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International Law
University of Kentucky School of Law
Kightlinger, Mark F.

 
Kightlinger | International Law | Fall 2013
 
I.          What is International Law?
 
·         Law prescribes rules governing the relations of nation-states
·         Encompasses both public and private intl law
·         Public intl law–governs the activities of govts in relation to other govts
·         Private intl law–deals with the activities of individuals, corps, and other private entities when they cross national borders
·         Domestic law describes rules governing everything else, mostly the conductor status of individuals, corp., domestic govt units, and other entities w/in each state
·         Intl law–the body of rules and principles of action which are binding upon civilized states in their relations with one another
·         Intl law (Rst. § 101)–consists of rules and principles of general application dealing with the conduct of states of intl orgs and deal with their relations inter se, as well as with some of their relations with persons, whether national or juridical
 
·         Statute of ICJ–a treaty ratified by the US and all other members of the UN that contains a traditional statement of the sources of intl law
·         Article 38
·         The Court, whose function is to decide in accordance with intl law such disputes as are submitted to it, shall apply:
·         A) intl conventions, whether general or particular, establishing rules expressly recognized by the contesting states.  Treaties.  Binding b/c consented upon.
·         B) intl custom, as evidence of a general practice accepted as law.  Majoritarian consent.  Binding b/c countries expect others to follow the custom.
·         C) the general principles of law recognized by civilized nations.  Binding b/c natural law, consent, enforcement.
·         D) judicial decisions and scholarly works.  This is more evidence of intl law than law.
 
·         Rst. § 102 (describes the sources of intl law)
·         1) A rule of intl law is one that has been accepted as such by the intl community of states
·         A) in the form of customary law
·         B) by intl agreement; or
·         C) by derivation from general principles common to major legal systems of the world
·         2) Customary intl law results from a general and consistent practice of states followed by them from a sense of legal obligation
·         3) Intl agreements create law for the states parties thereto and may lead to the creation of customary intl law when such agreements are intended for adherence by states generally and are in fact widely accepted
·         4) General principles common to major legal systems, even if not incorporated or reflected in customary law or intl agreements, may be invoked as supplementary rules of intl law where appropriate
·         Most intl law rules are generally complied with.  There are several means other than court adjudication by which disputes can be settled:  negotiation (most frequent), mediation and arbitration pursuant to a general or ad hoc agreement
·         A.  History of public intl law and alternative perspectives
·         The contemporary system of intl relations is built on the assumptions that the nation-state is the primary actor
·         Grew to some extent out of the usages and practices of modern European states in their intercourse and communications
·         Greek and Roman influences
·         Greek City Statesà concept of “intermunicipal” à states were small but independent of one another à term describes the law which was composed of customary rules which came from long standing usages followed by these cities
·         Early Romeà evidence of rules governing the relations b/n Rome and various other nations
·         Influences from Renaissance and Reformation
·         Many theorists, community of several sovereign states
·         Influence from treatise on the subject ‘De Jure Belli ac Pacis’ (The Law of War and Peace)à talked about warfare customs, usages b/n nations
·         After WWI, self questioning was the order of the day; 1919 Peace Treatyà helped to create League of Nations
·         1921 Court of International Justice began; succeeded in 1946 by the ICJ
·         1946 United Nations formed
 
·         B.  Changes in intl law
·         Changes include: 1) the intl system is no longer confined to relations among nations and the individual has emerged as an independent and recognized actor; 2) national and intl tribunals are offering new and more effective means for enforcing intl law
·         1) Emergence of the person
·         After WWII, intl orgs developed, perhaps to give individuals a voice
·         The person (whether an individual or corp.) has become increasingly accepted as an independent actor
·         Independent role of persons has probably advanced furthest in the human rights area; intl law now defines a number of human rights, ex. The right to be free from torture
·         2) Enforcing Intl law
·         Concept of reciprocity
·         Adjudicatory body: ICJ
·         Principal forum for resolving certain forms of legal issue b/n states
·         UN Charter a member undertakes to comply with the decision of the court if ‘it is a party’ to the case, and the UN Security Council can ‘decide upon measures to be taken to give effect to the courts judgment’
·         Several states violate courts ruling and as such there is a uncertain enforceability to the judgments
·         Only states can be parties to a case; doesn’t recognize individuals
·         Not well adapted for fact finding and takes a long time to get a decision
·         Arbitration
·         1958 NY conventionà treaty ratified by 130 countries + USà according to this treaty, subject to very narrow exceptions, a decision by the intl arbitral panel sitting in a contracting state will be enforced by the domestic courts of any other contracting country as if the decision were by that domestic court
·         Advantages: flexibility, fast, parties can choose place of arbitration and arbitrators, etc.
·         Regional and Specialized Courts
·         European Community Court of Justice
·         European Court of Human Rights
·         1982 Convention of the High Sea
·         Domestic Courts
·         Trend to hear more cases and develop what amounts to an intl common law that lies in b/n traditional and domestic intl law
·         Domestic courts also have an influence beyond their specific judgments—their decisions are often cited in other national courts and in the regional courts
·         3) Developing Countries’ Perspectives
·         after WWII and the end of imperialism/colonialism, the Third World developed.  They gained a huge voice in the UN, particularly the General Assembly, in which majority rules.  The Third World is the majority of the world.
 
·         C.  Is intl law really law?
·         Some say intl law isn’t law b/c there is no effective enforcement
·         Henkin on How Nations Behave
·         Foreign policy, intl agreements bind countries to intl law, even though there is no enforcement.
·         Nations do comply w/ rules (the law) re: diplomatic staff, in the seas.  But what about when their interests dictate going against complying?
·         redefines “law”–if there is something that constrains countries' behavior, it is law.  Doesn't necessarily have to be policemen and courts.  That countries recognize one another as “sovereign” shows there is an intl law. 
·         Critics say looking at custom is slow and uncertain.  Henkin says these weaknesses may be true, but the intl law is still there.
 
·         D.  Is intl law binding?
·         the positivists–what states have consented to is law.  Brierly says this is a fiction.  If a new country is formed, it does not choose to consent, but it is still expected to comply.  Also, if a country doesn't consent, what binds it to the law?  Nothing.
·         Argues that a customary rule is observed, not b/c it has been consented to, but b/c it is believed to be binding, and whatever may be the explanation or the justification for that belief, its binding force does not depend, and is not felt by those who follow it to depend, on the approval of the individual or the state to which it is addressed
·         fundamental rights/natural law–there are fundamental things people believe.  People take those beliefs with them when the form states.  We are all expected to follow these inherent rules. 
·         Each person/country has different views of what these inherent rules are. 
·         We are looking at countries, not individuals.  There needs to be a legal system for there to be law; law is not just out there; it must be discovered.  There is no hope for progression under natural law; what is there is always there.
·         This has been rejected as a theory but still influences theory.
 
·         United States v. La Jeune Eugenie (1822):
·         This case follows the Rst. definition of intl law:  looks at general principles, customs, positive law, treaties
·         Natural law obviously dictates the slave trade is wrong
·         France and England have abolished it.
·       

rat'l choice, liberalism.  This theory recognizes intl organizations.
·         Cons:  focuses on only the few states that are engaging in a particular interaction.  A country can change its compliance with a norm.  This questions whether the country actually internalizes the norms & makes them part of their identity.  Identity can change over time.  Has increased interaction–>increased compliance?
 
·         6) Constructivism:
·         States do not have objective goals; intl law is a reflection of a state's norms/customs/system.  The system itself is affecting the state's interests.  Over time, a state will develop an identity of compliance with intl law.  States will forego immediate benefits from defection in order to keep intl system in place.
·         Pros:  State actors can't change rules as easily.  World “powers” aren't as influential b/c the whole world defines the system.  Influences how nations act.
·         Cons:  System sets the consequences.  States often want different results.  What one state wants might be different from what another state wants.  Doesn't explain why a state would come to identify w/ compliance or why a state wouldn't get immediate benefits and let other countries keep the system working.
 
·         7) Managerial Model:  (deals w/ treaties)
·         Propensity to comply:  once you've made a decision, it is more cost effective to continue on with that decision/make the same decision a second time.
·         Treaties are consensual, so they reflect a state's interest.
·         States are expected to comply.
·         In order to achieve goals, you need to be accepted by the intl community.
·         Noncompliance–results from premeditated  noncompliance (rare).  Also results b/c of ambiguity in the rules.  Also a lack of capacity to be able to comply with intl law.  Countries that can't even feed themselves cannot comply.  It takes time to make changes, so it takes time to come into compliance.
·         Can best encourage compliance by increasing transparency/disseminate information about what countries' roles are.  Also dispute settlement and persuasion of discourse.  Also capacity building.
 
·         F.   Intl Law Theory & Methodology
·         1) Critical legal studies
·         Focuses on the language/rhetoric of intl law and tries to point out flaws.
·         Doesn’t try to make the law better or predict what will happen.
·         Deals w/ the fact intl law is abstract and isn’t always tied to reality
 
·         2) Feminist jurisprudence
·         Points out the inadequacies in protection of women. 
·         Ex. Torture rules don't protect women b/c torture is defined as state-sanctioned torture & much of the violence women face is in the private sphere and is not encompassed by this definition.
·         Orgs are designed in a way that excludes women.
·         Public realm of the work place, the law, economics, politics and intellectual and cultural life, where power and authority are exercised, is regarded as the natural province of men; while the private world of the home, the hearth, and children is seen as the appropriate domain of women
 
·         3) Law and economics
·         If assume states are self interested, we can understand why they cooperate at times, etc.  They seek to increase money.
·         Actors are willing to relinquish autonomy in order to obtain certain benefits
·         If a state can’t do something on its own, it will seek help in the intl community.
 
·         4) Intl relations/Intl law (IR/IL)
·         Seeks to find out what is really happening in intl politics—political science