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

INTERNATIONAL LAW

PROFESSOR MCGUINNESS

FALL 2015

TEXT BOOK: INTERNATIONAL LAW, NORMS, ACTORS, PROCESS, A PROBLEM-ORIENTED APPROACH

DUNOFF RATNER WIPPMAN

INTRODUCTION

A. UNIT 1: Globalization And The Law

a. What is International Law How are International Law and International Politics Related?

i. Process through which legal norms emerge and how they are enforced

1. Traditional Law of Nation States

ii. Where to draw the line between international law and international politics

iii. Inter + national = the interaction between nation states

b. Chad-Libya War over the Azou Strip

i. Why borders matter

1. Legal Relations of Citizens

2. National Security

ii. Facts:

1. Pre 1951: Italy, France, and Great Britain are parties to treaties recognizing borders colonial possessions

2. 1951: Libya becomes independent of Italy

3. 1955: Treaty of Friendship between Libya and France

4. 1960: Chad achieves independence from France with “Friendship” and defense, but mainly trade and legitimacy

iii. Chad claims:

1. Successor claim to treaty France made with Libya

2. Bias toward stability and status quo in int’l relationships (ESP in borders)

3. But must they take the downside?

iv. Libya claims:

1. 1955 treaty was illegitimate by coercion

2. Treaty didn’t recognize borders directly

3. Regions in inhabitants loyal to Libya

a. Self Determination

4. Successor claims to Ottoman Empire and from Ottoman à Itlay à Libya

v. Libya supports a coup and invades

1. OAU threatens to cancel a summit as Libya pulls out

2. Chad appeals to UN Security Counsel

vi. Countries agree to leave the ICJ to determine the dispute

1. ICJ: Judicial arm of the UN, only for States

a. Decides based on international law

b. Why? Libya wanted reputation of being law abiding, wanted legitimacy

vii. ALAS, Libya was losing.

viii. ICJ Opinion:

1. Principles:

a. Boundaries: shall stay stable makes parties agree otherwise

b. “Udi Posidetos”

c. State Succession

ix. LAW: TREATIES MATTER:

1. No subsequent agreement changed border

2. Overrides Libya’s successor agreement

3. Borders last longer than treaties

x. Libya Acted in line with the 1955 treaty until invasion; Chad complained and never accepted Libya’s claim.

c. The Rainbow Warrior Affair

i. Facts: Greenpease (NGO) in New Zealand supporting the anti-nuclear policies. Was bound to protest French Nuclear Treaty. French agents placed a bomb on the ship – destroying it and killing a Dutch greenpeace worker.

1. NZ arrests them and charges murder and arson; prescribed conduct in its own territory; Δ plead guilty to manslaughter AND

2. NZ seeks compensation from France, demands they compensate victim and green peace.

a. France wants their agents back and promises to prosecute (but probably won’t because distinction of a superior defense in France)

3. NZ says they can’t be excused under NZ law and int’l law (pre Nuremberg trials – taking orders is not an excuse and part of movement to consider individuals in international law)

4. France begins blocking NZ imports to EU to make them make an issue

a. NZ files complaints with int’l org. for trade

i. Law matters to smaller states like NZ who lack political power

ii. International Arbitration:

1. France pays compensation to NZ

a. Prisoners sent to military prison

b. Set up arbitration panel from future disputes

2. France settles with Pereina’s family but can’t with Greenpeace

a. Go to international arbitration and France payout

I. HOW INTERNATIONAL LAW IS MADE

A. UNIT 2:The Process Of International Agreement: Create And Using Treaties

a. Article 38: of ICJ Statute: what law UN should apply

i. Sources – unduly static

ii. Treaties are often supplemented

iii. Treaties are more familiar to national policy makers then international law

b. “Soft Law” – declared norms of conduct understood as legally nonbinding by those accepting norms

c. Cyprus Conflict (role of consent in treaty formation)

i. Problem: 1878; Turkey transferred control to Britain in exchange for defense against Russia; when turkey sided with Germany at start of WWI (1913) Britain declared the 1878 agreement void and claimed legal title Cyprus; this was accepted 1923 Treaty of Lausanne; 2 years (1925) later Cyprus became a British colony.

ii. Evolution of the 1960 Accords:

1. Greek Cypriots (80%) sought self determination in the form of union with Greece – Guerilla War against Britain (“enosis” unification with Greece)

2. Turkish (18%) wanted partition to merge with Turkey; summit meeting in 1959 to form 3 agreements– the “Treaties of Guarantee and Alliance” – designated to protect the constitutional balance against internal and external threats

iii. Why are Greece and Turkey interested?

1. Co-nationals: desire to protect; Turkish may have wanted to protect for reasons: rights, religions

2. Ethnic Ties

3. Territorial: strategically significant; Europe, Africa, close to Lebanon; Halfway between Great Britain and India

4. Turkey – close to their coast line

5. GEO POLITICS AND HUMAN

iv. Agreements:

1. Basic structure of Republic of Cyprus: new government system: balance of power

2. Treaty of Guaranty between R of Cyprus and Greece, the UK and Turkey- to create a security to guarantee internal violence

3. Treaty of Alliance Between Republic of Cyprus, Greece and Turkey

a. Why did the parties sign on in the first place?

i. Great Britain:

1. Maintain military power over Cyprus

2. Member of NATO – advantage

3. Understood to be a neutral party

ii. Turkey

1. Protect Turkish Cypriots

2. Continual Influence

iii. Greece

1. Support Greek Cypriots

2.

1. Adopted by States at International Conventions 1969

2. October 2009 110 states are parties

3. VC provisions restate/codify customary international law already established

4. Relied on as an accurate statement of the law

5. Other provisions reflect deliberate modification of existing law or to create new law

6. Now, very widely accepted

7. U.S. is not a party but EB has discussed the convention as the authoritative guide to current treaty law.

8. Definition of Treaty (page 43)

a. Article 2 (VCLT) “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.

b. Agreement between states; any agreements at the core between two or more nation states

i. Bilateral

ii. Multilateral

iii. Unilateral

1. Nuclear Test Case: France makes statement, ICJ ruled that their comment was an undertaking of intl law and said that unilateral statements could be taken as a statement binding

iv. Gentlemen’s Agreements

1. Unspoken rules that operate – they do create rules that States tend to be bound by

c. Expanded to include outside states

i. Possible subnational entities to be parties in some circumstances

d. Distinguish ‘t’reaty and “T”reaty

i. How treaties are defined in the U.S. Constitution

ii. Way SCOTUS uses might be narrow

ii. Early History/Types

1. Any kind of human activity can be a treaty; can be divided by subject matter or structure

2. Janis (4 Types)

a. Contractual: can create exchanges or concessions

i. i.e. U.S. and Russia = Alaska for cash

b. Legislative

i. 100k at terms, does it govern a particular set of behavior: i.e., consular relations; tariffs on trade

c. Constitutional Treaty

i. Legal foundation of body

1. i.e., UN Charter; Treaty of Neice

2. Reads like a Constitution

d. Aspirational or Expressive

i. Sets out goals

ii. How states “ought” to behave

iii. 1925 Kellogg Treaty

1. Purported to make war illegal

e. Codification of Practices

i. Codifies rules already in practice

1. i.e., Vienna Convention

a. Set out to codify what was customary international law

ii. Similar to Restatement and U.C.C.