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I. HISTORICAL INTRODUCTION
1. Fundamental Historical Developments
1. Intl law gone from system based on natural law to positivism
2. Under Law of Nations, customary intl law and bilateral treaties most important
1. Now multilateral treaties, or even universal (i.e. Kyoto) are dominant
2. These treaties are of lawmaking character, see selves as making law for community
3. Move from uniform community to very diverse
1. Initially just simple divide US/USSR, now diversity much more complex
4. Early law about co-existence, now about solving common problem that we face
5. Decentralized system of small # of states to larger and more organized system of many states
6. System of state freedom to pursue aims to one of basic tenet of non-use of force preeminant
7. From state-centered system to one in which actors wider variety (individuals, corporations)
1. Int'l law used to be just rules governing interactions b/t states
1. individuals affected, i.e. as aliens, but no individual right in traditional I-law: duty created in host state, and right of feeder states
2. today, expanded enormously
1. int'l organizations, UN, NGO
2. human rights/criminal laws don't to apply only to states, also for individuals
2. Ancient History
1. International law goes back to Greece and Rome. Roman law applied throughout empire, but in provinces local law continued to apply.
2. Roman jurists came up w/ jus gentium, way of regulating “transnational” interaction fairly b/t Romans and those living in the provinces – principles of general equity and “natural law”
3. Europe, 1600s
1. rise in trade make clear need for systematization and 30 Years War make clear need for laws of war
1. Treaty of Westphalia (1648): Ended 30-Years-War, catastrophic period in Euro period. Inaugurated modern state system and idea of states as actors w/ sovereignty w/in borders.
2. Hugo Grotius: Natural Law
1. restitution must be made for harms done by one party to another
2. promises must be kept (pacta sunt servanda)
3. freedom of the seas
4. jus naturale (natural law derived from principles of natural/universal reason)
2. Positivism:
1. Grotius drew distinction b/t jus naturale and jus gentium (customary law of nations, i.e. jus voluntarium (body of law formed by the conduct and will of nations)
2. This became bigger deal later, as positivist philosophy gained over natural law ideas
3. Main tenets:
1. law is the practice of states and conduct of international relations as evidenced by customs or treaties, rather than derivation of norms from natural principles
2. corresponds to rise of nation state and absolute claims to legal supremacy
3. Wolff expresses idea of modern state -- int'l obligations are only those to which state has voluntarily agreed through practice hardening into custom, or specific written consent
4. Principle of voluntarism in intl law:
1. required by sovereignty requires that sovereign not be “bound” by someone else
2. This doesn't mean no intl law, rather that based on consent—to treaties, to customary intl law (at least tacitly):
5. Austin: law is just if it is the command of a sovereign backed by appropriate authority and w/ capacity to sanction
1. i-law, therefore, is just “positive morality”, given that there is no sovereign commanding states
2. League of Nations and Other Attempts to Regulate
1. intially, basic principle is positivism and supremacy of nation state, freedom of state to choose b/t war and peace
2. The Hague and Geneva Conventions formulated rules about conduct in war etc
3. BUT – League of Nations really changed status quo by condemning external aggression etc, limited legal freedom of sovereign state to pursue war as instrument of policy
3. Most recently--
1. creation of UN and other agencies
1. transition of I-law from system of rules of mutual respect to system of organized efforts
2. even more restrictions on use of force – self-D or collective force
3. also kind of New Deal for the world – World Bank, IMF, etc
2. growing diversity in int'l community
1. divide b/t great powers and less power
1. If everyone's a sovereign, does that mean that great powers are as subject to veto of small powers as small are to great?
2. Law of nations begins in period of ideological unity (all of Europe, and all Christian). Today, intl community of enormous cultural and economic/power disparity
3. growing gap b/t wealthy and poor countries – led to developing of IMF etc
1. also, competition for 3rd world b/t East and West politicizes programs like human rights
4. end of Cold War
1. 20 years ago Cold War still on: Intl law kind of stalemated by this
2. But 1991: Soviet Union disappears, US left as sole superpower
1. Intensification of globalization partially fueled by demise of Eastern bloc.
3. post 9/11, see implications of US being sole superpower -- no balance of powers as before and during Cold War
1. led people to question implications and role of intl law
2. after 9/11 US began to move away from intl law and institutions, sees self as having different values than rest of the world
II. INT'L LAW AS LAW (HOW AND WHY?)
1. Fundamentals:
1. I-law has been hard to justify – can there be law governing sovereign states? No int'l legislature to make it, no executive to enforce, no judiciary to develop and interest
2. Today, Rule of Recognition:
1. law is what is recognized under basic principle of what law is within society (Hart and Kelsin)
3. Henkin: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”
1. doesn't matter if i-law has the various branches, but whether or not reflected in policies of nations. Just because gaps does not mean no force in the existing laws. Basically, nations act as though i-law were binding, accept limits on sovereignity, and thus there clearly is i-law
2. “Ilaw isn't law”
1. Austin:
1. I-law is moral sanctions, not positive law
2. real law is command of sovereign backed by threat of sanction
2. Morganthau: “Legal Realism”: No one has incentive to comply w/ intl law as w/ domestic, thus compliance only when in state's interest to do so. Interest + power = actions w/ relation to intl law
3. “State isn't sovereign once it submits to ILaw”
1. This concept of sovereignty is that if subject to commands of another you are not a sovereign (depends on you being ultimate law-maker)
2. i.e., in US, people very concerned about delegation of sovereignty or governmental authority to intl bodies
4. “Intl law lacks the basic structure of law”
1. Legislature?
1. State custom: slow process, and can be vetoed by any member
2. Gen Assem: only recommendations
3. Sec Coun: binding authority under Chap. 7, but only applies to intl security
2. Enforcement?
1. No police authority. Sec Coun has limited jx, but far from guaranteed.
3. Judiciary?
1. ICJ, ICC, ICTY, ICTR, dispute resolution of NAFTA, WTO etc – but none of these has compulsory jx w/out consent, and no judicial hierarchy
3. “Ilaw is law”
1. Hart
1. Int'l law has many principles that are law-like
1. based on precedent, text-bound
2. doesn't claim to be based on morality, rather appeals to rules that can be defined and explained in positive term
3. rules are arbitrary and morally indifferent, no apparent great merit in choosing one over another, main point is to have a rule, not like a “moral”
4. they are important as rules, and so clearly law rather than moral
2. PCIJ: right of entering into intl agreement (right to contract) is an attribute of state sovereignty (p. 19)
4. Why do States observe I-law? (Henkin)
1. Int'l law depends heavily on extra-legal sanctions, law observance will depend more heavily on law's current acceptability and on the community's (victim's) interest in vindicating
2. Int'l law seeks to have few violations to punish – aims at nations which are in principle law abiding, but could be tempted
1. In the crunch, ore likely to violate in small ways, but knowledge that big violations will bring big answer.
3. The New Sovereignty: treaties obeyed b/c of efficiency, national interest, and regime norms
4. states will obey norms that have high degree of legitimacy (Franck – p. 33)
1. determinacy, symbolic validation, coherence, adherence
5. soft law v. hard law (states more likely to comply w/ hard)
1. soft: “seek to, make efforts to, promote” -- hard to tell rights and duties
2. but soft can be step towards hard – i.e. in intl environmental law
6. growth of culture of compliance
1. consent, custom, sense of 'rightness', consensus , sanctions, etc
7. Int'l Law and National Interest (Acheson)
1. cooperate or perish – universally binding rules against aggression are necessary for nat'l survival
1. law of nations in the interest of all nations
2. nat'l interest in order and stability, reliable expectations, friendly relations etc
5. Enforcement:
1. Damrosch: voluntary compliance, soft sanctions (public opinion, shame), NGO's as monitors, coercive sanctions (suspension of treaty), national court systems, individual/collective self-D, centralized enforcement (i.e. Security Council)
2. dealing with violations? (p. 25)
1. difficult when violator is important state who can block UN resolutions
2. Power is the enforcer – when it is in interest of powerful states to enforce, it happens. When not, no. (morganthau, legal realist)
3. UN enforcement mechanisms
1. Sec Coun acted w/ “policing authority” during Gulf War
4. horizontal enforcement:
1. state that fails to respect law will be shunned by others, treated as lawbreaker, suspension of obligations owed to breaching state
SOURCES OF INTERNATIONAL LAW
III. SOURCES GENERALLY
1. R3FRL (p. 56)
1. a rule of intl law is one that has been accepted by intl community as
1. customary law
1. results from general consistent practice by states ending in sense of legal obligation
2. opinio juris: accepted legal convictions. Opinion that an act is accepted law. Distinguishes b/t practices that states engage in out of expediency, comity, etc and those that they consider themselves legallly bound to follow
2. intl agreement (treaty)
1. create law for state parties and may create CIL if intended as general and widely accepted
2. treaties now frequently multilateral, even universal
3. sometimes country won't ratify treaty (i.e. US w/ Vienna Convention on Law of Treaties), but will nonetheless use rules as CIL and thus still bound
3. general principles common to the major legal systems of the world
1. can be supplementary
2. Problem w/ R3FL is didn't ever really reflect what US thought – so qs from beginning over whether or not people would follow lots of people said “just comity”
2. Statute of ICJ Art 38
1. The Court shall apply
1. intl conventions
2. CIL
3. general principles
4. **judicial decisions and teachings of most highly qualified publicists** (not in R3FRL)
3. Doctrine of Sources
1. observable manifestations of the political wills of States as revealed in processes by which norms are formed – treaty, and CIL
2. Necessary to examine opinio juris
3. Main theories:
1. voluntarism: intl legal rules emanate exclusively from the free will of states
2. positivism: obligatory nature of legal norms. In order to be law, must be judicically enforceable
4. “general will of intl community” v. “sovereign equality of states”
IV. CUSTOMARY INTERNATIONAL LAW
1. General Issues
1. Elements
1. general practice
2. acceptance as law
2. Questions:
1. What constitutes state practice?
1. Unilateral claims? Votes in intl bodies?
2. National laws?
3. Actual practice?
2. How much practice?
1. Repetition? Single act?
2. How much time?
3. How many states?
4. Is practice of some states more important than that of others? (specially affected) What if those states don't participate?
3. How much consistency?
1. Are dissenting and non-participating states bound?
2. What if state has no practice? How do you prevent CIL from being binding on you? When do you object?
3. Are new states bound by CIL when they didn't participate in formation?
4. Regional and special interests?
5. What evidence for opinio juris?
1. Does opinio juris distinguish usage from custom, legal from non-legal?
2. Can oj be met by finding that practice socially necessary or suited to intl needs?
3. What significance protests v. acquiescence? Failure to protest?
6. Can treaties be evidence of CIL?
1. What if it provides for withdrawal?
2. What kind of treaties become CIL? Under what circumstances?
3. Resolution of UNGA?
7. Is there normative hierarchy in CIL?
1. Jus cogens: can't be altered by treaty
2. General principles of co-existence: operative w/ or w/o consent (territorial integrity, pacta sunt servanda, etc), not undermined by inconsistent practice
8. declarations of UNGA adopted w/out dissent?
9. Adoption of recommended conduct by Gen Assem?
3. Types of CIL
1. General customary international law.
2. Regional customary international law.
3. Special customary international law.
4. Prescriptive/historic customary international law.
4. What are the problems w/ CIL?
1. Relies on own violation to develop (see “non-consenting states”
2. weak in US – Sosa – comes in as federal common law, seems to be below even executive act
3. whose custom? (Nuclear)? Dictated by powerful states, not all states had chance to participate in formation
2. Paquete Habana (SCOTUS, 1900, p. 62)
1. Facts: Cuban fishing boats were seized in the blockade of the harbor during the Spanish American war. Should they be considered to be outside of the realm of the blockade?
2. Holding: Looking into the history and outstanding custom of civilized nations, fishing vessels have been exempt from the spoils of war when they are not involved with the conflict. “International Law is a part of our law, and must be ascertained and administered by the courts of Justice of appropriate jurisdiction ... Where there is no treaty and no controlling executive or legislative act, resort must be had to the customs and usages of civilized nations.”