International Law (Exam 1)

Municipal law vs International law

Municipal (domestic)

• Hierarchical & centralized

• Unified/coherent constitutional order

• Applies to individuals

• Law applies regardless of consent

International

• Horizontal/anarchic & decentralized

• Partial/fragmented order

• Applies to states

• Law must be consented to by states

Natural law

Inherent law that exists in nature (by the divine). Humans must discover it through reason. Universal and fixed principles (will not vary in time or space).

Jus gentium

Law of the peoples. Roman law as it expanded their empire and met new groups of people. A subcategory of jus naturale (law of nature)

Hugo Grotius

• Dutch jurist & father of modern IL

• Law of the Nations (not just people, applied to states)

• On the Law of War and Peace (codified just war theory)

  • Law derived from a “natural” (but secular) and the “consent of Nations”

Positivism

Rejects natural law. There are no universal moral truths. The law is voluntary. Focuses on what states actually do (the law is man-made and based on state practice). Rooted in rise of sovereign state system (Peace of Westphalia).

John Austin

The law’s existence and content is separate from its merits. A law exists even when it is not morally just.

Sources of IL

Often derived from Article 38 of Statute of the ICJ:

1. International conventions

2. International custom

3. General principles of law

4. Judicial decisions, teachings of highly qualified jurists (lesser)

Conventional IL

Formal written agreement among states regarded as binding on the signatories (aka treaty, convention, charter, protocol). Based on states’ explicit consent but legally binding once consented (pacta sunt servanda)

Pacta sunt servanda

Agreements must be kept

Customary IL

General practice of states accepted as law. Based on tacit/implied consent (based on states’ own behavior). Based on general practice (evidence of general and consistent behavior) and opinio juris (must see the practice as legally obligatory).

North Sea Continental Shelf Case

ICJ, 1969: acts must amount to a settled practice and have to be done in a way that is evidence of a belief that the practice is obligatory

Persistent objector rule

How not to be bound by customary IL: explicit and consistent rejection of custom from the rule’s inception. Ex. Norway’s coast.

Paquete Habana

SCOTUS case, incorporated IL into US judicial system. US seized 2 Cuban fishing vessels during the Spanish-American war and sold them. CIL against seizing fishing vessels during war. SCOTUS ruled US was in the wrong and compensated the fishermen.I

International Law Commission

A UN body that identifies CIL, codifies CIL, and proposes draft articles for potential treaties about customary rules. Codification does not create custom nor do treaties replace custom.

New States and CIL

New states are automatically bound by all rules of CIL (if you want to join the int’l community, you must follow its rules). Disadvantages non-Western states (which most new states are). CIL is not pure voluntarism, has a communitarian foundation.

General principles of Law

Used to fill in the gaps of IL. Use domestic laws as a basis. Not substantive or have limited applicability. Examples: good faith, proportionality, equity. Custom lite (states “consent” in that they have already adopted municipal equivalents).

Vienna Convention on the Law of Treaties

Concluded: 1969. Entered into force: 1980. Only 116 parties but its rules are considered binding for all (VCLT reflects CIL, codified existing customary rules).

Treaty

An international agreement between states in written form and governed by IL, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (can be called a treaty, covenant, etc.)

Sources of IL

Article 38 of ICJ state

1. Conventional IL (treaties)

2. Customary IL

3. General principles of law

4. Judicial decisions, teachings of jurists

Beyond Article 38

1. Unilateral declarations

   1. Decisions/resolutions of IOs

Customary IL

General practice + opinion juris (belief that rule is a legal obligation)

• Jus cogens — non-derogable, peremptory norms

• Based on tacit consent (persistent objector rule)

• Applies to new states

Conventional IL

Vienna Convention of the Law of Treaties

• Codified exiting CIL (only 116 parties, but binding on all)

• Written agreement between states, regardless of the # of instruments or designation, governed by IL

• Explicit consent + legally binding once consented (pacta sunt servanda)

• Excludes: non-subjects/entities of IL (NGOs, firms, etc.)

• Excludes: agreements with state parties that are governed by domestic law

• Excludes: legally non-binding agreements (“soft law”)

New States

• CIL: automatically applies

• Conventional: states must join all treaties (non-transmissibility rule / clean slate doctrine)

• Exception: border treaties

  • Continuing states old international borders become successor state’s

  • Uti possidetis: take old internal border and make it part of successor state’s international border

1. Secession: successor + continuing state

2. Decolonization

3. Unification/merger/annexation: one absorbed into the other or made into a new state with a new legal identity

4. Dissolution: no continuing state

Self-determination

People (of non-self-governing territory) who are subject to subjugation, exploitation, domination have the right to unilaterally declare independence

• Allowed in UN Charter —> wave of decolonization

• Limits state sovereignty

• Succession is not prohibited under IL (even though territorial integrity is protected)

• Succession must conform to IL (ex. not legal if used force)

Subjects of IL

Fill in

IOs as Subjects of IL

• IOs have a legally distinct personality from their member states

• Their authority is derived from their functions

• IOs can make rules in their field of functional competence to help carry out their functions

• IOs can conclude their own treaties (with states, other IOs)

• Reparation for Injuries Case: the UN has a legal personality with the ability to bring international claims

  • Implied powers doctrine

State Jurisdiction

Jurisdiction = legal competence to make and enforce laws

• Prescription jurisdiction: right to legislate certain peoples, acts, etc.

• Enforcement jurisdiction: right to apprehend and try violators who violate domestic law

1. Territoriality (location of violation)

2. Nationality (of the defendant)

3. Passive personality (nationality of the victim)

4. Protection (of a state’s vital interests)

5. Universality (some crimes are so bad any state can claim jurisdiction, ex. piracy)

6. Effects doctrine (negatively affects the US, used in trust busting)

• Concurrent jurisdiction: overlapping claims

  • In practice goes to whoever has custody of the suspect (but they may not have the stronger claim)

Sovereign Immunities

States do not have to submit themselves to other states’ jurisdiction (be bound by their domestic laws)

• Sovereign immunities are based on CIL and the principle of the independence of state

• “Sovereign acts” are immune from others’ domestic jurisdiction

• However, states are not immune under IL

Functional: immunities of all state officials when performing their functions

• Restriction: for acts of sovereign power, not non-sovereign/commercial acts

• Based on the nature of the transaction, regardless of purpose

Personal: (total) immunity for high ranking officials

• Official is the embodiment of the state

• Immunity for official acts (functional immunity) for all time

• Depends if personal immunity applies when the official leaves office

Diplomatic Immunities

Diplomatic law: more accepted than law on sovereign immunity (based on CIL, older)

• Diplomatic missions: establishment of diplomatic relations and permanent missions (embassies, consulates)

  • Requires mutual consent of sending and receiving states

  • RS must be notified of all appointments and can declare mission members persona non grata for any reason

  • SS may recall agents at any time

• Diplomatic privileges + immunities

  • Diplomats have functional and personal immunity (only lasts while in function)

  • Inviolability of diplomatic property

  • Duty of RS state to protect against any attack on diplomats

Nationality

Individuals cannot pursue an international claim, but a state has the right to protect its nationals (diplomatic protection)

Citizenship is up to the discretionary competence of states

1. Parentage (jus sanguinis)

2. Birth (jus soli)

3. Nationalization (voluntary change nationality)

• Nottebohm: German national who applies for Liech. nationality to receive diplomatic protection

  • Court rejected is claim, saying there was no genuine and effective link

Corporations

1. Incorporation (creation as legal person)

2. HQ (registered office)

3. Nationality of owners

• Barcelona Traction: Belgium lacked standing to sue Spain (despite having 75% of shares) because the corporation was Canadian

Dual Nationality

• Not all states allow it, but individuals can benefit from the protection of two states (and are subject to both’s obligations)

• States often make bilateral treaties so individuals do not have dual obligations

International Refugee Law

States have authority to decide who enters their borders

• States have no obligation to let non-nationals in

• Exception for refugees and asylum seekers

1951 Refugee Convention (+ 1967 Protocol)

• States have an obligation to protect the rights of refugees

Definition

1. Individual has a well-founded fear of persecution

2. Individual is no longer in their country of nationality

3. Individual is unable or unwilling (out of fear of persecution) to return

Refugee Status

• Asylum seekers are those who are asking to be granted refugee status

• All refugees were once asylum seekers

• Obligations of states: assess the merits of AS, provide fair hearing and decision making process, treat claimant humanely

  • In reality, there is a process with lots of individual discretion (immigration roulette)

• Non-refoulement: states cannot return an AS to a country where they may risk torture or their lives

Treatment of Aliens

Aliens = non-citizens who work or live in a foreign state

• States have a right to control entry, resident work of aliens

• States have a right to expel aliens for sufficient cause

• States have a right to regulate foreign investment

International minimum of treatment (regardless of domestic law—CIL)

• Protection/security of person/property, due process, fair treatment, etc.

Injury to Aliens

State of individual’s nationality may use diplomatic protection to make an international claim on the individual’s behalf

1. Must be a national of the state

2. Alien must first exhaust domestic remedies

Expropriation: confiscation of property

• States may do it, but must be for public purpose and non-discriminatory

• Must also include prompt, adequate compensation

Law of State Responsibility

When states violate their international obligations, they can be held responsible

• Codified in ARSIWA (Articles of the Responsibilities of States in Internationally Wrongful Acts) —> draft only but reflects CIL

Primary rules: rules on conduct

Secondary rules: rules on how to administer, enforce primary rules

Lex specialis trumps lex generalis

Internationally Wrongful Acts

To be an IWA:

Must be attributable to the state under IL

• “States” are made up of individuals and thus states can be held responsible can be held responsible for actions taken by state organs and officials

• Whether their action was an official authorized one or unauthorized

• But not for private conduct

Must be a breach of the state’s international obligations

• States are not responsible for acts that cause harm but are still lawful

• States are still responsible even if the act was legal under domestic law

Circumstances Precluding Wrongfulness

When states are not held responsible for an act that would otherwise be wrongful

1. Consent is given by would-be injured state

2. Lawful self-defense

3. Countermeasure (when in response to another state’s IWA)

4. Force majeure (whether natural or not)

5. Distress (have another option, but would require a sacrifice)

6. Necessity (state’s essential interest is threatened)

Legal Obligations of the Responsible State

1. Cessation + non-repetition

2. Reparation (must not be punitive)

   1. Restitution (restore status quo ante)

   2. Compensation/damages (if restitution is impossible, means $$)

   3. Satisfaction (injured party demands responsible states does xxx)

Legal Rights of Injured State

A state may invoke the responsibility of another state when the obligation breach is owed to:

1. That state individually (ex. breach of a bilateral treaty)

2. A group of states (ex. breach of multilateral treaty)

3. Whole international community (erga omnes obligations)

Countermeasures: a state has a right to act in an otherwise wrongful way in response to another state’s IWA

• Restrictions: proportionality, notification requirement, termination after compliance, cannot violate certain IL rules