International Law, Spring 2009
Entities that create int’l law:
– States
– Int’l organizations (which are composed of states)
– Note though that NGOs, businesses, individuals, etc…can be important in shaping and enforcing international law
Subjects of int’l law, who bear the rights & duties of int’l law:
– states
o int’l law developed to regulate states because of:
§ the emergence of states
§ state interaction
§ development of the laws of war
· Purpose for laws of war: it is in the mutual interests of all states to regulate the conduct of war (make it easier to talk peasants into going off to war if they’re not likely to get tortured, etc…) & in trying to agree on rules that will make it unlikely that war will happen.
o The Classic Model of relations between/among states
§ States are opaque (billiard ball theory – states hit each other on the outside but do not interfere with one another’s internal affairs) & we don’t really look at what’s inside
· Thus, int’l law only regulated relations between states, & did not regulate the internal affairs of states
§ Now, int’l law is also used to regulate the internal affairs of states
– Individuals
o The person has become increasingly accepted as an independent actor, subject to & benefiting from int’l law (this is a recent development)
o Individuals are not parties to int’l law – they can be a bearer of duties & a beneficiary of rights, but they are not parties to int’l law
– corporations
– int’l organizations
o for the purposes of our class, an int’l organization is an organization composed either solely or primarily of states, like the United Nations
Criticisms of International Law
– when the going gets tough, most nations do not follow int’l law
o such as torturing someone with vital, time-sensitive information
– lack of enforcement (int’l law is nothing more than a sense of morality)
Defense of International Law
– Nations honor rules even at a cost (in part b/c they do not want other countries to also violate the rule against them later on and b/c they want to lower transaction costs overall)
o Precedent
o Repeat player
– Countries satisfy almost all their international responsibilities almost all the time
o And those who violate int’l law pay it respect by couching their reasons in int’l law
– Lack of enforcement mechanisms is not a big deal (usually)
o Countries follow it for extralegal reasons (prestige, credit, to enhance int’l stability)
o Enforcement is not necessarily req’d (see the U.S. Supreme Court in the U.S. domestic sphere)
– Int’l law is not targeted at the best or worst situations and actors. Instead, it is meant to alter incentives for “middle” behavior where a group is tempted to cheat.
o Countries are more likely to follow int’l law in big things than small matters (often small to non-existent repercussions for minor offenses)
– Advantages of international law
o Breeds order, consistency, and predictability
§ Especially important as the amount of int’l transactions have skyrocketed
Views on International Relations and Norms
– Realists: state behavior is driven by structural factors in the int’l system (norms don’t dictate behavior)
– Institutionalism: norms, rules, etc…impact state behavior b/c it, to some respect, fashions norms
– Constructivism: norms are powerful, helping to define identity, interests, and structure
SOURCES OF INTERNATIONAL LAW
The Statute of the ICJ, Article 38 lists the sources of int’l law
– ICJ, Article 38:
o “The Court, whose function is to decide in accordance with int’l law such disputes as are submitted to it, shall apply:
(a) Int’l conventions (treaties, bilateral agreements, etc…)
(b) int’l custom, as evidence of a general practice accepted as law
(c) the general principles of law recognized by civilized nations
(d) judicial decisions & the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
– Treaties
o A treaty is an agreement between states, between states & int’l organizations, or between int’l organizations, that is binding under int’l law (something binding under the laws of one state is not int’l)
o Treaties are binding & legally enforced upon the parties to it
o Treaties can be bilateral or multilateral
– Customary int’l law
o Broader applicability than treaties (can apply to everyone, not just signatories of a treaty)
o Generally (but not universally) accepted by a representative group of nations in practice as a legal obligation (rather than expected as a matter of norms)
– The general principles of law recognized by civilized nations
– Soft Law
o Non-binding norms of conduct generated by declarations from int’l bodies, int’l enterprises, and experts among others
o Judicial decisions & the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
§ Ex Paquete Habana: U.S.-Spanish War fishing boat war prize case
Jus Cogens
– VCLT, Article 53: “a peremptory norm of general int’l law which is accepted by the int’l community of states as a whole as a norm from which no derogation is permitted”
– Includes genocide, torture, & slavery
II. Sources of Int’l Law
1. Treaties
Basics:
– Treaties are a source of int’l obligation for those states that agree to be bound by them
– As the United States has not ratified the VCLT, treaties are legally binding under customary int’l law
– As for states that have ratified the VCLT, treaties are legally binding under Article 26 of the VCLT:Pacta Sunt Servanda
o “Every treaty in force is binding upon the parties to it & must be performed by them in good faith.”
o Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties is a breach of int’l law
– A treaty enters into force when:
o 1) The state has consented to be bound
o 2) The treaty has entered into force (via ratification)
– Restatement Section 96: a treaty requires no consideration – it may create unilateral obligations (example – a treaty of surrender at the end of a war)
– Some treaties (multilateral treaties) have been called “legislative treaties”
o These are treaties where states are trying to establish rules that will be followed by as many states as possible (the goal is to establish rules that every state will sign on to)
– A party is a state that is bound by a treaty; a signatory is a state that has signed but is not bound by a treaty
Vienna Convention on the Law of Treaties (“VCLT”)
– though the US has not ratified the VCLT, the US regards most of its provisions as customary int’l law
o so, because the US is not a party to the VCLT, the US CAN violate the VCLT, but it cannot violate the provisions of the VCLT that are customary int’l law
– The VCLT frequently establishes rules that will apply as a default when a treaty doesn’t say how it will operate (Example – Article 24 (entry into force of a treaty))
– Specific Articles:
o Article 2 (1)(a): Definition of a treaty – “an int’l agreement concluded between States in written form & governed by int’l law, whether embodied in a single instrument or in two or more related instruments & whatever its particular designation”
§ Comments on this article
· “concluded between states” – customary int’l law shows that entities other than states can be parties t
n of treaties
§ Article 42: Validity and Continuance in Force of Treaties
1. “The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention”
2. “The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention”
§ Article 45: Loss of a Right to Terminate
· A State may no longer invoke a ground for invalidating . . . after becoming aware of the facts:
(a) It shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be, or
(b) It must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be
§ Articles 46-52: invalidity of treaties, covering a state or its representative’s competence to conclude treaties, as well as error, fraud, corruption, duress, coercion
§ Article 52: Coercion
· A treaty is void if its conclusion has been procured by the threat or use of force in violations of the principles of international law embodied in the Charter of the United Nations
§ Article 53: treaties conflicting with jus cogens
· A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of int’l law
· If there is a norm that has the status of jus cogens, states may not opt out of it under a treaty
· There are cases where this provision has been invoked: Inter American Commission on human rights (Surinam & the Netherlands)
o Article 60: termination or suspension of a treaty as a consequence of its breach
§ BILTERAL treaties: A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
§ MULTILATERAL treaties: A material breach of a multilateral treaty by one of the parties entitles:
· The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either
o In relation between themselves & the defaulting state or
o As between all the parties
· A party specifically affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself & the defaulting state
· Any other party than the defaulting state to invoke the breach has grounds for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that the material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty
§ Defines a material breach (Article 60(3))
(a) A repudiation of the treaty not sanctioned by the present Convention; or
(b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty