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International Law
University of Toledo School of Law
Davis, Benjamin G.

International Law Outline
 
I.              Introduction
A.    The US Supreme Court and the International Court of Justice
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
June 26, 1945
                                                  i.    ICJ closest thing we have to world court.
                                                ii.    ICJ judges are elected based on moral character and qualifications.
                                               iii.    Only 1 judge allowed per country on ICJ, 15 judges total.
                                               iv.    9 year terms, elections occurring every 3 years, w/ possibility of re-election.
                                                v.    ICJ judge may not hold another political office or professional practice.
                                               vi.    ICJ judges enjoy diplomatic immunity.
                                              vii.    A party may appoint a judge of their own nationality if one is not present.
                                            viii.    Only states may be parties before the Court.
                                               ix.    ICJ requests discovery.
                                                x.    Parties voluntarily consent to the jurisdiction of the ICJ.
                                               xi.    The ICJ is not bound by previous decisions, but only bind the parties to the decision.
                                              xii.    The ICJ may issue advisory opinions.
                                            xiii.    The ICJ may request the Security Council enforce their decision, but it has never been done.
                                            xiv.    There is no jury in the ICJ.
                                              xv.    The ICJ decides specialized issues and does not serve a check function against another government branch.
B.    Spectrum of International Courts (From Least Like SCOTUS to Most)
                                                  i.    IWC – International Whaling Commission – Not a Court
                                                ii.    ICJ – Voluntary Jurisdiction, no individuals, Legal, Incremental?
                                               iii.    Dispute Settlement Mechanism (WTO) – Binding Jurisdiction
                                               iv.    ECJ – Euro Court of Justice – Binding, Individuals, Supremacy
                                                v.    SCOTUS
C.    Theories of International Relations
                                                  i.    Realism – It’s about Power.
1.    International relations a state of Security Competition.
2.    States cooperate to the limit that it helps them.
a.    Two cooperation concerns: 1) relative-gains consideration and 2) cheating.
b.    Institutions are used in self-interest by the powerful to maintain or increase power.
3.    Ultimately, it is a struggle for survival of the state.
4.    Derived from Five Assumptions: 1) the international system is anarchic; 2) states inherently possess offensive military capacity; 3) states can never be certain about the intentions of other states; 4) states’ basic motive is survival, and; 5) states think strategically about how to survive.
a.    This results in three main patterns of behavior: 1) fear; 2) self-help (looking out only for #1), and; 3) aiming to maximize relative power position.
                                                ii.    Institutionalism – Cooperative efforts for selfish gains.
1.    Basic Assumption: International institutions play an important role in coordinating international cooperation.
2.    Cooperation can evolve, based on the desire to preserve a reputation. A good reputation will facilitate cooperative efforts to maximize power.
a.    Stable institutions facilitate repeated interaction.
                                                                                                  i.    Repeated interaction creates a dynamic process which evolves to build or destroy trust.
1.    Repeat interaction which builds trust leads to greater cooperation.
b.    Rules, combined with concern for reputation, discourage states from leaving a cooperative agreement once it is established.
                                                                                                  i.    Agreed upon rules give a form for resolving disputes.
                                                                                                 ii.    Rules function as International Law, which is respected by states generally as law, out of concern to not lose trust and reputation.
                                               iii.    Liberalism – About domestic politics
1.    Three fundamental Assumptions: 1) Individuals in a domestic society who seek to promote their independent interests, and have individual incentives to maybe promote individual welfare and social order; 2) domestic society has interests reflected in state policy; 3) states’ behavior is a reflection of the states’ preferences. States do what they want (for domestic goals, they make value based decisions).
2.    Similar states will cooperate more effectively because they have the same domestic goals.
                                               iv.    Constructivism – Things are fluid and relative. We construct the way we look at the world.
D.    Sources of International Law
                                                  i.    “International Law”: consists of rules and principles of general application regarding conduct between states and sometimes between members of international organizations.
1.    Actors in International Law:
a.    States
b.    Organizations
c.    Other groups or individuals may influence international law but are not primary actors.
                                                ii.    IS “International Law” LAW?
1.    No.
a.    There is no officially recognized legislative authority. UN action may influence the law, but it is only effective where it is accepted by states.
b.    There is no executive authority to enforce law.
c.    There is limited compulsory jurisdiction for adjudicating disputes.
2.    BUT Yes!
a.    It meets the purposes of the law, providing restraints against arbitrary state action and guiding international relations.
b.    It promotes order and positively affects behavior.
c.    All states treat it as law, inasmuch as they consider it in their institutional arrangements and international relations.
                                                                        

consist of rules and standards (which give wiggle room to disagreed upon outcomes).
b.    International Law may be substantive or procedural.
c.    International Law generally leaves out domestic issues.
d.    The law is consensual.
                                               iii.    Private vs. Public International Law
1.    International Law generally refers to public international law, or the laws between nations, and not between individuals in differing states. However, in some cases it is now becoming possible for individuals or non-states to have international law claims.
E.    Roles for International Law 82-133
                                                  i.    As seen in the example of the Outbreak of WWI. What should International Law fix that was broken in the post-Westphalia system of statehood and international law?
1.    Trying government leaders for war crimes.
2.    Keeping the peace (often by giving up the right to declare war).
a.    Instituting regulations on armaments.
b.    Modifying regulations on waging war.
                                                                                                  i.    When can war be started?
                                                                                                 ii.    Who can start a war?
                                                                                                iii.    How must war be started?
                                                                                               iv.    When may boundaries be crossed?
c.    Uniting every state into a common bond of support and defense.
3.    Regulating when a treaty is not obligatory, or the level of binding effect of a treaty.
4.    Increasing beneficial reliance between states.
F.    January 1, 1915 as the Turning Point
                                                  i.    A shift from international law as the rules between warring kings to being the governing structure for international cooperation of a new depth and breadth.
1.    A movement from autocratic states to democracies and bolshies.
2.    New ideas of sovereignty based on religion, nation, or class, and not on the territory of a monarch.
3.    Moments like the Christmas Truce would not happen again.
                                                ii.    The Fourteen Points – President Wilson’s Desired Treaty Conditions.
1.    General Principles Demanded
a.    Covenants of peace should always be open to public view.
b.    Freedom of navigation.
c.    Removal of economic barriers.
d.    Reduction of national armaments to the lowest level safely possible.