International Law: Exam 1

What is the concern of international law?

• legal norms that operate among nations

• or nation & persons within its jurisdiction

• decentralized

Horizontal structure

• FULL SOVEREIGNTY

• 193 states

• only accepted restrictions

• advance national interests

• bilateral agreement: about compliance & representation

• enforced rule by collective security

whats the nature of international law?

• John Austen: not law but collection of moral rules

• Hans Kelsen: primitive

• H.L.A Hart: series of “primary rules” without secondary rules

vertical structure

• interface of international law without national/domestic law

• the monist approach: I.L. and D.L. part of same system of law

New stream approach / value-free methodology

• not about reconciling conflicts

• cynical → deconstructs

• international law not determinate / neutral

• acknowledge prejudice in international law

What is law to Aquinas?

• an ordinance of reason for the common good made by him who has care of the community and promulgated

What are the 4 approaches to international law?

1. idealist: no war, belief in peace

2. realists: no inherent harmony

3. liberal international relations: individuals, economic, social

4. constructivism: human conscience

What is the difference between international and national law?

• horizontal, no legislature, no central power to coerce

• VS

• vertical, legislature, power of coercion

What does Aristotle say about law?

• best type of government is the one governed by the law

• always need REASON

• for the good

What is natural law?

• fixed, universal principles of right and wrong

• 1648: sovereign states, respect individual states decisions

• found through right reason not state enactment

What is Positivism?

• law is what states have affirmatively consented to through treaty or custom

• state CONSENT is central

What is internation natural law?

• fixed and universal

• principles of right and wrong that dont change

• found through right reason

• founding theorists: Victoria, Grotius, Suarez, Pufendorf

• “law of nations:” aftermath of Westphalia, post WWII

• still lurking today: jus cogens (peremptory norms)

International legal positivism?

• dominant approach for international law lawyers

• ex. “is there a treaty?” “Is this state signed / included?” “Is it ratified with a reservation?”

• no treaty + no custom = cannot say the state violated

What are the 4 approaches to International Law?

• idealism

• realism

• liberalism

• neo-liberalism

  • no single theory fully explains international law, theory shapes practice

What is idealism?

• warfare no longer tenable

• states share strong interests in peaceful coexistence pursued through treaties and international organizations

What is realism?

• no essential harmony of interests

• anarchy

• interests over ethics

• constant war → power → war/conflict

• law: avoid summum malum (greatest evil)

• order: balancing power

• alliances: NATO

• ½ biggest theories

what is liberalism?

• reason overcome anarchy (ought to be)

• cooperation is achievable and desired

• peaceful coexistence is possible (dispute-resolution)

• law: serves the common good

• collective security

• 2/2 biggest theories

What is Antigone?

• by Sophocles

• early example of natural law

• c. 441 BCE

• “great unwritten unshakable traditions”

• law vs conscience

• cant go beyond temporal authority

Aristotle on right reason

we know when something is wrong before knowing why / thinking about it

St. Augustine on law

• On Free Choice of the Will c. 395 CE

• “unjust law is no law at all”

What is Aquinas’ hierarchy?

• eternal law: God

• divine law

• natural law: what is bad before why

• positive law: human, specifications

M.L.K. Jr. on law

• Letter from Birmingham Jail (1963)

• unjust law: “code that is out of harmony with the moral law”

What is Jus Cogens?

• peremptory norms

• norms are fundamental to rest on consent alone - cant deviate

• consent exception

• genocide, slavery, torture, aggression

• VCL Article 53 and 64: “super” customary international law

• treaty conflict = void

The Nuremberg Tribunal

• German convicts charged without written law

• “crimes against peace” & “crimes against humanity”

Pacta Sunt Servanda

• “an agreement must be kept”

• in good faith

• Thou shalt not lie

• treaty in force binds its parties → perform in good faith

30 Years War

• → Peace of Westphalia

• birth of modern civilization / international system still remains

• each state is sovereign / national sovereignty

What are Articles 1 & 2’s goals in UN Charter?

• Art. 1: purpose

• Art. 2: principles

What are the goals of the UN Charter

1. maintain international peace and security

2. develop / promote friendly relations among nations

3. achieve international cooperation

4. be a center for harmonizing the actions of nations

principles of modern UN

• sovereign equality, Art. 2 (1)

• good faith, Art. 2 (2)

• peaceful settlement of disputes, Art. 2 (3)

• prohibition of the use of force, Art. 2 (4)

what is original power?

• power inherent in statehood

• not derived from a higher order

what is exclusive power?

• within a state

• no other state can exercise government powers & functions

• Art. 2 (7) UN Charter

what is state sovereignty?

• original or exclusive power of a state to establish and maintain by force if necessary

• political & legal order on territory of state

political vs legal view of sovereignty

• poli: “unrestrained power”

• leg: international law’s conceot

What are the 6 elements of sovereign equality?

1. states are judicially equal

2. each state enjoys rights inherent in full sovereignty

3. each state has a duty to respect the personality of other states

4. territorial integrity & political integrity wont be violated

5. each state is free to develop their own politics, social economy, cultural systems

6. each state must comply in good faith w/ international obligations & live peacefully w/ other states

What does the UN establish about disputes?

• must be resolved through peaceful means

• use mechanisms of international community

• prohibit us of force

  • if used = crime of aggression

• inherent right to self-defense

  • what constitutes it? (Art. 51)

subjects of international law: Entity

• has capacity to hold rights & bear duties within a legal system

• natural persons, human, when born

• legal persons: business, university, etc.

  • when incorporated / registered / accepted

subjects of international law: States

• permanent (not administration)

• multinational corporations

• individuals / group of individuals

• become subject = RECOGNIZED

Define State

• a defined territory

• a permanent population

• an effective government

• capacity to enter into relations w/ other states

  • get Right of Sovereignty (cant invade internal decisions)

  • protects from foreign intervention / aggression

  • trade, mutual assistance

what is mutual assistance

• treaties

• help one another with issues

• ex. trade, fleeing criminals

What are the 2 theories of state recognition?

1. Declaratory Theory of State Recognition

2. Constitutive Theory of State Recognition

Declaratory Theory of State Recognition

• Latin Americans 1930s: Monterideo Convention (1933)

• entity: ipso facto (immediately) a state once 4 conditions are met

• independent of recognition

• legal theory

Constitutive Theory of State Recognition

• only when other countries decide that conditions are met

• then a new state is actually constituted

• political practice

Membership in United Nations

• 2/3 majority in General Assembly

• 9/15 Permanent Council

• no veto

• based on 4 conditions

What is the Permanent Council?

• 15 members

• 5 permanent, 10 rotating

• 5 permanent: US, Russia, China, Great Britian, France

Foreign Service

• 3rd Secretary

• 2nd Secretary

• 1st Secretary

• Counselor

• Minister Counselor

• Ambassador (rest are their group)

What is the Estrada Doctrine?

• principles of non-international & state sovereignty are absolute

• ex. Mexico

• external sovereignty: past, keep other states from intervening

• internal sovereignty: recent, people of the state

Source of international law

1. treaties (written docs, proliferate in 20th cent.)

2. internal customs / customary law (unwritten, 1800’s)

3. general principles of law

4. judicial decisions (on a subsidiary basis)

5. international organizations

6. non-binding instruments (Soft law, ex. white flag & diplomatic immunity)

What are the elements of a treaty?

• duration

• performance

• dispute settlement

• suspension

• termination

• signed, voluntarily

• well-informed of details

• a “contract” between 2 or more states

• short or lengthy

• limited or unlimited

what is a bilateral treaty?

a treaty between two states

what is a multilateral treaty?

a treaty between more than 2 states

What is the process of making a treaty?

• Representation: have full powers, voice as state

• Negotiation: bilateral or multilateral

• Adoption: states meet & consent, usually by percentage

• Signature: by ambassador, specified time, do anything to ratify treaty

• Ratification: send to legislative (US: Senate)

pleni poterciary

ambassadors, “plenty power”

entry into force

• after the ratification of the treaty

• certain member & time

acceding

asking to reenter the treaty

reservation

• modify treaty provisions

• can ratify with it

Interpretation

• meaning of terms

• context: preamble & other agreement in context of treaty

• subsequent practice

• prepatory works

• canon of international law (general principles)

Invalidity of treaty

• no meeting

• ab initio

• termination or withdrawal → denunciation

ab initio

coercion

reasons for invalid treaties

• Material Breach: violation of a provision essential to the object & purpose of a treaty

• performance becomes impossible

• change in circumstances

international custom

• many issues between states not covered by treaty

• used by international tribunals = importance

• NEED:

  • general practice among states regarding a particular matter

  • belief among states that such practice is legally compelled (Opinio Juris)

Objective of international custom

• consistent practice

• widespread “specifically affected states”

opinio juris

• accepted as law

• undertaken with a sense of legal obligation

• subjective

Persistent Objector Rule

• State consent

• explicitly object, objector states are not bound by it

jus cogens

• essential “Super” customary law

• treaty is void if it conflicts with this idea

• may not be a treaty, can be codified but always exist

• ex. genocide, slavery, state-sponsored torture

intrinsic principles

• pacta sunt servanda

• res judicata

• lex posterior derogate priori

• lex specialis derogat legi generali

res judicata

• “a matter judged”

• final judgement on merits is conclusive as between parties

• US: double jeopardy

lex posterior derogate priori

later / newer law supersedes an earlier one if both have same source

lex specialis derogat legi generali

specific rule should prevail over the general rule