International Law Outline
Movements In International Law
Positivism
State-Centered System
Territoriality
Law is created by humans (source is human behavior) for definite conditions and purposes rather than by some supreme being for all eternity.
o Diverged from theological perspectives on how nations should interact based on religious Church doctrine and moral principles
o Distinguished between civilized and uncivilized states – problem of legal personality was resolved through colonization.
Geographically defined states; no single disciplinary authority/mechanism.
Geographically bound states are responsible for making rules within those states
In Pre-State world the geographic borders were less important, example: the Pope spoke to Catholics everywhere as opposed to one single state.
Within a state the national law is supreme; International law is only relevant outside of national territory
Burden Sharing and Collective Responsibility
Institutional
Normative
Theory behind having collective ideas is that it can be easier to act so that states don’t have to act alone.
An individual state can act without a particular national interest being implicated
Ability to pool resources makes it easier to justify the action
If part of a treaty, than the treaty/agreement requires/compels the state to take action.
If a state is a party to the Genocide convention than that state has to take action when genocide occurs.
Compliance
Realists
Institutionalists
Constructivists
Focus on the distribution of power and resources in the international arena as well as on its anarchic nature.
Nations comply with international law only when it is in their interest to do so.
Nations obey international law when it is in their interests to do so; however, they stress that states have both conflicting and mutual interests.
In an anarchic international order, states have no preexisting interests or identity; rather, their interests and identities are created – and changed – by and through their interactions with other states.
Terra Nullius: empty land, “spheres of influence”
WWII was a catalyst for change of substantive law re: use of force and human rights
High compliance rates reflect that international agreements simply codify the lowest common demoninator among the parties
Three trends: 1) Move from natural law to positivism 2) Move to state-centered system 3) Move to territoriality
Non-State Actors: Integrally involved in international relations for hundreds of years. NGOs – private, voluntary citizens’ groups help frame agendas, enforce and promote compliance with international legal norms (help institute “soft law”)
Making Law in a Decentralized System
Statute of the International Court of Justice, Article 38
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
International custom, as evidence of a general practice (over time) accepted by law;
The general principles of law recognized by civilized nations;
o General Principles are principles of national law, which serve as gap fillers when there is no relevant international law regarding the issue.
Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for determination of rules of law
The International Court of Justice (ICJ), which forms part of the United Nations Charter, is the UN’s principle judicial organ – serves as directive to the judges.
Sources of law listed in Article 38 do not reflect a formal hierarchy but are nonetheless suggestive.
Treaties
Treaties: Similar to contracts, countries negotiate a set of legal rules that will bind them. Also similar to statutes in that they create broad policies.
Bilateral Treaty: Between two countries
Multilateral Treaty: Between several countries
Why do States enter into Treaties?
Set out obligations in a clear way – useful to know what the rules are in a time of crisis.
More efficient to have a clear set of rules or institutions. If there is a problem that calls for cooperation, there are transactional costs in creating solutions each time a problem arises.
Vienna Convention on the Law of Treaties
Article 2, Use of Terms
For purposes of the present convention: (a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodies in a single instrument or in two or more related instruments and whatever its particular design.
Vienna Convention Criteria for Treaties
1) International Agreement: Doesn’t have to be a binding agreement, just means two sides have come together and consent to a set of principles.
2) Between States: Both parties have to view it as a treaty.
3) In Written Form
4) Embodied in a Single Instrument or in 2 or more Related Instruments: States start out with a framework agreement and then follow up with protocols (more detailed agreements) – all constitute one integrated document.
5) Governed by International Law
Most international law norms applicable to treaties have been codified under Vienna Convention on Law of Treaties, which was adopted by states at an International Conference in 1969.
Newly independent countries inherit treaties from their forebears.
Creating and Using Treaties: The Cyprus Conflict
Problem: Turkey occupies the island of Cyprus; in 1878 they give administrative control to Britain. After WWI Britain claimed legal title to Cyprus – Turkey and Greece accept British sovereignty over the island in 1923 under the terms of the Treaty of Lausanne; two years later Cyprus became a British crown colony. Independence granted in 1960 (Island ethnic breakdown was: 80% Greek, 20% Turkish).
Treaty of Guarantee: New constitution balanced power between the two ethnic communities. Cyprus agreed to ensure “respect for its Constitution;” in turn, Greece, Turkey and the UK agreed to “recognize and guarantee the independence, territorial integrity and security of Cyprus, and state of affairs established by the Constitution.
In the event of a breach, Greece, Turkey and the UK are to consult together to ensure observance of these provisions. Each of the three guaranteeing Powers reserve the right to take action with sole aim of re-establishing the state of affairs created by present Treaty.
Accords fell apart, Guarantor Powers deployed peacekeepers in 1964. Turkey invaded Cyprus and occupied Northern third of the Island relying on Treaty of Guarantee.
Making Treaties Who Speaks for the State?
When Kutchuk and Makarios (Leaders of respective Cyprus communities) attended London Conference and initialed the texts of 1960 accords, they were un-elected leaders of political communities that had no standing under international law
(Vienna Convention on the Law of Treaties)
Article 6, Capacity of States to Conclude Treaties
Every State possesses capacity to conclude treaties.
Article 7, Full Powers
1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) He produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;…(c) representatives accredited by states to an international conference or to an international organization or one of its
community
They implement an arms embargo on (A)(; but there is already a fundamental public policy that (A) should have a right to arms
But Security Council speaks on behalf of the international community – two opposing factors.
Interpreting Treaties
(Vienna Convention)
Article 31, General Rule of Interpretation (page57-58 casebook)
Requires Treaties to be interpreted in good faith
Article 32, Supplementary Means of Interpretation (page 58 casebook)
Legislative History is traditionally demoted – treaties are intended to be living instruments especially when the international community is constantly changing. Dead hand of history should not weigh on the treaty.
Text of the treaty does not allow for an intervention solely for the benefit of one of the parties.
Denouncing or Breaching a Treaty
Treaties analogous to a contract, if there is a breach then the contractual obligations cease – same with a treaty.
Circumstances before a Breach: One party feels that a treaty is no longer in their best interest, or there has been a change in the perception of the countries
(Vienna Convention on Treaties)
Article 56, Denunciation of or Withdrawal from a Treaty Containing No Provision Regarding Termination Denunciation or Withdrawal
1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal rules unless:
(a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than 12 months notice of its intention to denounce or withdraw from a treaty under paragraph 1.
Article 60, Termination or Suspension of the Operation of a Treaty as a Consequence of Its Breach
1. A 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.
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) In the relations between themselves and the defaulting State, or (ii) as between all the parties;
(b) A party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state;
(c) Any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) A repudiation of the treaty not sanctioned by the present Convention; or
(b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.
