Public International Law Outline
Spring 2011
Professor D. Pearlstein
The History and Nature of International Law
What is law?
– formal requirements, specificity, obligation
– Law is us tying ourselves to the mast like Odysseus.
History of International Law
– Modern era begins C16 (Grotius); dealt mostly w/customary law (what nations did, rather than philosophy)
– 1648: Treaty of Westphalia: birth of modern sovereign state
– Public vs. private international law: public law relates to states; indiv. not relevant for much of history of Public IL
– Second half of C20: distinctions between public/private become untenable: growth of human rights law, criminal prosecutions of individuals for state atrocities, increasingly elaborate multilateral trade agreements, which regulate individual transactions
– Today, both nations and people are subjects of public international law (distinguish from “foreign” law exclusively)
International law consists of:
– 1) Treaties (written agreements between states that create binding legal obligations [hard law]) and declarations (soft law, no legal obligation)
– 2) General principles of law recognized by civilized nations: rules that reflect consensus of multiple legal regimes
o Many are procedural (statute of frauds/limitations, defense of self-defense)
– 3) Customary international law: general practice of states accepted as law, b/c they believe they are legally bound to do so (opinio juris)
o Normal customary international law: practice + opinio juris
o Jus cogens: peremptory norms of international law — rules so important (b/c of state practice and belief that they are law) that they cannot be avoided (genocide, slavery)
o CIL is universally binding, unlike treaties, which require negotiation and bind only parties involved: fewer transaction costs, but also nebulous in terms of compliance/enforcement
Interaction of international and domestic law
– actions may violate international law but are not sanctioned domestically
International law unlike federal law
– b/c there is no supreme court of nations: nations are equal in international realm
– notion of vagueness and evolution of laws.
Problems with international law (why it often gets questioned)
– can’t enforce it (enforceability)
– uncertainty of what exactly is the law (vagueness)
o what exactly is cruel, inhuman, degrading treatment? Varies country to country
– uncertainty of who says what it is (what is the source)
Thomas Franck – Legitimacy in the International System
Criteria for likelihood of states complying with customs/treaties:
1) Determinacy (text must convey clear message)
2) Symbolic validation (when a signal is used as a cue to elicit compliance)
– Ritual: unenunciated reasons/cues for eliciting compliance w/commands of persons or institutions
– Pedigree: Historical, anthropological origins
3) Coherence: Consistency in application
4) Adherence: Methodology of formulation of rules
Silkworm missile episode – US decides not to stop missile delivery against self-interest because of int. law
– but, it really is self-interest in the end
Jack Goldsmith & Eric Posner: New International Law Scholarship
Three reasons nations comply with customs and treaties:
1) fear of retaliation
2) fear of failure of coordination
3) fear of repudiational loss from failing to comply
Say states comply w/ int. law when it serves them
Are Goldsmith/Posner and Franck opposed?
– maybe not, because the reasons given in Franck are also self-serving
Harold Koh: Why Do Nations Obey International Law?
– Transnational relations: regular interactions across national boundaries arising when at least one actor is a non-state agent or does not operate on behalf of a national/intergovernmental organization
– Compliance driven by:
o 1) Rationalistic instrumentalist strand: views international rules as instruments whereby states seek to attain interests in wealth, power, etc., and employs sophisticated techniques of rational choice theory to argue that nations obey international law when it serves their short-/long-term self-interest to do so
o 2) Kantian liberal strand: Franck’s rule-legitimacy, causal role of national identity; compliance depends on whether state can be characterized as “liberal” in identity (having a form of representative gvt/civil and political rights/judicial system)
o 3) Constructivist strand: Commonly held philosophic principles, identities, norms of behavior, shared terms of discourse
– basically people adopt the ideas and so want to comply – Reagan Star Wars example
Memorandum for the President, from Alberto R. Gonzales, January 25, 2002, et seq., reprinted in Karen Greenberg and Joshua J. Dratel, eds., The Torture Papers: The Road to Abu Ghraib pp. 118-125 (2005).
– Gonzales’ legal position: GC Art. 3 doesn’t apply to Al Qaeda/Taliban in Afghanistan because
o 1) failed nation
o 2) not soldi
s as a gap-filler for treaties
– Vienna Article 2: Use of Terms
o “treaty” means an international agreement concluded between states in written form and governed by international law
– Vienna Article 11: Means of expressing consent to be bound by a treaty
o Signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or other agreed upon means
– Vienna Art. 18: Obligation not to defeat the object and purpose of a treaty prior to its entry into force
RS §301
– Treaties don’t require consideration
– Can be unilateral
– Not an essentially commercial contract (wouldn’t count as a treaty)
How do you tell if it’s a treaty?
– text
– context
– did they intend to be bound?
Key issue: in the event of ambiguity, where do you go to interpret a treaty?
– read it
– travaux
– general purpose
Vienna Convention on Law of Treaties
* look @ whenever you have a treaty*
1. Treat Convention as customary law even if parties haven’t signed, can use for treaty interpretation
2. Provisions:
a. Treaty Creation (Art. 6, 7)
i. Need to have “full powers of state” to enter into a treaty
ii. Function of domestic law: usually heads of state/gov’t, cabinet level officials w/in their sphere of authority
iii. Can give person powers to represent/bind state (e.g. Ambassador)
b. Express Consent to be Bound (Art 11): Ratification
i. Steps: 1) Sign, 2) Ratify in Domestic System, 3) Rules for When Comes into Effect (# of signers)
ii. Must affirmatively express an intent to be bound
iii. Depends on domestic law of state expressing its will to be bound (US requires senate ratification)
c. Enter into Force:
i. Look at terms of treaty – treaty may specify # of ratifications for treaty to enter into force.
d. Art 18: Obligations once signed – can’t violate object/purpose
e. Leaving a Treaty – GR – 1 yrs notice needed, but treaty can specify otherwise
