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

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 clea

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.