INTERNATIONAL LAW OUTLINE (Dunoff, 2011)
I. Introduction: What is International Law
A. Libya and Chad Dispute over the Aouzou Strip
1. Chad claimed 1955 treaty (b/t France and Libya) gave it rights to the strip b/c it outlined the border agreements France had previously made to Italy (who colonized Chad)
2. Libya claimed treaty was invalid because of coercion of its King
3. Libya invaded Chad
4. Chad went to UN Security Council for Libyan withdrawal
5. Options Available for the dispute
a. Historical Right of Claim: History and opinions of people in territory
b. Military force i.e. war (downside – losses)
c. Submit case to international tribunal (downside – Question of enforcement, not as much control over decision making); 3rd party mediation
d. One side could give in
e. Go to a non-judicial third party
f. Look to prior treaties
g. Economic Sanctions/ Inducements
6. States agreed to submit to the International Court of Justice (ICJ) (Judicial organ of U.N.)
a. Traditional International dispute:
i) Parties: states
ii) Dispute: territory
iii) Legal Instruments: titles/treaties
7. Positivists: argue that law is created by humans for definite conditions and purposes rather than by some supreme being for all eternity. Made distinction between “sovereign” states (i.e. European) and non-states. Sovereign States could do whatever they wanted to others.
8. Resolution of Chad/Libya Dispute
a. Concluded land all belonged to Chad based on treaty and map showing outline of strip belonging to Italy (then Chad) from 1899.
b. This was despite the fact that the treaty was made by colonial powers, not the current parties
c. 1955 treaty was renewed in 1966. Court felt that if there was a serious dispute, that Libya would have protested in that 11 year period.
9. Caveat: ICJ has no mechanism for enforcement
10. Boundaries: A boundary established in a treaty achieves a permanence that the treaty itself does not necessarily enjoy.
B. The Rainbow Warrior Affair
1. France bombed Green peace boat while docked in New Zealand
2. 2 French guys arrested and France claimed it would agree to responsibility so its officers shouldn’t be held responsible for obeying orders
3. NZ said that neither international law or NZ law excused criminal acts on these grounds
4. Neither side was willing to enter bilateral negotiations.
5. France and New Zealand agreed to allow UN Secretary to give binding ruling.
a. France was to apologize, pay 7MM USD,
b. NZ was to release prisoners to be transferred to military island of France outside of Europe for three years.
6. The Rainbow Warrior affair illustrates some of the ways that the traditional understanding of international law reflected in the Chad-Libya dispute – as a body of rules binding upon states in their relations – has been supplemented by a new international legal process characterized by new actors, issues, and modalities of prescription and enforcement. (page 25).
7. Problems: Difficult to command compliance; power struggle between internationally powerful State (France) and relatively weaker one (NZ)
II. Treaties and Treaty Law
A. ICJ Statute (Art. 38) suggests that courts and other decision makers find existing international law and apply it. Although treaties and custom are the principal means that international law is applied (Hard Law), it is supplemented by international organizations, NGOs (private, voluntary citizen’s groups), and multinational enterprises (Soft Law).
1. Treaties are preferred
a. Content is easier to determine
b. Reflect the formal consent of the states.
c. May elicit greater acceptance by the party to be bound
a. Evolves from state practice
b. Legally binding
3. General Principles of Law Recognized by Civilized Nations
4. Judicial Decisions
5. Soft Law
a. Declared norms of conduct understood as legally nonbinding by those accepting the norms
b. Declarations of international organizations
c. Industry codes of conduct
B. Scope of Authority
1. Rise out state consent
2. Treaty is an agreement, analogous to a contract with some important differences
a. No consideration
b. Treaties do not become binding when they are signed, as contracts are, but instead when the legislature of the state verifies it
C. The Cyprus Conflict
1. Cyprus almost always occupied by foreign power
2. As a result of London accords, Cyprus became independent State
3. Power divided between Greek Cypriots and Turkish Cypriots
a. Under Treaty of Guarantee, Cyprus agreed to ensure respect for its constitution and to eschew any activity tending either to promote union with any other country or partition.
b. In turn, Greece, Turkey, and UK agreed to recognize and guarantee independence, territorial integrity, and security of Republic of Cyprus, and also the state of affairs establish by its Constitution.
c. Art. IV of the treaty: all measures necessary to ensure compliance
4. Greek President proposed substantial amendments to Constitution
5. Turkish flew warning flights pursuant to article IV.
6. UN sent in forces and Turkey invaded Cyprus.
D. Application of Treaty Law to Cyprus
1. Vienna Convention on the Law of Treaties (adopted 1969) (page 43)
2. Argument about capacity:
a. Article 6: Is Cyprus a “state”?
b. Article 51: Is coercion economic (broad interpretation sought by developing countries) or only military force (narrow interpretation favored by developed countries)?
i) Narrow interpretation wins out- powerful countries threatened to walk out of VC
3. Article IV, Treaty of Guarantee
a. Is Turkey sending troops count as “taking action” a legitimate reading?
i) Turkey: Only a particular type of action with the “sole aim of re-establishing the state of affairs created by the present tre
book value of the company”
c. Where do we look?
i) UN resolutions should be used as custom, instead of history like in PAQUETE
ii) Resolution 1803 is seen as customary articulation of the law
iii) Interpreted here as full compensation
d. Holding: Claimant must receive compensation for the full value of its expropriated interest in
SEDIRAN, whether viewed as an application of the Treaty of Amity or independently, of
customary IL, and regardless of whether or not the expropriation was otherwise lawful.
2. LIBYA v. WESTERN OIL PROPERTIES (TEXACO)
a. Western investors invoked arbitration clause of agreement and Libya refused
b. Found there was no consensus as to what sort of compensation was payable
c. Voting record of resolutions reviewed
i) Libya wants 3281
ii) Voting record on the provision in question was 86-11 (undeveloped vs. developed countries)
d. Arbitration included in attempt to figure out what custom is
i) Go through exercise similar to these tribunals like soft law documentation
ii) Holding: 1803 is the rule, because arbitrator says 1803 broad cross-section of international actors with an super majority whereas the latter two soft law clauses were party line vote between the developed and developing countries (reflects what the developing countries WANT and that developed countries abstained from)
iii) Problem: What about the fact that those same developing countries spend 10 years attempting to change 1803?
e. By passing new resolutions in the ‘70’s they are trying to change the laws – saying the customary norms have changed – doesn’t work because it goes back to resolution from ‘60’s.
3. Voting records are not necessarily good show of custom b/c sometime a rep is faced with a vote that they didn’t discuss with their home country and “just make up as they go along”.
4. World Bank Guidelines on FDI
a. The taking must occur as follows:
i) under applicable legal procedures
ii) in good faith pursuant of the public interest
iii) in a nondiscriminatory manner, and;
iv) payment of appropriate compensation (US wanted “prompt, adequate, effective)
b. RULE: Appropriate will be found if it is prompt (without delay), adequate (fair market value), effective (paid in currency bought in by the investor)