PSC 343: Politics of International Law Midterm

soft law

Made up of the non-binding norms that primarily carry interpretive, political, and normative weight in international human rights practice. Unlike treaties or customary norms that carry formal legal obligations and ensure state compliance, instruments of soft law work only to guide state behavior. They shape how binding obligations are understood and implemented through clarifying expectations and articulating emerging standards.

Ex: UN General Assembly declarations, the Paris Agreement, preambles of treaties, aspirational/horatory clauses in treaties.

positivist vision

law is rules of conduct through a legitimate political process, which:

1. creates a system for obligatory arbitration of disputes (legal requirement for a peaceful resolution of disputes)

2. establish ICJ to resolve questions of law

3. codify important areas of customary international law into positive treaty law

4. arms reduction (to eliminate force instead of law)

5. institutionalized practice of conference of states as embodiment of international community making rules

“Law is our fate: law is our state.” Institutions with authority legislate, law is codified, validly passed codified law is authoritative and binding (basically what you think of when you think of international law). First make the law, then the world will conform to it. Consent based.

hard law

Hard law refers generally to legal obligations that are binding on the parties involved and which can be legally enforced before a court. Through signing and ratifying these agreements, states consent to their provisions and accept the duty to ‘respect, protect, and fulfill’ the rights that they contain. Hard law also includes customary law, which comes from international legal practice and how states carry out enforcement or interpretation. Customary norms fill gaps within treaties, as they set a precedent for specific behavior.
Ex: Convention Against Torture (CAT)

law on the books

The formal approach of looking at what law requires. In the international law context, law on the books is the legal positivist approach of ascertaining “what is the law.” It is merely an important first step.

Also known as parchment or paper, treaties and legal rulings are the primary sources of law, leads up to law in action.
Ex: Genocide Convention

law in action

Ascertaining how people understand and interact with the law by examining what legal actors (lawyers, judges, police. scholars, legislators) actually do. A law in action perspective reveals how politicians try to bend international law to justify their behavior. Sometimes international law bends, and sometimes it constrains.
Ex: The US Supreme Court reducing the scope of the Alien Tort Statute (ATS) in Filartiga through the Sosa and Cisco decisions.

custom as a source of law

custom comes from:

1. usus: common practice whether or not it is in a law

2. opinio juris: subjective element that states comply from a sense of legal obligation

3. persistent objection: can be seen as a “reservation” on an emerging custom

custom includes practices of states and international organizations (widespread and across time), decisions of national courts form various countries, decisions from international courts (ICJ especially), national legislation, opinions of national legal advisors, and diplomatic correspondences (public statements, official publications, legal opinions, and national court decisions). Jus cogens is part of CIL.

Ex: Torture ceasing to be a state practice prior to the application of the ATS and the creation of CAT

Jus Cogens

The peremptory norms that prohibit specific action and do not allow derogation under any circumstance – such as prohibitions on torture or slavery. Highest form of customary international law that no country may violate. Latin for “compelling law” or law that one knows.

optional protocol

Stats may “opt in” to this by choice (it is housed within a treaty), and it allows countries to pick and choose their obligations (but only in respect to the optional protocol). Its existence is agreed to by all. When opted into, they are binding.

Example: Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Optional Protocol adding enforcement and accountability measures for CEDAW

treaty signing v. effective date

When a state signs a treaty, it signifies an intent, and maybe even takes on an obligation to follow the treaty. Signing a treaty represents an end to negotiations, and authenticates the text as official and agreed upon. Signing a treaty, unless explicitly listed, does not make a state legally bound to follow its rules.

The effective date of a treaty is when it enters into force and becomes fully binding on the states that have consented to be bound by it. Usually, this is when a set number of ratifications or accessions from countries are reached.

Ex: Montreal Protocol was sign Sep. 16, 1987, and entered into effect January 1, 1989.

reservation

When a state signs a treaty, but it has a conflict with some portion of the treaty. Reservations must be sent in when the state ratifies the treaty, and they can be claimed by any other state as well. They are unilaterally attached at the time of signing/ratification/acceding.

Limitations on reservations:

1. The reservation is prohibited by the treaty.

2. The treaty provides that only specified reservations, which do not include the reservation in question, may be made

3. In cases not falling under 1 or 2, the reservation us incompatible with the object and purpose of the treaty.

Ex: when the US signed the CAT, it added a reservation that it’s definition of “cruel and unusual punishment” would follow the Constitution.

Ex (limit): If a state had tried to add a reservation saying that they could torture state leaders who tortured citizens, then that would be a limitation on reservation (i.e. not allowed).

judge-made law

Law developed through judicial decisions, written opinions, and legal precedents rather than through written legislative statutes. It relies on the doctrine of stare decisis (binding precedent), where courts follow earlier rulings in similar cases.

Ex: Filartiga v. Peña-Irala

legislative law

Rules and statutes formally enacted by a legislative body, parliament, or congress. Legislative law consists of written codes, explicit texts, and statutory requirements intended to govern conduct or define legal violations.

Ex: Alien Tort Statute

international law

A decentralized body of rules, norms, and standards governing relations between sovereign states and other international actors (such as international organizations). Its primary sources are treaties and conventions, customary international law, general principles, and jus cogens.

Ex: Convention Against Torture

Vienna Convention on the Law on Treaties

The Vienna Convention on the Law of Treaties (VCLT) is an international agreement that codifies the standard rules, procedures, and principles governing treaties between sovereign states. Often referred to as the "treaty on treaties," it was adopted on May 23, 1969, and entered into force on January 27, 1980. It includes sections on pacta sunt servanda, consent (including addendums and limitations), reservations, interpretation rules, and invalidity and termination of a treaty.

peaceful settlement of disputes

creates a system for obligatory arbitration of disputes (legal requirement for a peaceful resolution of disputes––required by international law) Diplomatic resolution of disputes is much ore common than legal resolution, and governments usually see diplomacy as a more appropriate and appealing tool for dispute resolution. Methods of dispute settlement include mediation (diplomatic), negotiation (diplomatic), arbitration (legal), and adjudication (legal). States usually put a clause in the agreement, called a compromissary clause, which defines what will happen in the event of a dispute, and in the event it persists.

Ex: Bahrain-Qatar case (adjudication)

compulsory jurisdiction

Compulsory jurisdiction in international law refers to the legal mechanism by which an international court—most notably the International Court of Justice (ICJ)—has the authority to hear and adjudicate a legal dispute between states without needing a separate agreement from the parties for that specific case. Both states have to consent to the international court hearing the case––otherwise, jurisdiction does not exist.

Also, often regional international courts have compulsory jurisdiction of disputes involving states under their purview––simply by having membership in that organization, states agree to their compulsory jurisdiction.

Individual treaties can grant the ICJ compulsory jurisdiction.

Ex: Bahrain-Qatar including a note in their meeting minutes which brought their case before the ICJ

optional jurisdiction

For governments that have signed the ICJ’s optional protocol, or when compulsory jurisdiction is indicated via treaties. Non-compulsory jurisdiction also includes that both parties must agree to submit to the court’s authority/jurisdiction.

Optional jurisdiction in international law, via the Optional Clause (Article 36(2) of the ICJ Statute), allows states to voluntarily recognize the ICJ’s compulsory jurisdiction for reciprocating states without needing a special agreement. States can also limit the range of issues that courts like the ICJ can hear under optional jurisdiction by making reservations.

Ex: Belgium v. Senegal in the Hissène Habre case

4 domestic rules of jurisdiction

1. territoriality principle

2. nationality principle

3. passive principle

4. protective principle

(in that order––these are all for criminal cases)

territoriality principle

Country where the crime happened

ex: many terrorist cases cases today fall under the territoriality principle (Mumbai attack)

nationality principle

Perpetrator’s country

Ex: Blackmer case

passive principle

Victim’s country

Ex: Lotus case, where the accident was at sea, but involving French and Turkish boats. Turkey wants jurisdiction because the sunken boat (and thereby victims) was theirs.

protective principle

Country that feels the effects of action

Ex: the US’ assertion with Maduro and narcotics trafficking

International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations that settles legal disputes between sovereign states and issues advisory opinions.

• Hears cases between countries (states), determining state responsibility rather than individual guilt.

• Established in 1945 by the United Nations Charter and acts as the official World Court of the UN.

• Handles broader civil and legal disputes between states (such as border conflicts, treaty violations, or maritime rights) and issues binding judgments or reparations/compliance obligations.

International Criminal Court

The International Criminal Court (ICC) is an independent international court that prosecutes individuals for international crimes such as genocide, war crimes, crimes against humanity, and aggression

• Prosecutes individual people (such as military commanders or political leaders) for criminal responsibility

• Established in 2002 by the Rome Statute and operates as an independent international organization separate from the UN structure (though endorsed by the UN General Assembly).

• Is a criminal court limited strictly to four core atrocities (genocide, war crimes, crimes against humanity, and aggression) and can sentence convicted individuals to prison terms (up to life) or fines.

legal ruling on jurisdiction

International law does not have a single, centralized police force or a universal code for judicial jurisdiction. Instead, jurisdiction is determined by state consent, foundational legal principles, and landmark rulings by tribunals and courts like the ICJ. Based on territorial jurisdiction, nationality principle, the Lotus principle, universal jurisdiction, and state consent. Also includes when an international court rules which state has jurisdiction to try the case.

Ex: Lotus case

legal ruling on the merits

A judicial decision that examines the substantive facts and legal arguments of a dispute to determine whether a state or party actually violated international law, rather than dismissing or stopping the case on procedural or jurisdictional grounds. Includes substantive examination, bifurcation, written and oral pleadings, and binding effects and remedies. Also includes when an international court rules on states’ disputes outright.

Ex: Bahrain v. Qatar

advisory opinion

requested by a single state and a range of UN institutions (including the General Assembly) asking questions of law, thereby generating non-binding decisions.

Ex: ICJ Climate Advisory Opinion

optional protocols attached to international court jurisdiction

Allows states to voluntarily accept extended powers or compulsory jurisdiction that they are not automatically bound to by the core agreement. Usually related to optional clauses and compromissory clauses. Basically lets states decide whether they accept international court jurisdiction, and if so which international courts, and for which kinds of issues.

Ex: a state decides in a treaty whether it wants the Tribunal on the LOS or the ICJ to hear its dispute when it occurs at sea.

extra-territorial assertion of jurisdiction

Assertion of domestic law, thus jurisdiction, beyond one’s borders.

1. Principles of jurisdiction (territoriality, nationality, passive, protective)

2. Domestic Law (ex: anti-trust, tax law reaching into foreign income + profit, no foreign aid to violators of human rights and supporters of terrorism)

3. International Agreements to Coordinate Actions Across Borders (ex: extradition treaties, international child abduction treaties & statutes, human trafficking, enforcing foreign judgements, tax treaties to smooth over issues related to tax law)

absolute sovereign immunity

Foreign courts will not sit in judgement of those officials or governments with absolute sovereign immunity. Sovereign immunity affords the head of state immunity for their property, themselves and their family, for damages in a legitimate war, for government ministers, and for acts of state. Only domestic courts can hold sovereigns accountable for anything they do in office.

Absolute sovereign immunity is a traditional principle of international law stating that a foreign state—along with its property, organs, and officials—is completely immune from the jurisdiction, lawsuits, and legal proceedings of the domestic courts of another country.

Ex: The sitting head of state of State A cannot be prosecuted by State B while they are actively in power––even if they commit crimes like genocide. They can be tried retroactively. Hissène Habre is a good example for this.

limited sovreign immunity

Limited sovereign immunity is a principle of international law stating that a foreign government is immune from the jurisdiction of another country's domestic courts only for its public, governmental acts (jure imperii––traditional sovereign actions such as acts of war, diplomatic decisions, passing legislation, or operating military forces), but not for its commercial, private, or business acts (jure gestionis––when a foreign state acts like a private market participant—such as issuing bonds, buying goods or services, signing commercial contracts, or running a state-owned enterprise for profit)

Ex: If State A's Ministry of Defense buys military uniforms from a private textile company in State B and fails to pay, State B's courts will typically rule that purchasing uniforms is a commercial activity. State A cannot claim sovereign immunity to escape the lawsuit in State B's courts.

diplomatic immunity

A principle of international law that exempts foreign government officials, diplomats, and their immediate families from the local court jurisdiction, arrest, and prosecution of the host country. It ensures diplomats can carry out official state duties, communicate freely, and represent their home countries without fear of harassment, intimidation, arrest, or political retaliation by the host government. It belongs to the sending state, not the individual diplomat. A home country can choose to waive its diplomat's immunity if it wants them to face local prosecution.

Ex: a diplomat is driving on the wrong side of the road and kills someone while on duty abroad in another country. They cannot be prosecuted (unless diplomatic immunity is waived) for this crime under this immunity.

What does it mean that the Paris Agreement is not binding?

It means that countries are not required/bound to following the emission limits set forth by the Paris Agreement––its core emission-reduction targets are not legally enforceable. It has no binding reduction requirements, but there are promises to participate in Paris Climate procedures, which can include reporting and COP meetings.

Binding obligation include maintaining a climate pledge, making a new pledge every five years, taking measures to meet the pledge, and assessing goals as a globe every five years. Softer commitments include temperature goals, finances, adaption and loss and damages, and carbon markets.

state responsibility under international law

States can incur liability for intentional or negligent conduct. Triggers of state responsibility under international law include:

1. existence of legal obligation recognized by international law

2. act or omission by a state that violates the obligation

3. loss or articulable damage caused by breach of obligation

exiting treaties: how does a state exit a treaty

At the international level, formal notification to treaty partners and the United Nations (if applicable), and some exit provisions require a waiting period.

At the domestic level, domestic law may influence the process and possibility of withdrawal, some legal obligations may remain even after exit, and the decision may be reversed by the next political leader.

crime of aggression

An international crime committed when a person in a position of political or military leadership plans, prepares, initiates, or executes an act of armed force by a State that constitutes a manifest violation of the United Nations Charter. Key elements include act of aggression (a State's use of armed force against another's sovereignty, territorial integrity, or political independence), it being a leadership crime, and it being a manifest violation of the UN Charter based on its character, gravity, and scale.

complementarity principle (ICC)

The principle of complementarity is a foundational rule in international criminal law establishing that the ICC acts as a court of last resort. National jurisdictions hold the primary responsibility and authority to investigate and prosecute core international crimes—specifically genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC only steps in to exercise its jurisdiction when national legal systems are either unwilling or unable to genuinely carry out the proceedings.

proprio motu powers of the ICC prosecutor

Proprio motu refers to the authority of the ICC Prosecutor to independently initiate an investigation into alleged international crimes without waiting for a formal referral from a State Party or the United Nations Security Council. This power is established under Article 15 of the Rome Statute of the International Criminal Court, which acts as one of the three primary trigger mechanisms for the Court’s jurisdiction (alongside State referrals and UN Security Council referrals).

The process includes preliminary examination, request for authorization, judicial scrutiny, and independence.

Explain the difference between signing and ratifying a treaty? What does ratification add that signing does not?

When a state signs a treaty, it signifies an intent, and maybe even takes on an obligation to follow the treaty. When a state ratifies a treaty, the treaty becomes part of domestic law, and legally binding internally.

Your roommate argues that following IL is against the US interest. Given some examples where this may not be true.

What are the steps to ascertaining a particular country’s obligation under international law?

What is the difference between consensual and compulsory jurisdiction? Why can ICs sometimes claim compulsory jurisdiction?

What is the key principle taken from the Lotus ruling, and what is this principle’s importance?

How can the US avoid ICC prosecution?

Identify a few ways that states are legally “responsible” under international law?

Does absolute sovereign immunity mean that a sovereign is forever immune from being brought to account for actions in office?

Why might reinterpretation be a more effective strategy to influence IL compared to exit?

Given that the Paris Climate agreement is not binding, in what ways is the ICJ’s advisory opinion on climate significant?

Why was Senegal legally obliged to either prosecute or extradite Hissène Habré?

Why couldn’t Belgium issue an arrest warrant for Congo’s Minister of Foreign Affairs?

Could a state ratify the genocide convention with a reservation that it can target for elimination an ethnic group if the ethnic group is associated with terrorism? Be sure to explain your answer in full.

Why did Bahrain & Qatar accept the ICJ’s ruling in the Bahrain-Qatar case?

What is the argument for relying on ambiguous sources of international law, given that a country may not have consented in advance (pick one example: custom, general principles of law or Jus Cogens). Do you think it would be better if international law was purely defined by treaty law?

State your panel country, and then explain what the Montreal Protocol required of your country, and explain why your country complied with the agreement or not.

The “law as a process” perspective suggests that the process of making and applying law in itself provides some benefits. Apply this idea to the one of the cases we studied.

What does Professor Alter mean that international law has multiple anchors?

What is the claim that the Alien Tort Statute now dead? Do you agree with this claim?

What are some of the differences between judge-made law vs legislative made v. treaty law?