International Law Weisburd Spring 2013
What is International Law?
A. The Definition of International Law
· International law may be defined simply as the law governing the relations between nations.
· International law is made chiefly by states, through their practices and agreements. State practice fulfilling certain requirements constitutes “customary international law,” while agreements, or treaties, bind the states that are parties to them.
Restatement Section 101: International Law Defined
“International law” as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.
Statue of the International Court of Justice
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. ***According to Weisburd, these are laws/rules cited in footnotes in judicial decisions and law journal articles.***
Restatement § 101 International Law Defined
(1) A rule of international law is one that has been accepted as such by the international community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the world.
(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.
B. History of Public International Law and Alternative Perspectives
· “Private international law” is an expression used chiefly in Europe and the civil law world to refer to the field known as conflict of laws in the United States. It deals with the choice of the applicable law in private disputes involving more than one jurisdiction.
· “Public international law” consists principally of rules governing the conduct of states, but also affects other actors. Public international law is less likely to be relevant in private disputes than in controversies between states; it may, however, come into play in private civil, or even criminal proceedings before domestic courts.
· Cases involving private international law can entail public international law issues such as treaty interpretation, international human rights law, and the effect of foreign sovereign compulsion (e.g., where another country prohibits compliance with U.S. discovery requests.
C. The Nature of International Law and the Compliance Challenge: Is International Law Really Law?
The nature of international law has been challenged chiefly on two grounds:
· First, that there are no central executive, legislative, or judicial institutions. The decentralized nature of the international legal system has led some observers to characterize international law as being at most a set of principles of morality or etiquette that lack binding force.
· Second, that in fact there is no international “society” or “community” whose values and interests are sufficiently shared to allow us to speak of one international legal system. It is argued that there is no truly universal law because it cannot be said that there is an international community or society.
· The question should not be “does international law have the same characteristics as domestic law?” Rather, we should ask if the relations between states are governed by a normative order. The answer is yes.
The Case of the S.S. “Lotus” (France v. Turkey)
· France contended that Turkey violated international law by asserting jurisdiction over a French citizen who had been the first officer of a ship that collided with a Turkish ship on the high seas.
· Rule: There is no rule of international law prohibiting a State from exercising criminal jurisdiction over a foreign national who commits acts outside of the State’s national jurisdiction.
· The first and foremost restriction imposed by international law upon a State is that, failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another State. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law.
The Creation of International Norms—Treaties, Customary Law, International Organizations, and Private Norm-Creation
Rather than deriving its force through top-down, or “vertical,” processes, international law is more of a “horizontal” system: it is created directly by the very entities to which it is chiefly addressed, namely, states, which also enforce it.
Positivism: The theory that the legal force of international law derives from state acceptance of certain law-creating processes. This theory is sometimes more narrowly defines in voluntarist terms as holding that states are bound only by those rules of international law to which they have voluntarily consented.
Natural Law: Natural law theory holds that all law, including international law, derives form the law of nature. No legal system can cover all possible cases that may arise; there must be some body of principles that can be used to fill tin the gaps and cover unprovided-for cases. This body of principles has its roots in the laws of nature.
The Statute of the International Court of Justice, Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
y, convention, agreement, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, memorandum of understanding, and modus vivendi. Whatever their designation, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise.
c. Unilateral declarations. Since an international agreement does not require consideration (Introductory Note to this Part) its obligations may be wholly unilateral, flowing from one party only, as in a peace treaty following unconditional surrender.
d. Commercial agreements. An international agreement, as defined, does not include a contract by a state, even with another state, that is essentially commercial in character and is intended to be governed by some national or other body of contract law. Examples include a loan agreement, a lease of a building, or a sale of goods.
e. Nonbinding agreements. Since an international agreement is one intended to be legally binding and to have legal consequences, this Part does not apply to agreements not intended to have such binding character or consequences.
b) Distinguishing Treaties from Political Commitments
· The states concerned must intend to create binding legal rights and obligations between themselves. Whether such an intent exists depends on the circumstances of each case. The ICJ found an intent to create rights and obligations under international law in Qatar v. Bahrain where minutes of a meeting signed by the foreign ministers of the two states were held to constitute a treaty. Registration of the instrument in question with the United Nations may provide evidence of intent to create a treaty.
· However, the intent to create a legal relationship is distinct from the intent to create a moral obligation or political commitment. This is exemplified by words of obligation, most commonly “shall,” but also “agree,” “undertake,” and the like. Obviously, references to “rights” and “obligations” are also indicators of intent to create a legal relationship. Terminology such as “should” and “will” do not typically indicate such an intent and are more commonly found in non-treaty MOUs.
· Additionally, the title used for an instrument may be an indication that the parties did not intend to create legal obligations. This can be the case with the title “memorandum of understanding,” for example. But the critical issue is whether the parties intended to conclude a treaty, not what they called a document. Even a document entitled “MOU” may therefore constitute a “treaty” in the international sense of the term.
· An instrument does not have to be signed to be a treaty. Again, signature may provide evidence of intent to be bound but is not itself a prerequisite to the conclusion of a treaty.