What is International Law?
Restatement § 101: International Law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridicial.
Public v. Private International Law
(Conduct of states and international organizations v. Conduct of individuals, corporations, and other private entities)
Sources of International Law:
ICJ Statute, Article 38:
3.General principles of law recognized by civilized nations; and
4.Judicial decisions and the teachings of the most highly qualified publicists of the various
Restatement § 102:
1. Customary law
–Results from a general and consistent practice of states followed by them from a sense
of legal obligation
2. International agreements
–Create law for the states parties thereto and may lead to the creation of customary
international law when such agreements are intended for adherence by states
generally and are in fact widely accepted
3. Derivation from general principles common to the major legal systems of the world.
–General principles common to the major legal systems, even if not incorporated or
reflected in customary law or international agreements, may be invoked as
supplementary rules of international law where appropriate
France v. Turkey (p. 35)
Customary law follows the basic principle of international law that acts are permitted unless expressly forbidden.
Natural Law v. Positive Law
(“We hold these truths to be self-evident” v. consensus)
La Jeune Eugenie (re slave trade)
Justice Story: “I am bound to consider the trade an offence against the universal law of society . . . .”
“Sound sense, general policy, and, above all, moral justice.”
The Antelope (re slave trade)
Justice Marshall: That it is contrary to the law of nature will scarcely denied” . . . but “Slavery, then, has its origins in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.”
Treaties–Formation, Interpretation, and Reservations
Treaty/international convention (in general) = any agreement governed by international law
International Law has evolved from customs to treaties.
International Law is increasingly being seen in domestic jurisprudence.
United States distinction between a treaty and an executive agreement:
1. Treaty: Treaties are concluded by the President with the advice and consent of the Senate. Senate ratification of a treaty requires a two-thirds majority vote. (U.S. Const. Art. 2, § 2)
2. Executive agreement:
Presidential (or Sole) Executive Agreements
–came into force in 1980
–Governs formation, interpretation, and termination of treaties.
–There are 108 signatories (the US has signed but not ratified) to the Vienna Convention on the Law of Treaties.
–The US views the Convention much as a Restatement.
–Regularly relied on by US courts
What the Vienna Convention DOESN’T cover:
–Agreements with or between international organizations
Treaty: *Written agreements *between States, *governed by international law (VC, Article 2)
(Note: The concept of a treaty under international law is not limited to that defined in the Vienna Convention.)
General international law (custom)
Treaty: All agreements governed by international law, whether oral or written
*Includes agreements with international organizations
“Nonbinding” Agreements (as opposed to Binding Treaties):
Declarations of Intent
How to tell Treaties from Nonbinding Agreements:
What is the agreement called/how is it styled?
Does it use mandatory language?
Does it contain specific obligations?
What statements were made by the parties in the negotiations and at home in describing/defending the agreement? (intent)
How formal was the process?
How did each party handle the agreement internally (e.g., congressional ratification)?
“Soft law” –non-binding agreements (reputation loss)
Bilateral Treaties (e.g., tax, trade, extradition treaties) v. Multilateral Treaties (NAFTA, GATT)
–Some are closed (e.g., NAFTA–Belize, for example, can’t join)
Vienna Convention: General–
Article 6: Every state has the capacity to conclude treaties.
Article 7: For states, domestic law determines which orgs have the power to conclude treaties, although certain officials (such as heads of state) are presumed to have this power. (Is usually the executive branch of gov’t.)
Article 11: Consent to be bound can be expressed by signature, exchange of instruments, or by any other means agreed to.
–Many multilateral treaties also require “ratification.”
Article 18: Obligations after signing but before entry into force
Each state is obligated to refrain from acts that would defeat “object and purpose” of agreement
This obligation continues until the state makes clear its intent not to become a party to the agreement.
e.g., US withdrawal from the treaty establishing an international criminal court.
Problem: What = “object and purpose” is not always clear.
Article 31: General Rule of Interpretation
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.
Article 32: Use of Travaux Preparatoires (Preparatory Work) in Treaty
conducting itself in the matter in accordance with normal practice and in
Article 44: Separability of Treaty Provisions
Article 45: Acquiescence
A party that continues to perform under the terms of a treaty, despite its knowledge that grounds for invalidating it exist, is precluded from later invoking those grounds for invalidation.
Narrow scope of exception is intended to promote treaty stability, but still allow for refutation in exceptional circumstances. There is a presumption that agreements are binding.
Article 54: Termination of or withdrawal from a treaty under its provisions or by consent of the parties
The termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty (12 months’ notice is generally required unless otherwise specified); or
(b) at any time by consent of all the parties after consultation with the
other contracting States.
Article 60: Material Breach
Material Breach = an unsanctioned repudiation, or a violation of a provision essential to treaty’s object and purpose.
Right to terminate is not self-executing; must be exercised
Mechanism for Termination (Article 60 (1), (2)):
Bilateral Treaties: A party can terminate or suspend a treaty (or portion thereof) in response to
a material breach
Multilateral Treaties: Termination either by–
“Unanimous consent” of other parties (either to terminate the entire treaty or only re the
breaching state) or
Termination by a party “specially affected”
Article 61: Impossibility of performance
Impossibility of performance is a ground for terminating a treaty if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.
–ex. drying up of a river.
–Is a narrow ground for termination
Severe financial difficulties are not sufficient
Important: Right to terminate cannot result from the party’s own breach of the agreement
Article 62: Fundamental Change of Circumstance–”Rebus sic stantibus”
Generally, the development must have been unforeseeable, affect an essential basis the the parties’ consent to be bound, and must radically transform the obligation of one or both of the parties.