International Law Outline
INTRODUCTION
I. What is international law? In what sense is it law? How does it differ from law as it is understood in a domestic context? Assignment 1 (All Groups): CTB, pp. 1-6 and 25-31
a. Definitions of International Law
i. Focusing on norm or rule of law
1. Classical definition – J.L. Brierly, The Law of Nations: International law is “the body of rules and principles of action which are binding upon civilized states in their relations with one another”
2. American Law Institute’s Restatement of Foreign Relations Law § 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 judicial.”
3. Hollis’ definition: International law is the system of law that governs relations between states and other subjects of international law
ii. Two truths
1. International law is a system of law, with a legal heirarchy and a set of rules (sources of international law)
2. Three primary sources (see Article 38 of International Courts of Justice)
a. treaties (international agreement/convention)
b. customary international law (practice of states that they have engaged in for some period of time that they consider binding)
c. general principles of law of civilized nations
3. Subjects of the Law
a. state actors (nationstates)
b. International Organizations (IOs, including EU, UN, WTO)
c. Individuals, NGOs, Corporations
iii. Focusing on a traditional statement of the sources of norms or rules of law
1. Statute of International Court of Justice, Article 38: “The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
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. Restatement § 102: “A rule of international law is one that has been accepted as such by the international community of states
a. in the form of customary law;
i. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation
b. by international agreement, or
i. International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted
c. by derivation from general principles common to the major legal systems of the world
i. General principles common to the major legal systems even if not incorporated or reflected in customary law or international agreements, may be invoked as supplementary rules of international law where appropriate
3. Louis Henkin, How Nations Behave
a. Important concepts of territoriality and internal sovereignty relating to how international law functions
b. The most important leg
sion: Sovereignty and Int’l Law
1. where we want to rule our country but also we have to deal with the outside world too: theoretical independence of countries and interdependence of int’l law
vii. Why does Int’l law get a bad rap?
1. lack of sanction/enforcement – “gets no respect”
a. but just because states don’t heed, does that mean there is no law?
b. driving 70mph on 76 when the limit is 55mph.
2. compliance problems
a. does not get followed by all states really
b. but how often does non-compliance really occur
i. non-compliance is in the minority
3. not consistent/fragmentation
a. treaties here and there between countries but diff between others
4. law-makers problem: no 5 Cs
a. no constitution
b. no courts
c. no congress
d. no cops
e. no code
5. Int’l Law’s responses to these problems: the 5 Cs
a. yes, there are no 5 Cs
b. but there are elements of each in the int’l realm
c. const
i. the UN Charter (est procedures, norms, etc.)
d. courts
i. the world court/int’l ct of justice
ii. WTO dispute settlement system
iii. Int’l tribunal of the sea
e. congress
i. UN does have some law-making body in UN security council
ii. gen assembly of UN
f. cops/exec branch to enforce the law
i. no state does not reject int’l law entirely, however, they may just reject a rule
