Professor Russell A. Miller
Transnational Law, Spring 2013
I. History of International Law
A. Definitions of Public International Law
i. Janis/Noyes: “mutually agreed-upon rules respecting the nature of states and their fundamental rights and obligations inter se”
ii. Stephen McCaffrey: “decentralized norms governing the relations amongst states”
iii. Two evolutionary definitions. How are they similar/different?
1. Brierly (1963): the body of rules and principles of action which are binding upon civilized states in their relations with one another
2. ALI Restatement – Sec. 101(1987): rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical
B. Themes/Concepts in Public International Law
i. Struggle between cosmopolitanism and particularism
1. Cosmopolitanism: all human groups belong to a single world community based on shared morality or a shared system of law and justice
2. Particularism: prioritizes group identity and affiliation over universal claims of authority (or rights or justice). Therefore it advances the importance of autonomy
C. Westphalian Order (Peace of Westphalia, 1648)
i. Respect for the principle of territorial integrity
ii. Idea of States as the primary independent agents in PIL
1. Key Principles:
a. Sovereignty of States and fundamental right of political self-determination
b. Legal equality between states
c. Non-intervention of one state in the internal affairs of another state
D. Key Jurisprudential Concepts:
i. Natural Law: law above states (all-embracing, universal in application to all cultures and civilizations, ascertainable through use of human reason)
ii. Positive Law: law by and between states (states are the sovereign generators of law) PIL can be understood as the aggregate of the individual agreements between states – law divorced from morality.
II. Sources of Law-Treaties
A. ICJ Article 38 (Hierarchy of Formal Sources of International Law)
i. Treaties
ii. International Custom: general practices between states, accepted as law (opinio juris)
1. Restatement 3rd Definition of Custom: General and consistent practice followed by states due to a sense of legal obligation.
2. International Law Association Definition of Custom: Custom is a rule created and sustained by the consistent and uniform practice of states and other subjects of international law, that impinges upon their legal relations in circumstances which give rise to a legitimate expectation of similar conduct in the future (no opinio juris).
iii. General Principles of law recognized by civilized nations (in their domestic law) – usually procedural rather than substantive (harder to find substantive rules of law common to all nations) (ignore for exam purposes)
iv. Judicial Decisions
v. Scholarship of the “most highly qualified publicists”
1. Subsidiary sources: UN Security Council Resolutions, ICJ decisions, or resolutions of other international organizations (WTO, IMF etc.). Are these organizations just “deputies” of treaties?
a. All of the above sources (except UN) essentially make states the authors of public international law.
vi. Any rule in international law must emanate from one of these sources
B. Vienna Convention on the Law of Treaties
i. Widely accepted as customary international law
ii. U.S. not a signatory (roughly 111 nations have consented)
iii. Determines how to make, interpret, and terminate treaties
1. Article 2.1(a) Definition of Treaty: International agreement, between states, that is written, governed by public international law, embodied in instruments, no matter what it’s called.
2. Article 11: State’s consent may be expressed by signature, exchange of instruments, ratification, acceptance, approval or accession, or by any other agreed-upon means
3. Article 12: Consent is expressed by signature when:
a. Treaty provides that signature has the effect of consent
b. Negotiating States agreed that signature should have effect of consent
c. Intention of State to give signature the effect of consent appears from the full powers of its representative or was expressed during negotiation.
Consent to be Bound:
i. Emphasizing positivism – states won’t be bound without consent – separate phase in the promulgation of law/ treaty
4. Article 18: States are obliged to refrain from acts that would defeat the object or purpose of a treaty (even if the State has only signed a treaty subject to ratification or expressed consent to be bound to a treaty that has not yet entered into force)
a. Rationale: “States owe each other a duty of loyalty in their conduct with respect to the proposed treaty. They should not embark on a treaty commitment and at the same time defeat its purpose.”
5. Article 19: States may formulate reservations unless reservation is prohibited by the treaty, the treaty provides only specified reservations, or the reservation is incompatible with the object or purpose of the treaty (Genocide Case)
a. Acceptance/Objection
b. Severing of Reservations
i. Reservations most often used to clarify that international obligations will not be interpreted so as to conflict with domestic constitutional restrictions
6. Article 20: A reservation expressly authorized does not require subsequent acceptance by other contracting states unless the treaty so provides
a. Whe
become a party to the treaty as amended, unless otherwise stated.
19. Article 41: Two or more parties to a multilateral treaty may agree to modify the treaty between themselves only, if that possibility is provided for by the treaty, or the modification in question is not prohibited by the treaty.
20. Article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. A peremptory norm is one accepted and recognized by the international community of States as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character.
21. Article 54: Termination of a treaty or withdrawal may take place in conformity with provisions of the treaty, or at any time by consent of all the parties after consultation with the other contracting States.
22. Article 60: Material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. Material breach of a multilateral treaty by one of the parties entitles the others by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either in relations between themselves and the defaulting State, or as between all the parties.
a. Material Breach = repudiation of the treaty or violation of a provision essential to accomplishment of the object and purpose of the treaty
23. Article 61: A party may invoke impossibility of performance as a ground for terminating or withdrawing from a treaty if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. Impossibility may not be invoked by a party if it results from that party’s breach.
24. Article 62: Fundamental change of circumstances from those existing at the time of conclusion of the treaty, and that was not foreseen by the parties, may not be invoked as grounds for termination or withdrawal unless: (1) the existence of those circumstances was an essential basis of a party’s consent to be bound, and (2) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. Fundamental change of circumstances may not be invoked as a ground for termination or withdrawal if the treaty establishes a boundary, or if the fundamental change is a result of breach by the party seeking termination or withdrawal.
25. Article 64: Jus Cogens – if a new peremptory norm of general international law emerges, any existing treaty in conflict with that norm is void and terminates.
