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International Law
University of Pennsylvania School of Law
Burke-White, William W.

INTERNATIONAL LAW BURKE-WHITE SPRING 2018
 
I. INTRODUCTION
 
What is law?
 
John Austin (1832):
Rules created by a sovereign that subordinates have to follow—a series of commands backed by the use of force (enforcement)
E.g. police officers are effective because they have power through authority backed up by the use of force.
like the Athenian power in the Melian Dialogue during the Peloponnesian War; Melians appealed to a sense of justice while the Athenians appealed to their strength; with no law to invoke, Melians eventually lost and the stronger power won
Classical grounds for denying international law recognition as law (no use of force)
H.L.A. Hart (legal realism):
Rules that structure our expectations and create a certain regime; they don’t always coincide with morality
International law isn’t about morality; some, but not all, are formal and arbitrary (E.g. laws of the high seas)
What matters is that international law creates rules that others recognize
 
Where does the law come from?
Domestic law: sovereign, authority to create legal rules.
International law: treaties, state practice, morality, power.
 
Who interprets the law?
US: courts
International law: parties. No arbitrator; no higher authority. Disagreement leads to war.
 
What promotes compliance?
Military power
Reputation
Want to comply: reciprocity, shared interest.
 
Thucydides, the Peloponnesian war – the Melian Dialogue
“The strong will do what they want; the weak shall give what they must”
Classic statement of political realism.
Melians make logical and moral arguments, but there is no law of nations to refer to. Law is not part of discussion.
 
Treaty of Westphalia (1648): Peace treaty between the Holy Roman Emperor and the King of France and their respective Allies.
Rule: Cannot interfere in the affairs or territory of another state.
Facts: A treaty between the Holy Roman Empire and the King of France. Ended the religious war between the Catholics and the Protestants. Treaty decides that the religion will follow the political leader of the country in which the individual lives. Therefore, no war to change religion.
Lawmaking authority stems from divine right of kings. Territorial borders will define the extent of a king’s power.
This treaty doesn’t create any independent enforcement or judicial mechanism. Enforcement is the threat of another war
Importance: Seen as the first moment in the international legal system
Like a contract?  à Mutual assent, consideration, and appears to take the structure of a contract but the laws of contracts do not apply
Like criminal law?  à Only sanction here seems to be like a criminal sanction (war)
Like property law? à In some sense it gives each sovereign authority over sovereigns
 
UN report highly critical of US drone attacks
Are they legal?
Are they moral?
Are they good policy choice?
The Obama administration and international law (Speech by Koh, legal advisor of US)
 
International relation theory
Realism
Primary actor: states
Focus: state power
E.g. Melian Dialogue: the more powerful state gets what it wants.
Institutionalism
Primary actor: states
Focus: institution, common interest, information exchange.
Liberalism
Primary actor: individuals and groups
Focus: their represented preference
E.g. democratic peace (personal rights) / McDonald’s peace (property rights)
Rationalism v. Constructivism
Rationalism (privilege)
Calculation: interests come first and norms help advance these interests
a logic of consequence: how do I get what I want?
Constructivism (usually in the critique)
Socialization: norms come first and shape both identity and interests.
a logic of appropriateness: what is the right thing to do
 
 
 
II. SUBJECTS OF INTERNATIONAL LAW
Statehood
Charter of United Nations (1945)
Getting membership in the UN requires:
File application
UN Security Council vote
Vote of General Assembly
UN seat is a very strong indication of statehood, although UN SC vote is extremely political
E.g. Kosovo has no seat at the UN, but US has taken steps to recognize it because we want a stronghold against Russians and because of Serbian violence; South Sudan has a UN seat because North Sudan doesn’t have the equivalent of a Russian ally.
Treaty: Montevideo Convention on the Rights & Duties of States (1933)
Art. 1: 4 pre-requisites for statehood: permanent population; defined territory; government; capacity to enter into relations with the other states.
Art. 3: Statehood is independent of recognition; perhaps outdated, but no single state ultimately has the power to determine/establish the statehood of another state
Art. 6: Recognition is irrevocable
Art. 7: Act of recognition must imply intent of recognition (tacit recognition) (E.g. buying oil from ISIS vs. setting up an embassy)
Kosovo declaration / US recognizes Kosovo as Independent state / likely heir to Russian leadership echoes Putin with harsh statement on Kosovo
Commitment to international obligations: human right etc.
Is it a state?
The government of Kosovo would think it’s a state
Russians don’t recognize – they want to keep the Serbs happy (strong historical ties between Russians and Serbs)
U.S. recognizes it as a state. US thinks it needs to police against human rights violations, and it’s a check against Russian power
Doesn’t have a seat at the UN – Russia & China veto
Was the Declaration of Independence necessary? Probably not, but it is smart, they are trying to solicit recognition
 
Recognition of Palestine statehood (EU 2014)
Statement by president Trump on Jerusalem
The recognition of capital doesn’t affect statehood. But it indicates the recognition of the statehood.
 
Requirements of a State (source: Montevideo Convention, Art. 1 (1933))
Permanent Population
Must be permanent living there
E.g. Antarctica is not a state because no permanent population.
Can be very small
E.g. Nauru, 8000; Liechtenstein, 28K; Vatican City, 400 citizens and 800 residents.
Defined Territory
Not every inch has to be defined, but it must have some set territory: R3d §201, comm. b: An entity may satisfy this requirement even if its boundaries have not been finally settled, if one or more of its boundaries are disputed, or if some of its territory is claimed by other states
E.g. US in 1802: have border disputes, but is a state.
E.g. Israel
Effective Government
Effective control over the territory; not necessarily full control over the territory.
Hard for new states to satisfy “effective government” (E.g. Aland Islands); easier for post-independence states (E.g. Burundi, Rwanda)
Must also have the intent to be an independent state
Government is separate from the state; not recognizing a government doesn’t mean you don’t recognize the state
E.g. Taliban governed Afghanistan but

the US to recognize?);
Duty: No duty to recognize publicly; duty not to recognize when an entity does not meet the criteria for statehood.
UN admission is a functional equivalent of collective recognition;
International legal system is slow to recognize other states after rebellion or secessions partly because states want to deter such movements (E.g. Aland Islands Dispute: pre-Cold War dispute with Communists); international law doesn’t want to say the land belongs to no one and create a hole in the map, but states are afraid to recognize them because they don’t want to create precedent that other states can claim that an entity is not a state.
Exceptions:
self-determination; breaking away from colonial power;
state has some resources;
larger international political conflict involved (E.g. Cold War)
 
Benefits of Statehood:
International legal personality: enter into treaties; has personality in the ICJ; right to borrow funds or receive benefits (like aid) from other countries; involve in making international decisions—establish embassies, join treaties, join the UN
Territory right: Protection against foreign invasion; Right to exclude people from states; sovereignty.
Sovereign equality in UN GA votes (note: inequality from UN SC)
Right to self-defense of independence.
Control over natural resources on territory (and movement of goods and persons) (E.g. oil in Kuwait)
Sovereign power over the people in your territory and to determine how to control a state
Obligations Statehood used to just confer rights, now it also confers duties
human rights, don’t use force in certain situations, etc. 
Kosovo: Got US-qualified recognition but was concerned with setting precedence; US imposed certain requirements like participation in major international human rights treaties
 
 
Territory
Old Rule: Tribal people/natives couldn’t own territory; they could only occupy it.  Territory in which they lived was terra nullius (empty territory) ß defunct concept
New Rule: Claiming land is no longer enough, need “peaceful and continuous display of authority;” have to do something productive with land within reasonable time (E.g. set up trade, enter into treaties with local people to protect them)
Island of the Palmas Case (U.S. v. Netherlands) – International Court of Arbitration (1928): US claimed ownership of Palmas because it entered a Treaty of Paris in 1898 whereby Spain transferred the islands to the US as part of the Philippines; Spain discovered the island and claimed it with its flag. Netherlands argues it was never Spain’s to cedeàbelong to Netherland: Discovery alone without subsequent act is not enough to establish sovereignty; territorial acquisition requires effective occupation alongside discovery.