PUBLIC INTERNATIONAL LAW
Keitner- Spring 2013
Nature and History of International Law
I. General Information
A. International Law
1. Law that operates around the world
2. Super-national law
B. Transnational Law
1. Law that operates across borders
2. No specific body but the study generally means domestic or national law that operates across borders
3. Kind of law operating may be domestic or national
C. Myths about International Lawyering
1. 1) International law is a distinct legal system
a. Although it does have its own body of law, it is deeply embedded in national law
2. 2) International law is all theory and no practice
a. ASIL.org: Good for career info
3. 3) International law is not real law
a. Power/ strength plays a more transparent role than softer diplomacy methods
b. The fact that behavior can be described as conforming with or deviating from legal principles shows that the law exists
i. External vs. internal enforcement mechanisms
· International law is typically enforced though internal mechanisms, although there are courts/ mediators.
4. 4) No one obeys international law
a. One must look at both internal and external enforcement mechanisms
5. 5) International law is what the US says it is
a. Powerful states do have a greater voice in determining what results in international law, but there are a lot of areas where the US is the outlier.
i. US views are important, but not necessarily determinative
b. In theory, each state has an equal voice because of the principle of sovereign equality. In practice, this isn't necessarily true.
i. Smaller States often form coalitions to increase their power
II. Naturalism v Positivism
A. Natural Law
1. A ‘common law’ of states backed up by religious and philosophical principles of good faith and goodwill between men and nations
a. Idea that law should reflect morality.
2. Example: If slavery is immoral, it is prohibited
B. Positivist Law
1. International Law is based on sovereignty and consent
2. States are full and complete sovereigns that create law. The only real basis of legal obligation is created by nations, and international law comes from the actual experience of States relations.
3. Example: Slavery is not prohibited unless states agree to ban slavery
III. International Organizations
A. International Court of Justice (ICJ)
1. General Information
a. UN Charter, Art 14 creates the ICJ
b. ICJ is also referred to as the 'World Court'
2. Jurisdiction/ Authority
a. Primary interpreter of customary international law
b. Court hears disputes between countries
i. Only States can be parties before the ICJ
c. Opinions do not have precedential weight- only binding on the parties to the dispute
i. This is in part due to the influence of the civil law system
ii. Also due to the principle of consent- can't constrain the sovereignty of states that have not had input in the case
3. Panel of Judges
a. 15 judges on the ICJ, each from different countries
b. If one of the current judges is not from a parties' country, they have a right to have an ad hoc judge so it could be up to 17 judges (15 regular and 2 ad hoc)
4. Court Docket
a. Split between contentious cases and advisory opinions
i. Contentious cases: disputes between countries (80%)
ii. Advisory opinions: Organ of the UN requests info (20%)
· To get an advisory opinion, need 2/3 GA agreement.
· Advisory opinions aren't binding, but are regarded as authoritative statements on international standards
B. United Nations (UN)
1. Primary purpose behind the UN is to prevent war
2. Major Organs
a. General Assembly
i. Comprised of representatives from each UN member states
· To be a member state, must ratify the UN Charter
ii. 193 member states and a few observer members/ entities without voting status
iii. Can't create law, but can opine on a variety of issues (resolutions)
· Resolutions aren't binding
iv. GA resolutions don't create CIL but they do contribute to state practice and opinio juris
b. Security Council
i. Issues binding resolutions
· Can actually create international law
ii. Comprised of 15 members
· 5 permanent members (US, Britain, China, France, Russia)
· 10 rotating members
iii. Makeup of the SC has been greatly criticized has institutionalizing the power system of the post WWII world order
iv. Can authorize the use of military force
C. International Law Commission (ILC)
1. Experts with status, but no binding authority
a. Creates nonbinding draft articles on various topics as well as working group reports
b. Can help to get the ball rolling on shared understanding
2. They try to propose codification of CIL
a. They will identify areas of law that 'cry out' for codification
3. Not a legislative role- rather, they try to look at state practice and opinio juris and determine what the law already is ('lex lata'- codification)
4. Also advocate for how the law should evolve ('lex ferenda'- progressive development of the law)
a. Can be difficult to determine when the ILC is doing lex lata and when it is lex ferenda
Sources of International Law
I. Sources of International Law
A. Statute of the ICJ, Art 38
1. Sets out the sources of international law
a. a) “international conventions . . . establishing rules expressly recognized by the contesting states”
i. Includes bilateral and multilateral treaties
b. b) “international custom, as evidence of a general practice accepted as law”
i. Also called customary international law
c. c) “the general principles of law recognized by civilized nations”
d. 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.”
B. Customary International Law and Treaty Law
1. These two sources are equal
a. Countries can opt out of CIL by treaty, or
b. They can codify CIL by treaty
i. “A rule can develop through a parallel evolution in both treaties and custom.”
2. Both bind States and international organizations
a. Elements may also bind individuals
b. Debate about whether organizations are bound by international law
i. For example, corporations or other organizations, al-Qaeda
ii. General consensus is yes
3. CIL and treaty provisions may overlap
a. If a state is not a party, they can still accept the provisions as CIL
i. See the US stance on VCLT and LOST
4. 3 possible relationships between treaties and custom
a. 1) Treaty declares customary rule when the treaty provision is adopted
i. In which case, CIL rules persist
b. 2) Treaties crystallize custom as states agree on provision during treaty drafting process
c. 3)
his (interdependent) nature given by the Minister of Foreign Affairs on behalf of his government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the minister belongs.”
· BUT there was a quid pro quo—a promise for a promise—here, so you could easily argue that Denmark and Norway had an oral treaty.
d. Australia v France (ICJ, 1974): In 1973, France conducted many underwater nuclear tests in the pacific islands.
i. Held: The Court effectively treats this case as moot because France has unilaterally declared that it would end its tests by the end of the year, and these statements, made by the President and some French foreign ministers, have the binding force of law.
C. Treaty Formation
1. Step 1: Negotiation
a. Parties agree upon the text of the treaty
b. Treaties may define terms to ensure that there is no ambiguity, but multilateral treaties may leave some terms undefined to make it easier for states to agree
2. Step 2: Signature
a. Once the text has been agreed on, it will become open for signature
b. In US, President signs and submits to Senate
c. Regional organizations can sometimes sign
i. Ex: CRPD, Regional organizations instead formally confirm but not ratify
d. VCLT Art 18: After a State signs a treaty, it is obliged to refrain from acts which would defeat the object and purpose of the treaty or fundamentally undermine what the treaty is supposed to do
i. UNLESS they make clear their intent to not ratify the treaty.
3. Step 3: Ratification
a. In US 2/3 of Senate must vote to give its advice and consent before President can ratify/ proclaim treaty
b. Per the VCLT, if the State is just a signatory and has not ratified, they must refrain from actively undermining the object and intent of the treaty.
4. Step 4: Entry into force
a. When a treaty has a specified number of signatories depositing the treaty, it goes into force and becomes binding
b. Entry into force: treaties specify that when a number of states have ratified the treaty, it will become binding
i. If a treaty is not in force, its not binding
c. Accede: Once the convention is in force, a State doesn't have to sign first, it can go straight to ratification
5. Additional steps
a. Optional protocol: Additional set of commitments that state parties can ratify
i. Don't have to ratify the main treaty to ratify the optional protocol
ii. Not party to the optional protocol by virtue of being a party to the main treaty
b. Treaty amendment: Not all treaties specify the process for treaty amendments
6. Example: Vienna Convention on the Law of Treaties (VCLT)
