Historically, int’l law was defined as “the body of rules and principles of action that are binding upon civilized states in their relations w/ one another.”
Modern definition also includes relations b/t int’l organizations and states, among the int’l organizations themselves, as well as the relationship b/t states/int’l organizations and natural/juridical persons.
Restatement § 101- Int’l law consists of rules and principles of general application dealing w/ the conduct of states and of int’l organizations and w/ their relations inter se, as well as w/ some of their relations w/ persons, whether natural or juridical.
Public- activities of gov’ts in relation to other gov’ts
Private- activities of individuals, corps, and other private entities when they crossed nat’l borders
ISSUE: Can ______ Be Considered International Law?
Sources of Int’l Law
Statute of the ICJ, Article 38 – The Court, whose function is to decide in accordance w/ int’l law such disputes as are submitted to it, shall apply:
(a) int’l conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(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 and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Judicial decisions don’t get the same weight we’re used to in int’l law
Rules are created through acts of states -voluntary
REST § 102
(1) A rule of int’l law is one that has been accepted as such by the int’l community of states
(a) in the form of customary law
(b) by int’l agreement; or
(c) by derivation from general principles common to the major legal systems of the world
(2) Customary int’l law results from a general and consistent practice of states followed by them from a sense of legal obligation.
(3) Int’l agreements create law for the states parties thereto and may lead to the creation of customary int’l 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 int’l agreements, may be invoked as supplementary rules of int’l law where appropriate.
SOURCE #1: INTERNATIONAL CONVENTIONS (TREATIES)
Primary source for law of treaties
US isn’t a party and isn’t formally covered by it but most of the Convention’s provisions represent CIL and US courts frequently rely on its terms.
VC Article 2
“Treaty” means an int’l agreement concluded b/t States in written form and governed by int’l law,whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
under customary law, oral agreements are also binding/enforceable
“Party” means a State which has consented to be bound by the treaty
ISSUE 1: Is it actually a treaty?
Concluded by the Pres w/ the advice & consent of the Senate. Senate ratification requires a ⅔ majority vote (US Const, art. II, § 2)
“Law of the land” under the Constitution
May be directly enforceable in the courts
Concluded by the Pres based on authority granted by Congress or based on the inherent authority the Const grants to the Pres.
Pres may conclude executive agreements extinguishing US nationals’ claims against foreign countries- but this is limited to civil claims b/t US nationals and foreign gov’ts/foreign nationals (Medellin)
Unilateral obligations are NOT agreements, but may have legal consequences and become a source of rights/obligations on principles analogous to estoppel. May also be customary law.
Example- Nuclear Test Cases
Holding: A unilateral declaration given publicly and w/ intent to be bound, even though not made w/in the context of int’l negotiations, is binding.
ICJ never again held that a unilateral agreement can be binding
int’l agreements don’t include commercial Ks by a State, even w/ another State
Non-binding agreements are sometimes preferred by parties to avoid legal remedies but there are often still strong political inducements to comply and serious consequences for noncompliance.
Just b/c non-binding agreements may be terminated doesn’t mean they’re illusory.
As long as a non-binding agreement is not terminated, it can be authoritative and control the parties.
Disputes may be submitted for settlement in accord w/ procedures specified in Art 33 of the UN Charter.
Gentlemen’s Agreement of 1907 b/t US & Japan
· US promised to not ban Japanese nationals in return for Japan limiting the emigration of its citizens
Joint Statement of the Fourth Round of the Sixth Party Talks
· Called a “Statement” –not in and of itself indicating an agreement
· Issued only by China
· Talks about “goal”, but doesn’t say there will be more talks or actually doing anything
· Ambiguous language (ie- “early date”)
· Other parties aren’t expressing agreement, just respect of DPRK (which means absolutely nothing)
· Agreeing to discuss isn’t an agreement to really do anything
· Written in past tense indicates it’s a description rather than an undertaking of something they’re going to do
2006 G-8 Plan of Action
· Reaffirms previous agreements
· “Through actions in key areas” is ambiguous
· Fairly detailed, but the actual details are vague statements; agrees on ultimate objectives that aren’t actually specified (“level that isn’t ultimately dangerous”)
How do we know if an agreement is intended to be legally binding?
Mandatory language (ie: “shall be permitted”)
Lots of detail in language (ie: long lists of categories of things you’re permitted to do) is a good indication that they’re attempting to pin down what exactly can/can’t be done
UN Charter Art. 102 (supp. pg. 25) attempts to eliminate practice of secret treaties
What happens when an agreement is violated?
Violation of a State’s legal rights justifies the victim to use all permissible means under int’l law (incl. actions which wouldn’t be legal but for the violation) to bring about a cessation of that violation and to obtain reparation.
Reprisal actions must be proportionate to the harm
For violations of non-binding agreements, states can respond by taking any action, as long as it’s not illegal
ie: recalling an ambassador
Reprisal is not available to be used for violations of non-binding agreements
Cons of using non-binding agreements
May not be subjected to same domestic political process in formation
Sec’y of State can’t make a law or treaty that requires participation of Congress or Senate
Possibly “soft law” (designed, in whole or part, not to be enforceable/to produce rules that aren’t legally binding)
Ex- UN General Assembly has no law-making ability, just authority to make non-binding resolutions
ISSUE 2: Is the Treaty Actually Effective?
1) Whether a person/group possesses full power to enter into a treaty?
VC Art. 7
1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and w/out having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;
(c) representatives accredited by States to an int’l conference or to an int’l organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
VC Art. 8
An act relating to the conclusion of a treaty performed by a person who cannot be considered under Art 7 as authorized to represent a State for that purpose is w/out legal effect unless afterwards confirmed by that State.
2) Whether the agreement is binding (has it been r
ity to object to reservations.
§ Some experts say reservations can only exist in multilateral treaties b/c a bilateral treaty is more like a contract and all terms must be agreed upon before it can bind the parties.
§ Treaties re: human rights generally draw the most reservations (ie: CEDAW)
· Treaties w/ obligations that seem almost impossible to meet- Gov’ts either 1) don’t take the treaty seriously or 2) are attempting to heroically undertake a seemingly impossible task
§ VC Art. 20. Acceptance of and Objection to Reservations
· (1) A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides.
· (2) When it appears from the limited # of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety b/t all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.
· (3) When a treaty is a constituent instrument of an int’l org and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that org.
· (4) In cases not falling under the preceding ¶s and unless the treaty otherwise provides:
o (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;
o (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as b/t the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;
o (c) an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
· (5) For the purposes of 2 & 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of 12 mo’s after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
***A country can NOT accept only in part when the treaty is bilateral
§ VC Art 23. Procedure Regarding Reservations
· (1) A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty.
§ VC Art. 21. Legal Effects of Reservations and of Objections to Reservations
· (1) A reservation established w/ regard to another party…:
o (a) modifies for the reserving State in its relations w/ that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and
o (b) modifies those provisions to the same extent for that other party in its relations with the reserving State.
· (2) The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.
· (3) When a State objecting to a reservation has not opposed the entry into force of the treaty b/t itself and the reserving State, the provisions to which the reservation relates do not apply as b/t the two States to the extent of the reservation.