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International Law
Wayne State University Law School
Fox, Gregory H.

Professor Fox—- Fall 2011
International Law- how to make int’l law
Overview
Hierarchy of international law:
·         Preemptory Norms / Jus Cogens
·         Treaties
·         Customary Int'l Law- evolves from state practice; does not require formal negotiation and express consent; a rule of customary law binds all parties that have not objected to the law
·         General Principle Of Law (like proportionality, waiver)
·         Soft Law- declared norms of conduct
 
The United Nations: Established in 1945 by its Charter as of 2005 membership consisted of 191 states virtually all the states of the world
·         UN Security Counsel: Article 24 of the UN Charter states the counsels primary responsibility is for maintenance of Int'l peace and security.
o   Power to impose legally binding measures on all UN members
·         General Assembly: A large body operating on the principal one state one vote. Very few powers of enforcement or legislation. Instrumental in developing Int'l law:
o   Established the Int'l Law Commission ILC
o   Adopts multilateral treaties (conventions) drafted by the ILC
o   Convening diplomatic conferences to negotiate conventions
·         International Court of Justice — Adjudicates disputes between UN member states
·         Sectary General ­— Provide Humanitarian Aid. Has little individual power. No budget.
 
Ways to make law:
Statutes of the International Court of Justice, Article 38
-The court can decide international treaties and custom (90% of legal norms), international conventions, general principles (an act that would be not allowed in its own state),
-Subsidiary means are recognizing: judicial decisions, and the teachings of the highest qualified publicists of the various nations (EX: law professors)
-International law is a horizontal: between two equals (State v. State)
-There is no recognized hierarchy to enforce international law.
-Rather, it emanates from a variety of different sources, depending on the particular problem.
1. Treaties:
-Treaties are like contracts:
            -They are voluntary, act of freedom/choice, no one can compel you to sign a treaty
-The obligations contained in the treaty only bind the people that sign the contract or are in the contract
-Law of treaties is like the law that governs contracts
-Treaties are like legislation
            -Autonomous agencies that make law on whatever they want
            -Treaties are more narrow than legislation
-Law of Treaties: Vienna Convention on the Law of Treaties enacted in 1969
            -Explains the legal framework on which a treaty can operate
-Article 2: Defines what a treaty is “an international agreement concluded between State in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
-In reality, agreements not between two states necessarily are being accepted/enforced as treaties.  (EX: Oslo Accords— between Israel & PLO)
-If the international community thinks and accepts it as a treaty, then it will function as a treaty. The law of treaties accommodates itself.
-It must be written
-It needs to be governed by international law, because it would be non satisfactory to just be enforced domestically.
-What incentives are there to get countries to engage in treaties?
-Helps a country’s reputation for international relations and within ones own state
-Can create stability in a controversial situation
-Builds economy and economic ties
-Able to enforce the treaty against the person that you engage in the treaty with
-The treaty can identify punishment in the event of non-performance
            -Allows for specific detail, and gives clarity to complex issues.
                        -An informal agreement would not go into so much detail
-International law is a horizontal legal system, so each type of source of law needs to be understood and specified, their role must be defined.
 
How treaties function:
1. Interpretation of treaties
2. Circumstances of which a treaty might be invalid
3. Reservations to a treaty
4. What happens when a treaty is invalid
 
1. Interpretation of Treaties:
-Look at other agreements made between the parties in relation to the treaty
– Materials subsequent agreements between the parties regarding interpreting the treaty
-Look towards history/preparatory as a last resort because international law is always evolving in the rules and who is present
-Court would say look towards object and purpose.  If they wanted to use traditional non-violence approach of the UN, they wouldn’t have made the clause at all.
 
2. Circumstances when a treaty is invalid
Jus cogens: Norms; Most fundamental principles of public policy that cannot be trumped by laws; contracted out of.
Article 53 of Geneva Convention: Treaties conflicting with a peremptory norm of General international Law
-If people agree to something that is against fundamental principles of international law, then it is not enforced.
-EX: treaty contemplating unlawful use of force, treaties violating human rights, condoning piracy
Article 64: Emergence of a new Jus Cogen
-If a new jus cogen emerges, any existing treaty that is against the norm becomes void and terminates.
Sovereignty-
            -Term should not be used anymore because it has multiple meanings.
-The act of entering into a treaty is an exercise of sovereign actors in an international community.  So cannot say after one enters into the treaty that acting upon the treaty violates the country’s sovereign rights.
The Consequence of Denouncing or Breaching a Treaty
-In general, cannot denounce a treaty unless it explicitly says so in the treaty
Article 56 of VC: Not allowed to denounce unless there is a denunciation clause explicitly in the treaty or the treaty passes the test:
Test: is there any intention that the parties could withdraw and is the right of denunciation implied by the treaty?
Article 60 of VC: Termination or Suspension as a consequence of breaching a treaty
– Non-performance of a contract, relieves the other party of its obligations to perform.  This becomes complicated when there are more then two parties in a treaty.
 
3. Reservations to Treaties
-Treaties effect a whole variety of different obligations (even if they have one subject matter)
-People can opt out of a portion of a treaty.  It is better to have them opt out of portions of the treaty, then to have them opt out of the convention as a whole.
            -How do reservations function:
                        -Note: Need a multi-lateral treaty for people to opt out
-Traditional View: All other parties must agree for one party to opt out a clause of a contract
 
Custom
-Article 38 of ICJ includes “international custom, as evidence of a general practice accepted as law.”
-Custom is like the relationship between executive branch and Congress regarding foreign affairs in US government.
            -EX: War declaration- President does not ask Congress
Elements of customs (how do we know if a custom has changed):
1. State Practice- objective aspect
2. Acceptance as law- Subjective Opinio Juris
 
Security Counsel legislation
Paul Szasz article:
-Can adopt resolutions to create legal obligations on member states under authority in art. 24 (give SC on behalf of membership the power to act on conflict)
-Counsels’ authority to manage peace and security internationally allows them to pass resolutions.
-After 9/11 Security Counsel took a more preventative approach, like the legislature, to ensure future conflict from not happening
           
Actors/States:
-Parties in the international legal process
-Has the ability to acquire rights, can incur responsibility (are liable, can receive sanctions), can participate in the law making process, can join organizations (UN, EU)
-Benefits of being a state: access to resources (courts), secure external resources, enter into treaties, universally understood concept so the people within the country will have more respect for their ruler if they are a valid state.
MOTEVIDEO: The objective criteria are: defined territory, permanent population, government, and ability to enter into international relations.
-Terra Nullius: land that belongs to no one.
-The loss of one of criteria outlined above, does not mean the end of the state.  Statehood is an objective matter.
-Self determination: Article 1: allows for people to say that they are separately distinct from the population of their state and want to be their own state.
-In general, a people cannot just become a state when they want to become a state.
-However, in some cases people can successfully invoke the right to self determination.
1. Decolonization:
-Res 1514: People of colonies can request independent statehood if they want it.  They are entitled to immediate independence, any other country that says they are not ready do not have a valid claim.
-The right of self-determination in colonial territories means independence.  Practically everyone has since WWII.
2. Secession
-Changing the borders of a country to make a state. One state breaks off from a non-imperial state.
-Remedial Secession: People have to be suffering in some way.  Whether it be that they are not being represented in government or they are not able to practice cultural beliefs
3. Dissolution: one part breaking away and the previous state entity doesn’t exist. From one state emerges two new countries. Like the USSR.
4. Merger
5. Peace Treaties
 
 Self determination:
Right of self determination do

n should get in, then they can start to accomplish their goals.
Qualitative Criteria: Achieve democracy by not seating anyone until the next election. This is starting to become the new international trend.
Should international law consider how people come to power with regard to bi-lateral relations?
-Democracy has become the accepted approach- is it the best way?
1. Cannot not recognize a government that is actually in office just because it did not come to power democratically
            2. There are consequences of refusing to recognize the agent of a state
                        -The government is more prone to being overthrown by foreign states
 
International Organizations as Global Actors
Harold K. Jacobson – Why have International Organizations become so Popular?
Rise of problems that are not susceptible to solutions to individual states in bilateral relations, ex: global warming requires a collective solution.
Free-Rider Problem: If everyone agrees to do something, and a few states stay on the outside they get all the benefits but don’t pay any of the costs. Solution is to have a coercive authority vested in a collective body.
Why are there so many international organizations?
States chose to create and join the organization.  They do this because they get benefits, such as, shared information/resources between states, small states get defense from invasion,  helps solve regional problems and stabilize economy, diminish the idea that an individual state is better on its own so no one will want to conquer- the idea that it takes more then one state to lead a region (ex: Germany in WWII), solves collective action problems (problems that can only be solved by states coming together) (EX: global environmental damage), can get all states on the same standard and punish those that free ride, socializing effect (people act better when there is negative social consequences to defying the rules)
 
Organizations Hierarchy
 
Global and Regional Organizations
Global and Specialized
Regional and General
Regional and Specialized
 
-Attributes of International Organizations
-One common feature of every international organization is that it is treaty based
Constitutive Treaties: They create organizations
Creation of the document is really the first step in elaborating the nature of the legal rules that create the organization
Informal state practice that may not be adjudicated by a court but becomes incorporated into how that organization functions
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Internal Structures of International Organizations – The UN
When organizations are made they spawn legal obligations, so UN resolutions have a legal force.
Articles 23-27 are the primary mandate for the UN.
No checks and balances within the UN
Article 23
1.      The Security Council shall consist of 15 members of the UN. China, France, the USSR, the UK, and the USA shall be permanent members (5) of the Security Council. The General Assembly shall elect ten other members of the UN to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the UN to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution.
2.      The non-permanent members of the SC shall be elected for a term of 2 years. In the first election of non-permanent members after the increase of the membership of the SC from 11 to 15, two of the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election.
 
The drafters designated the five states noted in Article 23 as permanent members because they were the principal WWII victors. Other non permanent members that rotate on the council.