International Law Outline

International Law Foundations Outline
Professor Krug, Fall 2008
 
1)      Foundations of International Law—Structures, Theory and History
a)      Introduction
i)        Unlike national law, international law is largely decentralized; there is no single legislature, judiciary, or executive responsible for the creation, interpretation, and enforcement of international law, but instead a conglomerate of ways international law seeks to perform those functions.
b)      Structures
i)        Basic Horizontal Structure: Interaction of States
(1)   International law arises from a horizontal structure that consists of 191 states (UN States). Each of these nation states is fully sovereign; none of them regards themselves as subordinate to any other state nor, as a general matter, subordinate to a supra-national organization. This horizontal structure is very decentralized and means that states can only be exposed to restrictions that they have affirmatively accepted, which occurs when they regard the restrictions as advancing their national interests.
(2)   See: p. 4—”191 Persons Stranded on an Island” Hypothetical
(3)   3 views on the nature of International Law
(a)    John Austin (1832): denied that international law was really law, since law is best understood as a command issue by a sovereign that was backed by a sanction. Austin felt that the field referred to as international law was best understood as simply a collection of moral rules.
(b)   Hans Kelsen (1960): saw international law as primitive in nature, but nevertheless as sitting at the top of a global legal order of which natinoal laws are a subsidiary part. 
(c)    H.L.A. Hart (1961): regarded international law as a series of primary rules (i.e. a rule to trade coconuts for fire), but as lacking important secondary rules (i.e. rules about how the primary rules can change over time and how they are to be interpreted) which are needed to create a true legal system. 
ii)      Vertical Structure: International Organizations
(1)   International law is not limited to a simple horizontal structure. Over time, states have come together to create some surpa-national organizations capable of creating laws that have a binding effect on their member states. 
(2)   Some states have created and submitted themselves to the compulsory jurisdiction of international courts or tribunals.
(3)   Some international organizations are capable of helping enforce international rules.
(a)    Example: Security Council—ability to impose sanctions and use military force to address threats to peace and security; World Trade Organization—authorizing retaliatory trade sanctions; International Criminal Court—indicting and prosecuting persons for violating the laws of war.
iii)    Vertical Structure: Interface with National Law
(1)   A different aspect of the vertical structure of international law concerns the interface of international law with national law (also known as domestic law). National legal systems typically contain rules about wether international law is automatically received into the national legal system. 
(2)   If international law becomes a part of domestic law a private individual may be able to sue in a domestic court using a provision of the treaty as a rule of decision in the case. In contrast, if the treaty does not have that immediate effect in domestic law, legislation must be enacted that implements the treaty. 
(3)   National law also can play an important role in the interpretation and enforcement of international law. To the extent that a national court is called upon to decide a case based on a rule of international law, the national cout provides a forum for interpreting that law.  
iv)    Vertical/Horizontal Structure: Interaction of Persons
(1)   Another dimension in the structure of international law concerns the presence and importance of legal and natural persons operating across borders. Traditional studies of international law focus on states and international organizations as the principal means by which international alw is created, interpreted, and enforced. However, over the past century, the field of international law has seen other “actors” emerge as important participants including mid-level government bureaucrats, non-governmental organizations, corporations, and private citizens. 
c)      Theories of International Law
i)        International Natural Law
(1)   Idea that international law consists in part of fundamental principles of right and wrong. These principles are fixed and universal; they do not change depending upon political inclinations or cultural predispositions of states. Moreover, these principles are not identified by studying enactments by states; rather they are determined through a process of “right reason”, which to a large degree focuses on whether a particular principle is inherent in the notion of a society of states and in the essential characteristics of humanity. 
(2)   Many rules that comprise international law could be explained by reference to moral philosophy, ethics, and theology, particulary teachings of the Christian Tradition. 
(3)   Natural law continues to lurk beneath the surface of international law but is not currently the most prevelant theory.
(4)   Example: A norm for contemporary treaty law is that every treaty in force is binding upon the parties to it and must be performed by them in good faith (pacta sunt servanda). But why are states bound to this rule? It is certainly tre that they initially consented to be bound by the treaty, but why can they not, at some later point in time, simply decided that they no longer wish to be bound? There must be some rule outside the scope of the treaty itself that binds the state to the treaty. It is possible that states have agreed to the rule of pacta sunt servanda by adhering to a “treaty on treaties” that contains the rule. Yet, even then, by what theory is the state bound to abide by that “treaty on treaties”?
(a)    Pacta Sunt Servanda—”an agreemen