· What is intl law
Ø Traditional: law that governs relations btwn states (not individuals)
Ø Modern: law that deals w/ conduct of states and Intl Orgs (IOs) and w/ their relations, as well as some of their relations w/ individuals, whether natural or juridical
o ICJ – Intl Ct of Justice (part of UN)
Ø Only available to states; no enforcement or compliance mechanisms to make states obey
Ø Both states must consent to jurisdiction: Express consent for particular dispute, accepting juris for settling disputes under certain treaties, or ad hoc.
o UN Security Council (UNSC)
Ø 5 permanent members (veto power); 10 rotating members (regional basis)
Ø Maintains intl peace and stability
Ø CH 7 pwrs: authorize SC to use force or to authorize others to (to maintain peace and stability)
o UN General Assembly (UNGA)
Ø Composed of all state-members
Ø Can pass resolutions, but have no real power (soft law)
o Most common intl disputes are between 2 states in a territorial dispute
o Stability of borders concept – If a border is established by a treaty, the border will be valid even after the treaty ceases to be valid
o Chad-Libya war over Aouzu Strip
Ø C claims a treaty between France and Italy in 1955 fixed the border and gave the strip to C. L says the treaty was invalid b/c there were other treaties before L was coerced to sign that treaty. L also claimed that ppl living in the strip claimed allegiance to L. C and L go to war
Ø States agree to submit conflict to ICJ b/c outside nations condemned L’s actions (first to use force); L saved face by w/drawling troops and going to ICJ.
Ø ICJ adopts stability of borders doctrine.
§ Imposed border established from treaty agreed to in colonial days.
§ L did not object to the treaty in time, so C got the strip; both states abided by ruling
o Why do parties obey intl law; e.g. submitting disputes to ICJ?
Ø To gain legitimacy in future situations = reputation for reliability
Ø To save face in intl community and w/in own constituencies
Ø To keep a good intl reputation and membership into other IOs
Ø To avoid intl sanctions
o Changes in IL after WWI and WWII
Ø States realized that war is costly, so conflicts should be reg by intl agreements to govern war
Ø States have rt to self determination; e.g. Austria-Hungary split up and small nations were created
Ø Respect for human rights
Ø League of Nations – created by Versailles Treaty as institution to address War and Peace probs.
§ First IO to look at diff wld problems like health, etc.
o Human Rights Movement
Ø Led to de-colonization and 1948 UN Decl of Human Rts
Ø focused on individuals, not just states
§ e.g. state A has duty to not commit genocide and same duty for individuals in state A.
Ø As role of individuals rose, state sovereignty weakened (Gen and torture no longer dom probs).
o Rainbow Warrior (18)
Ø French forces blow up Green Peace ship in NZ; 1 dead; NZ wanted them tried in NZ; F said no + imposed trade sanctions. NZ complained to GATT (now WTO). Dispute submitted to UN SG.
Ø F raises Superior Orders Def: soldier is not liable for bombing when he was just following orders (no longer a defense under IL).
Ø UN sent agents to island for 3 years. F failed to respect ruling and unilaterally released them early; NZ and F agree to arbitration and F pays out of it (legitimized a private agreement so everyone can save face on IL scene).
Ø Main Point: Actors in this conflict: states, individuals, NGO (GP); conflict not over territory
o BINDING Sources of law
Ø Treaty (based on consent)
Ø Custom (based on implicit consent)
Ø General principles of law (binding but only used to fill gaps left by treaties and customs)
§ Principles basic to legal orders that they arise in most natl legal sys’s and can therefore be ascertained thru an objective, comparative assessment of municipal law in relevant states.
o NONBINDING Soft Law – declared norms of conduct understood as non-binding by those accepting the norms; not mentioned in Art 38
Ø UNGA resolutions (not good sign of custom/OJ: states voting for pol reasons instead of legal ob)
Ø Industry codes of conduct
Ø World Bank rules
Ø Decisions of Intl Tribunals (ITs)
Ø Teachings of most highly qualified individual publicists/writers and IL Commission
· Treaties and Treaty Law
o Treaty – Primary source of IL (most direct and concrete way IL is treated)
Ø Creates rts and obligations for the parties to them
Ø Can be bilateral or multilateral
Ø Signing of them is voluntary, but they are binding on the parties once signed
Ø Take precedence over custom (which then has precedence over GP’s and SL)
Ø In US, treaties are on same level as statutes (if conflicting, whatever comes last governs)
o Art 38 of ICJ Statute – In deciding disputes in accordance w/ IL, cts should apply:
Ø Intl Conventions, whether general or particular, establishing rules expressly recognized by the contesting states (treaties)
Ø Intl customs as evidence of a general practice accepted as law
Ø The general principles of law recognized by civilized nations
Ø Judicial decisions of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
o Vienna Convention Art 2 (US is not a party):
Ø Elements of a Treaty
§ Intl agreement
§ Btwn states (Art 6 – every state possesses capacity to conclude treaties)
§ In written form
§ Governed by international law (no treaty if governed by any country’s domestic law)
Ø Cyprus – didn’t hve capacity to enter into a treaty b/c not an independent state. It’s officials could have signed it after Cyprus became a state to make it valid, but they did not.
Ø Art 7: A person is considered as representing a state for the purp of adopting or authenticating a reaty or expressing consent to be bound by it if:
§ He produced appropriate full powers, or
§ It appears from the practice of the states concerned or from other circs that their intention was to consider that pers as representing the state for such purps.
Ø Art 8: if pers w/o Art 7 consent makes a treaty, not binding unless subseq confirmed by his state.
Ø Unilateral Statement – no
a provision that is essential to the accomplishment of object or purp of treaty.
o Treaty of Guarantee (Cyprus Conflict
Ø Art iv – contains words “take action” (1960)
§ Turkey interpreted this as “use force” (1960s-1970s)
§ Issue – no UN authorization to use force, and no self defense claim
§ Cannot have treaty provision conflicting w/ UN Charter (disallows use of force)
Ø *consent to have troops militarily intervene must be contemporaneous: b/c of time diff btwn 1960 treaty and when T used force, T’s actions are invalid (cannot use force 20 yrs after consent)
· Custom Law (Binding on all states once it is formed)
o Elements of formation of custom
Ø State practice: must show multiple states uniformly + consistently follow a norm or practice
§ Look to treaties, diplomatic k’s and correspondence, legis acts, etc, to show it follows
§ Practice may be short, but it must be consistent, and uniformly held, or it can be held over a long period of time w/ a few states that offend it (balancing act)
Ø Opinio Juris: show that states follow it out of belief in a sense of legal obligation (subjective)
§ Persistent objector – state that persistently objects while a custom is being made; can only opt out of an emerging custom before it is formed, not after
§ States that are formed after a custom is made must follow that custom
o Pacquette Habana – US must pay comp for taking claimant’s fishing ships as prizes of war and selling
Ø HOLDING: it is an est’d rule of IL founded on the mutual convenience of belligerent states that coast fishing vessels honestly pursuing their trade cannot be captured
Ø RATIONALE: ct looks to prior (consistent) decisions on the issue from European cts
§ This customary practice started out as a “comity” courtesy or good will which then eventually ripened into IL
o Discerning and applying custom
§ Hull Doc: if a state expropriates the prop of another, there should be prompt, adequate, and effective compensation. Debate in UN GA
§ UN Res 1803 (1962): Permanent sovereignty over natural resources.
o Can only expropriate for a public purpose
o Appropriate compensation must be paid
o Reference to IL (intl adjudication to dispute claims)
§ UN Res 3171 (1973): change due to newly formed independent former colonies
o Res 1803 – reflects current IL
o No mention of public purpose
o Possible compensation; each state will decide whether and what it can pay
o No mention of IL adjudication