International Environmental Law
Prof. Carlson
Fall 2013
I. The Concept of International Law
A. Legal Theories
1. Legal Formalist – Judges just apply the law
2. Legal Realism (Llewellyn) – Law is what the courts do. “What officials do about disputes if the law itself,” including principles and values too.
· Institutionalism – norms embedded in law shape expectation and behavior of those who run key institutions, treats int’l law and int’l legal institutions as serious influences on the int’l behavior of states
· Game Theory perspectives – reciprocity, communication of expectations all give international norms effect
· Regime theory – creation of int’l structures of procedures/rules/goals/principles create broad int’l agreement around those structure and shape behavior
· Rational Institutionalist – draw their tools from economics
· Sociological Institutionalist – concentrate on cultural practices, norms, values, and the discourse of int’l politics
3. Process Theory (Higgins) – “Law requires the interlocking of authority with power,” communicated by actors with authority, communicated with an expectation of control.
4. Natural Law – Law is essentially the same everywhere, human reason applied to the facts of human existence
5. Legal positivists – Law is the product of human action; it is a human construction
B. International Law Framework
· Birthplace: Peace of Westphalia 1648
· 1919 Treaty of Versailles and League of Nations
II. Sources of International Law
A. Article 38 of the ICJ Statute Outlines
1. Primary Sources
· Treaties – “rules expressly recognized by the contesting states”
· Custom – “a general practice accepted by law”
· General principles of law – “recognized by civilized nations”
2. Secondary Sources
3. Also, Inter-governmental organizations (like OECD), treaty governance organizations (UNFCCC), or the International Law Commission
B. Treaties
1. Vienna Convention on the Law of Treaties (Doc. 1.7)
· Largely restatement of customary law, US has not ratified but views most provisions as reflecting binding norms
· Principle of pacta sunt servanda (art. 26)
o states are bound to keep the promises they make
2. Definitions:
o A state that has consented to be bound by a treaty is a party to a treaty, once it has entered into force
o Treaty = an international agreement concluded between States in written form governed by international law
o Treaties are the primary means of addressing complex problems in int’l legal systems
o Treaties create a little less binding agreement on parties than their own legislation and political pressures may dictate to follow or not to follow Bilder, Managing the Risks of International Agreement (p.87)
3. Conclusion and Acceptance of Treat
n of multiple treaties
o Tacit consent allowed in very few cases = bound unless you object
o Some majority rule, some qualified majority rule
5. Termination of Treaties
· VCLT art. 54-64; By agreement art. 54-59
o No right of unilateral termination unless expressly or impliedly allowed (art 56(1))
o Material breach by other party (art. 60), impossibility (Art. 61), fundamental change in circumstances (art. 62), new preemptory (jus cogens) norm (art. 64) (ex: genocide)
o Erga Omnes – obligation owed to everyone.
6. Treaties versus national law
· Conflict with national law is no excuse for a State's non-complaince with treaty obligations (VCLT art. 27)
· On the other hand, national law determines who has competence to negotiate and conclude and consent to treaties for a State
· Violation of national law re: “Competence to conclude treaties” (VCLT art. 46) could provide an basis to invalidate a treaty IF
o Internal rule was “of fundamental importance”
o Violation was “manifest” i.e. “objectively evident to any State conducting itself in accordance with normal practice and in good faith.”
