International Law, FOX, FALL 2013
I. International Legal System
There is a world court, but not all countries have accepted its jurisdiction and not all disputes go to it
Treaties negotiated between countries are the closest thing we have to laws
Essential actors are states; states primarily make and consume int’l law
Public int’l law regulates almost everything that states do: sending militaries abroad, imposing tariffs that make foreign goods more expensive then domestic goods, sending ambassadors, etc.
International legal system is largely horizontal – no one source of authority has preeminence over another.
Domestic legal system is largely vertical – sources of authority at the top control those below
Int’l legal system lacks central legislature; no executive to apply/enforce law that is made; no centralized judiciary to interpret law/adjudicate disputes.
Int’l law is routinely invoked to justify, insist upon, or limit particular courses of action, assert claims in nat’l/int’l fora, and decide domestic disputes.
Int’l law is made, applied, interpreted, and (sometimes) enforced through a variety of processes.
Traditional Starting Point: Article 38 of Statute of International Court of Justice:
Sets out an authoritative list of source of law. Int’l court is only court w/global reach and potentially unlimited jurisdiction – not limited to a region/subject matter.
ICJ, in deciding cases, looks to: Int’l conventions/treaties; int’l custom as evidence of custom accepted as law; general principles of law “recognized by civilized nations” (principles of domestic law, but so uniform across nat’l systems, fair to say its uniform; tend to fill in gaps, be procedural – “less important” than central norms of int’l law); judicial decisions (secondary sources; not as important as first 3) & teachings of most highly qualified publicists (who do extensive research/make conclusions from it).
Most important international concept: state consent – states opt into norms!
Non Liquet – there is no law (disfavored, but remains a possible holding).
Courts/other decision makers find existing int’l law in one of predefined “sources” and apply it as appropriate to a given dispute à reflects unduly static & impoverished description of int’l law, which can be also understood in many other ways, i.e. a process of decision making, a form of communication, or a mask for political power.
Although treaties/custom remain principal means by which int’l law is made, increasingly supplemented by alt. forms of law stemming from law-making/standard-setting activities of int’l/reg. orgs, multi-nat’l enterprises, NGOs
The order of the sources of law does not reflect a formal hierarchy, but is “suggestive”:
Treaties = preferred form of law: despite issues of interpretation, content relatively easy to determine; usually reflect formal consent of ratifying states to be bound; treaties may be more familiar source of law to nat’l policy makers/constituents than others, so decisions based on them may find greater acceptance.
Disadvantages of treaties: custom may prove to have broader applicability than a treaty; CIL evolves from state practice, doesn’t require formal negotiation/express consent; CIL binds all states (unless objected while in formation process); custom governs issues not regulated by treaty
“Soft law”: declared norms of conduct understood as legally nonbinding by those accepting norms; includes: declarations of int’l orgs, industry codes of conduct, experts’ reports.
Not enforceable by legal sanction, but often framed in legal language and in many respects exhibit an authority comparable to treaties or custom.
Not mentioned in Art 38 of ICJ Statute, yet soft law instruments have proliferated in recent years and are considered a vital part of the international law-making process.
Some issues cannot be resolved by application of either treaty or custom; these gaps are filled in by reliance on general principles common to most national legal systems.
II. The Sources of International Law
Background on Treaty Law:
Most int’l law norms applicable to treaties have been codified in the Vienna Convention on the Law of Treaties (1969); many provisions restate/codify CIL existing prior to Convention’s adoption.
Vienna Convention’s rules so widely accepted that all have become custom.
US not a party, but Exec describes Convention as the authoritative guide to current treaty law and practice.
Vienna Convention rules may be relevant to int’l agreements involving parties other than states (i.e. insurgent groups, int’l orgs) and to oral agreements.
Treaty-making process highly decentralized; actors involved vary depending upon the treaty.
Treaty may be initiated by int’l orgs, individual states, or non-gov’t orgs, individually or collectively
Typically, only gov’ts are formally parties to negotiation of multilateral treaties, but NGOs playing larger role in many negotiations, and their representatives sometimes added to delegations of individual states.
States that sign accept text as adopted & indicate intent to be bound, subject to completion of nat’l law requirements for treaty ratification; Art 18 of Vienna Convention: states that have signed but not yet ratified a treaty must not take any action to defeat the treaty’s object and purpose.
Creating and Using Treaties
Increasingly, treaties are being used to codify existing international law and to develop new laws.
Treaties serve as constitutive instruments of int’l orgs (UN, EU) which often engage in own law-making activities.
Treaties create rights/obligations for the parties to them; specify quid pro quo arrangements re: interests of parties; take on some characteristics of legislation by establishing broad rules to govern state conduct in various areas
Treaties are like contracts – agreement btw two+ powers that leads to rights, responsibilities, duties; parties are then bound by the treaty. CONSENT is critical.
Treaties = laws made by entities that will be regulated by them. Content determined by parties
Treaties are like statutes – both establish long-term regulations/goals; create institutions that make laws that must be followed/adjudicate disputes; interpreted by reference to their object/purpose
Why do states enter into treaties?
Political allegiances (states want to be good int’l citizens; if expect that a “good/normal” state renounces torture, best way to demonstrate agreement w/these norms is to ratify treaties);
Quid pro quo – at least for bilateral treaties (pareto ultimate outcome – best for both parties); for benefit of all (only way to get everyone on board/establish concrete ways to achieve X);
Treaties = formal lawmaking: written, signed, etc., shows commitment, gives stronger justifications for taking certain actions;
Can articulate complex obligations clearly; alternative is not no international law (could be CIL), but when get to areas that require sophisticated rules, can’t do this by custom;
Can set up institutions to monitor and enforce compliance with treaty obligations.
Enacting rules that say “states shall not do X” might not produce the outcome treaty drafters are looking for, unless creates institution that monitors/enforces compliance.
Creating an institution may be a rationale for entering into a treaty.
Treaties: by definition legally binding; states must enter into treaties to obtain binding commitments from other states; such legally binding commitments may assist parties in pursuing their interests for the same reasons that legally binding contracts assist private parties in pursuing their interests.
Int’l legal system doesn’t have enforcement mechanisms comparable to those of effective nat’l legal systems; no int’l court or arbitral body has overarching general compulsory jurisdiction.
No int’l police force. States can’t usually count on outside actors to interpret agreements, decide on their validity, or enforce them in case of dispute.
Almost all nations observe almost all of their int’l obligations almost all the time – L. Henkin.
Realist political scientists largely discount treaties/int’l law generally: int’l system is anarchic – no central authority over states w/power to compel compliance w/int’l rules à treaties/int’l law generally exert little influence over state behavior – states simply pursue their interests and enter into a treaty when convenient, interpret it as they wish, & break it when changing interests render it inconvenient.
Institutional school accepts realist claim that int’l system is anarchic, but argues states have powerful incentives to enter treaties beyond their interest, i.e. mutually beneficial outcomes.
Charles Lipson, Why Are Some International Agreements Informal? (1991)
Decision to “encode” a bargain into a treaty is primarily a decision to highlight agreement’s importance and to underscore the durability and significant of the underlying promises.
In absence of int’l institutions that permit effective self-binding or offer external guarantees for promises, treaties use conventional forms to signify a seriousness of commitment.
Treaties raise political cost of noncompliance; the more formal/public the agreement, the higher the reputational costs of noncompliance. Given inherent constraints of int’l institutions, treaties (formal pledges) are as close as states can come to pre-commitment.
Threat of loss of reputational capital promotes compliance, but cannot guarantee it.
Price of noncompliance: (1) loss of reputation; (2) (perceived) violation may lead to costly retaliation; (3) violations may lead to depiction as untrustworthy/deceitful enemy.
Kenneth Abbott & Duncan Snidal: treaties may enhance credibility of states by constraining self-serving auto-interp of commitments, mobilizing legally oriented interests/advocacy groups, expanding role of legal bureaucracies w/in foreign offices and other gov’t agencies, and modifying domestic actors’ plans and actions in reliance on such commitments, increasing the audience cost of violations.
Treaties may serve interests of private actors or government officials.
Can unilateral statements create binding int’l legal obligations equivalent to a treaty?
ICJ has made clear that effect of a unilateral statement depends on intent of state in question.
ICJ has noted: “w/increasing frequency in modern int’l relations other persons [than President or Foreign Minister] representing a State in specific fields may be authorized by that State to bind it by their statements in re: of matters falling w/in their purview,” but “a statement of this kind can create legal obligations only if it is made in clear and specific terms.”
Evaluating and Interpreting Treaties
Vienna Convn on LOT, Art 31: starting place of interpreting treaties is the text of the treaty.
Object/purpose of treaty: focus on overall objective of treaty, whether argument given by interpreting party is consistent with this purpose.
Treaty shouldn’t be read as contradicting/nullifying itself.
Vienna LOT, Art 32: deals w/domestic legislative history; circumstances of treaty’s conclusion, and preparatory work that illuminates what drafters were thinking when drafted the treaty.
TIER TWO in interpretation – int’l law changes quickly, legislative history may no longer be relevant; nature of parties bound by treaty may be different than the drafters.
Vienna LOT, Art 33: treaty void if, at time of conclusion, conflicts w/peremptory norm/jus cogens of gen. int’l law
LOT Art 51/52: treaties obtained by coercion violate 51/52, void.
Fraud, corruption of state rep, etc., do not necessarily render entire treaty void.
LOT Art 53: Peremptory norm: norm accepted/recognized by int’l community as a whole as a norm from which no derogation permitted and which can be modified only by a subsequent norm of general int’l law having same character. Treaty conflicting w/peremptory norm is void in entirety.
Art 64: if new peremptory norm emerges, any existing treaty that conflicts = void/terminates.
Jus cogens: norms so fundamental to existence of a just int’l legal order that states can’t derogate from them, even by agreement or in case of nat’l emergency (like death of nation via civil war).
Cyprus: 1878 Turkey transferred admin control to UK; Turkey sided w/Germany WWI, UK declared 1878 agrmt void and claimed legal title to Cyprus. Turkey/Greece accepted UK sovereignty over Cyprus 1923 (Treaty of Lausanne); Cyprus “British Crown Colony” status until independence in August 1960, at which time ~80% Greek and ~18% Turkish. Turkish minority, fearing domination, argued Cyprus should be partitioned and Turkish portion to merge w/Turkey.
1959: Meeting of Greek/Turkish PMs; agreed to Basic Structure of the Republic of Cyprus, a Treaty of Guarantee Btw Cyprus and Greece, UK & Turkey; Treaty of Alliance Btw Cyprus, Greece, & Turkey
Basic Structure: designed to create constitutional system to establish an “immutable internal balance of power btw the two communities”
Treaties of Guarantee/Alliance: designed to protect constitutional balance v. internal/external threat
No Cypriot reps participated in agreements! Invited only to finalization; treaties accepted by all parties.
How do we know these documents are treaties?
Vienna Convention on the Law of Treaties (LOT), Art 2: (a) “treaty” means an int’l agreement concluded btw States in written form & governed by int’l law, whether embodied in a single instrument or in two+ related instruments and whatever its particular designation (see p. 43)
“Whatever its particular designation”: many ways to describe treaties (Convention, Agreement, Compact, etc.) – irrelevant. What matters are the substantive requirements
de the Convention. In these circumstances, ICJ cannot conclude Rwanda’s reservation, meant to exclude particular method of settling a dispute re: interpretation, application, or fulfillment of convention, is incompatible w/ object/purpose of Convention.
Joint separate opinion: ICJ not a monitoring body under a treaty in normal sense of that term (doesn’t receive obligatory reports from States upon which it examines them for compliance).
Reservation to Art 11 of Genocide Convention: jurisdictional article: any dispute shall be referred to ICJ. Soviets reserved to Art 11; US via UNGA asked ICJ for advisory opinion: whether old unanimity rule continues to be valid.
ICJ: no, unanimity rule incompatible in era w/multilateral treaties intended to have legislative effect and intending to attract as many participants as possible. Giving more states chance to ratify is more consistent w/emerging order, allowing reservations helps this happen.
Object of Genocide Convention must be considered: convention adopted for a purely humanitarian and civilizing purpose: states have no interest of their own, but common interest.
ICJ limited reservations: they are permissible as long as they are consistent w/the object/purpose of the treaty. Codified in Vienna Convention LOT Arts 20 and 21.
Holding: If a party objects to a reservation it considers incompatible with object/purpose of Convention, it can consider reserving state is not a party to convention; if, on the other hand, a party accepts reservation as being compatible with object/purpose, it can consider the reserving state is a party to the convention.
Dissent: when new rule is proposed to solve disputes, should be easy to apply/calculated to produce final/consistent results. Rule under exam doesn’t satisfy either of these requirements.
ICJ Statute permits it to render advisory opinions at request of UNSC or UNGA, which may authorize other UN organs or specialized agencies to request such opinions on “legal questions arising w/in the scope of their activities.” Advisory opinions are not legally binding; “substantial persuasive value”
The Court’s 1951 opinion in the Genocide Convention case contributed directly to the adoption of the Vienna Convention articles on reservations.
Development of CIL: often involves action that could be seen as breaches of existing law; ‘dialectical process’ – can look at actions as breaches or as an effort to dismantle existing rule and create a new rule.
Is it a breach or effort to dismantle? Theory of custom says look at how int’l community reacts. If condemns act as a breach, effort to change the rule has failed and the act is a breach. If a significant portion of int’l community agrees w/act, old rule is either changed or in process of changing.
Usually custom takes time. Rarely have instant custom, i.e. outer space.
Opinio Juris: subjective element of CIL (objective is state action) – to contribute to CIL, states must take actions over time b/c they believe they are under a legal obligation to do so. Hard to identify.
Where to look for opinio juris in evaluating state practice?
SCOTUS 1900, The Paquete Habana: Spanish-Am war and prize law (going after warring parties’ shipping). 3rd country vessels carrying weapons/war-related supplies could be taken. Had to evaluate CIL.
Fishing vessel (Sp flag) left Cuba (under Sp control), taken as prize of war by US authorized privateer to detain fishing vessels thought to be aiding enemy. Legitimate?
Ship had no knowledge of war/blockade, no arms/ammo on board; didn’t attempt to run blocked nor resist capture.
SCOTUS applying int’l law (int’l law part of US law!). Point of prize law was to apply same law wherever adjudication took place, even though no int’l court.
Rule of int’l law: coastal fishing vessels pursuing vocation exempt from capture as prize of war. Contested, but only 1 serious interruption since 1776.
Rule of not capturing fishing vessels only of comity, not legal decision; 100yrs amply sufficient to enable rule of comity to grow by general assent into settled int’l law.
Reviewed precedent and authorities on the subject.
Concluded: general consent of civilized nations and independent of express treaty or public act, est. rule of int’l law that coastal fishing vessels, unarmed and honestly pursuing peaceful calling exempt from capture as prize of war à unlawful capture!
No single nation can change law of sea b/c of universal obligation or create obligations for the world. Law of nations rests on common consent.
Not giving statutes of any nation extra-territorial effect; recognition of historical fact that by common consent these rules à general obligation.
Rule of CIL binds all states that don’t object to the rule as it is forming; states that don’t affirmatively ratify a treaty are not bound by it, even if it is a general multilateral treaty.
Discerning/Applying CIL: Foreign Direct Investment and Expropriation
Expropriation: Pre1960, almost all Africa, much of SE Asia & Middle East, were colonies. Colonizers took nat. resources; after de-colonization (starting in Mexico, 1920s), wave of nationalization; western extractors taken over by decree of home gov’t; West said ok, but compensate (for equipment, etc.)
P.75 Secretary Hull says compensation has to be “prompt, adequate, and effective” – Hull doctrine.
1938 – well before de-colonization.
Adequate: full market value
Effective: more obscure; essentially, any convertible currency.