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International Law
Temple University School of Law
Dunoff, Jeffrey L.

INTERNATIONAL LAW OUTLINE
 
 
INT’L LAW AND ITS RELATION TO INT’L POLITICS
 
I.                    What is IL? What is the Relations of IL and Int’l Politics?
a.       primary actors: states, international organizations, NGOs
b.       how are disputes resolved: courts, alternative dispute resolution
c.        allocation of powers:  among states, over outside individuals
d.       international legal system:
                                                               i.      has no central law making body
                                                              ii.      has no central judiciary w/binding compulsory jurisdiction
                                                            iii.      has no central executive branch
                                                            iv.      so it comes from domestic systems – how does IL apply to domestic states?
II.                  Sovereignty
a.       the whole body of rights and attributes which a state possesses in its territory to t/ exclusion of all other states and also in relations w/ other states
b.       t/ basic int’l legal status of a State that is not subject, w/in its territorial jurisdiction, to t/ gov., exec., legislative, or judicial jurisdiction of a foreign State or to t/ foreign law other than public int’l law
III.               Chad-Libya War Over the Aouzou Strip
a.       Facts: dispute over border strip of territory b/w 2 countries
b.       Options to resolve the border disagreement: 1) invade; 2) negotiations; 3) history of where t/ border was drawn; 4) encourage uprising; 5) go to a third/neutral party (i.e. UN, regional org.)
c.        After exhausting all the above options, LIB and CHA finally went to 3rd party àICJ
                                                               i.      note: ICJ only has jurisdiction by consent of the parties
d.       Resolution:
                                                               i.      Art. 38 of the Statute of the ICJ provides t/ sources of int’l law (p. 35)
                                                              ii.      look to treaty b/w Britain and France and Italy (former colonial powers) to determine border and ruled in favor of Chad, that t/ frontier was est. by t/ 1955 Treaty
e.        Importance of the Chad Libya Case
                                                               i.      First, the parties themselves invoke legal arguments to assert their title to the disputed territory; and
                                                              ii.      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.
f.        The Aouzou Strip problem also provides a classic case of an I legal disagreement in its most traditional sense:
                                                               i.      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.
IV.                Rainbow Warrior
a.       Facts: Greenpeace purchases boat named Rainbow Warrior, docked in New Zealand to leave for FRA to protest FRA nuclear testing, and FRA bomb boat killing a crew member and destroying the ship
b.       Resolution: UN SG determined resolution to the conflict including: 1) public apology from FRA PM to New Zealand PM; monetary compensation from FRA to New Zealand; 2 FRA agents to be transferred to FRA mili to be sent to isolation over next 3 yrs; FRA should allow NZ imports of butter to UK; compensation to the family of t/ killed crew member
                                                               i.      did this matter? they had agreed to these conditions before – but does provide a medium for nations to negotiate when faced w/ public dissent
c.        Importance:
                                                               i.      involves issues that didn’t exist 100-200 yrs ago (i.e. nuclear testing)
                                                              ii.      involves doctrinal area that wasn’t around (environ law)
                                                            iii.      involves entities that don’t have int’l legal personality (Greenpeace (NGO) and indiv. killed)
                                                            iv.      challenges traditional understanding of IL (transnational dispute)
 
 
 
 
 
 
 
 
SOURCES OF INT’L LAW
 
Primary Sources of International Law
I.                    Statute of the ICJ
a.       Article 38 – the court, whose function is to decide in accordance w/ IL such disputes as are submitted to it, shall apply:
                                                               i.      int’l conventions
                                                              ii.      int’l custom, as evidence of a general practice as accepted by law’
                                                            iii.      the general principles of law recognized by civilized nations;
                                                            iv.      judicial decisions and t/ teachings of t/ most highly qualified publicists of t/ various nations, as subsidiary means for t/ determination of rules of law
II.                  Treaty
a.       Treaties are preferred from of IL b/c:
                                                               i.      their content is relatively easy to determine
                                                              ii.      treaties in most cases reflect formal consent of t/ states that ratified them to be bound to their terms
                                                            iii.      treaties may be a more familiar source of law to nat’l policy makers and their constituents rather than other sources of IL and thus decisions based on treaties may find greater acceptance domestically
b.       Treaties
                                                               i.      must be written
                                                              ii.      parties must intend to be bound to them
                                                            iii.      must be in line w/ int’l law
c.        Why Do States enter Treaties?
                                                               i.      realism: cannot explain treaties; views int’l system as anarchic and treaties exert little influence over state behavior; states act only in their own self-interest
                                                              ii.      institutionalism: accepts t/ realism claim that t/ int’l system is anarchic, but argue that states have powerful incentives for entering into treaties beyond t/ simple pursuit of interest through power – states enter into treaties to achieve mutually beneficial outcomes and long-term goals
                                                            iii.      positivists: believe that IL comes from states, to then jus cogens is a puzzle – don’t know where these norms come from if states make IL (jus cogens is a doctrine of natural law)
                                                            iv.      Lipson Article: treaties raise t/ poli costs of non-compliance – t/ more formal and public t/ agreement, t/ higher t/ reputational costs
VIENNA CONVENTION
d.       Introduction
                                                               i.      Art. 2 defines “treaty” as “an int’l agreement concluded b/w States in written form and governed by int’l law whether embodied in a single instrument or in 2 or more related instruments” (p. 44)
                                                              ii.      Art. 3 of VC: tell us that Art. 2 is not exhaustive, that there is another world of treaties
e.        Capacity of States to enter Treaties (p. 46) (treaty isn’t applicable to this situation?)
                                                               i.      VC Art. 6: Capacity of States to Conclude Treaties
                                                              ii.      VC Art. 7: Full Powers – tells us who can sign a treaty – “a person is considered as representing a State for t/ purpose of adopting or authenticating t/ text of a treaty or for t/ purpose of expressing t/ consent of t/ State to be bound by a Treaty…”
                                                            iii.      VC Art. 8: Subsequent Confirmation of an Act Performed W/o Authorization
f.        Interpretation of Treaties (you’re reading the treaty the wrong way)
                                                               i.      Art. 31: General Rule of Int

island (majority TUR-CYP)
2.       is TUR invasion justified under int’l law?
a.       NO – violates state sovereignty est. in t/ 1960 Accords
b.       YES – Art. 4 reserves right of guarantors to take action if Treaty is violated
3.       TUR argues à invasion justified under Art. 4 of the treaty vs. CYP argues not justified as violates IL principles like sovereign equality and non-use of force in IR
                                                            iv.      1992 UN SG Perez de Cueller drafts “Annan Plan” for resolution of t/ CYP dispute à creation of a “common state” composed of 2 poli equal “component states”
III.               Customary Law
a.       Art. 38 of t/ ICJ Statue: lists int’l custom as evidence of int’l law (“evidence of a general practice accepted as law”, thus 2 elements: 1) general practice and 2) accepted as law (often expressed as opinio juris); 3) jus cogens
b.       opinio juris: usage or repeated state acts become custom over time, as divergent practices of various states converge and achieve a level of uniformity, consistency, and regularity that in turn generates a sense of legal obligation referred to as
c.        CIL forms b/c states engage in or acquiesce in particular practices and eventually recognize them as obligatory
d.       Expropriation Cases and FDI
                                                               i.      Foreign Direct Investment (FDI): t/ transfer of capital by an investor from one country to another accompanied by a claim to t/ income produced by t/ assets acquired or generated w/ that capital
1.       during colonial era, by virtue of “concession agreements” w/ host states, western co.’s gained control over many natural/raw resources in developing countries
2.       but as decolonization progressed, developing countries started to demand poli/econ equality w/ developed world, and developing states began to engage in a process of expropriations of certain assets belonging to foreign investors by nationalizing their corp.’s
                                                             ii.      MEX Expropriations
1.       if you expropriate lands, you have to pay back t/ foreign state “prompt, adequately and effectively” under CIL
2.       MEX denies that it was under any int’l legal obligation to pay compensation and insisted that MEX domestic law applied  – social justice of them getting their own resources
3.       US (Hull Doctrine) insisted MEX obligated to pay adequate compensation appealing to customary IL (CIL) which supports full compensation under int’l law (and not nat’l law)
a.       sef-evident rules about law and fairness and CIL which demand compensation
                                                            iii.      Permanent Sovereignty over Natural Resources, GA Res. 1893 (p. 76): makes nationalization ok; owner shall be paid appropriate compensation in accordance w/ t/ rules in force in t/ State taking such measure in t/ exercise of its sovereignty and in accordance w/ int’l law; if a controversy arises, nat’l jurisdiction of t/ state nationalizing will be used; settlement of dispute should be made through arbitration or int’l adjudication
                                                            iv.      Permanent Sovereignty over Natural Resources, GA Res. 3171 (1907): upholds nat’l sovereignty; each state has a right to nationalize expropriated land; in cases of controversy, it shall be settled under t/ domestic law of t/ nationalizing state and by its tribunals unless agreed upon by all parties concerned that other peaceful means be sought