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International Law
SUNY Buffalo Law School
Melish, Tara J.

Melish Fall 2012 International Law Outline Notes

International Law

– Is the law of the international community of states

International court of justice ( ICJ) only operatives based on consent to be subject to jurisdiction for each and every member. Withdraw consent, cant use ICJ to resolve disputes

A. Think of policy goals of developing rules and processes and which are desirable for specific reasons

a. Chad-Libya Dispute

i. International boarders established by treaties are the boarders even if the treaty no longer exists

B. Classic Law of Nations:

a. Standard international law is used for disputes between states

i. Involving territorial boarders

ii. Involving treaties for the purpose of establishing consent

b. But most disputes are not of that nature

A. International Law moves into the 20th Century

1. As a result of WW1 three constitutive changes to the international legal order began

a. European states began to accept that unlimited recourse to war for the settlement of disputes was counterproductive to their national interests and that armed conflict should be regulated through some legal arrangements

i. Kellogg-Briand Pact (1928)

1. Limits the methods by which wars were conducted

2. Condemns recourse to war for the solution of international controversies and renounces war as an instrument of national policy

b. As a result of the territorial shakeup that ended WW1, European and U.S. leaders concluded that some ethnic groups in Europe that lacked their own state were entitled to determine their own political future

i. Self determination and protection of the rights of minority groups within new and newly enlarged states.

c. Creation of the League of Nations

i. Intended to address questions of war and peace, human rights, and develop legal norms in other areas such as labor, health, and communications

ii. Started to regulate the use of force between states and wars

1. But usa was not a member and it had no power to enforce its resolutions

2. Post WW2

a. WW2 was the catalyst for the acceleration of the major trends that began before it started.

i. Beings the use of resolutions of regulation of force, recognition of international human rights law, as well as the obligations of the state and individual, and the increase in treaties. There is a shift from minority rights and self determination to recognition of human rights in international law.

b. States oversaw the change in substantive law with respect to two core issues:

i. Use of force

ii. Human rights

c. Created the United Nations

i. UN Charter banned the use of force against the territorial integrity or political independence of states except in two situations:

1. When a state was responding in self-defense

2. When the United Nations authorized force against a state.

d. WW2 brought renewed attention to the issue of self determination and human rights

i. 1948 UN general assembly proclaimed the Universal Declaration of Human Rights

ii. States prepared and signed treaties covering the banning of genocide, promotion of civil and political rights, eliminating racial discrimination, promoting women’s rights, and banning apartheid, torture, while promoting children’s rights.

e. Criminal Tribunals of German and Japanese political and military leaders during WW2

i. Helped solidify notion of individual duties under international law

1. Crimes against international law are committed by men, not by abstract entities

2. Only by punishing individuals who commit such crimes can the provisions of international law be enforced.

f. UN Security Council.

i. Has the power to review and approve military action. 5 permanent members, + 10 rotating members. Each of 5 members has veto power over action of security council.

B. Chad-Libya Affair over Control of the Aouzou Strip in the 1980s

a. Represents a classic international law dispute ( control over the territory)

i. Highlights the continuing importance of states and territory in the international legal and political order and raises questions concerning the effect of international law and institutions on interstate relations and state behavior

b. Governing legal instruments are treaties

c. Forum is international court

d. BIG IDEA: international boarders established by treaties are the boarders even if the treaty no longer exists

i. Boarders can only be changed by the express consent of the two parties

C. Rainbow Warrior Affair

a. Illustrates some of the dramatic changes that have reshaped international law in the post WW2 era.

i. Rising prominence of non-state actors, issues such as human rights and the environment

1. Can be interpreted as a narrative, either positively ( international law being effectively enforced) or negatively ( implementations of international law and use of force/ restrictions on trade restrictions

2. Can be understood as a nuanced and ambiguous tale about the relevance and effectiveness of international law

a. States involved( france and New Zealand)- NGO ( non governmental organization) Greenpeace

i. France sent a team of covert ops to a port in New Zealand to destroy a NGO boat at a dock, who was protesting nuclear testing in offshore waters of NZ. Boat blew up, killing a crewmember. NZ arrested 2 covert-ops and sentenced them to jail. France took responsibility and demanded their release ( covert-ops were acting on orders and as such France, not covert-ops were responsibility.

ii. Issues: Should the covert-ops acting on orders from a state, be held liable for harm to another state?

b. State sovereignty issue

i. Prior to WW2, states are the only actors in international law. After Nuremberg and Tokyo trials, crimes against international law are committed by men( people) not by abstract entities.

1. Only by punishing individuals who commit such crimes can the provisions of international law be enforced.

Result: the covert ops were sentenced to 3 years on an island, france had to pay NZ and family of slain crewmember.

D. Classic Law of Nations vs. New International Legal Process

1 New Actors.

a. International Institutions

i. United Nations- paradigmatic example of an multilateral body formed to address a diverse set of issues

1. Founded in 1945 with signing of the UN Charter( 51 original states signed)

cooperative mechanisms and regimes

1. States have both conflicting and mutual interests

ii. Regimes and their norms promote compliance by reducing transaction costs, providing information and dispute-resolution procedures, and providing a trigger and a focus for negative responses to non compliance

c. Constructivism

i. States don’t have independent interests. Interests are constructed. ( look at trends).

1. Example o this is looking at educational systems of countries around the world- they are very similar, why?)

a. In anarchic international order- states had no preexisting interests or identity

i. Instead their interests and identities are created and changed by and through their interactions with other states.

ii. Participation in international institutions helps states achieve shared understandings, which in turn alter a state’s perception of its own interests

d. Fairness/ legitimacy

i. Look at the fairness and legitimacy of international laws

e. Liberalism

i. Look at the elite interest at national level. State interest reflect the interest of their own national elites

f. Managerialism

i. Form of institutionalism that focuses on norms

g. Transnational legal process

i. Interaction of process and engagement at both national and international level ( look at norms)

Making Law in a Decentralized System

§ International Court of Justice Article 38 ( starting point to recognize how international law is made

· The court shall apply:

o International conventions establishing rules expressly recognized by the contesting states

o International custom as evidence of general practice accepted as law

o General principles of law recognized in civilized nations

o Judicial decisions and teaching of the most highly qualified publicists of the various nations…

A. Treaties and Customary international law

i. Are the principle means in which international law is made

ii. Are increasingly supplemented by alternative forms of law which stem from the lawmaking and standard setting activities of international organizations, regional bodies and multinational enterprises

A. Treaties

a. Definition and elements

i. A treaty is an international agreement concluded between states in written form governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

a. Can be written or oral ( Vienna convention only applies to written treaties however)