COMPARATIVE INTERNATIONAL LAW
RAMASASTRY
fALL 2013
Nature of International Law (Chapter 1 pp. 1-8)
I. History of International Law
A. At least since Thirty Years War in 1648 World Politics principally involved relations of more or less independent sovereign states
B. International law sometimes conceived as being divided into public and private law. Division can be misleading—lots of overlap.
1. Public international law mostly concerns the political interactions or legal relations of states
2. Private international law relates to legal aspects of the international economy and conflicts and cooperation among national legal systems, i.e. governs foreign transactions of individuals and corporations
II. Rules of International Law
A. ‘Municipal law’ used to denote the internal laws of national legal systems; generally emanate from national constitutions, municipal statutes, executive regulations, and the decisions of municipal courts; possible sources include formal legislatures and other political structures that may generate rules
B. Sources of International Law:
1. Conventional international law: explicit (usually written) agreements between states, i.e. treaties or conventions
i. Evidences of conventional international law: written agreements themselves; material relating to drafting and conclusion of agreements
2. Customary international law: the customary practice, other than the making of treaties, of states among themselves; analogous to “course of dealing” and “usage of trade” concepts where practice creates justifiable expectations of future observance
i. Usual evidences of customary international law: constitutional, legislative, and executive promulgations; proclamations, judicial decisions, arbitral awards, writings of specialists on international law, international agreements, and resolutions and recommendations of international conferences and organizations
3. General principles of law: general municipal practice of states, idea is that if most or all states observe certain rules as part of domestic laws then it may be presumed that these rules are so fundamental as to be more or less automatically part of international law
i. Evidences of general principles of law: municipal laws, doctrine, and judicial decisions
III. Process of International Law
A. Most formal legal procedural authority resides in states themselves; most disputes involving international law or touching international matters that actually go to formal legal adjudication is decided by municipal courts
B. Courts or arbitral tribunals can be ‘international’ in three ways:
1. Set up by international agreement
2. Apply international law
3. Deal with cases involving parties or transactions touching more than one country
C. International law demonstrates little or no procedural heirarchy, i.e. courts and institutions often possess no accepted primacy over others
D. Thus vitality of international law rests on continuing practical vitality in three circumstances:
1. (1) Different states to follow similar rules or apply like standards in their domestic legal orders
2. (2) Sovereign states limit their own liberties in exchange for reciprocal limitations on the part of other states
3. (3) Helpful to States as a means for achieving common international goals
Treaties (Chapter 2 pp. 9-16)
I. Treaties as International Law
A. Treaties create legal rights and duties; the obligatory aspect makes them part of international law
B. pacta sund servanda—principle that agreements, even between sovereign states, are to be respected; agreements among sovereigns are legally binding
C. Binding—International agreements are thought to be binding because they have been concluded by sovereign states consenting to be bound; the idea is that states by virtue of their sovereignty may authoritatively regulate not only their own internal affairs but also their international legal relations
D. Enforcement: in practice states are usually the actors actually enforcing treaty obligations, either internationally (e.g. by use of interstate persuasion or force) or nationally (e.g. by application of rules drawn from international agreements to discrete cases by domestic courts)
E. Supremacy: most observers, including ICJ, assign legal rules drawn from international agreements the highest rank among all sources of international law because most treaties plainly show both the terms of international legal rules and the consent of states to be bound by such rules
F. Treaties may be thought of in four ways:
1. Contractual: as an international contract a treaty may simply accomplish some exchange or concession, e.g. the treaty in which Russia ceded Alaska to US for $7.2mil in gold
2. Legislative: as form of international legislation a treaty may formulate rules pertaining to patterns of regular behavior among states, e.g. the Convention on Consular Relations
3. Constitutional: as a form of international constitution a treaty may set the legal foundation for an international body, e.g. the Charter of the United Nations
4. Aspirational: in an aspirational mode treaties may set goals for international society, e.g. the Kellog-Briand Pact of 1928 which renounced “war as an instrument of national policy”
G. The ICJ generally assumes international agreements to be legally binding regardless of the intent of a state to view an accord as merely a moral or political engagement
(e.g. in 1994, the ICJ held the signed minutes of a meeting among foreign ministers of Bahrain, Qatar, and Saudi Arabia to constitute a legally binding agreement)
H. Three types of treaties:
1. Bilateral: between only two states
2. Multilateral: binding on several or many states, e.g. the General Agreement on Tariffs and Trade (GATT)
3. Unilateral: sometimes possible for a unilateral declaration or act to have binding legal effect, e.g. in Nuclear Test cases ICJ decided that several public statements made by the French government that it would no longer
1. Ratification: state that has played a part in the negotiation of the treaty and has signed the text
i. Domestic side: governed by municipal rules
ii. International side: set forth in the treaty itself
· i.e. requirement that there be an exchange of instruments of ratification among the contracting states or a deposit of such instruments with a depositary
2. Accession: state use when they did not originally negotiate or sign a treaty, but subsequently wishes to adhere to the agreement. Not prescribed in either Vienna Convention or customary international law. Individual treaties quite regularly detail the manner by which states may acceded to the agreement
i. Antarctic treaty is open for accession any state that is either a member of the UN or invited by the contracting party
ii. Aceding states usually assume the same legal position as the contracting states that have ratified the agreement
L. Treaties, under the Vienna Convention, must be in writing
1. Under customary international law, it is possible to have an oral treaty
Eastern Greenaldn: the Permanent Court of International Justice held that an oral agreement made by the Norwegian Minister for Foreign affiars at the Paris Peace Conference in 191 is binding
Even though a state is not a party a treaty, it may occasionally be bound by the treaty’s terms. For example, when the rule of a treaty pass into customary international lawICJ noted in 1969 in the North Sea Continental Shelf Case
M. Reservation: provision of a treaty that one or more parties may refuse to accept; Under the Vienna convention, it is a “unilateral statement, made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State
N. Bilateral treaty: a reservation is usually thought to represent a rejection of the treaty in its given form, and no legally binding result until and unless the other party expressly accepts the reservation
O. Multilateral treaty: accepted practice for states to attach particular reservations to which they were nonetheless considered to be parties
1. Okay under the Vienna Convention unless the reservation is prohibited by the treaty, is not one of the specified permissible reservation, or “is in incompatible with the object and purpose of the treaty
