LCJS 1581 midterm

Traditional definition for int’l law

the law that governs relations between STATES

only states deemed to have rights and obligations, entities or indviduals’ benefits or burdens were derivative

states under int’l law

sovereign or nation-states; must have:

* territory
* population
* govt
* capacity to engage in diplomatic or foreign relations

Modern definition for int’l law

deals with “conduct of states and of INT’L ORGANIZATIONS and with their relations between/amongst themselves as well as with some of their relations with PERSONS, whether natural or juridicial” (individual crimes in int’l crimes)

Another definition of int’l law

“a body of rules and principles, contained in various sources, including treaties and customs, which the subjects (states, organizations, individuals) of int’l law have accepted as binding on them either in their relations with one another per se, or in those with other juristic or natural persons.”

modern subjects

* **intergovt int’l organizations** (Ex: UN, ILO, Council of Europe, WHO, etc.)
* **individuals** - have more limited extent (Ex: individual responsibility = crimes against humanity, war crimes, human rights)

who are the principle/primary legal subjects of states?

individuals (citizens of a state)

who are the principle/primary legal subjects of int’l community?

states

\

who do states operate through as legal entities or corporate structures?

INDIVDIUALS

(ex: treates of extradition (states signing treates between themselves to turn people over if found within one of the states); states offer protects (losing passports in foreign country…))

STATES - authority, limits, power

* use of force forbidden
* central organs responsible for 3 main functions of legal system

INTERNATIONAL COMMUNITY - authority, limits, power

* no state or group of states has lasting power
* relations between states is horizontal
* no global governance to solve all problems
* up to each state how to settle disputes or to impel compliance with the law

collective responsibility

whole State Community is liable for any breach of international law committed by any State official and that the whole State community may suffer from consequences of the wrong act (ex: island of Corfu)

how much freedom of action do states have?

* internal set-up = states themselves decide
* tenor + scope of their national legislation
* conduct of foreign policy

freedom of states post WWI

states being told they no longer have complete freedom to do whatever with their citizens

* treaties increased - recognition of labor rights and minority rights
* increasing # of legal restrictions on the right to use force
* jus cogens = peremptory norms = certain fundamental, overriding principles of int’l law, from which no derogation is ever permitted (Ex: genocide)

origins of modern system of int’l law

* seperate legal system or discipline began to grow in 16th or 17th centuries but can’t unkown when int’l law began officially
* rules from Roman + Canon law , derived from natural law

natural law

certain rights or values are inherent by virtue of human nature and universally cognizable through human reason

international law vs domestic law

international law ISN’T a legal system but PART or BRANCH of our (whatever country currently in’s) legal system

* (int’l law is supreme)

is int’l law or national law more supreme?

international law is more supreme

(ex: state’s nonperformance cannot be excused a matter of int’l law because it’s declared unconstitutional law by state’s supreme court)

PUBLIC international law

law of nations - concerns relations among __subjects__ of international law

PRIVATE international law

“conflict of laws” = branch of international law dealing with relations between __individuals__ or __legal persons__ (such as corporations), in which laws of more than one State may be applied

how do we know whether a given rule is international law?

* Constitution (UN Charter)
* legislature with power to promulgate laws of genderal applicability or administrative agencies to produce regulations
* Court - ICJ = does interpretations, mostly about treaties

primary sources of international law

Article 38(1) of International Court of Justice (ICJ)

Article 38(1) of International Court of Justice (ICJ)

included in ICJ Statute to describe the nature of international law the Court was to describe nature of int’l law the Court was to apply

Are “judicial decisions” and the “teachings” of the publicists sources of law? If not what are they?

**aren’t** source of law

are “subsidary means” for *finding* what the law is

2 sources of law

contention, customary, general principles

is there any hierarchy of the primary soures of international law?

no

CUSTOMARY international law

(Art. 38:) “general practice accepted as law”

(Restatement (Third):) “customary int’l law results from a general and consistent **practice of states** followed by them from a __sense of legal obligation__”

What does the “practice of states” mean?

1. widely followed
2. deemed by States to be obligatory as a matter of law (“opinio juris”)

how to determine if a law is widely followed?

* treaties
* if states have X law in their constitution
* international customary law
* discussions of things like bills before becoming a law

CONVENTIONAL international law

1. (Article 38:) “international conventions, whether general or particular, establishing *rules expressly recognized* by the contesting states”
2. reference to international **agreements or treaties**, both bilateral and multilateral
3. treaties can __give rise to__ or be a __source__ of customary international law (ie Vienna Convention, Convention on the Prevention & Punishment of the Crime of Genocide)

general principles of law

(Article (1):) “the general principles of law recognized by civilized nations”

* historically, played an important role in the evolution of international law
* rules derived from them are often only __norms__ available and acceptable to States to regulate their int’l relations
* modern int’l law __relies less__ on general principles of law

why does modern int’l law rely less on general principles of law?

they’re secondary sources of int’l law - used as “gap filters” when treaties or customary international law don’t provide a rule of decision

secondary sources or evidence

1. evidence of international law


1. law making process

Evidence of International Law

1. (Art 38(1):) lists judicial decisions and the views of qualified publicists “as subsidiary means for the determination of rules of law”
2. sources cited by int’l lawyers that a given proporsition is or isn’t international law
3. ICJ decisions = most authoritative of these “subsidiary means” on the international plane


1. (ie. ICJ = concludes given proposition has become a rule of international customary law)

law making process as a secondary source or evidence

states play dual role in law-making process:

* legislatures
* advocates or lobbyists

where to find the evidence

* relevant govt pronouncements on the subject
* national judicial decisions
* debates and resolutions of the international organizations
* minutes and final acts of diplomatic conferences

treaties

→ conventions, pacts, covenants, contracts, protocols

“…they all denote a merger of the wills of two or more international subjects for the purpose of regulating their interests by international rules”

* int’l subjects = states, international organizations, limited individuals

what are the major features of treaties?

binds states to provisions in treaty/to follow the treaty

when can third states derive rights and obligations from treaty?

only if they consent to assuming the obligations or exercising the rights laid down in the treaty

functions of treaties

1. serve as __constitutions__ of international organizations (Ex: UN Charter)
2. as a source of general international law
3. used to transfer territory
4. regulate commercial relations
5. settle disputes
6. protect human rights
7. guarantee investments
8. and more…

international law/treaty

in US national law = “treaty” = special meaning:

→ describes international agreement that, unlike other international agreements the US might conclude, __requires the advice and consent of the Senate__ before the US may become a party to it

Vienna Convention on the Law of Treaties 1969

* where international law of treaties has been codified to a large extent in 1980, ratified by many states
* authorative character as law, even for states not parties to it

why is the Vienna Convention authoritative even for states not parties to it?

because it’s considered as a customary international law

is the US part of the Vienna Convention?

no - but considers the substantive provisions of the Vienna Convention state = ethe international law of the subject

Law of Treaties between States and International Organizations 1986

complements the Vienna Convetion and amplifies the existing body of norms applicable to international agreements to a significant extent

bilateral treaties

**between** **two parties**

* tend to originate in foreign ministry of one of the two interested parties
* post-discussion → usually involves respective embassies and exchanges of diplomatic notes + one or more __draft__ __texts__ will be prepared by respective legal advisors
* texts = subject of negotiations until an acceptable draft has emerged

multilateral treaties

between more than 2 actors/parties

* those with a lot of States parties are drafted at diplomatic conferences where participating States are __represented by diplomatic delegations__ that include legal advisors
* various working papers or draft proposals prepared in advance of meeting
* documents = basis for negotiations and bargaining that ultimately result in text of treaty
* formal results frequently summarized in **Final Act**
* often serves to authenticate text of treaty, establishes negotiations complete

entry into force of **bilateral treaties**

when both states indicate intention to be bound by agreement as of a __certain date__

entry into force of **multilateral treaties**

often contains **provision** (paragraph, sentence) indicating __how many states have to accept__ the treaty before it will be in force as between them

consent to be bound by treaty (art. 11)

“the consent of a state to be bound by a treaty may be expressed by…

* signature
* exchange of instruments constituting a treaty
* ratification
* acceptance
* approval
* accession
* or any other means if so agreed”

consent to be bound by treaty (art. 14)

more common that treaty says it'll become binding after ratification

ratification (on the int’l plane)

act whereby a state, through its head of state, foreign minister, or duly authorized diplomatic agent (art. 7) declares that it *considers itself bound* by treaty

* **instrument of ratificatio**n (physical thing) usually holds the declaration
* *exchanged* between parties or deposited with a previously designated depositary govt or organization, which performs various custodial functions relating to the treaty

2 step process with treaties

1: sign 2: ratification

only if treaty imposes a ratification requirement

* will most likely also provide for prior signature during specified period of time

usually enforced to allow govt to go back to national legislature for approval

typical sequence for US with treaties

1. negotiation of treaty by President or their representative
2. signing by President or their representatives
3. President submits treaty to Senate
4. Senate grants advice and consent
5. President’s deposition of the instrument of ratification

accession

treaties which call for signature and subsequent ratification usually also have provision permitting this for those States that didn’t sign the treaty during the period it was open

/ allowing states to join even after ratification between others happened

once it beomces a party does a State have the same status regardless of the method they used to become so (ratification, adherence, accession, or any other method)

yes

reservations

(art. 2:) unilateral statement by a state, purports to *exclude* or *modify* legal effect of certain provisions of the treaty in their application to that state

* disagreement with wording, wanting to change how it’s written, etc. - can’t be done so that whole meaning changes + can’t contradict whole purpose

also called “declarations”, “understandings”, “clarifications”, etc.

“understanding” or “declaration”

statement in which State declares to understand a given provision of treaty to mean X without seeking the approval/agreement of any other State in the interpretation proposed by it

if State doesn’t intend “understanding” to alter legal effects of treaty provision as between itself and others, will it be considered a reservation?

no

what are other reasons States attach understandings or other delarations?

to give guidance when treaties have to be called into court - if it needs more explanations on its meaning

right to make reservations

states are free to believe + follow a treaty with reservations

exceptions to states’ rights to a treaty with reservations

1. if treaty prohibits reservations
2. if treaty permits only certain types of reservations and the one being made is of a different type
3. in general, if reservation is incompatible with the object and purpose of treaty

(Art 19:) allows treaties and countries to come into effect

invalidity of treaties

(like contracts that be voided)

error of fact, fraud, corruption and duress

basic assumption in int’l law is __almost absolute__ freedom of contract (EXCEPT treaties that allow genocide, torture, slavery…)

only limitation on the invalidity of treaties

States can’t, by treaty, contravene a rule of jus cognes = **peremptory norm of general international law**

peremptory norm of general international law

(by the Vienna Convention) a norm which is accepted and recognized by the international community of States, can’t be removed from international law, can only be modified by a following norm of general international law with a similar topic

does the Vienna Convention include “peremptory norms”?

no but any treaty violating the UN Charter’s Article 2(4) (prohibits use of force, genocide, slave trade, torture) will be voided as a violation of jus cogens

state

* primary subjects of international law
* have full *legal capacity* = can have rights, powers, and obligations

are all states equal?

technically on paper but those with strong economy and military forces hold more power than others

how do insurgents come into being? differing results?

(revolutionaries, freedom-fighters, terrorists, etc.)

came into being through struggle against state to which they belong

* win → fully fledged status
* lose → disappear

general process of recognizing states

extraordinary political event → other states in world community indicate willingness to accept change + legal consequences of the change through implicit or explicit “recognition” of new state or govt

traditional recognition of states

Montevideo Convention

Montevideo Convention

new state must have


1. permanent population
2. defined territory
3. **effective govt** \*\*
4. able to enter into relations with other states

“effective control” or “de facto control test”

third in Montevideo Convention = the control govt exercises over relevant territory (to exclusion of other territories)

who gets to decide the establishment of new state?

1. “declartory theory of recognition” (ipso facto): if states meets these four factors, it’s a state
2. “constitutive theory of recognition”: if a state declares they’re a state, it’s a state

does the establishment of a new govt through normal constitutional processes within a state raise questions?

no - if through normal constit. processes **BUT** if through violent means (coup, assassination, etc.), then *yes*

in the US, who has the power to recognize foreign govt and where does this power come from?

President

source of law in the US = Constitution

what rights do recognized govt in the US have?

1. bring law suit in US court
2. claim sovereign immunity in US courts and receive diplomatic protection as much as other recognized govt do


1. accessibility to state’s US bank deposits and other property

why is recognizing states important?

1. *politically important* - to recognize states = start of international interaction with that new state
2. *legally relevant* - factural conditions met to become an international subject
3. *legally relevant* pt *2* - prevents the recognizing State from altering its position = creates an estoppel (preventing)

how state recognition has changed over time

expansion + evolution - recognition to human rights, democracy, rule of law added on esp. post WWI - Western Europe and dissolution of USSR

Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”

1. respect UN Charter, Helsinki Final Act, Charter of Paris, **esp**. the rule of law, democracy, human rights
2. guarantee rights for ethnic and national groups + minorities
3. respect existing borders


1. accept relevant arms control commitments
4. commit to settling all questions regarding state succession and regional disputes by agreement

limitations on state sovereignty

* heads of states + govt only have personal immunity when charged with international crimes with a domestic court/in own country

if with charges in an international court → no immunity

* if head of state committing any int’l crime, can be held responsible

these things are evolving due to int’l jurisdiction

insurgents

person who engages in armed hostility against an established govt for political purposes

minimum requirements for insurgents to become an international subject

1. rebels should prove that they have __effective control__ over some part of the territory
2. civil commotion should reach certain degree of __intensity__ and __duration__

who can appraise recognition of insurgency?

**states** (both that against which __civil__ strife breaks out and other parties)

(+ for foreign govt in recognition → might provide aid)

belligerency

1. status assumed by a nation waging war against another nation


1. quality of being belligerent = act or state of waging war

why is it important to determine if insurgent group is belligerent?

there’s vast protections that a state can have under international law

* state must abide by these belligerent protections

(“jus in bello” = international humanitarian law)

conditions to meet for recognition of belligerency

1. insurrection is widespread and lasts over a length of time
2. rebels come to gain stable control over part of territory

who can grant recognition of belligerency?

states themselves or a 3rd party state or international organizations (with exceptions)

what are other conditions to be met for belligerency?

de factor political organizations of insurgents sufficient in character + resources to constitute to it, become its own nation and be left on its own and function as one

* basically can be left to itself as a state among nations capable of discharging duties and such

can insurgents enter into agreements with states?

yes

what kind of rules concern the conduct of hostilities with the “lawful” govt?

customary and treaty rules

* Geneva Convention - even if not signed, a lot of laws are international customary laws

what would States recognize insurgents as belligerents

to protect themselves if insurgents would happen to gain power OR to finally have peace

insurgents’ limited international capacity

1. have only a few international rights and duties
2. only associated with a limited number of existing states

sui generis entities

1. through specific historic circumstances → legal status acquired
2. don’t possess any distinct territory - if they do, it belongs to another entity
3. have very limited international personality

(Ex: Vatican City, ICRC/Switzerland Red Cross, Sovereign order of Malta)

“international personality” or “international legal personality”

entities or legal persons that can have rights + obligations under international law

why did modern international subjects emerge?

to include more subjects (int’l organizations and individuals) → modern int’l law

international organizations

1. institutions established by __treaty__ - sometimes called “charter” = serves as “constitution” of the organization
2. composed of __members__ that are states or int’l organizations
3. regulated by __international law__
4. endowed with __legal personality__ (UN, NATO, etc.) => can engage in contracts, can sue and be sued in national courts susceptible to certain immunities

UN Charter, Art. 1

main functions of nature of UN:

* peacekeeping responsibilities
* developing friendly relations among nations
* achievement of international cooperation in solving international problems that are economic, social, cultural, humanitarian
* promoting human rights, fundamental freedoms for all human rights without discrimination

UN organs

* General Assembly (discuss questions + matters within scope of Charter)
* Security Council (responsible for maintaining international peace + security)
* of 15 member states, 5 being permanent, 10 being elected to 2 yr terms

Economic and Social Council of UN

54 members states elected by General Assembly, 3 year terms; established many subsidiary organs specialized in certain fields to discharge its responsibilites

Secretariat

made of Secretary-General and others the organization might need; can bring any potential threat to maintenance of international peace and security to the Security Council