UCLA - 123A Johns (International Law) - Midterm Review

Components of a legal system

-rules for regulating subjects

-institutions to uphold rules: (1) jurisdictionL authority to adjudicate (2) enforcement: authority to compel compliance

4 sources of international law

Custom, Treaties, General Principles, Judicial Decisions

jus gentium

means international law (rules that apply across nations)

-use this concept to regulate behavior

ancient law

traits:

-peace treaties

-border markings

-jus gentium

medieval law

-overlapping authorities (feudal lords, regional kings/emperors, bishops & popes)

-secular & religious authority

-time period that lacks modern governance (no printing press=illiteracy, internat. commerce organized by guilds, customary law used by traveling judges)

-divine universal law

Treaty of Westphalia

ended 30 years war in 1648; changing political power; modern state system formed; principle of sovereignty

divine law

God makes it; divine revelation; time period: medieval; EX: Aquinas

natural law

nature (no one) makes it; we know this through reason/morality; time period: ENLIGHTENMENT; EX: Hugo Grotius, Wolff

voluntary law

man/states make it; states consented to it; time period: 19th c; EX: G.F de Martens. Wheaton

North Sea Continental Shelf Case

-about maritime delimitations

-Netherlands & Denmark want to use equidistance method

-Germany wants to use equitable method

-about customary international law

Does Geneva Convention apply to this case?

-N & D says yes because G signed it

-G says no bc they didn't ratify

-ICJ said no bc no ratification

was equidistance method custom? reqs: state practice and opinio juris

N & D: yes bc of article 6 of GCCS

GR: no

ICJ: no bc article 6 doesn't necessarily establish custom

How is international law made?

treaty law

customary international law

general principles

What are the 2 requirements for a rule to become Customary Int Law?

1. State Practice: States behave according to the rule

2. Opinio Juris (acceptance of law): Acceptance by states that the rule is required by law

opinio juris

Latin for "acceptance as law"; a belief or acceptance by states that the behavior is or should be required by law. Second component of int law.

state practice

states must behave in ways that match the proposed rule most of the time

-verbal statement, physical act

5 criteria for state practice

1. Duration: how long something has been practiced ()

2. Repetition (frequency): repeated interactions make it easier to know how each state is expected to behave

3. Internal consistency: how consistently individual states must follow practice for it to be general

4. Generality: how widespread a practice is across states (doesn't require all states to follow practice)

5. representation: questions if states that follow the rule, representative of states as a whole

Ex: North Sea case (almost all criteria discussed), Portugal moving goods through India case (internal consistency)

Treaty definitions

defn: agreement btwn states

-legally binding

-written docs

-name doesn't matter

-verbal statements are NOT treaties

-pacta sunta servanda

pacta sunta servanda

Latin for "agreements must be kept"; international agreements are binding and must be performed in good faith

Process of creating treaties

negotiations (drafted by Intl. Law Commission; travaux préparatoires)--> signature --> ratification --> entry into force --> accession

travaux préparatoires

preparatory work

Persistent Objector Doctrine (how to opt out of CIL)

if you are persistent objector then you are not held legally responsible for rule you object to

-"legally justified pariahs"

forms of objection

-public statements @ treaty neg.

-press releases

-domestic legislation

-legal args in law suits

-treaty reservation

persistent objector criteria

-persistent: repeatedly objects

-timely

-consistent

ex: South Africa and apartheid

Turkey and landmines

US and juvenile death penalty

Soft Law

non-legally binding agreements

-generates moral committment

Vienna Convention on the Law of Treaties

a 1969 agreement among states defining the nature and obligations regarding treaties under international law

Nuclear Tests Reading

-early 70s

-Aus. & New Z wanted to end France's nuclei weapons testing in South Pacific

-A & Z ordered ICJ to order France to cease all future atmospheric nuclear tests

-France didn't follow order

-Then, they caved in

-A & Z not satisfied and kept pushing in court

-France had non-appearance

-Court ruled that there was no object or purpose to continue case

Peremptory norm (ex. of jus cogens)

An international customary law representing a norm accepted and recognized by all states. No derogation from this norm is permitted and it can only be modified by a subsequent norm of general international law having the same character.

- NON-DEROGABLE

- Used to bind states that are persistent objectors

- ex: Genocide, slavery, torture, use of force

reservation

unilateral statement meant to exclude or modify a treaty provision

-a condition upon entering the treaty

Methods of Interpretation

-subjective:subjective intent encourages judges to look beyond the text and broader context

-objective: encourages ordinary meaning of text

-teleological: object + purpose of treaty

timing of interpretation

original: meaning set @ time of consent

evolutionary: meaning can change over time

breadth of interpretation

narrow: minimal constraints

broad: focus on effectiveness

Lotus Principle

states are free to do whatever is not expressly prohibited by international law (NARROW VIEW)

Wimbledon principle

the right of entering into international engagements is an attribute of state sovereignty. (BROAD VIEW)

5 ways of exiting a treaty

1) exit clause (provision)

2) consent

3) material breach (Turkey and Cyprus)

4) impossibility of performance (GR building dam on border)

5) fundamental change of circumstances (East Germany withdrawing from Warsaw Pact)

attribution

the act of the state and/or individual

-is the breach an act of state?

wrongfulness

the circumstances of the breach and if it was justified

-is the breach wrongful?

consequence

the state committed the act

-must stop violation, non-repetition, restitution, compensation

force majeure

unforeseeable circumstances that prevent someone from fulfilling a contract

Iran Hostage Crisis

1979, revolutionaries stormed the American embassy in Tehran and held 52 Americans hostage. The Carter administration tried unsuccessfully to negotiate for the hostages release.

-US argued Iranian govt responsible for numerous violations of VCDR and VCCR (both treaties codified basic rights and responsibilities)

-issue of state responsibility and determine whether Iran was responsible

-Iran made no effort to free embassy

-encouraged militants

-Iran blamed US for interference previously

-violated international law according to ICJ failed to comply w/ their obligations

persona non grata

an unwelcome person; used to describe recalled diplomatic officials

Accession

The process by which a state joins a treaty that it did not sign. (Ex: Palestine joining the Rome Statute)

Acquiescence

Tacit support for state practice as reflected by inaction.

Active protest

Physical or verbal acts that demonstrate that a state disagrees with a particular asserted rule. (ex: South China Sea: US, UK, France regularly practice active protest against China's claim by sailing through.)

Chronological paradox

Conceptual problem that underlies the creation of customary international law: a belief in law is necessary for customary international law, but how can states hold such beliefs before law exists?

contra bono mores

Latin for "against good morals"; reason sometimes provided for the claim that a treaty is invalid because it conflicts with natural law.

Default rules + jus dispositivum

Default rules = Rules that can be changed by parties to a contract. (US domestic law)

jus dispositivum = Latin for "law adopted by consent"; rules can be changed by states via treaties. (int law)

Mandatory rules + jus cogens

Mandatory rules = Rules that cannot be changed by parties to a contract (US domestic law)

jus cogens = Latin for "mandatory law"; rules that cannot be changed by states via treaties. (int law)

Derogation

Decision by a pair or group of states to exempt themselves from a norm in their relations with one another.

Duration

criterion for assessing state practice: how long has a state followed a proposed rule?

Entry into force

the point in time at which a treaty becomes legally binding for states that have fully consented to be bound.

Exit clause

a treaty clause that specified conditions under which a state may exit a treaty

Fundamental change of circumstances

Modern version of rebus sic stantibus; a state can leave a treaty if there is an unexpected change in circumstances of sufficient importance and magnitude.

Generality

Criterion for assessing state practice: how widespread is a proposed rule across different states?

Good faith

The principle that parties to an agreement must act fairly and honestly towards one another.

Internal consistency

criterion for assessing state practice: how uniformly has a state followed a proposed rule?

International Law Commission

international organization created by the UN general assembly in 1947 to study legal issues and make recommendations about that codification and development of international law.

interpretation

the process by which actors understand the meaning of a legal text, and then apply the text's meaning to a factual situation.

Methods, Time, Breadth

Criteria of a change in circumstance

Change

Unexpected

Importance

Magnitude

Material breach

A repudiation of the treaty not sanctioned by the [VCLT, or] the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

Object and purpose test

Practice under which a treaty reservation is assessed based on whether it is compatible with the object and purpose of the treaty.

Persistent objector doctrine

the claim that a state that disagrees with a rule before it becomes customary law is not constrained by the rule after it becomes customary law.

Precedent (stare decisis)

Legal principle that current judges should defer legal rulings made by prior judges in relevant cases. (Latin: "Let the decision stand")

Ratification

Under international law, "the international act... whereby a State establishes on the international plane its consent to be bound by a treaty." (ex: Cont Shelf Case: distinguished signing from ratification)

Repetition

Criterion for assessing state practice: how many times has a state followed a proposed rule?

Representation

Criterion for assessing state practice: are the states that follow a proposed rule diverse with respect to their economic, political, and legal systems?

Severable

The ability to cut away a reservation. A reservation can be invalidated without affecting a state's ratification of a treaty. (ex: Turkey made reservation that Court's jurisdiction only applies to national territory, deems Cyprus as not. Will withdraw from treaty if Court invalidates reservation.)

Signature

Process by which a state indicates its support for a treaty and its intent to join the treaty.

Interim rules

Created to address the "twilight zone" many treaties face between signature and entry into force (enough ratifications). States have an obligation to not nullify or make the objective of a treaty meaningless if they have signed.

Soft law

International agreements that are not legally binding

Specially affected states doctrine

The claim that customary international law gives (or should give) more deference to the behavior of states that are more likely to be affected by the formation of a particular rule.

State practice

First component of customary international law: the conduct of states must match the behavior that is required by the proposed rule.

Unilateral declaration

A unilateral statement that creates a legal obligation; must be public and demonstrate a state intention to be bound.

Which tools are used to interpret a treaty (int law)?

1. The treaty text itself

2. Travaux preperatoires

3. Subsequente agreements

4. Other international agreements

5. Subsequent practice of states

6. Prior judicial readings

What are the consequences of a legal breach?

1. Cessation: state must cease violation

2. Non-Repitition: state must not repeat the violation

3. Restitution: a state must make the injured state "whole" after the violation by returning it to its original position.

4. Compensation Violating state must provide necessary compensation

5. Satisfaction: Violating state must provide a statement that acknowledges or apologizes for a legal violation

Effective vs overall control?

Effective: Direct control over state actors involved in violation seen as attribution (Nicaragua case - US responsible for UCLAs but not contras, ICJ ruling)

Overall: Indirect control over state actors involved in the violation seen as attribution (Yugoslavia case - Serbia, ICTY)

2 Categories of CPWs (circumstance precluding wrongfulness)

1. Actions of the injured state

- injured state consents

- self defense

- countermeasure

2. External forces

- force majeure

- distress

- necessity

Types of actions of the injured state (First kind of CPW)

1. Consent

2. Self-Defense

3. Countermeasures

Types of actions in external forces (Second kind of CPW)

1. Force majeure

2. Distress

3. Necessity

North Sea Case significance

Determination of CIL (equidistance rule, duration, crystallization, state practice)

Nuclear Tests Case significance

Unilateral Declarations (France makes public statement, AU and NZ not parties to it, creates obligation based on good faith - pacta aunt servanda)

Iran Hostage Crisis Case significance

Attribution (concept map. Iran connected to the 2nd phase), CPWs (Iran argument that US intervention precluded their violation, injured state - countermeasure)

What could Iran have done differently in response to their claim that US intervention was a problem (according to the court)?

1. Declaring a persona non grata (removal of diplomats)

2. Complete halt of issuing diplomatic credentials

3. Severing all diplomatic ties

What comprises the criteria of a treaty?

1. Only states can write them

2. States must intend for an agreement to be legally binding (not soft law)

3. Must be a written document

4. Pacta sunt servanda underlies all treaties ("agreements must be kept" - treaties are binding when in force and must held in good faith)

What are 2 categories of general principles of law (3rd element of int law)?

1. Unilateral declarations

2. Peremptory norms

What does signature of a treaty indicate?

Indicates support from a state and intent to join. Signature often comes with benefits (ex: rule-making in the Rome Statute encourages Iran, Israel, US to sign)

Inaction

Inaction must be a deliberate choice in order to be state practice

Counterexamples

Conservative: Weaken case for state practice in forming new CIL

Progressive: Strengthen case for state practice by saying counterexamples are evidence of violation to existing CIL (ex: Nicaragua case, ruling from ICJ on Cold War interventions)

What are the two views on opinio juris?

1. Voluntarist perspective (conservative): for states to accept law, they must consent.

2. Communitarian perspective (progressive):Acceptance of law only requires a belief in law.

Severability

Applies to provisions states have on treaties, may be determined through the object and purposes test. Provision can be severed away from a states ratification terms if it does not specifically state that is cannot be.

(ex: Loizidou case, Turkey argues Cyprus is not part of territory)

Interpretation (3 overarching categories to understand meaning)

Methods:

- subjective: beyond the text

- objective: ordinary meaning

- Teleological: object and purpose

- ex: Littwa case (drunk polish man detained, Littwa = ordinary, Poland = subjective)

Timing

- original: at the end of negotiating treaty

- evolutionary: when the time arises

- ex: Jeffrey Dudgeons case (homosexual in Northern Ireland, UK = original, Court = progressive)

Breadth

- Narrow (Lotus): States are free to do whatever is not prohibited

- Broad (Wimbledon): States are free to limit their own autonomy

- ex: Sidney Golder case (falsely accused of assaulting police officer, sues UK for libel but prevented from an attorney, UK = narrow, Golder = broad)

General principles (3rd elements of Inter Law) (two perspectives)

1. General principles come from domestic legal systems

- Pros: when states adopt a domestic legal principle the consent, help resolve disputes about new legal issues

- Cons: Int judges are not experts on all domestic legal systems

2. General principles come from fairness and justice

- Pros: allow judges to respond to issues not yet addressed by treaties or CIL

- Cons: "revival" of natural law, states have not consented to the principles being invoked

Can peremptory norms invalidate treaties and CIL?

Hell yes, peremptory norms are viewed as "supernorms" (jus cogens) with the same weight of fundamental rights in domestic law.

- ex: Protocol of Sevres (treaty) - France, UK, Israel all agree to secretly attack Egypt, but experts condemn it for violating peremptory norm on use of force

- ex: Furundzija case, prohibition of torture had become a supernormal and invalidated both treaties and CIL.

ultra vires

"Beyond the powers"; an ultra vires act exceeds the legal authority given by a state to the individual body that commits the act

- ex: Honduran police officers commit acts of torture, even though outside of uniform the Court rules that they were using the trappings of office, therefore the state of Honduras is still at fault

Wrongful

Not excused or judged

State responsibility

Area of international law that addresses the attribution, wrongfulness and consequences of legal breaches.

Satisfaction

a verbal or written statement that acknowledges or apologizes for a legal violation

Restitution

An attempt to make an injured state "whole" by returning it to its staus quo ante, or the position the injured state was in prior to the breach (Latin: restitutio in integrum)

Punishment

Any response to a legal breach by states (either individually or collectively) that raises the cost of breaking international law

Overall control standard

Attribution standard under international law; states must have only overall control over a non state actor - including providing financing, equipment and/or planning - to be responsible for the nonstate actor's conduct