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LAWS 8886 (2)
Lecture

International Law OUTLINE1.docx

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Department
Law
Course
LAWS 8886
Professor
David Wirth
Semester
Fall

Description
Sources of International Law A. Sealand 1. Claim to statehood a. Recognized as state by other nations (de facto) b. Established territory that is identifiable and defined c. Sovereign authority – unchallenged by other states i. Defended against foreign aggression ii. During invasion, treated captors as POWs iii. Behavior consistent w/ behavior of states – responsibilities and prerogatives d. Has monopoly over issuance of passports, visas, currency and stamps e. Established gov’t agencies f. Has claimed a territorial sea 2. Is it a state? (ultimately, Sealand pushes bounds of int’l statehood) a. Obliged to behave in way consistent w/ statehood (customary int’l law) b. Reqs diplomatic relations and embassies c. Is there monopolistic exercise of gov’tal authority? B. Sources of international law – TREATIES 1. Contracts a. Have identifiable parties b. Include terms parties are to abide by c. Req an agreement between parties d. NO requirement for reciprocity and consideration in int’l law e. Only necessary element in int’l law is consent 2. Treaties create a flow of rights and obligations 3. There is no int’l court to which an appeal can be made for *enforcement* of a treaty 4. Peace of Westphalia (p. 33) a. Beginning of int’l law as we now know it (1648) b. Created “liberty of conscience” (i.e. freedom of religion) – obligation owed by state to its citizens c. Enforcement/redress i. In a treaty, can appeal to sovereign of other states ii. In monist legal system, int’l law operates as domestic law, and can appeal to own legal system 5. Treaty of Paris (p. 37) a. EndedAmerican Revolution (1783) b. Gave US power to legally form treaties w/ 3rd powers c. Assured int’l community of stability ofAmericas 6. Kellogg-Briand Pact (p. 47) a. Multilateral treaty (eight states) b. Sought to achieve elimination of war c. Entry into force provision – only became effective when ratified by all party states d. U.S. served as depository (states submitted ratification to U.S.) 7. Vienna Convention on Law of Treaties a. Treaty on treaties (customary int’l law) b. Article 18 i. If state has expressed consent to be bound by treaty, obliged to refrain from acts that defeat object and purpose of treaty pending entry into force (provided no significant delay of entry into force) ii. De lege ferenda – law in process of coming into being 8. Advisory opinions (GenocideAdvisory – p. 61) a. In theory, non-binding; in practice, treated as definitive statements of law b. What if nations party to multilateral agreement have reservations? i. Must analyze nature of reservation ii. *If reservation is compatible w/ objects and purposes of treaty, state can be regarded as party to treaty* iii. Each state w/ objections to reservations is entitled to view reserving state as party to agreement or not, but must explicitly state it does not consider treaty to be in force w/ reserving party iv. If no explicit objection to reservation, over time will be considered tacit consent/acceptance of reserv. v. Ea. party state essentially determines what is compatible w/ objects and purposes of treaty 9. Destroyer for bases deal (p. 51) a. Note – most formal means of communication between gov’ts b. Notes (letters) showed intent to be bound c. Simple exchange of letters can create treaty if offer, acceptance and intent to be bound present (need not be formal) 10. Interpretation of int’l law a. Basic rule – go by ordinary meaning of text b. Int’l law can also be found in decisions of int’l cts and interpretations of int’l law by domestic cts C. Treaties cont’d 1. Gabcikovo-Nagymaros (p. 80) a. Countries (Hungary and Slovakia) agreed to submit to ICJ in binding decision (as condition to enter EU) b. According to int’l law, breach of a treaty gives right to terminate by other party c. But a treaty is not automatically terminated by a breach d. Fundamental change of circumstances may render treaty invalid – rebus sic stanti fus e. Breach of a treaty may also give rise to countermeasures, but countermeasures must be proportional to breach f. Pacta sunt servanda – agreements should be honored, but failure to perform by one side or other does not nullify treaty 2. Eastern Greenland a. Principle – Terra nullius i. Territory not occupied by a [European] power is no person’s land ii. Discovery + effective occupation will give title to territory b. Source of dispute – one state discovered (Denmark), one occupied (Norway) c. Intent to be bound is what distinguishes exchanges in contracts 3. Multilateral treaties a. An amendment to a multilateral agreement is a NEW agreement and must typically go through all steps of the signature and ratification b. Fragmentation problem (particularly pertinent w/ environmental treaties) i. If process of amendments and reservations produces no universal agreement, who is really bound? ii. Montreal Protocol solution – allows for “adjustments.” Rather than consensus, 2/3 majority vote suffices to alter agreement and enters into force w/o formalities of signature, ratification, etc. iii. “Amendment” has meaning w/in customary law; “adjustment” has meaning only w/in this agreement c. In international law, an agreement is either (a) binding, or (b) nothing D. Custom 1. Paquete Habana (p. 97) – building up of custom a. Customary int’l law of high seas i. Every vessel has a nationality (State which flag vessel flies) ii. Vessels on high seas immune from exercise of jurisdiction of another state beyond flag state iii. Exception – belligerent states; routine during war to seize foreign flag vessels iv. Exception to exception – vessels engaged in subsidence fishing activities near coast (for ct to determine) v. Implied reciprocity typical in customary law b. Doctrine of customary law i. Comes about from a pattern and practice motivated by a sense of legal obligation (opinio juris) ii. In customary law, difficult task is typically proving custom exists – turns on context iii. New states are bound by all prior existing custom iv. Persistent objector states during de lege ferenda will not be bound by custom v. Absence of reciprocity not a defense to existence of customary rule 1. That stateAis not abiding by rule is not defense for state B to violate it 2. BUT, if there is too much pulling away from center, significant; however, if most are still sticking to general consensus, evidence of violation, not custom vi. Has rule reached tipping point? 1. If behavior is too chaotic, cannot say there is pattern and practice 2. Once rule has crystallized, de lege ferenda (in process of becoming custom) vii. Positivism – states and only states make law 2. Relation between treaty and custom a. Atreaty is either: i. Riding on blank slate absent custom, ii. Codification of custom, -or- iii. Acontractual derogation from custom b. Jus cogens (a compelling norm) cannot be derogated from 3. The Asylum Case (p. 108) – tearing down of custom a. Customary law – embassy is little piece of foreign country’s territory b. Premises of embassies are inviolable c. Persistent objector? i. Merely refraining from signing treaty not evidence of objection ii. Would require taking something that looks like inaction and making it look like action 4. Lotus (p. 111) a. Five bases of jurisdiction to prescribe in int’l law i. Territorial (JD extends to state border) ii. Effects (actions exercise JD overseas/outside territory, ex. anti-trust) iii. Nationality of actor (active personality) iv. Nationality of victim (passive personality) 1. Contested/not well accepted 2. One nation is essentially stepping on sovereignty of other nations 3. Principle has no limits – can be subject to every state in the world; effectively leads to legislating for entire world 4. Terrorism and genocide give rise to passive personality issues v. Universality – “If you can get him, you can try him.” Confined to certain crimes (ex. – piracy) 5. Texaco/Libya (p.123) a. Conflict btw state and private corporation b. Int’l law applies using contract analysis i. Expropriation legal only if: (SUBSTANCE) 1. For a public purpose 2. Nondiscriminatory 3. Accompanied by [blank] compensation (what compensation is still be argued over) a. U.S. argued for prompt, adequate, effective compensation b. Libya argued for appropriate compensation 4. Expropriation need not be total, may also be a creeping expropriation c. How private company and foreign gov’t can settle issue where no treaty exists (PROCESS) i. Can petition own gov’t for “heavy-handed intervention” (export duties, economic sanctions) ii. Petition own gov’t to send diplomat to try to obtain compensation 1. Own gov’t may choose to espouse claim or not 2. Having espoused claim, gov’t owns it 3. Gov’t can aim for 100% repayment, settle for less, or abandon claim altogether; there are NO standards for espousal, it is TOTALLY discretionary d. Ct looked to UN General Assembly Resolutions i. Unusual b/c Resolutions are non-binding ii. May evolve into hard, binding custom iii. To determine if pattern and practice of states as motivated by a sense of legal obligation exists, look to: 1. Countries that have adopted resolutions 2. Must look at not only countries, but also characteristics of countries 6. AM & S Case (p. 135) a. Approaches in choosing community law i. Least common denominator – protective states may protest such an approach ii. Strictest 1. Would adopt common law approach 2. Raises importance of one set of public policies (mirrors least common denominator) iii. Middle ground – has something for everyone iv. Consider context, use public policy to inform 1. Consideration by ct as to what might be best solution 2. Not “mindless plopping down” anywhere on jurisprudence spectrum b. Cts usually take public policy into consideration 7. North Sea Continental Shelf case (p. 170) a. Equidistance principle i. Came from Convention of the Law of the Sea (1958) ii. Continental shelf between nations divided by line drawn along median b. Objects and purposes principle – signature indicates intent to be bound c. Parallel custom i. Custom that tracks a treaty – at some point a treaty is so widely subscribed to it creates parallel custom ii. Requires pattern and practice as motivated by a sense of legal obligation (PAPAMBASOLO) iii. Behavior by *non-treaty* parties most relevant in determining custom (parallel or not) d. Equity argument i. Essentially a fairness argument ii. In general, there is NO SUCH THING as equity in int’l law 8. *Sole test to an agreement’s binding character is intent to be bound* a. If language of a memo indicates intent to be bound, it is binding b. Enforcement mechanisms are entirely irrelevant to intent to be bound 9. YaltaAgreement a. Discussion about how things would work following WWII b. Contained flow of obligations and rights outlined – may show intent to be bound c. Discernible, identifiable parties d. Parties to contract cannot create rights/obligations to third parties not party to contract E. How rhetoric became rights (i.e. Universal Declaration of Human Rights) 1. If law, it is customary law and only customary law, not a treaty 2. Rhetoric – through a development of a pattern and practice of states motivated by a legal obligation that is consistent w/ words of declaration, a custom was created 3. Torture still occurs, but no state would ever do anything regarding public stance on torture other than condemn 4. Argument Declaration is not binding a. Rhetoric, even though ramped up and repeated, stubbornly remained nothing more than talk b. Torture, human rights violations and slavery still continued after Declaration c. Talk does not make law F. Filartiga case (p. 17) 1. Alien Tort Statute § 1350 – signaled to world U.S. intended to abide by int’l law and will use cts to do so 2. Statute allows alien to mobilize ct system rather than go through process of diplomacy/diplomatic protection (heads of state immune from prosecution b/c act as physical embodiment of state itself) 3. U.S. cts have adopted a presumption against extra-territory application of law 4. Even where pattern and practice is spotty, level of opinio juris (academic study) regarding torture is very high Subjects and Objects of Int’l Law A. Recognition of gov’ts (Tinoco Claims – p. 483) 1. Can determine gov’t through response of own citizens (irrelevant to int’l responsibility) 2. Determine through recognition of other states 3. Gov’t identified by its monopoly on power 4. Other states have discretionary power whether to recognize a new gov’t or not a. Recognizes diplomatic realities (and interrelations between states) b. State-to-state recognition or lack thereof is irrelevant to whether a gov’t is actually a gov’t and has effective control over a territory c. Major winner – continuity of foreign investment B. Recognition of states (Autocephalous Greek-Orthodox Church of Cyprus – p. 493) 1. Anon-recognized state does not exist within system of int’l law 2. Recognition of states is a political act, and therefore discretionary 3. Standards for recognition a. Defined territory b. Defined citizenry c. Gov’t in effective control of territory d. Gov’t has capacity to conduct foreign relations e. Membership in int’l organizations f. Recognizion by other states g. Specific recognition of state claiming statehood by surrounding states C. Kadic case (p. 503) – Yugoslavia breakup 1. Defendant (Karadzic) was “thug” purporting to act as agent of state of Srpska (private actors not subject to int’l law) 2. Int’l law CAN apply when person operating under color of law in state undergoing civil war a. CommonArticle III of Geneva Conventions can apply to domestic forces in an armed conflict not of an int’l character b. Karadzic is ring-leader of insurgency that, if successful, would result in a break-away state 3. When country breaks-up, two possible stories can be told (Republic of Croatia, p. 508) a. Where pieces break off one after another, break-off states become new states, leaving one final holdover state b. Or can have all break-away states becoming successor states, and assets of original divided equally c. Int’l community, by and large, views all break- away states as successor states D. Secession of Quebec (p. 514) 1. First generation rights – civil and political rights ensuring people are free from gov’t interference 2. Second generation rights – social and cultural rights (affirmative in nature – gov’t intervention necessary to provide); Ex. – public education 3. Quebec loses according to int’l law a. Issue deals w/ system of intact states b. Quebec can express itself w/in confines of Canadian gov’t c. No need for a separate state, therefore no right to one d. External self-determination is limited to the oppressed and/or colonized E. Reparations for Injuries Advisory Opinion (p. 530) 1. International organizations (such as the UN) ARE subjects of int’l law, even though there is no custom 2. As such, an int’l organization may have capacity (locus standi) to present a claim 3. Can an int’l organization make a claim against a non- member state? (Count Bernadotte Case – p. 539) a. UNAuthority i. Legal personality derives from sovereignty of member states ii. Legal personality of both contractual origin (UN Charter)AND custom (number of org member states leads to int’l personality) iii. Member states conferred power on organization iv. Charter (multi-lateral treaty) establishes power and mission v. Powers are implied when necessary to achieve objects and purposes of charter b. Bernadotte was traveling w/ UN passport and had diplomatic immunity i. UN can claim assassination of diplomatic official – violation of norm different in character than what Sweden can assert (simple murder) ii. Injury caused to Bernadotte was an injury directly to UN itself (he was embodiment of UN mission on the ground) 4. Claims against UN member states a. Authority derived from UN Charter b. Member state must accept/consider claim because it has voluntarily joined charter 5. Claims against non-member states a. Custom i. Vast number of member states gives rise to custom/int’l personality ii. UN may play w/in system as if it were a state to the extent of its actual enumerated powers plus any implied powers necessary to achieve its goal b. Non-member state must be prepared to accept claim by UN i. UN has int’l legal personality ii. Not operating in contractual realm, but rather customary realm iii. Subjects of int’l law have prerogative to make claims against other subjects of int’l law (based on custom); as such respondent state has obligation to accept claims 6. Take-away, black letter law a. Int’l organizations have int’l legal personality b. Int’l organizations have implied powers up to, but not beyond, what is *necessary* for those implied powers to fulfill their obligations and purposes 7. Only states may b
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