a. Law regulating the co-existence of nations became important due to the rise of territoriality with one sovereign ruler.
i. Werner Levi, Contemporary International Law (p.5)
ii. This happened during the birth of states in Europe.
b. Early writers on international law (p.6)
i. Grotius – “father of international law”
ii. Lassa Oppenheim, International Law, vol. 1, Peace (1905) (p.8)
1. Three conditions for admission into the Family of Nations. 1) civilized, 2) consent to be bound, 3) existing members must consent to admit the new member
iii. Anthony Anghie, Finding the Peripheries: Sovereignty and Colonialism in 19th Century Int’l Law (1999) (p.10)
1. A central feature of positivism was that it said the law of nations only applied to civilized nations
c. Libya/Chad Boundary Dispute (Aouzou Strip) (ICJ 1994) (p.12)
i. Court looked to the Treaty first, then colonial agreements.
ii. A boundary established by Treaty persists even after the Treaty expires
iii. Effective International Law: ICJ resolved the dispute and parties actually adhered to it!!!
d. Rainbow Warrior (p.20) [decision rendered by UN Sec’y General]
i. Apology
ii. Compensation
iii. The Two French Agents
iv. Trade Issues
e. Was international law totally ineffective in Rainbow Warrior?
i. After France got it’s agents back, it basically ignored the requirement of keeping them in the French Polynesia prison
ii. But France did pay compensation
iii. Other example: France declared ban on nuclear testing, but then ignored its own statement and continued testing in the south pacific
iv. But See: Aouzou Strip case (Chad/Libya) (p.12)
f. Positivism is the dominant view
i. Positivism is the theory that international law is no more nor less than the rules to which states have consented
g. Compliance Theories
i. Realists —
ii. Institutionalists —
iii. Constructivists — in an anarchic int’l order, states have no preexisting interests or identity; it is created by their interactions with other states
iv. Kantian — compliance is a function of int’l law’s legitimacy vis-a-vis its targets
v. Managerial — states induce compliance through cooperative interactive processes of justification, discourse, and persuasion
vi. Transnational Legal Process — State compliance occurs when int’l legal norms “come home” — i.e. internalized by domestic law
h. Viewing international law through the authority/control paradigm
i. The extent to which a rule is a legal rule depends upon how the parties perceive the authority and control of the rule.
1. Authority — Extent to which the parties accept the process by which the rule came about
2. Control — Extent to which the rule/process has within it mechanisms to effect compliance
ii. Consequences of viewing int’l law through this paradigm
1. Law is not just a set of rules
a. Their relevance depends upon how seriously they are taken/enforced by parties
2. Law and politics are inseparable in int’l law
3. Int’l law and domestic law are intertwined
4. Many areas of int’l law are unstable
i. Treaties
i. Advantages
1. Clear and strong signal of authority
2. Closest analog in int’l law to private contract
ii. Lipson, Why Are Some Int’l Agmts Informal? (1991) (p.41)
1. Why do states decide to participate in treaties?
a. Create a reputational costs to a potential offender/noncomplier
b. Corollary – show seriousness of their own commitment
HOW INTERNATIONAL LAW IS MADE
j. Treaties and custom don’t usually bind non-state actors.
k. ICJ STATUTE ART 38 INDICATES TO WHICH SOURCES OF LAW THE ICJ WILL LOOK
i. Treaties
1.
2.
ii. Custom
1.
iii. Soft Law
1. This is not mentioned by the ICJ statute Art 38, but it is an important source of law
iv. General principles
v. Secondary: judicial decisions of nations; treatises
l. TREATIES – CREATION AND TERMINATION
i. Vienna Convention on the Law of Treaties (VCLT) (1969)
1. U.S. is not a party to VCLT, but describes it as “authoritative”
2. Treaty = “concluded between states in written form and governed by international law” (VCLT 2)
3. VCLT only applies to treaties between states (VCLT 3)
a. VCLT does not affect the legal force of agreements involving non-state actors (p.44)
4. Authority to make treaties / bind a state– VCLT Arts. 6,7,8 (p.46)
a. Art 6 — every state has power to make treaties
Art 7 — Who can represent a state? One who produces appropriate full powers, or it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
Also: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; … (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
b. Art 8 —
5. Good Faith: States must carry out their treaty obligations in good faith (VCLT 26)
ii. Treaties do not bind non-parties to the treaty
iii. Treaties are generally not construed to be retroactive
iv. Unilateral declarations
1. Binding if the state intended to create a legal obligation or induce reliance by other states. See France’s Nuclear Tests Stmt. (p.45)
v. Termination and Invalidity under the VCLT (p.49)
1. Treaty entered into under fraud, coercion, error, etc. (VCLT 51, 52)
a. Cyprus Conflict
i. Cyprus was a colony of the UK. When UK decolonized it, three countries — Greece, Turkey, UK — plus Cyprus became signatories to Treaty of Guarantee
b. Two claims made by Cyprus regarding the alleged invalidity of the treaty
i. Coercion of a gov’t rep of a state (VCLT 51). Cyprus rep claims he had no choice but to accept.
ii. Coercion of a state by threat or use of force (VCLT 52)
c. Political/economic pressure is not enough
2. “Unequal treaties” is NOT grounds for invalidation
a. Drafters of VCLT did this on purpose
3. Waiver: Sta
d that it has “ripened” into international law
b. Court examines how European states had historically treated fishing vessels
c. Court recognizes a few exceptional circumstances when fishing vessels were not exempt
i. but they are exceptions to the general practice; they are not the rule
d. 1798 British case said that the custom exists due to comity, not legal precedent
e. Court says that although the custom may have started out due to comity, the custom has grown over the past 100 years from comity to a settled rule of international law by the “assent of nations.”
3.
iv. The S.S. Lotus
1. French ship collided with Turkish ship.
2. This case takes the view that everything is allowed under international law unless it is expressly prohibited.
v. Silence = Acquiescence
1. A state’s silence in the face of a newly-forming international custom is understood to mean acceptance by acquiescence.
vi. Ideal way to show opinio juris?
1. Explicit statements by states expressing the fact that they feel a legal obligation to the rule
2. Statements by a state as to why they have accepted certain compensation for any particular dispute over nationalization
3. Prof: Voting patterns don’t really show opinio juris b/c you don’t know why a state voted the way it did.
n. CUSTOMARY LAW: SOVEREIGNTY OVER NATURAL RESOURCES — What compensation is required? (p.76)
i. GA Res 1803 – Permanent Sovereignty over Natural Resources (1962)
1. “appropriate compensation”
ii. GA Res 3171 – Permanent Sovereignty over Natural Resources (1973)
1. “permanent sovereignty” over natural resources
2. “each State is entitled to determine the amount of possible compensation and the mode of payment”
iii. GA Res 3281 – Charter of Economic Rights and Duties of States (CERDS) (1974)
1. “full permanent sovereignty” over natural resources
2. “appropriate compensation”
iv.
v. SEDCO v. National Iranian Oil Company (Iran-U.S. Claims Tribunal 1986) (p.87)
1. Iran nationalized the oil industry and took SEDCO’s property in Iran.
2. Held: SEDCO is entitled to full compensation.
a. However, w/r/t to nationalization of entire industries — not the facts of this case –, the standard has become something less than full compensation.
3. Court says it is hard to discern the opinio juris of the “lump sum” agmts that are state-state or state-company b/c they involve many non-judicial considerations
4. What evidence does the court look at to determine the customary law?
