law/adjudicate disputes. However, int’l Ls, diplomats, gov’t policy makers, etc. routinely invoke int’l law to justify and insist upon a course of action.
·   Art. 38 of the Statute of the Int’l Court of Justice, which forms part of the UN Charter provides a starting point of int’l law. It describes the law that the Int’l Ct. of Justice (ICJ- UN’s judicial organ) should apply to resolve dispute.
 
Statute of ICJ, Art. 38:
1. The Court, whose function is to decide in accordance with intern

into Treaties:
·   For L’s treaties are legally binding commitments – but note no int’l police force to enforce.
·   Lipson, Why are Some Int’l Agreements Informal: The effect of treaties is to raise the political costs of non-compliance. The more formal & pub. The agreement, the higher the reputational costs of noncompliance. Whether a threat of loss of reputation (noncompliance) succeeds depends on: 1. The immediate gains from breaking the agreement, 2. The lost stream of future benefits & 3. The expected costs to reputation from violation. The price of noncompliance w/ treaty takes several forms: 1. Loss of reputation (rep. has value); 2. Violation/perceived violation may give rise to costly retaliation; 3. Treaty violation may depict nation as untrustworthy & as an enemy.
 
Background on Treaty Law: Most of the norms applicable to treaties have been codified in the Vienna Convention on the Law of Treaties (adopted by 110 states at int’l convention in 1969).
 
Vienna Convention on the Law of Treaties: **1st Ques. To ask: “Is there a treaty?”
·   Art. 2: Use of Terms: For purposes of the present Convention: a. “treaty” means 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;
Ø  Treaties take many forms- can be denominated by different terms: agreement, protocol, concordat, pact, accord, & charter. They may be written or oral (BUT Vienna Convention applies ONLY to WRITTEN). They may be bilateral or multilateral, for a fixed term or indefinite.
Ø  The process of forming a treaty is decentralized and can include various actors: int’l orgs, states, or non-gov’t orgs (NGO’s).
·   Art. 3: International Agreements Not W/in the Scope of the Present Convention: The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect:
a. The legal force of such agreements…
·   Art. 6: Capacity of States to conclude treaties: Every State possesses capacity to conclude treaties.
Ø  Early drafts of this art. provided that some entities other than states possessed capacity to enter into treaties- but art. was eventually reduced to confine Vienna Convention to treaties btw states.
·   Art. 7: Full powers:
1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the Consent of the State to be bound by a treaty if:
            a. He produces appropriate full powers; or
            b. It appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
            a. Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
            b. Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;
            c. Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
·   Art. 8: Subsequent confirmation of an act performed without authorization: An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.