I. Introduction: What is the International Legal System?
What is IL? What is the relation of IL and International Politics?
· primary actors: states, international organizations, NGOs
· how are disputes resolved: courts, alternative dispute resolution
· allocation of powers: among states, over outside individuals
· international legal system:
o has no central law making body (i.e. Congress)
o has no central judiciary w/binding compulsory jurisdiction
o has no central executive branch
o so it comes from domestic systems – how does IL apply to domestic states?
§ Relationship between IL and domestic law
· Use problems to show range, reach and limitations of IL
· Learn the process, how IL developed, how it works
· Border dispute, concerning Anzou strip
· What options are available for the dispute?
o Look at what borders have been historically by looking at documents
o Have a war (downside – losses)
o Submit case to international tribunal (downside – Q of enforcement, not as much control over decision making); 3rd party mediation
o One side could give in
o Negotiate a mutual accommodation
o Go to a non-judicial 3rd party
· consider all the possible options for resolving the problem
Note: ICJ only has jurisdiction by consent of parties
· Court decided the case under IL:
o Looked at the 1955 Treaty which was old colonial agreements and map showing the borders at that time
§ But the treaty wasn’t made by Chad and Libya, made by European colonial powers
o We rely on treaties b/c they’re binding, but why are they binding?
§ In IL have to ask why something is binding – important debate
· ICJ judgment was for Chad; court relied on treaties and past actions of the countries
· But ICJ doesn’t have a way to enforce the final order
Importance of the Chad Libya Case
· First, the parties themselves invoke legal arguments to assert their title to the disputed territory; and
· second, they agree, after much discussion and fighting, that they will allow a judicial body to resolve their dispute solely by recourse to legal rules.
The Aouzou Strip problem also provides a classic case of an I legal disagreement in its most traditional sense:
the principal actors are states;
the resource under dispute is territory;
the legal instruments on which the two sides rely are quite formal, namely treaties;
the doctrinal arguments of the parties about the formal requisites of title to territory reflect (although they do not exclusively rely upon) old concepts dating back to the conquest of much of the world by European states five hundred years ago.
Rainbow Warrior Case
· Green Peace ship, blown up by French agents outside of New Zealand, sunk the ship, killed one person. NZ caught 2 of the agents, tried and convicted them, imprisoned. France wants their agents back, NZ says no, Fr tries to mess w/NZ exports.
· Eventually Fr and NZ submit issues to UN Secretary General to rule on issues; countries agreed to follow the ruling
· Fr doesn’t follow thru w/the whole ruling;NZ goes back to ruling requiring binding arbitration if don’t follow rule; panel rules in favor of NZ but said that since 3 years had already passed it wasn’t an issue anymore.
Political Issues: countries used IL to help implement the decision they had already agreed on, they just didn’t want citizens in their own country to think one was giving in.
Difference between Chad/Libya and Rainbow Warrior?
-Rainbow Warrior is a “contemporary” case
-Chad/Libya disagreement followed a “traditional” pattern
-Compare the structures of these disputes and the issues
Still have the problem of enforceability and compliance
· IL always has to address this issue, whether IL is actually law
II. The Sources of International Law
Creating International Law: Treaties and Other Agreements
Primary Sources of International Law
Statute of the International Court of Justice
1. The Court, whose function is to decide in accordance with IL 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.
· their content is relatively easy to determine.
· in most cases reflect the formal consent of the states that ratified them to be bound by their terms.
· may be a more familiar source of law to national policymakers and their constituents than other sources of IL, and decisions based on a treaty may therefore find greater acceptance by those to whom the decisions are addressed.
· may establish a quid pro quo relationship
· may also take into account the characteristics of legislations by establishing rules to govern the state conduct in the areas such as human rights or can be constitutive for international or regional organizations.
– treaty is an agreement – analogized to a K, but sometimes its inaccurate, no consideration in treaties, treaties don’t become binding when they are signed like Ks but when legislature of state verifies it — treaties are freer then the limitations of Ks
– treaties create their own consequences
o can create courts
o can create states
o lots of powers and categories
– arise out of state consent — if a country doesn’t like a treaty it doesn’t have to sign it or follow it, its up to you to sign it (positivism — arises out of state consent), only arises by state consent
· Treaties may also have disadvantages in relation to other sources of law. In some situations, custom may prove to have broader applicability than a treaty.
· Customary IL evolves from state practice. Doesn’t require formal negotiation and express consent associated with treaties.
· A rule of customary IL binds all states that have not objected to the rule while it is in the process of formation.
3. General principles of law recognized by civilized states.
· Takes principles from the national legal systems of the other state, e.g., res judicata, estoppel.
4. Soft Laws :
· Declarations of IOs to industry codes of conduct to experts’ reports. are not legally binding, but are usually framed in legal language and in many respects may exhibit an authority comparable to that of treaties or custom.
· Soft law is not mentioned in article 38 of the ICJ’s statute. But soft law instruments have proliferated in recent years, and must be considered a vital part of the international lawmaking process.
CYPRUS CONFLICT (p33)
4history of Cyprus
– outside control and intervention
– UK takes over the country
– Cyprus tries to gain independence, Greece, Turkey and UK get together to write a constitution, with two reps from the two factions of Cyprus
– Three treaties
o Basic Structure – internal constitution, how to divide to avoid fighting
o Treaty of guarantee – won’t try to unite with other countries, and be supported by the countries
o Treaty of alliance – support them
– Parties to agreement – everyone (Turkey, UK, Greece) but the people who live on Cyprus
– At the end the representatives of the two communities signed it, since Cyprus wasn’t a state they could sign the treaty according to the Vienna convention
– Things get messed up, conflicts.
o UN gets involve, calls to not any member to threaten the peace
– 1974 the government of Greece engineers a coup to replace the president with a leader of those who want a union with Greece
o is it legal under IL, can a state participate to overthrow leadership in a state they don’t like the leader of
– in response Turkey steps in to take over their third of island
o is this legal; country a doesn’t like country b you cant just step in
o turkey says they can b/c of treaty, cant invade but one party breached this agreement so Turkey should be bound to an agreement that Greece breached
o is a country bound to an agreement that it co-signatory has breached
§ look in Vienna convention
Vienna convention on the law of Treaties
· codifies the rules governing treaty formation, validity, interpretation, breach and termination.
· recognized as an authoritative guide to current treaty law and practi
consistent with international law: “textual argument” UN Charter prohibits the use of force and Article 103 says that a treaty in conflict w/UN charter is trumped by UN charter
· Wrong Interpretation by Turkey
o Turkey interprets as saying it allows a ‘coup’
o Have to figure out what the treaty actually means
o could go back and ask the people/entity that was involved what they meant; that’s what Cyprus did during UN debates, asked Turkey if they meant that an invasion could be made – but Turkey doesn’t really answer (p51-52); Greek gov’t says wasn’t their intent to permit military interventions; UK says the permissible use of force depends on the situation, argue that had the people followed the treaty wouldn’t have been there.
o Cyprus argues that the phrase “take action” only involves the use of peaceful means
· 1)Ask the drafters – problem here is conflicting answers
· Look at Vienna Convention to see what some of the rules of interpretation are and find that the treaties of interpretation were adopted by unanimous vote.
o Article 31:
· 1. interpret by ordinary meaning (plain meaning of text); in their context (defined in 2); in light of its object and purpose
· 2. Context: text plus preamble and annexes plus:
· (a) and (b)
· 3. also use any subsequent agreements, practices, relevant international laws that are applicable, and intent of parties
o Article 32: Look to drafting history if using Article 31 leaves interp ambiguous or leads to absurd/unreasonable result.
Apply to Cyprus treaty:
· ordinary meaning of “take action” is to do something, would it include taking military action? Argument to include that is that it doesn’t specifically say no to military action so it’s included, opposing argument is that it doesn’t say military action so can’t be included. Turkey has stronger argument b/c broadly written.
· in context and object and purpose: object of treaty is to set up peaceful way of living together (infer from trying to avoid a civil war) so allowing military action/invasion would undermine object of peace; opposite argument for object is that the treaty was to create some equitable representation and since coup was Greek then Turkey is allowed to take action to redistribute the equilibrium of equality
o Article 53 Treaties conflicting with a peremptory norm of general IL (jus cogens)
§ A treaty is void if, at the time of its conclusion it conflicts with a peremptory norm of general IL.
§ A peremptory norm of general IL is a norm accepted and recognized by the I community of States as a whole as a norm from which no derogation is permitted and which can get modified only a subsequent norm of general IL having the same character.
o Article 64 Emergence of a new peremptory norm of general IL (jus cogens)
§ If a new peremptory norm of general international law emerges, any existing treaty that is in conflict with that norm becomes void and terminates.
· Art 53 and 64 suggest a hierarchy of norms. Jus cogens norms are deemed fundamental to the existence of a just international legal order that states cannot derogate from them, even by agreement. By contrast, other norms of general international law may be modified by agreement with respect to the parties to the agreement.
Internationally the drafting history has a lesser status b/c many times there isn’t any.