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International Law
Wayne State University Law School
Dubinsky, Paul Richard

INTERNATIONAL LAW
Dubinsky
Winter 2009
 
 
 
1. Comparative Law: The study of Different legal systems. Involves foreign elements from not international elements
Ex) should Spain borrow the jury system from the US?
 
2. Transnational Law: The body of law that comes into play when behavior crosses boundaries, and much of that behavior is done by private parties. If you were to buy property in Mexico, it is transactional but not subject to international law.
 
3. International Law: What set of rules should come into play when states interact.
Where does one practice international law? – Mergers & acquisitions, Licensing, International corp law, International environmental law, international aviation, shipping, international arbitratoi.
 
Historical Development of International Law:
1648 – The end of the 30 yr war which was about religion and power. Catholics and Protestants as to whether ones primary allegiance to ones god or ruler. Brought on in part by the Protestant reformation and Part by the Pope and his view on Politics. – This was the beginning of the State system.
Individual area could choose their own religion and subjects in those areas were to have limited exercise of religion
 
Important Areas of International Law:
Area 1: The seas
Area 2: Ambassadors – set up rules setting up their rules
Area 3: War Fare
Are 4: Exploration and Colozonation
 
The world is divided into pieces of land, and associated with each piece is a political entity in charge of that piece of land.
 
A state system provides accountability – if weapons/gun fire are coming across the border, there is some state to hole responsible for it.
 
Is the world more peaceful?
Is the world more prosperous?     – Can these 3 go together?
Is the world more free now?
 
Territoriality: The most essential thing about a state is its territory. If you want the accountability and the benefits of that – anything that takes place in territory A is governed by A.
This becomes harder to maintain w/ technology and when a lot of people have the growth from the industrial evolution.
 
1945 – The growth of international institutions. The ones that transcend states. Brings about the UN system. Before 1945 the law was created by the states themselves. Now the law is being created by these institutions that transcend the states.
 
The Age of Exploration: If there is a world of nation states, how could the French just invade north Africa? Because there were people not capable of forming states and being outside the state system.
 
If you look at the number of nations in the world in 1945 vs. today there are a lot less and it’s a part of decolonization. Should the balance of power in the world be a function of economic, military power, population – one country one vote.
 
Class 2: Customary International Law: State Practices
The United Nations
UN Security Counsel
General Assembly – A large body operating on the principal one state one vote. Very few powers of enforcement or legislation
International Court of Justice – Adjudicates disputes between UN member states
Secutary General – Provide Humanitarian Aid. Has little individual power. No budget.
 
Art. 38 – Answers the question of what law you should apply. Look to treaties, then look to custom, Then to general principles of law.
Peremptory Norms – Jus Cogens. Applies in all places but doesn’t necessarily come from one place. Preempts any other source of law.
 
Art. 38:
          1. The court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply;
·         a. international conventions, whether general or particular, establishing rules expressly reorganized by the contesting states;
·         b. international custom, as evidence of a general practice accepted as law;
·         c. the general principals of law reorganized by civilized nations;
·         d. subject to the provisions of Art. 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. the provision shall not prejudice the power of the Court to decide a case ex aequo et bono , if the parties agree thereto.
 
Sources of International Law:
Custom: What is it? And why should it be law?
Premptory norms: Aka Jus Cogens, applies in all places in all instances. Like the probation on torture. If two countries agreed to that torture was OK the ICJ would ignore it.
Treaty
General princiapal
Soft Law: The international monetary fund and world banks guidelines says to look toward a countries humanitarian laws to make sure they don’t loan money to a country that has laws that are abusive.
 
Customary International Law – Black Letter Law
1) Some persistent identifiable practice carried out in the international sphere by different states
2) Has to be a practice carried out for a period of time with little or no deviation
3) That practice has to be carried out, out of the sense of legal obligation.
EX) Ambassadors. When they misbehave they are not prosecuted for what they did because countries believe that they don’t have the authority to prosecute the ambassador ad instead sends him home. This used to be custom but in the 60’s it was codified as diplomatic immunity.
 
Ex) Assertions of extra territorial jurisdiction: Under what circumstances does country A assert that it is entitled to make a statute or regulation on a force of law outside its own country. This bloomed as an issue at the beginning of the 19 hundreds.
Jurisdiction based on Nationality – There is much closer to a custom that country A can apply its law to a citizen of country A outside its territory. Clear with A’s law doesn’t conflict with country B.
Jurisdiction based on effects: where behavior takes place outside the US but they produce a harmful effect felt in the US, the US is under the opinion that it is permissible to apply US law.
Can be criminally prosecuted or civilly sued.
If every country fell in line with this idea then you would have a customary law, but that didn’t happen.
EX) if you go to the shore and throw a rock into the ocean. How far can it go and still be US water? Water territory was originally developed by custom.
Ex) the law of neutrality: Conflict between country A and Country B, Country C could decide to be neutral. So what does it mean for country C…can the other countries still trade with them. To this day – this has been developed through custom not a treaty.
 
The Paquete Habana: A sexy Sounding Name
Central issue was if it was customary IL to capture the fishing vessels as prize, sell them and retain the whole val

f peace?
Prosperity?
Justice, Fairness?
Freedom?
 
Class 3: Customary IL, Int’l Instruments, and Law’s Progressive Development
Any doc. Produced by the ILA is not law it is persuasive value. Although they play a large part in advancing IL. ILA composite of professors, lawyers, and judges.
 
Pequete Habana is a 19th century opinion. – If you asked what the law was back then people would say it was the interaction between states.
There are essential no international orgs to speak of in the 19th
If you wanted to study the communication between countries then – you would be looking at communications between ambassadors and heads of states. Diplomacy was personal and took place outside of the public ear.
It is logistically difficult to
 
Multilaterally treaties are between 3 or more countries.
 
There would be a greater focus on what states actually do rather than what they say.
Customary law would focus on a areas where there is a strong need
Expect it to occur in areas where there are a lot of incidents not just where things happen every once in awhile.
 
The 20th Century:
The interest of states overlap and conflict more often.
Increasinly diplomacy takes place in public. This is tied in part to the telephone, newspapers. Not just the rise of technology but the rise of democracies. They insist on being informed. 2nd the way democracies insist on working. There are lots more statements
There is a huge increase in the number of states in the world by a factor of 3 or 4.
Increasingly after 1945 there was the growth of international orgs that states were a party.
The rise of the global corporation. Some are more wealthy/powerful than states
 
With the change in the world there is a pressure of customary law to change.
 
Black Letter Rule from the ILA
In order for customary law to be rule there has to be state practice of that rule that is universal.
There is no min amount of time in which this has to take place. In the modern period of time it is possible for a rule of customary rule of law to take a century or 2 to develop.
Subjective element: Opinion Juris. A rule of customary law in the modern period can develop even without hard evidence of the states. Basically through practice. Not everyone agrees with this.
Newly independent states are bound by customary law even if they were created after the customary law was created. This is true even if the country splits in 2.
There is a persistent objector rule: a state that is in existence at the time a rule is in development if that state persistently and clearly objects to the emergeness of the rule, even if the rule emerges that state is not bound by that rule.