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CHAPTER 1: WHAT IS INTERNATIONAL LAW? a. International law is not law because it does not come from a command of a sovereign. Neither treaties nor custom come from a command of a sovereign. What is international law? b. This theory, however, has generally been discredited. 1. The traditional definit...

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CHAPTER 1: WHAT IS INTERNATIONAL LAW? What is international law? 1. The traditional definition of international law is that it is a body of rules and principles of action which are binding upon civilized states in their relations to one another. 2. The modern definition of international law is the law which deals “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 juridical.” (the Restatement (Third) of Foreign Relations Law of the United States) Scope of international law 1. Factors in the increase in new subjects: a. rapid changes in technology, b. the multiplication of the number of states with differing backgrounds and c. achieving loose forms of cooperation, d. fear of war, e. rising demands for social reform. 2. Topics covered by international law today a. regulation of space expeditions, b. the division of the ocean floor, c. the protection of human rights, d. the management of the international financial system, and e. the regulation of the environment. i. Beyond the primary concern for the preservation of peace, it now covers all the interests of contemporary international and even domestic life. Is international law a law? 1. Basic challenge: a. No law binding sovereign states. (exaggerated notion of sovereignty) b. No international executive, legislative, judicial body i. The International Court of Justice can bind states only when states consent to be bound. c. Enforcement of international law is a real problem for several reasons. i. No assured procedure of identifying violation. ii. UN powers have reference largely to law-breaking in the form of an act of aggression or threat to peace, but there are many violations of international law which are not of this nature. 2. Reality: The reality is social interdependence and the predominance of the general interest. a. States are bound by many rules not promulgated by themselves. b. “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” c. Although the final enforcer is power, fundamentally, there is a general respect for law because of the possible consequences of defiance either to oneself or to the larger society. Theories about international law 1. Command theory. John Austin; law consists of COMMANDS originating from a sovereign and backed up by threats of sanction if disobeyed. (positivist approach)

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International law is not law because it does not come from a command of a sovereign. Neither treaties nor custom come from a command of a sovereign. b. This theory, however, has generally been discredited. c. The reality is that nations see international law not as commands but as principles for free and orderly interaction. Consensual theory. International law derives its binding force from the CONSENT of states. a. In reality, there are many binding rules which do not derive from consent. Natural law theory. Law is derived by reason from the nature of man, an application of natural reason to the nature of the state-person. a. Much of customary law and what are regarded as generally accepted principles of law are in fact an expression of what traditionally was called natural law. In the ultimate analysis, the best answer is PRAGMATIC. a. There is a general respect for law and concern about the consequences of defiance. b. International law is law because it is seen as such by states and other subjects of international law.

Public and private international law Public International Law Public international law governs the relationships between and among states and also their relations with international organizations and individual persons.

Private International Law Private international law is really domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts. (really conflict of laws)

Significant Milestones in the development of IL 1. 1648: The Peace of Westphalia, which ended the Thirty Years War a. Established a treaty based framework for peace cooperation. b. First time pacta sunt servanda arose. 2. 1815: Congress of Vienna – ended the Napoleonic Wars a. Created a sophisticated system of multilateral political and economic cooperation. 3. 1920: Covenant of the League of Nations – included the Treaty of Versailles which ended World War I. 4. After WWI a. League of Nations was bom. i. Its membership consisted of 43 states which included the five British dominions of India, Canada, South Africa, Australia and New Zealand. ii. The United States did not join. b. Permanent Court of International Justice was created by the League of Nations. 5. After WWII a. United Nations was created in 1945. i. This marked the shift of power away from Europe and the beginning of a truly universal institution. The universalization was advanced by decolonization which resulted in the expansion of the membership of the United Nations. b. 3 major groups of states arose. i. Western states which insisted on 1. First, legal provisions must be clear and precise.

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Second, any substantive rule must be accompanied by an implementation mechanism that can spot and correct violations. ii. Socialist states led by Soviet Union. 1. They sought to avert Western intrusion into domestic affairs even as they sought relatively good relations with the West for the sake of economic and commercial interchange. iii. Developing countries Dissolution of Soviet Union – end of Cold War CHAPTER 2: SOURCES OF IL

Sources of International Law 1. Formal sources can refer to the various processes by which rules come into existence. a. legislation b. treaty making c. judicial decision making d. practice of states. 2. Material sources are concerned with the substance and content of the obligation. They identify what the obligations are. a. state practice, b. UN Resolutions, c. treaties, d. judicial decisions and e. the writings of jurists are material sources in so far as they identify what the obligations are. i. also sometimes referred to as “evidence” of international law. Article 38(1) of the Statute of the International Court of Justice  Primarily a directive to the Court on how it should resolve conflicts brought before it.  Declaration by states of the laws under which they are willing to be bound. 1. international conventions, whether general or particular, establishing rules expressly recognized by contesting states; 2. international custom, as evidence of a general practice accepted as law; 3. the general principles of law recognized by civilized nations; 4. subject to the provisions of Article 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. Restatement (Third) of Foreign Relations Law of the United States (sources of IL) 1. A rule of international law is one that has been accepted as such by the international community of states a. in the form of customary law; b. by international agreement; or c. by derivation from general principles common to the major legal systems of the world. 2. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.

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International agreements create law for the states parties thereto and may lead to the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted. 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.

Custom or customary law  a general and consistent practice of states followed by them from a sense of legal obligation  2 basic elements o Material factor – how states behave o Subjective factor – why they behave as such  Factors to determine existence of custom o Usus – Actual behaviour of states  Elements:  Duration – short or long  Consistency  Generality of the practice of states  North Sea Continental Shelf Cases: a short duration, by itself, will not exclude the possibility of a practice maturing into custom provided that other conditions are satisfied, i.e. consistency and generality of practice of states. o An indispensable requirement would be that within the period in question, short though it might be, State practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked — and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.  Asylum Case (ICJ Reports 1950) o Facts: A military rebellion broke out in Peru and was suppressed the same day. A decree was published charging a political party (the American People’s Revolutionary Party) with having prepared and directed the rebellion. The head of the Party de la Torre was denounced as being responsible. He was prosecuted on a charge of military rebellion. Colombian Ambassador in Lima informed the Peruvian Government of the asylum granted to Torre and asked that a safeconduct be issued to enable the refugee to leave the country and further stated that the refugee had been qualified as a political refugee. o The Peruvian Government disputed this qualification and refused to grant a safeconduct. Later, the two Governments agreed to submit the case to the International Court of Justice. o Held: Colombia had not proved the existence of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru.  Uniformity and generality of practice need not be complete, but it must be substantial. (Nicaragua v. United States (ICJ Reports 1986)); the practice need not be “in absolute conformity” with the purported customary rule.  In order to deduce the existence of customary rules, it is sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct

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inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. Opinio juris; why do states behave the way they do? 1. Opinio juris – the belief that a certain form of behavior is obligatory, a. This is what makes practice an international rule. b. Even humanitarian consideration by itself does not constitute opinio juris. 2. Nicaragua case: for a new customary rule to be formed, the acts concerned must ‘amount to a settled practice’ AND accompanied by the opinio juris sive necessitatis. a. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” b. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. 3. It is also possible for customary law to develop which will bind only several states, or even only two states, BUT the party-claimant must prove that it is also binding on the other party. Would dissenting states be bound by custom?  Yes, unless they had consistently objected to it while the custom was merely in the process of formation. Dissent, however, protects only the dissenter and does not apply to other states. Moreover, a state joining the international law system for the first time after a practice has become law is bound by such practice. After a practice has been accepted as law, contrary practice might arise. What effect would such contrary practice have?  Fisheries Jurisdiction Case (Merits): such contrary practice can cast doubt on the alleged law on account of the conflicting and discordant practice of States. Uncertainty had “an unsettling effect on the crystallization of a still evolving customary law on the subject.” What are the acceptable evidence of state practice?  These can be treaties, diplomatic correspondence, statements of national leaders and political advisers, as well as the conduct of states. By themselves, however, they do not constitute customary law unless characterized by opinio juris.  Nicaragua v. United States: opinio juris may be deduced from, inter alia, the attitude of the Parties and of States towards certain General Assembly resolutions. Consent to such resolutions is a form of expression of an opinio juris with regard to the principle of non-use of force, regarded as a principle of customary international law, independently of the provisions. Instant custom  Comes about as a spontaneous activity of a great number of states supporting a specific line of action.  Example: World Trade Center attack  What was peculiar about this collective action was that the object of defense was not an attack from a state but from a non-state organization. Usus and opinio juris in Humanitarian Law: The Martens Clause  found in the 1899 Hague Peace Convention  “Until a more complete code of laws of war has been issued, … in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection

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and the rule of the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” Put the “laws of humanity” and the “dictates of public conscience” on the same level as “usages of states” (usus)  even without practice or consistent practice, there can emerge a principle of law based on laws of humanity and the dictates of public conscience. o In other words, one need not wait for thousands of civilians to be killed before a ban becomes effective.

Treaties  While treaties are generally binding only on the parties, the number of the contracting parties and the generality of the acceptance of the rules created by the treaty can have the effect of creating a universal law in much the same way that general practice suffices to create customary law.  Treaty – international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Article 21(a), Vienna Convention on the Law of Treaties)  All treaties must be observed by the parties under the principle of pacta sunt servanda so distinguishing a law making treaty from contract treaties are not useful. Treaties and customs  Whether or not treaties override custom depends on the intention of the parties. o If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law.  Normally, treaties and custom can be complementary as Nicaragua v. United States states that adherence to treaties can be indicative also of adherence to practice as opinio juris. What happens when treaty and custom contradict each other? 1. If a treaty comes later than a particular custom, as between the parties to the treaty, the treaty should prevail. A treaty manifests a deliberate choice of the parties and the principle of pacta sunt servanda should be followed. a. Wimbledon Case (PCIJ 1923), although customary international law prohibited belligerents from ferrying armaments through a neutral state, the Treaty of Versailles opened the Kiel Canal to passage “to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality.” The canal has ceased to be an internal and national navigable waterway, the use of which by the vessels of states other than the riparian state is left entirely to the discretion of that state, and that it has become an international waterway intended to provide under treaty guarantee easier access to the Baltic for the benefit of all nations of the word. 2. If a subsequent treaty is contrary to a customary rule that has the status of jus cogens, custom will prevail. a. Article 53 of the Vienna Convention on the law of Treaties: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted

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and which can be modified only by a subsequent norm of general international law having the same character. Where custom develops after a treaty, the rule is not clear. In practice, an attempt is made to keep the treaty alive by efforts at reconciling a treaty with the developing custom. [AngloFrench Continental Shelf Case (1979)]

General principles of law recognized by civilized nations. 1. General principles of law recognized by or common to the world’s major legal systems. 2. Refers to principles of municipal law common to the legal systems of the world. They may be said to belong to no particular system of law but are evidence rather of the fundamental unity of law. 3. Examples: a. 1928 Chorzow Factory case: every violation of an engagement involves an obligation to make reparation. b. Affirmation that private rights acquired under one regime does not cease upon the change of government. c. The principle of estoppel. 4. The affirmation of general principles of law found in domestic systems as a source of international law makes up for the fact that there is no international legislative system. 5. Barcelona Traction Case (ICJ 1964) – purpose of recognizing general principles of municipal legal systems as source of IL: If the Court were to decide the case in disregard of the relevant institutions of municipal law, it would without justification, invite serious legal difficulties. It would lose touch with reality. It is to rules generally accepted by municipal systems and not to the municipal law of a particular State, that international law refers. Judicial decisions 1. Article 59: “the decisions of the court have no binding force except between the parties and in respect of that particular case” 2. Do not constitute stare decisis BUT the decisions of the ICJ are regarded as highly persuasive in international law circles and have also contributed to the formulation of principles that have become international law. The teachings of highly qualified writers and “Publicists.”  “Publicists” are institutions which write on international law. Note, however, that these institutions are generally government sponsored; hence, they bear within themselves a potential for national bias.  The more significant ones are: o The International Law Commission, an organ of the U.N.; o The Institut de Droit International, o The International Law Association, a multinational body; o The (Revised) Restatement of Foreign Relations Law of the United States; and o The annual publication of the Hague Academy of International Law. Equity as a source of law  Diversion of Water from the Meuse (Netherlands v. Belgium). o … where two parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should

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not be permitted to take advantage of a similar non-performance of that obligation by the other party. o The principle finds expression in the so-called maxims of equity… Some of th...