INTERNATONAL LAW
NIENKA GROSSMAN
SPRING 2013
1. INTRODUCTION IN INTERNATIONAL LAW I. DEFINITIONS
1. Modern Definition:
9. Restatement of the Foreign Relations Law of the US §101: 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 juridical.
1. Public Internatʼl Law: Governs activities of governments in reaction to other governments
2. Private Internatʼl Law: Governed activities of individuals, corps, and other private entities when they crossed borders
2. Traditional Western Definition: The Laws governing the relationships between nation-states
9. Brierly, The Law of Nations: “The body of rules and principles of action which are binding upon civilized states in their relation with one another.”
35. Differences (Modern v. Traditional):
1. Relations with persons, international organizations
2. The stateʼs individual dealings, not just their relationships with each other
3. “Civilized” states – a normative judgement on what kind of states international laws may apply to
3. R.3d §102: A rule of international law is one that has been accepted as such by the international community of states:
9. in the form of customary law;
2. by international agreement; or
3. by derivation from general principles common to the major legal systems of the world
35. DOES INTERNATIONAL LAW MATTER?
A. AUSTEN – INTERNATIONAL LAW IS IRRELEVANT
0•States only conform to the regulations proposed when it is convenient of beneficial to them. (Interests govern state behavior, not law)
0•There is no executive body to enforce compliance
0•Nations may choose not to agree to compliance from the beginning (may choose not to sign conventions, etc)
0•No judicial body that can render binding decisions
0•International law is voluntary.
0•No world government / legislature. “Laws” created are slow to come, can be ineffective.
0•“Law is a command backed by the threat of sanctions for non-compliance by a sovereign.” If thereʼs nobody above the individual states, itʼs not law.
2. HENKIN – INTERNATIONAL LAW MATTERS
0•Benefits of compliance – economic and security benefits – are so great, many countries desire to comply
0•International pressure to comply
0•There is enforcement (though soft)
0•Grown despite the fact that thereʼs no legislature, compulsory jurisdiction. People still respect the decisions of ICs.
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OUTLINE: INTERNATIONAL LAW / GROSSMAN
0•Extra-legal consequences – Prestige, credit, international stability, withdraw ambassadors, lack of aid, suspension of membership in Internatʼl institutions, sanctions, etc.
61. WHY IS INTERNATIONAL LAW BINDING ON STATES?
1. ISSUE: There is an inherent discord between the concept of a “sovereign nation” being one that is bound by no higher laws and the existence of international law.
2. POSITIVISTS: States should not be bound unless they consent. Consent is King. Legal force is binding only upon consent. Emanate from their “own free will”.
3. NATURAL LAW: Inherent, inalienable rights of humans (Thru God or Reason). It was believed that States also had inalienable inherent rights and obligations, and are bound to obligations beyond those they consent to.
IV. WHY DO STATES COMPLY WITH INTERNATIONAL LAW?
1. FRANCKʼS THEORY: Entities will follow rules with legitimacy. Legitimacy of a rule is not always counted by how often it is obeyed. Sometimes legitimacy is indicated by a partyʼs discomfort despite disobedience. (Not compliance, but the strength of the compliance pull – “pull power”). Indicators of Rule Legitimacy:
1. Determinacy: Ability of rule / text to convey a clear message, appear transparent. Literary-Structural component of legitimacy.
2. Symbolic Validations: Ritual / Pedigree. Supplies cultural and anthropological component of legitimacy. Communicates a symbolic authority. Where the rule comes from (Ethos)
3. Coherence: Treat
4. Vienna Convention on the Law of Treaties (VCLT)(The Treaty on Treaties):
1. Signatory States: 111 Signatory States US not a Signatory State, but considers much of what is contained in the treaty to be customary international law.
2. International Orgs can create treaties, but they arenʼt covered by the VCLT. They are covered by the Vienna Convention on the Law of Treaties between States and International Organizations
5. Elements of a Treaty – VCLT Art 2(1)(a): States must be parties, must be governed by international law, and must be in writing.
1. Agreement
2. In Writing
3. Between States
4. Governed by International Law
6. Steps to make a Treaty:
1. Negotiate texts
2. Signing
3. Domestic Ratification
7. States Involved
1. Bilateral Agreements: Between two countries
2. Multilateral Agreements: Between many countries. Increasingly used for general legislation, whether to make new law or for codifying and developing customary law.
3. Unilateral Obligations: States can make binding unilateral agreements that have legal consequences, though these are not considered to be treaties
2. OBLIGATIONS PRIOR TO ENTRY INTO FORCE
1. VCLT Art. 18 – Obligation not to defeat the Object and Purpose of a Treaty Prior to its Entry into Force:
1. A Treaty is not “brought into force” until it has been ratified domestically (if the stateʼs domestic law requires ratification)
2. While domestic ratification is pending, a signatory state must not defeat the Object and Purpose of a treaty. This imposes some international duties on a
