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International Law
University of North Carolina School of Law
Weisburd, Arthur Mark

International Law Outline
 
I.                    Introduction
A.      The US Supreme Court and the International Court of Justice
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
June 26, 1945
                                                                          i.      ICJ closest thing we have to world court.
                                                                        ii.      ICJ judges are elected based on moral character and qualifications.
                                                                      iii.      Only 1 judge allowed per country on ICJ, 15 judges total.
                                                                      iv.      9 year terms, elections occurring every 3 years, w/ possibility of re-election.
                                                                        v.      ICJ judge may not hold another political office or professional practice.
                                                                      vi.      ICJ judges enjoy diplomatic immunity.
                                                                    vii.      A party may appoint a judge of their own nationality if one is not present.
                                                                  viii.      Only states may be parties before the Court.
                                                                      ix.      ICJ requests discovery.
                                                                        x.      Parties voluntarily consent to the jurisdiction of the ICJ.
                                                                      xi.      The ICJ is not bound by previous decisions, but only bind the parties to the decision.
                                                                    xii.      The ICJ may issue advisory opinions.
                                                                  xiii.      The ICJ may request the Security Council enforce their decision, but it has never been done.
                                                                  xiv.      There is no jury in the ICJ.
                                                                    xv.      The ICJ decides specialized issues and does not serve a check function against another government branch.
B.     Spectrum of International Courts (From Least Like SCOTUS to Most)
                                                                          i.      IWC – International Whaling Commission – Not a Court
                                                                        ii.      ICJ – Voluntary Jurisdiction, no individuals, Legal, Incremental?
                                                                      iii.      Dispute Settlement Mechanism (WTO) – Binding Jurisdiction
                                                                      iv.      ECJ – Euro Court of Justice – Binding, Individuals, Supremacy
                                                                        v.      SCOTUS
C.     Theories of International Relations
                                                                          i.      Realism – It’s about Power.
1.      International relations a state of Security Competition.
2.      States cooperate to the limit that it helps them.
a.      Two cooperation concerns: 1) relative-gains consideration and 2) cheating.
b.      Institutions are used in self-interest by the powerful to maintain or increase power.
3.      Ultimately, it is a struggle for survival of the state.
4.      Derived from Five Assumptions: 1) the international system is anarchic; 2) states inherently possess offensive military capacity; 3) states can never be certain about the intentions of other states; 4) states’ basic motive is survival, and; 5) states think strategically about how to survive.
a.      This results in three main patterns of behavior: 1) fear; 2) self-help (looking out only for #1), and; 3) aiming to maximize relative power position.
                                                                        ii.      Institutionalism – Cooperative efforts for selfish gains.
1.      Basic Assumption: International institutions play an important role in coordinating international cooperation.
2.      Cooperation can evolve, based on the desire to preserve a reputation. A good reputation will facilitate cooperative efforts to maximize power.
a.      Stable institutions facilitate repeated interaction.
                                                                          

ositively affects behavior.
c.      All states treat it as law, inasmuch as they consider it in their institutional arrangements and international relations.
                                                                                                                                                   i.      “A rose by any other name would smell as sweet.”
3.      Why states comply with International Law
a.      International Law created by Institutions has increasingly been founded on consent of the governed and not on majority voting, which increases pressure not to go against the Law.
b.      States generally recognize a need for order.
c.      There is a common interest in maintaining basic norms and standards.
d.      Desire to avoid the consequences of violation, “credit.”
e.      Reciprocity – diplomatic immunity and fear of reciprocal hostage taking.
4.      SOURCES
a.      Custom – Results from a general and consistent practice of states followed by them from a sense of legal obligation
                                                                                                                                                   i.      Inaction, if general and consistent and followed from a sense of legal obligation, may demonstrate consent.
                                                                                                                                                 ii.      A customary law is not binding where a state has expressed dissent during development of the law.
                                                                                                                                                iii.      A practice that is followed but may be freely and legally discontinued is not considered binding. It must be more than a convenience.