International Law Exam Review Outline
I. Understand the two main types of international law: treaty vs customary intert’l law
a. International law vs law of nations: Bentham or Grotius?
i. Grotious- Argued that the law of nations were more then just laws common to all men but were laws that established legal rules that bound the sovereign states of Europe. Founded the modern disciple of the law of nations. Proponent of natural law. Argued that no sovereign state was so powerful as not to need the advantages of laws based on natural law and positive consent.
ii. Benthem- Coined the term “international law” in order to distinguish internal jurisprudence from international jurisprudence. International law was then made up of two types of law: the law of treaties and the law of nations. Both are now combined to form international law. Benthem concluded that international law had only states as subjects.
b. Ch 1 intro to ilaw: McCann: why states enter treaties
a. Its in their best interest to do so
b. Why did the UK join the Council of Human Rights
2. Standardization/Uniformity (of law?)
4. Keeping other honest
1. Gives up some sovereignty, BUT
2. Exercised sovereignty because it took steps to protect its citizens
c. The ordinary theory explaining the legally binding effect of an international agreement is that a sovereign state may exercise its sovereignty not only by making domestic law but also by making international law.
Hence, Article 2 obligates the UK in international law because of the UK's own consent
c. Filartiga: how court determines what constitutes CIL
i. For CIL to be CIL: state must practice it and opinio juris (sense of legal obligation)
ii. How to Figure Out Something is Customary International Law?
1. Jurists/scholar’s work/treatises
2. Judicial opinions
3. Customs and usages of civilized nations
4. UN resolutions (non binding)
d. Jus cogens/peremptory norms: how do they differ from CIL (role of derogation)
i. Jus cogens refers to the legal status that certain international crimes reach
1. must be a norm of general international law
a. So fundamental that it is binding for all states and they cannot contract out of them
v. Racial discrimination
ii. Peremptory norms of international law
1. accepted/recognized by all
a. It cannot be derogated from by state thru treaties. (partial revocation of law) (not even in times of emergency)
iii. Jus Cogens/Natural Law is the concept that there are peremptory norms in the international system that states cannot contract out of
e. Be familiar with the Article 38, ICJ Statute sources of international law (hierarchy) First 3 Formal and bottom 2 informal.
1. International conventions, general or particular, establishing rules expressly recognized by the contesting states
2. International custom, as evidence of a general practice accepted as law
3. The general principles of law recognized by civilized nations
4. Subject to limitations (no binding precedent), judicial decisions by municipal and multilateral courts
5. Subject to severe limitations, the writings/teachings of international law scholars (as a way to recognize existing custom, usually).
ii. States are the only players involved in the creation of international law – by all people, for the most part, are bound by it and have certain rights (subject to enforcement by states) under it.
iii. States have both rights and obligations under international law.
1. To be a party to this allows the country to be a plaintiff in the case and choose the judges, and rules. To be a defendant you need something further by the way of consent. This is done via a declaration of what classes of cases you agree to be a defendant in. You may also do this case by case. Also this can be agreed to be treaty (I agree to settle any dispute in the ICJ).
II. Understand Treaties: what, where, when & how
a. A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law.
b. Treaties don’t have to be called “treaties” to be considered bound by the principles of treaty law – they just have to manifest a mutual intent to be bound
c. Treaties can be bilateral or multilateral. Bilateral are btw two nations Multilateral treaties are btw several countries and take years to accomplish. Why do multilateral treaties take so long to accomplish? B/c of multiple, conflicting interests
i. Be able to explain 4 primary functions of treaties
1. Aspirational-things state aspire to
a. Kellogg-Briand Pact
2. Contractual-set up mutual agreements between states
3. Statutory-set up rules
a. Kellogg-Briand Pact
4. Constitutional-set up general order of things
a. Treaty of Westphalia, Treaty of Paris
ii. Westphalia, Treaty of Paris, Kellogg-Briand
d. Understand the primary advantages and disadvantages of treaties
i. 2 advantages of treaties:
1. Treaties are clear – they provide clear rules
2. Treaties provide clear indicia of state consent
ii. 2 disadvantages of treaties:
1. Only binding on the states that agree to it – states won’t consent to all
2. Treaties can’t cover/contain all of the rules
a. Still gaps
iii. Why do states enter into treaties? (see notes Lsns 1 & 4)
1. In best interest to do so
2. Exercises of their sovereignty
3. Countries enter into treaties because, like contracts, the treaties give them the promise/delivery of something they want; because co-signatures’ are reliable (driven by mutual advantage or historic bilateral or multilateral relations); and because most treaties formalize and publish intentions in a public way, so they are harder to get out of.
iv. Yoga of treaties: Contractual, Statutory, Constitutional, Aspirational (Treaties are flexible can be either or all of the below at once)
v. Understand the concept of “dualism” (Hull-Lothian)
1. dualist approach – international law that is separate from the municipal law. The international law needs to be incorporated into the municipal law. It is always below the constitution. US uses the dualist approach.
a. Even if US treaty violates US law, still has duty to not honor international agreement
e. Understand the effect of reservations on treaties (Art 27 & Art 46 Vienna Convention; Reservations to the Genocide Convention Case)
i. Effect of Reservations on treaties
1. A reservation in international law is a caveat to a state's acceptance of a treaty. By the 1969 Vienna Convention on the Law of Treaties (VCLT), a reservation is defined as a
a. “ unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”. (Article 2 (1)(d))
2. The appraisal of a reservation and the effect of objections to the reservation depend upon the particular circumstances surrounding each individual case.
ii. Reservation to the Genocide Convention Case
1. Reservations are only allowed to the extent that they are compatible with the objectives of the treaty/convention.
2. If they are compatible, then the state is considered a party to the convention by those who accept the reservations.
3. If a state objects to reservations, then it’s not considered bound b/c it can treat the reserving party as not being a party to the convention. This i
i. None exists, therefore the treaty can only be terminated on the limited grounds enumerated in the Vienna Convention
2. Fundamental change of circumstances: political change (Czech split up into 2 countries affects the feasibility of the project); Court says no – the changes have to affect the core of the project – the changes presented did not change Hungary’s ability to construct the dam
i. Has to be unforeseen at the time the treaty is signed
ii. Has to go to object and purpose of the treaty
iii. and only in extreme cases
0. Reasoning: However the Treaty provided for a joint investment program for the production of energy, the control of floods and the improvement of navigation on the Danube. In the courts view the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed
i. One of the parties dissolved
1. Still did not constitute a fundamental shift in circumstances
ii. Treaties are often designed for unilateral interpretation
1. High bar for termination, court set
III. Appreciate the limited consensual nature of customary international law (CIL)
a. Explain positivist approach to international law
i. Positivism views international law as a set of rules with states as its subjects.
ii. 3 major problems w/positivist view of i-law regarding individuals as objects:
1. Nationality is not always clear
2. Nationality of corporations
a. They are artificial people = objects under i-law – who does the corporation belong to?
3. What if it’s your state that’s the one who’s harming you? – Vacuum
iii. Asylum case: Does obligation n ilaw arise only because of postivie state consent, or are there more fundamental community-based foundations of ilaw?
1. A state can derogate from custom if, at the time the custom is coming into being, it is clear in its intentions not to be bound by that custom. However, a state’s lack of intention to be bound once custom is in place is irrelevant – it is bound by that custom (as are successor states and governments). In the Asylum case, refraining from signing a treaty codifying that custom could be evidence of a derogation/objection. However, this might not always be the case. However, custom cannot be opted into and out of.
2. Need to show that the country involved knew of this usage and accepted it. This shows consent of the country involved.
3. (Peru not bound because they were a persistent objector)
4. Peru never affirmed the treaty that Columbia was using to justify their action
5. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party
6. But it has not shown that it was a duty incumbent on them and not merely for reasons of political expediency
7. Positivist point of view
8. Persistent objector (Peru was a P.O.)
9. State persistently objects to rules becoming custom then the state is not considered bound by those rules