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

INTRODUCTION
·                    What are we going to study?
o                         The law between states/countries
·                                Agreements and disputes between states
§                                      Treaties
§                                      Military conflict
§                                      Engagement in diplomatic relations
§                                      State borders and government
§                                      Human rights through international law
·                    International Law – The practice of states relating to each other that becomes law, History codified. The interaction of states. Rules of conduct that are binding on international actors in relations, transactions and problems that transcend national frontiers.
o                         Where did the state come from? 1648 – the treaties of Westphalia, ended the 30 years’ war. Grand peace treaty. The only actors under international law are secular states. This was a religious war so for purposes of peace they decided that religion does not belong in international relations.   This treaty put states at the front and center
o                         States had to have a way to deal with each other, so they started sending ambassadors, which are representatives on the ground that could tell the state’s position in real time
o                         The high seas were decided to be areas in common, the state cannot take part of the high seas
o                         Anything within a state is solely within the concern of the national government, other states have no authority within another state
o                         There has been a historical back and forth between state autonomy and then international intervention
o                         State authority vs. international law
·                                This is evident in human rights law
·                                Maybe not so much in use of force
§                                      Most wars now are civil wars – governments v. rebels
·                    Zimbabwe case study – The debate between state autonomy vs. human rights and international peace and security
o                         Election where incumbent Robert Mugabe (head of the independence movement) and opposition leader Morgan Tsvangirai had to have a majority of over 50% votes in order to win. Tsvangirai had 48% in the first election and Mugabe 42%. Before the next vote Tsvangirai withdrew due to violence, killing and intimidation directed at his supporters.
o                         July 11, 2008 – United Nations Security Council debated the resolution (handout) to impose sanctions on Mugabe and 13 others. These are called “smart sanctions,” they are not suppose to punish the people of Zimbabwe in general, but only the people responsible for these crimes, violations etc.
o                         The resolution proposed an arms embargo, the appointment of a UN mediator, and travel and financial restrictions against Mugabe and 13 top military and government officials.
o                         Russia and China vetoed the draft resolution
·                                What is the legal objection of Russia and China?
§                                      Overreaches the charter of the UN Security Council
§                                      Favors Tsvangirai over Mugabe
§                                      Internal situation within Zimbabwe and the UN has no authority or capacity to address the situation
§                                      The UN Charter requires that the situation “poses a threat to international peace and security” (Chapter VII of UN Charter) in order for the Security Council to have the authority to act.
·                                            Does this situation pose a threat to international peace and security?
·                                                  What is the threat?
·                                                        Domino effect of more stolen elections?
·                                                        Future of a government ran by Mugabe, maybe regional effect of a regime run by a dictator?
·                                                        The international community is already there, providing aid, this could affect that aid. The food and aid that is being provided by the UN is actually being used by Mugabe against the people as bribery
·                                                        Maybe this has more to do with human rights than international security
·                                                        This debate defines what we are talking about, state rights and autonomy vs. human rights, international security, international law and government, etc.
 
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 o

e 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 organs, for the purpose of adopting the text of a treaty in that conference, organizations or organs.
Article 8, Subsequent Confirmation of an Act Performed Without Authorization
An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.
 
So what if the Congress of the US strikes down a proposed treaty and the President goes to the UN and says, “hey, what’s up? I’m going to enter into this treaty anyway”?
He doesn’t have authority under his own law