International Law Outline
1. History of Int’l Law, Evolution and Globalization
Defining International Law:
Definition from Restatement of the Law, Third, § 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:
· International organizations (which are composed of states)
Subjects of international law, who bear the rights and duties of international law:
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 on 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
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
· 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:
According to Article 38 of the ICJ, the following are the sources of int’l law:
· Customary international law
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)
§ Treaties are binding and legally enforced upon the parties to it
§ 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
[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]
2. International Organizations
a. United Nations
i. Overview and Development
League of Nations:
– Precursor to UN was the League of Nations. Woodrow Wilson put forth the proposal on Jan 8, 1918 that “a general association of nations must be formed under specific covenants for the purpose of affording mutual guarantee of political independence and territorial integrity to great and small states alike”. He believed that an int’l organization devoted to collective security could better guarantee the peace than could traditional means which had failed to prevent the First World War.
– The Versailles Treaty established the League, but the US Senate refused to consent to its ratification.
– From 1920-1930 the League, based out of Geneva made great contributions to int’l law, word health, protection of minorities and settlement of int’l disputes. But it was ineffective in preventing the Second World War.
– In 1945, the United Nations was formed and in 1946 the announcement was made that the League of Nations was dead.
League of Nations failed. It was formed with the huge goal to bring peace. It didn’t have military to use when it needed. The military power was supposed to be a joint military force. Its funding was thru contributions and there were no options to sanction those states that did not conform.
Not all members who were members of the League of Nations stayed throughout the entire term. At first Germany was not allowed to be a part of the LON b/c it misbehaved. It joined later and then left. Russia was not allowed to join at first b/c of its communist regime. It later was allowed to join.
The UN has a military through NATO. NATO is a regional arrangement under Art 52. It is a treaty that was written to protect international goals.
UN coordinates the military efforts of its member countries military forces through the Military Staff Committee (Art 26). It has no military of its own.
The goals and missions of the UN and the LON’s are similar.
When we refer o the UN system we are referring not just to the UN bodies, but also to ancillary bodies that have a relationship with the UN.
Formation of the United Nations:
– Three nations combined to initially form the UN : the United S
es by peaceful means
4. Avoid using force/threatening to use force (must)
5. Not interference with the domestic affairs of any country
6. Assist the UN (countries should)
· The UN is not a world government and it does not make laws. It does, however, provide the means to help resolve international conflicts and formulate policies on matters affecting all of us. At the UN, all the Member States — large and small, rich and poor, with differing political views and social systems — have a voice and a vote in this process.
– Other Information about UN:
o UN budget is proposed by the Secretary-General, reviewed by the budgetary committee and approved by the GA pursuant to Art. 17 of the UN Charter.
o UN is funded through member states assessed and voluntary contributions.
o It is posible to amend the UN Charter pursuant to Art. 108 or 109
ii. UN Structure
– The General Assembly: Based out of NY
Powers and Responsibilities:
o Main deliberative organ and highest decision making body of the UN
o Consists of all members of the UN
o GA resolutions are not binding.
· Chapter IV gives the GA its powers and responsibilities. (pg962 of text)
Functions related to Maintaining Peace and Security:
o Art 10 – GA can discuss any matter within the scope of the Charter, except matters being dealt with by the SC unless the SC asks for GA’s input [Art 12], and can make recommendations to the SC or to the Members of the UN.
o Art. 11 – Matters relating to maintenance of int’l peace or security can come to the GA from UN Members, non-members (so long as the non-mbrs agree in advance to a pacific settlement of the dispute [art.35.2]), or by the SC.
§ If action is required on the above questions, such matters will be referred to the SC by the GA.
o The GA will get annual and special reports from the SC on measure it has taken to maintain int’l peace & security.[Art. 15(1)]
Functions related to performing studies:
o Art 13(1)(b) – GA shall initiate studies and make recommendations for promoting int’l cooperation in the following fields:
§ it shall also assist in realization of human rights and in the development and codification of int’l law.