international law

Article II of the Constitution definition of a "treaty"

the President of the United States "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."

Jus gentium

law of nations, which Gaius, in the 2nd century, saw as a law

"common to all men," a universal law that could be applied by Roman courts to foreigners when the specific law of their own nation was unknown and when Roman law was inapposite.

The Law of War and Peace

Grotius' classic of 1625, acknowledged more than

any other work as founding the modern discipline of the law of nations, where in 1789 English Philosopher Jeremy Bentham renamed/refashioned as "international law."

International law

Has to do with the establishment of a set of mutually agreed-

upon rules respecting the nature of these states and their fundamental rights and obligations between/among themselves

Montesquieu - Natural Law

"That nations ought to do one another in peace, the most good, and in war, the least evil possible."

Public International Law

Mostly concerns the political interactions of states

Private International Law

Relates to legal aspects of the international economy and conflicts and cooperation among nation legal system

Municipal Law

Internal laws of a sovereign states legal system(s)

What are the sources of international law?

1) Treaties/Conventions --> capable of creating voluntary, though legally binding, relations. These are sometimes known as "conventional international law" (written agreements, materials related to drafting and conclusion of agreements). Sovereigns/states must consent.

2) Customs --> "the course of dealing"... "the usage of trade"

where practice creates justifiable expectations of future observance (constitutional, legislative, proclamations, judicial decisions). Sovereigns/states must consent, but it can be implicit.

3) Natural Law --> conscious attempt to perpetuate past similarities in dispute resolution.

4) General Principles of Law --> if most or all states observe certain rules as part of their domestic laws, then it may be presumed that these rules are so fundamental as to be more or less automatically a part of international law.

5) State conduct --> can be manifestations of rules that are bound to exist regardless of state consent, beyond general principles of law and other sorts of nonconsensual rules of international law.

Conventional International Law

Treaties and conventions function as contracts, creating voluntary and legally binding relations. Evidence of conventional international law include the written agreements and material related to the drafting and conclusion of such agreements.

How are most international law disputes settled?

In municipal courts

International courts established by treaty

1) International Court of Justice at the Hague (ICJ)

2) International Criminal Court in the Hague (ICC)

3) European Court of Justice at Luxembourg

4) The International Tribunal for the Law of the Sea in

Hamburg

Three ways that courts and tribunals can be "international"

1) Set up by international agreements

2) Applying international law

3) Deal with cases involving parties/transactions touching

more than one country.

Pact sunt servanda

Treaties are legally binding; the principal that agreements, even between sovereign states, are to be respected.

Wimbledon case

The right to enter into international engagements is an attribute of a State's sovereignty.

Article 38 of the Statute of the ICJ

The ICJ shall apply:

(a) International conventions, whether

general/particular, establishing rules expressly

recognized by contesting States;

(b) International custom, as evidence of a general

practice accepted as law. States may implicitly consent to the creation and application of international legal rules;

(c) The general principles of law recognized by

civilized nations;

(d) Subject to the provisions of Article 59, judicial

decisions and the teachings of the most highly

qualified publicists of the various nations, as

subsidiary means for the determination of rules of

law.

Article 59 of the Statute of the ICJ

The decision of the ICJ has no binding force except between the parties and in respect of that particular case.

Can unilateral treaties have a binding legal effect?

Yes, prime example is the Nuclear Test cases (unilateral acts, such as a declaration, that concern legal or factual situations may create binding legal obligations).

Vienna Convention definition of a "treaty"

"An international agreement concluded between states in written form and governed by international law."

Excludes any agreement involving private parties or international organizations, and unwritten international agreements.

Are international agreements legally binding if one or more states in the agreement does not intend for it to be legally binding? (viewing it more as a moral or political engagement)

Yes, a states intent does not matter. This is known as a "soft-law" agreement.

The Law of Treaties

Created by the International Law Commission (a U.N. advisory group), the law of treaties sets forth the accepted rules respecting, among other things, the making, effect, amendment, invalidity, and termination of agreements among states. It originated from customary international law.

Article 6 of the Vienna Convention

"every state possesses capacity to conclude treaties"

Is the United States a party to the Vienna Convention?

No.

Curtiss-Wright (U.S. Supreme Court, 1936)

Power to make treaties is one of those powers "vested in the federal government as necessary concomitants of nationality."

(T/F) Signing a treaty doesn't constitute acceptance by a party

True.

Adoption

Another form of acceptance (treaties) --> Text of a treaty must be satisfactory to all participating states before adoption - agreeing on all parts of the text. Typically a 2/3rds vote.

(T/F) To accept a treaty under the Vienna Convention, what must be done?

The state must adopt the text, then ratification or accession is required

Ratification

Another form of acceptance (treaties) --> A state that has played a part in the negotiation of a treaty and has signed the text

Accession

Another form of acceptance (treaties) --> A state that didn't originally sign/negotiate treaty but subsequently wishes to adhere to the agreement.

Reservation as defined by the Vienna Convention

Another form of acceptance (treaties) --> a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.

Eastern Greenland cases from the Permanent Court of International Justice

Oral declaration made in Paris Peace Conference constituted a legally binding obligation of Norway (oral treaty). Only occurs in customary international law

(T/F) The Vienna Convention does not require treaties to be in writing.

False.

(T/F + more) Even though a state is not a party to a treaty, it may occasionally be bound by the treaty's terms.

True. This is due to the treaty passing into customary international law.

Bilateral treaties & Reservations

If a state accepts a reservation made by another state, the reservation modifies the treaty reciprocally for both states. Until its accepted, there is no legally binding agreement.

Unilateral treaties & Reservations

Reservation made by one state, and accepted by

another state does not modify the treaty for other parties as among themselves.

Compatibility test of multilateral treaty reservations, 3 types

1) A state that has maintained reservation(s) to the

Convention, and objected by some other states --> that state is still a party to the convention if the reservation is compatible

2) State objects to reservation finding it inapplicable/not compatible to convention --> may consider that state to not be a party to the treaty

3) State's reservation accepted/compatible --> that state is a

party to the Convention.

(T/F) The senate has little to no role in making reservations to international agreements.

False. The Senate plays a large and special role.

Vienna Convention definition of pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith

Norwegian Loans case

Obligation to act in accordance with good faith is a general principle of both law and international law.

What does the Vienna Convention say about treaties that have yet to become binding and a states subsequent actions?

States are obliged to refrain from acts that defeat object purpose if it has signed the treaty/exchanged instruments constituting the treaty subject to ratification/acceptance approval (until or unless the state makes its intent to not become a party clear).

Treaties look primarily to the ________ when determining if there was an agreement

Consent/will of the parties.

(T/F) States may not invoke the provisions of its internal law as justification for its failure to perform in accordance with a treaty.

True.

What are States obliged to ensure in relation to international agreements and municipal law?

States are obligated to ensure that an international agreement is incorporated into its municipal law.

(T/F) Treaty provisions are retroactive, while Treaties themselves are not.

False. Treaty provisions are not retroactive, while Treaties themselves are.

How do conflicting treaties interact?

More recent treaties are binding over the older treaties, but to the extent that the older treaties do not directly conflict with the newer ones, the old provisions are still in effect.

Travaux preparatoires

Treaties only include the context if something is ambiguous

Article 31 of the Vienna Convention

Treaties are interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose (reference to the terms of the treaty's text)

1) Ratione personae, 2) Ratione materiae, 3) Ratione loci, and 4) Ratione temporis

1) X norm establishes a legal relationship between two or more particular international legal subjects

2) That legal relationship is relative to a particular action or factual state of affairs

3) Which occurs at a particular geographic location

4) And occurs at a particular point in time or during a particular time period

All would make X norm applicable Ratione "XXXX"

Lotus case

There is no occasion in which the preparatory work of a treaty should be looked at if the plain language of the text of a convention/treaty is sufficiently clear in itself.

How does the Vienna Convention deal with amendments/modifications to a unilateral or bilateral treaty?

A treaty may be amended by agreement between the parties, and amendments are seen as treaties in their own right and are governed by the law of treaties.

How does the Vienna Convention deal with amendments/modifications to a multilateral treaty?

Amendments alter a treaty with respect to all parties, while a modification alters an agreement with respect to certain parties. Unless otherwise stated, all participating states have the right to "vote" in a decision to amend the treaty and in the negotiation and conclusion of any amendment (as well as the right to become a party to that amended treaty)

Can implied consent create amendments?

Yes. Soering shows this, as a states internal actions were seen as an acceptance of a treaties amendment.

Main grounds for invalidity under the Vienna Convention

1) Error (essential fact)

2) Fraudulent consent

3) Corruption or coercion

4) Threat/use of force

5) Conflict with a longstanding, "binding" norm (jus cogens)

These may only be used to invalidate the whole treaty.

Jus Cogens

Notion that there exist some rules of international law so fundamental that they prohibit acts by states even if the acts are expressly sanctioned by that state's consent. Not used in modern international law to void treaties. Slavery falls under jus cogens.

When do violations of municipal law violate a treaty?

When the violation was manifest (obvious to any state conducting itself in the matter in accordance with normal practice and in good faith) and was concerned with a states rule of internal or fundamental importance

How can a treaty end?

Treaties may be terminated or a party may withdraw from it either:

1) In conformity with the provision of the treaty; or

2) At any time by consent of all the parties after consultation with the other contracting states.

How to withdraw or terminate a treaty that does not have provisions explaining how to do so?

A state may not denounce the treaty or withdraw from it unless the parties intended to permit withdrawal/denunciation or such a right can be implied from the treaty.

(T/F) Changes of government result in binding treaties being terminated.

False.

Material breach

Violation of a provision essential to the accomplishment of the object or purpose of the treaty that results in termination.

Material breach of a bilateral treaty

Other party may terminate or suspend the treaty.

Material breach of a multilateral treaty

Entitles the other parties by unanimous agreement to terminate or suspend the treaty in relations between themselves and the defaulting state or among all parties

Necessity

States may invoke necessity to avoid their international legal

obligations and commitments.

Successive Treaties

Successive treaties relating to the same subject may

terminate an earlier treaty if both treaties have all the same parties and if either treaty provides "that the matter should be governed by that treaty" or the provisions of the later treaty are incompatible with those of the earlier ones.

If not terminated, the earlier treaty may still be applied "to the extent that the provisions are compatible with those of the later treaty."

Force majeure

An unavoidable and insurmountable obstacle to performance that is universally accepted (war, boycotts, changes in the law, severe inflation, changes in exchange rates).

Article 62 of the Vienna Convention: Test for terminating treaties on exceptional circumstances

A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from a treaty unless:

1) Circumstances were an essential basis of the states consent; and

2) Circumstances lead to change that radically transforms the obligations to be performed

What are the "other sources" besides treaties?

Customary international law, the general principles of law, natural law, jus cogens, and equity.

Customary international law

Certain maxims and customs consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law.

Asylum case

Illustrates the inability to bind a non-participating state to a regional custom

Paquete Habana case

U.S. Supreme Court case applying customary international law in U.S. law. However, U.S. courts typically do not treat customary international law, general principles of law,

judicial decisions, and opinions of publicists as discrete sources of international law like the ICJ.

North Sea Continental Shelf case

short passage of time is not necessarily a bar to the formation of a new rule of customary international law if practice is extensive and uniform.

Soft Law

Rules neither strictly binding nor completely void of legal significance; may "harden" into custom; often aspirational treaties.

Lotus case (soft law)

Absence of a settled practice prevented a soft norm from hardening into a international rule of law.

Issues of customary international law

1) Diversity of state practice makes finding enough consistency to create a customary international legal rule hard.

2) Decision makers from another state may reach a different conclusion.

3) Can stimulate conflict when states take opposing positions.

General Principles of Law

Rules deriving from or reflecting the common municipal laws of states. These can fill the gaps where a treaty or custom is silent.

Article 53 of the Vienna Convention

New peremptory norms (jus cogens) void and terminate previously existing treaties with which it conflicts.

Chronological survey

Methodical tracing of practice over time to show custom.

Equity

Judicial tool to achieve fairness where strict law is insufficient.

Dualism

Every national and international legal system is a separate, discrete entity, each with its own power to decide the effect any outside rule may have within it.

Three elements of Dualism

1) International law cannot make itself effective in the domestic order—it depends on constitutional / municipal rules.

2) Municipal law cannot impose itself on the international system.

3) States cannot rely on municipal laws to repudiate an international obligation (seen in the Greco-Bulgarian Communities case).

Monism

Views the international legal order and all national legal orders as components of a single universal order in which international law has supremacy.

(T/F) Individual states within the US can enter into treaties.

False. Only the President can make treaties with advice and consent by 2/3rds vote of the Senate.

Self‑executing treaty

Binding upon each U.S. state without further congressional action. This is only possible when the parties intend the treaty to have immediate legal effect in the courts.

Non‑self‑executing treaty

Requires an act of Congress (ratification) to become binding domestically.

(T/F) US courts do not uphold the supremacy of treaties whne they infringe upon a states sovereign power.

False (see Missouri v. Holland).

Section 309 of the Fourth Restatement

Federal statutes and treaties are equivalent = whichever came later takes the cake (later-in-time rule).

Head Money/Whitney case

Congress may modify or repeal a treaty by statute.

How do other common law countries handle self-executing treaties?

They deny self‑execution: no treaty takes effect in municipal law without an enabling act by that states legislature (England, Canada, India).

How do civil law countries handle self-executing treaties?

Authority for the incorporation of treaty rules into municipal law is typically found in explicit constitutional provisions (France, Japan)

There is ___ constitutional provision(s) about the incorporation of treaties in the US (the law of nations)

No such constitutional provisions exist, it is all case-law.

Alien Tort Statute

Federal statute that opened U.S. courts to customary international law (law of nations) tort claims.

How do you bring a claim based on the law of nations in a U.S. court?

You must demonstrate that the state practice shows such a rule.

(T/F) Customary international law is seen as federal common law, which SCOTUS is given the final say on.

True.

Three groups of constitutional solutions when countries rely on explicit constitutional provisions to incorporate international law into municipal law (apart from treaties into municipal law).

1) Preambles, where the state indicates its "readiness" to submit to general international law.

2) Express incorporation, leaving legislators to resolve conflicts with domestic law.

3) Express incorporation plus priority over domestic law when conflicts arise.

How does England handle the incorporation of customary international law into its municipal law?

Customary international law is the law of the land so far as it is not inconsistent with an act of Parliament or a binding domestic precedent.

How does Canada handle the incorporation of customary international law into its municipal law?

Customary international law is adopted automatically unless the law conflicts with a statute or some fundamental constitutional principal.

How does India handle the incorporation of customary international law into its municipal law?

Customary international law is part of the municipal law unless there is a conflict between international and municipal law that cannot be reconciled.

Foreign Relations Law

Relationship between international law and municipal law.

Foreign Relations Law as defined by the Restatement Third

Foreign relations law of the United States consists of:

(a) international law as it applies to the U.S.; and

(b) domestic law that has substantial significance for U.S. foreign relations or other substantial international consequences.

American Exceptionalism

The tendency of the U.S. to disregard international norms, risking outsider status and diminished standing.

Grotius: The Laws of War and Peace

"Law is not founded on expedience alone; there is no state so powerful that it may not sometime need the help of others outside itself, either for purposes of trade, or even to ward off the forces, of many foreign nations united against it."