INTERNATIONAL LAW OUTLINE:
I. TOPIC I: WHAT IS INTERNATIONAL LAW?
A. see “overview” course packet for summary of the International Legal system.
– types of rules: Constitutional; Definitional; Substantive
B. larger policy arguments in favor of following the rules
C. see 9/12/00 class notes for summary of valid arguments for/ against compliance with rules.
– Why play by the rules? Policy arguments:
1. assurances for the future
2. to your advantage
3. incentive
4. avoid being hypocritical
5. encourage reciprocal behavior. If we don’t honor treaty others will do the same.
– Why we should NOT play by the rules? Policy arguments:
1. never was a rule … therefore, no rule now.
2. may have been a rule once, but the consensus has now disappeared.
3. maybe there is a rule; maybe it pertains to you; but it does not pertain to us!
4. the rule does not prohibit the conduct at issue.
5. vital national issue – see also Law of Necessity.
6. see course packet sheet.
D. Compliance is the key to international law. Reason through the arguments of cooperation: Prisoner’s dilemma & tragedy of the commons.
II. TOPIC II: TREATIES AND CUSTOMARY INTL LAW.
A. ISSUE is whether x can be considered International Law?
A1. RULE: Article 38, Statute of the International Court of Justice states 3 primary sources:
1. International Conventions (Treatises): the issue is whether x is considered a treaty?
1.1. The international law of treaties has been codified in the Vienna Convention on the Law of Treaties: generally accepted to be declaratory of the customary int’l law of treaties.
– Definition: Article 2(1)(a): An international agreement concluded between States in written form and governed by international law …”
– however, remember that a treaty does not have to be in writing in order to be valid and enforceable under int’l law.
1.2. Breakdown of Issues dealing with the effect of a Treaty:
– ISSUE: the first issue is whether a person/ group possesses full power to enter into a treaty.
– RULE: see Article 7 (VCLT); see Article 8;
– ISSUE: the next issue is whether the agreement is binding. (ratification)
– RULE: the rule deals with consent to be bound issues: See Article 11, 12, 13, 14, 15, 16, 17, 18
– ISSUE: the final issue is whether the treaty has entered into force?
– RULE: see Article 24. emphasis on the conditions under which the agreement came into effect. That is, is there a number of country requirement? Specific country participation requirement?
1.3. ISSUE: the issue is whether the party made a valid reservation?
– RULE: a reservation, defined in Article 2(d): … a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state.
– the test: whether the unilateral statement purports to exclude or to modify….
– distinguish between an understanding or declaration. That is, to the extent that the state does not intend the understanding to have any legal effect as between itself and the other states, it will not be considered a reservation.
– right to make reservation: as a general rule States have a right to make reservations. See Article 19 for exceptions.
– Acceptance of and Objection to Reservation: see Article 20. A country can not accept only in part when in the context of a bilateral agreement.
– in multi-lateral treaties, one had to generally agree to everything in the deal. However, one could inclide specific rules to the agreement: can make reservations, cannot make, can reserve but not 2,3,4…
– can you reserve if the treaty is silent on
but it should reflect wide acceptance among the states particularly involved in the activity … A principle of customary international law is not binding on a state that declares its dissent from the principle during its development
– The practice must comply with the opinio juris requirement, a conviction that the rule is obligatory.
– Comment to Restatement Section 102: a practice which is generally followed but which states feel legally free to disregard does not contribute to customary international customary law. A practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that transformation into law has taken place. Opinio Juris may be inferred from acts or omissions.
– defined by J. Starke, Introduction to International Law (text p. 134): generally two tests must be satisfied:
1. the material test: there must in general be a recurrence or repetition of the acts which give birth to the customary rule.
Also the antiquity of the acts is of crucial importance.
2. the psychological aspect: the psychological aspect is better known as the opinio juris sive necessitatis, of the mutual conviction that the recurrence is the result of a compulsory rule.
– that is, recurrence of the usage or practice tends to develop an expectation that, in similar future situations, the same conduct or abstention will be repeated.
