MY TRANSNATIONAL LAW OUTLINE
FOUNDATIONS OF INTERNATIONAL LAW: THE LAW OF NATIONS
I. Sovereign Nations
a. Westphalian Origins
i. In general, the Westphalian Order began the era of recognizing states as sovereign and granting the rights and responsibilities. The Peace of Westphalia created the order, ended the 30 Years War
Hobbes said that the Leviathan is the government, and we the people have contracted with is to provide order, rule over us for productivity’s sake. Viewed sovereignty as absolutely necessary, it was the primary way that states defined themselves and were recognized
– Two notions of sovereignity:
o ABSOLUTE AND INDIVISIBLE
o HIGHEST FEATURE OF STATEHOOD
– See also, Jean Bodin, although not mentioned in reading
Grotius blended natural law with positivism (moral vision of the world).
– Viewed the states behaving as persons, all equal to each other (as opposed to the Church or Emperor ruling).
o The state makes a law or a rule, or is bound by something, not the ruler of the state
– Pacta sunt servanda – states are bound by their agreements. THIS NOTION WILL LATER APPEAR AND SORT OF BE THE BASIS FOR THE VCLT
– Stemmed from moral view, moral belief system
Treaty of Osnabruck
– This was the actual treaty which brought about the Westphalian Order. There were several important rights granted to the states explicitly in this treaty:
a. Right to interpret own laws, make treaties
b. Freedoms of religion, to make war and peace
c. Basically granted sovereign rights to states
– Big thing was freedom of religion
– Also, despite being granted so many rights, there were restrictions. The creation of sovereignty means that you can’t go interfering in other countries’ domestic affairs
o Must respect their religions
o Cannot unilaterally cause war
– This is in conflict with the more modern theory of extra-territoriality, under which you can impose (to an extent) in the sovereign affairs of another state
Criteria of Statehood
– In more modern times, the notion of sovereignity still plays a big role. However, this Convention lays out the requirements necessary to be considered a states by modern standards
– Seems to be a fairly standard list widely held to be determinative
– Montevideo Convention (1933)
o Article I: criteria
d. Permanent population
e. Defined territory
g. Capacity to enter into relations with other states
o Article 2: The federal state is the only person in international relations
h. South Carolina cannot be a state therefore
o Article 3: Recognition is not a requirement of statehood
i. A state need not be recognized by other states to qualify as a state
j. For example, Cuba is still a state even if we don’t recognize it as such
o Article 4: Sovereignty begets equality
k. Grotius principles, they are all equals, the fact you even exist grants you this protection
l. The fact that they even exist give it these sovereign rights and powers, not any measure of power which they actually wield
Privileges and Responsibilities
– The idea that even though sovereignty gives you so many rights, there are res
nd result is that the actions by Iran are clearly breaches of these two treaties, the US wins money. This is another example of pacta sunt servanda. ANOTHER RESPONSIBILITY OF THE STATE.
– This case also interesting shows a limitation of international litigation. The ICJ cannot grant injunctive relief, so instead of getting the hostages, the US just gets money. They will get paid because there are lots of Iranian assets in the US that they can seize.
– Benefit of using the ICJ is that you have the weight/legitimacy of the UN behind the decision/enforcement
II. Sources of International Law: Customs, Treaties, and Other Materials
The Traditional Catalog
ICJ Statute, Art. 38
This section describes the type of law the the ICJ will apply to evaluate cases. There are five kinds, in two tiers.
– The first tier includes international treaties, international customs (CIL), and the general principles of law of civilized nations. These are the mandatory, primary sources of law.
– The lower tier would be judicial decisions of domestic courts, and writings of scholars. These are seen as persuasive.
– NOTE: this also allows for equitable remedies where otherwise there would be an unfair result (Article 38(2))
o “ex aequo et bono”