-Most treaties are not a source of international law, they are a source of obligation
-Source of law is a general rule- treaties must be reserved (latin)
-Analogy between treaty and contract.
-Treaties and conventions- Switzerland 1815 neutralization
-he thinks treaties such as this should be regarded as source of law
-Some treaties are like statutes- United States Convention of Law of Sea- most treaties are like contracts and some are like statutes
-Largest- 1946 UN Charter, headquarters in NY
-There are provisions:
1. International Organization called UN, shall have general assembly, etc.
-This sounds like a contract. Contract treaties are not a source of law, but analogies between treaty and convention and statute and constitution.
-States are sovereign entities, can a state freely enter into any treaty about anything at all?
-Ex of domestic law- Miller and Russ (1800)- contract between two people in Ireland, purpose of agreement was to share proceeds of a robbery with a father. One of them pulled it off and didn’t pay half to the father who sued him for breach of contract. Plaintiff did not recover because it was an illegal contract- both were arrested, charged, indicted, sentenced
-Can states enter into any treaty that they want? There are fundamental principles in
Ius cogens- no delegation
Article 53 of Vienna Convention- a treaty is void if it conflicts with a parentory norm (norm or rule from which no delegation is permitted) of international law
-Two states might try to introduce into a treaty between them, ex. Aggression (1 state agrees with another state to invade a third state), ex. Genocide (Nazi Germany)
-Rules of International Public Policy
-Syria currently, people are trying for self-determination to bombard some out of existence.
-Look at list of cases on page in syllabus under Vienna
-Basis of obligation is rule of customary rule
-International Law could come back to custom
What is customary international law?
2 elements: NEED BOTH
1. Continued and consistent practice on the part of states from which you can infer a rule.
2. A belief on the part of states that the rule disclosed from the practice is legally binding. Opinio iuris- means that the rule practiced is legally binding
-Consistent practice on part of states, and belief that practice (above)-NEED BOTH.
-Cases work wonders for tests.
-Per question- always cite half a dozen cases. If you don’t know six relevant cases but you do know six cases that are irrelevant, cite them and explain the grounds of irrelevance.
International Court of Justice has considered nature of custom in a number of cases:
Asylum Case: No custom
South American republics. In these states revolution is a national hobby. Concentration of deposed dictators in SA is intense.
Revolution in Peru, president was given an asylum in a Columbian embassy. Columbia then argued that since they gave him an asylum (Columbia was immune from Peru)- they were giving him free passes out of Peru into Columbia. Peru denied it and Columbia and Peru referred dispute to International Court of Justice, said it was their duty to give free passage to dictator into Columbia territory, Columbia was able to demonstrate a lot of state practice of free passes like this, but the court held against it. Said there was not enough practice and not sufficient evidence of custom.
Lotus Case: 1927: No Custom
Turkish merchant ship. French ship “Lotus” – French ship then pulled into a Turkish port in Istabul. French ship sunk Turkish, French put into a Turkish port and Turkish authorities arrested the officer of the French ship Lt. Demonis. French got upset- French said there was a rule of customary international law which says that a merchant ship on the sea is subject to the exclusive jurisdiction of the state, therefore Lt. Demonis is amenable only to French domestic law, not to Turkish law. The Turks are acting in breach of customary international law and therefore the Lt. should be released. Court of International Justice, by majority, found for Turkey. No rule of customary international law that Turks were breaking.
Anglo-Norwegian Fisheries Case: No Custom
Issue: what were Norwegian territorial waters? Because only Norwegian ships could co in these waters. Problem with indented coastline. British argued that the way to do it was to extend the border of the coast and draw a parallel line. Norwegians said no. They wanted to extend it further and draw another parallel line and have Norwegian internal waters between the two parallel lines. Tens of millions dollars turned on who was right. UK and Norway referred dispute to Int. Court of Justice decided 11-4 in favor of Norway
North Sea Continental Shelf Case- 1969: No custom
In the North sea- question was whose is the bed of sea? Germany, Netherlands and Denmark referred dispute to Intl. Dutch and H argued that they should continue a line out and then draw a center to the bed of the sea. Germans wanted most of the bed. Referred it to the International Court. Courts found against none of the parties- none of the parties could demonstrate custom in the sense that they were arguing. Germany, Netherlands and Denmark lost. Court decided that there was a general rule that the parties should negotiate a settlement on the basis of equitable criteria which the court laid down. Court said we are not laying down any custom. Go away and go settle it between yourselves on that criteria.
So four cases= no custom
Does customary international law really exist?
Municipal or domestic law: At the center- Parliament (lays down law)
President in US, they have Prime Minister
Law is made at the center of the system
International System: what is at the center? Nothing.
Customary International Law: 1. Consistence practice of states and 2. Belief in binding law in states.
-International Law is made in the circumference of the circle and not the center.
-The court is fairly recent- 1922
-Court is very hesitant in “sticking its neck out”- much more cautious
-No doubt that the larger number of states are accepting jurisdiction of court- more recognition- done so largely because of a particular precedent of the court Cambridge man, Downing man, Sir Robert James. He was a professor at Cambridge for thirty years. President of International Court of Justice until he was 91.
-Court has become bolder case evidencing the court’s boldness is Nicaragua v. United States in 1980: US intervened in the domestic affairs in Nicaragua. Court went on an enormous length. Sir Robert James gave a judgment in 15 pages.
-International law is made up of the practice of states- what states are doing and why they do it.
-Why do states act as they do and how do they glean legal support for their policies?
-They get legal advice and by and large they act in accordance with it.
-When they don’t they are in trouble.
-1914 Germany in looking at the treaty of neutrality of Belgium and invading Belgium, Germany was defeated and dismembered
-1939 Hitler began the Second World War
-If a state breaks intl. law its going to be in big trouble
1956- UK over Syria
Maybe US over Iraq
US over Vietnam
International law is made at the circumference.
-Not very much in the middle.
-One has to see what the International Court of Justice is saying but since it is a new phenomenon- most cases courts have said no custom
-International law works at the circumference not at the center therefore you also need to look at it, why they have done it.
-Where does Secretary of State get her advice from? Attorney General. Opinions of attorney general are submitted to Secretary of State.
-In UK the principal advisor is the Attorney general. Foreign Secretary turn to them for an opinion. You can bet your bottom dollar that the opinion will be followed. If it is not the Secretary of State will likely be in trouble.
-1982 mega breach by South American
-General, president of Argentine, in trouble at home, invaded Falton Islands
– classic case
-Therefore international law is formed by the opinions of lawyers given to foreign department
-got opinion of Secretary of State- needed the opinion by the next day. Sir Arthur knew exactly what the law was and precedents are and where there has been an unlawful violation of state sovereignty.
-Arthur Watts drafted a ten page legal opinion presented to the cabinet and the cabinet accepted it and published it.
-Since government adopted it and followed it continuously, evidence of state practice, evidence of custom. Custom is formed at the circumference not at the center.
-There are thousands of legal opinions given by legal advisors in foreign office.
-Customary law is expande
· Parliament enacted the Merchant Shipping Amendment Act of 1988 which provided that that a british citizen or a company incorporated under British law controlled by British citizens- not controlled by British citizens. Began proceedings in English courts trying to get the merchant shipping amendment act of 1988 set aside on grounds that it violated European union law, which 1971 was given mandatory effect in English law. Went to Courts of Appeal and they said sorry get lost because Parliament laid down the statute. Went to House of Lords, House of Lords held 1. As a matter of English law that is correct Merchant Shipping Act of 1988 takes away righ to own a ship, but the case should be based in European Union Law to the effect that the UK is acting contrary to European Union Law and is discriminating against Spainards, whether that is the case they will refer to the Court of Justice in Europe. They said this is unlawful discrimination. English Courts said stop it, came back to HOL and without turning a head HOL said we must obey the Court of Justice and set aside the Merchant Shipping Act of 1988.
-Rule: Parliament is no longer supreme in terms of European Union law.
4. Law between States- sovereign states. International Law does not say anything about US states because they are a part of US
-Unitary States- Ireland. Federal-US
-Irrelevant as far as international law- primarily about law between countries.
-US Constitution is irrelevant.
-What is a state?
State has territory- must be governed by a government. Government has power of the people.
Three key elements: 1. Territory (population) 2. Government 3. Independence
-Hard to put a date on when states emerge
-1783 United States was a state- 1776-1783 what was US? King George III would have said they were not independent but George Washington would have said they were.
-The Vatican city is a state.
Western Sahara Case: very unpopulated, except they travel on camel from oasis to oasis, tribesman. Spain and Morocco claim that W. Sahara was part of their territories.
-Went before International Court of Justice (ICJ) to give an opinion: concluded that Western Sahara was not the territory of Spain nor of Morocco. Whose was it? Does it belong to the tribes who wander through it? Yes, said the court. Western Sahara is not a state- there is not a fixed territory, government, but there is a population in a reasonably defined area of land- essentially a quasi-state. One or two rather exceptional states, such as Vatican City or Western Sahara.
States are not only subjects of international law.
· International Organisation: United Nations set up in 1946- does the U.N. have international personality, is it separate from the other states that are members of the U.N. or is the U.N. a part of it?
· Reparation for Injuries Case 1949: Middle East issues. Israel became a state in the previous year. The United Nations decided it would seek to take steps to bring about a degree of peace in the Middle East. UN sent a mediate whose function it was to try to broker a peace deal in the Middle East (Bernadotte- his ancestor was Napoleon’s marshall). He was shot and murdered. He was a citizen of Sweden, Sweden could have brought a claim for compensation against Israel.
· Could UN bring a claim against Israel? Internationally speaking, the only entity that can bring a claim is a state.
· Depended upon whether the UN had International Legal Personality. Is the UN an international legal person or is it no more than a conglomeration of a total number of states.