I. introduction international Law as Law



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INTERNATIONAL LAW OUTLINE
I. INTRODUCTION

  • International Law as Law

  • The Power and Purpose of International Law, Mary Ellen O’Connell

    • Critique of IL – The proper categorization of international law as a legal system as opposed to a system of morality or a non-binding code of conduct

      • Grotius – Law is as present an important for the relations between rules of nations as for individuals within nations

      • Austin – IL is only a type of positive morality and not law because its rules are not the commands of a sovereign backed by sanctions

    • IL lacks a compulsory system of dispute resolution by neutral decision makers applying sanctions

      • But sanctions do play a role; even if they are not efficiently enforced, people will start to recognize the binding quality of rules

      • The quality of a rule as a legal rule doesn’t require that they are always enforced, but that each is backed by a sanction

        • IL has such sanctions

    • Sanctions play an important role in establishing IL:

      • They play a formal role in identifying legally binding rules

      • They coerce a least some violators into compliance

      • They play a role in “internalizing” respect for international legal rules, decreasing the need for coercive enforcement

    • Community created right to sanction non-compliance through force is a key indicator that a rule is a legal rule and not a moral, social, or other type of rule

      • General compliance is important evidence that IL is accepted as law

    • Focus on sanctions presupposes that there’s already a rule that serves the common good

      • What are the processes of coming to a law and then how do we ensure it will be respected?

    • IL is the closest thing we have to a neutral way to take on complex issues

      • Neutral doesn’t mean lacking substantive values

      • Neutral in another sense, as based on something external to particular nations

      • IL allows diverse cultures to reach consensus about moral norms

  • Purpose of IL

    • Human interaction doesn’t remain within the bounds of states

      • We need international law because certain activities need to be coordinated

    • IL acquires it’s authority by being oriented toward the common good

      • Based on certain principles that serve our common interest

      • If it arises out of the common good, then it should be serving the common good

      • Measuring the scope and purpose of IL by its relation to the common good matters for us

    • We consider a domestic legal system complete because it takes care of all internal regulations

      • It changes when you add the international community

      • We regulate things on the US community level and smaller

        • There are lots of things IL doesn’t regulate

        • Always a question of what the proper scope and limits of IL ought to be

      • Subsidiarity – The common good should be served through the community closest to the people whose good we are trying to realize

    • Consider what this implies about relevant actors

      • Before IL and the Law of Nations, the term was ius gentium (the law of peoples)

        • IL is in important ways a law not just of nations, but people

      • Ius gentium applied to people not citizens of Rome

        • Implicitly saying a body of law that is universal across lines of citizenship, culture, religion

      • There is always a certain claim to universality of law

        • Creates a tension we’ll be dealing with

  • Problems of the common good

    • 1. Is it the good of individuals or the good of states?

      • IL operates primarily through states, but not just states and not just individuals

      • The relevant community of IL is not just states

        • Sovereign state is not the absolute authority in IL

        • It is very central, but limited

    • 2. How common does the commonality have to be?

      • Massive degree of pluralism in human family

      • Accountability to the common good raises issues of plurality and diversity

    • 3. Commonality of what?

      • Is the common good really just a material thing?

      • It really is a function of the material dependence of these nations

      • Just focusing on material interdependence might not cover everything

      • Two understandings of common good may lead to different ideas

        • 1. Material interest, cooperation

        • 2. Begins with value oriented assertion of what it means to be a human being

    • These 3 tensions have more practical applications

      • Where states are the makers and subjects of the law creates tension

      • For interpretation of those rules, we have disputes that need to be solved by third parties and sometimes there is one, sometimes not

      • Material interest can become a corruption without appeal to individual values

        • The needs of people and communities may not coincide with statehood

          • Can materially work together, but for bad reasons

          • Condor – Coordination between the military governments of the Southern Cone in order to eliminate their “opponents” during the 1970s and 1980s (extrajudicial execution, torture and forced disappearance of thousands of people)

        • Alternatively, can have a great moral code that is irrelevant

          • Outlawing war

  • In a community oriented towards effective rule at a practical level, it makes sense to say it should be a consent based system

    • Law likely to be obeyed

    • But that can’t be the entirety, need more

  • Basic point is that a lot of the specificities of IL can be understood as a systematic attempt to reconcile:

    • Consent vs. authority

    • Political practice vs. idealism

    • Individuals vs. States

    • Primary Q: What are the values/interests IL should serve, seek to uphold?

  • Harold Koh, Why do national obey IL?

    • 1. Reasons of power and coercion

      • Threats of coercion

    • 2. Self-interest

      • In their long term interest

    • 3. Liberal theory, both rule legitimacy and political identity

      • Rules are fair (rule legitimacy) and they should obey because they are law-abiding individuals (political identity)

    • 4. Communitarian reasons

      • Appeals to community, not acting purely out of self-interest

    • 5. Legal process reasons

      • Internalizing norms into their own internal value sets

  • The Nature of the International Legal System

    • Piracy – Generally committed beyond the jurisdiction of states, and so requires law that is applicable beyond national jurisdiction (demonstrates why we need international law)

    • U.S. v. Smith – Pirates, being hostes humani generis, are punishable in the tribunals of all nations

      • Material common interest that is generally global

        • Common because it’s happening outside the authority of states

        • Incapable of being addressed by a single state

      • When commonality of interest demands a solution in IL, who is going to enforce it?

        • Here the US state is making and enforcing it

      • SC found the crime of piracy in customary IL

    • Security Council Resolution on Somali Pirates

      • Calls upon states to take part in the fight against these pirates

      • All states affected by the Somali pirates

      • Reference to Somalia’s incapacity to deal with it

      • Specifically notes the resolution only relates to the situation in Somalia and doesn’t create customary international law

  • International Challenges and the Role of Law

    • Richard Mansback and Kirsten Rafferty, History and Global Politics

      • Global politics reflect change and continuity

        • Change – transformation of key structures and processes

        • Continuity – change retains key features of the past

      • Knowledge of the past makes the present more understandable

        • Much that seems novel has roots in the past

    • Hans Maull, On the Concept of “International Order”

      • The present international order, as expressed in the UN Charter, is built around the norms of nonviolent conflict resolution, states rights, and human rights

        • But last two are in tension – is it an order of and for states or of and for individuals

      • One widespread notion of international order equates it with international stability

        • Focuses on relations between major powers

        • But now this narrow definition is no longer very useful

          • Threats to security include both states and non-state actors

          • Individual and social security concerns are more important, rather than just territorial integrity

        • Need a concept that covers both intra and interstate relations, both state and society

      • Another notion is equating it with the prevailing international status quo

        • Western concept of international order, while promoting this notion, is geared towards change, to accommodate the dynamics of capitalism and the values of democracy

      • Norbert Elias – model for explaining the progress of controlled change towards a more civilized world, “civilization hexagon” for enhancing international order

        • Constraining and eventually monopolizing the use of force

        • Developing a non-violent culture of conflict management

        • Fostering the rule of law

        • Building institutions

        • Providing for participation in decision-making by those affected by the decisions

        • Providing for social equity and fairness

      • About order, creating, maintaining

        • Law seen to be the “gentle civilizer of nations” late 19th C.

        • But order has its drawbacks – it can hide inequality, disparities of power controlled by a certain sect

  • The Role of Law in Shaping the International System

    • Addis Adeno, Imagining the International Community

      • International community as a community of values doesn’t just generate IL, in some instances IL helps create a community of values

      • “Imagined community” – All communities larger than villages, imagined because members will never know their fellow-members, yet they believe in the community

        • Universal jurisdiction assumes the existence of a community as it simultaneously constitutes that community

        • It’s not clear the new assertion of universal jurisdiction should be going this way – in part trying to use IL to say it should be part of the international community

      • One of the basic values of the international system is diversity

        • IL is caught in this middle ground between protecting diversity and drawing on a sufficient commonality that will help preserve order and continuity

    • Naomi Roht-Arriaza, The Pinochet Effect

      • New world after Pinochet case, no longer could dictators find refuge in their official position to excuse them from charges

    • Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet

      • Spain sought to extradite Senator Pinochet when he went to the UK for medical treatment, on charges that were mostly not related to Spain

      • Challenges – (1) He has state immunity regarding those crimes, and (2) Those crimes weren’t crimes under UK law at the time committed, and so not “extradition crimes”

        • Court decides that torture has been an international crime in the highest sense

      • Ontological problems about the human being

        • These crimes so offend what it is to be human, IL takes up the cause

        • OR, IL takes it up because the state failed to

      • About individual persons and dignity or the interest of states in the international community?

        • Might say it’s in states’ interest to have people with legitimacy in the exercise of their authority

II. Basic Elements of the International Legal System

  • a. The Sources and Evidence of International Law

    • International law must be traced to one of the recognized sources, regardless of what topic the law is under

    • Stated in the Statute of the International Court of Justice

      • a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states

      • b. International custom, as evidence of a general practice accepted as law

      • 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.

  • TREATIES

    • 1.) No formal categorization, but we can functionally think of them as contractual, constitutional

    • 2.) Effectiveness is what makes treaties work well

      • This relates to what the purpose of the treaty is

        • Ex; Arms control treaty, question of ongoing effectiveness is very important

      • They are entered into with certain solemnity, features that aim to preserve stability

      • Even when a state breaches a treaty, it will always argue that its behavior is consistent with the treaty

        • Prefer a legal justification, countries almost never blatantly go against a treaty

    • 3.) The formality that contributes to efficacy varies greatly

      • Legal Status of Eastern Greenland

        • Norway is bound with a casual verbal statement by the Minister of Foreign Affairs to refrain from contesting Danish sovereignty over Greenland

          • Absent of ratification doesn’t mean there’s no treaty

          • Ratification is a common, but not necessary step

        • Contemporary treaty law has 1000s of years of practice with standards developed

          • Only at the end is it codified in the Vienna Conventions

        • Now there are formal requirements and we tend towards greater formality, but this hasn’t displaced customary law

          • Verbal agreement counts, even if unilateral and related to another agreement going in the other direction

        • Treaties as a source of IL are very different from those in a domestic system

    • 4.) But the international system doesn’t depend on domestic legitimacy

      • Domestic law cannot be a reason for a state to not comply with IL

        • Cannot use it as a justification for breaching IL

      • Raises the problem of who has authority to enter into IL agreements

        • A local US soldier in Iraq as an agent of the US?

        • There are very complicated rules about who and when, but a lot of people can

          • Sometimes those not authorized under domestic law, are under IL

          • Pushes us more towards formalism in creation of treaties

        • As a practical matter, it’s hugely important to have domestic authority – we want the state to adhere

  • Vienna Convention on the Law of Treaties

    • In 1969 the UN International Law Commission completed the Vienna Convention on the Law of Treaties

      • Considered binding, even on non-parties, as customary IL

      • US follows almost all of the convention, invoking it as customary law, except the progressive areas

      • It does not exhaust treaty law, background of treaty law is rich

    • The Preamble is important

      • Rules about how we makes rules, system of law, not just a set

      • Codification of this body of law and progressive development

        • Codify what we like and develop in ways we think healthy

    • Articles 1 & 2 – Scope of the Convention

      • Applies between states; huge limitation because it doesn’t apply to organizations

        • Law Treaties between States and International Organizations has not been brought into force because the original is used beyond what it’s meant to apply to

      • Treaties may be oral

      • Treaties are governed by IL (can’t be law of NY)

    • Doesn’t matter what it’s called, doesn’t have to be “treaty”

      • One important exception, US constitution refers to treaties and it doesn’t have the same meaning, it’s more specific

    • “Consent to be bound” – Clear in the context of Vienna that you have to have an intent to be bound, this is critical

      • Underlying theory of legal obligation that makes it important

      • It’s a political act when states creates agreements without clear consent to be bound, it’s not a treaty

      • Question then, how do we verify that intent?

  • 1. Formation

    • Overwhelmingly treaties are made with a lot of formality

      • On the one hand, it makes it clearer

      • Also helps with one of the background values, problems of diversity

        • Want stability among parties in this highly diverse world

        • Clarity even among people with very different backgrounds

    • Ratification

      • In IL it means the confirmation of initial obligations

        • Very different in IL and the US – Usually it’s the process of ratification by the senate in the US

      • If you sign a treaty before you’ve ratified it, you have an obligation not to defeat the object and purpose of the treaty

        • Ex; US signed the Rome Statute, but then decided they didn’t want to ratify it

          • They took steps to ensure the US wouldn’t be subject to the jurisdiction of the court by making bilateral treaties with other nations

          • Then made clear they had no intention to ratify and announced that they had unsigned the treaty

            • Underlying intention is accurate, doing it so the legal effect of the signature was cancelled

    • Accession

      • Difference between accession and ratification don’t matter to us

        • Both ways of agreeing to a treaty, legal effects are the same

      • Treaties are generally open for signature for a period of time

        • When it closes you can no longer sign, then can only do accession

  • a. Reservations

    • VCLT Article (2)1, a reservation is “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”

      • Reservations are permitted in some cases without the express consent of all, allowing more parties to join the treaty,

        • But this can undermine the integrity of the treaty as parties try to make reservations incompatible with the treaty

      • Seen as one of the structural weaknesses in IL

        • Why we see pressure towards governing the reservation process

    • VCLT Article 19 – Formulation of Reservations

      • States may make reservations unless (a) the treaty prohibits it, (b) the treaty provides that only certain reservations may be made, (c) the reservation is not compatible with the object and purpose

      • States are modifying for themselves the content of the treaty

      • Anything that purports to modify the content of the obligation is a reservation, even if called declaration, etc.

    • In the 19th C with bilateral treaties, default rule was everyone had to agree

      • Starts to become common for states to have reservations not applicable to everyone

    • Reservations to the Convention on Genocide

      • First, the treaty itself says it allows for reservations

      • This is the first global HR treaty, paradigmatic of a universal value

      • Q – Can a contracting State be a party to the Convention when there is a divergence on views over accepting and refusing a reservation?

        • Yes, reservations are allowed, unless prohibited, and only so far as they are related to the object and purpose of the treaty

          • Cannot simply make any reservation and have it be ok

          • Codified at VCLT 20(4)

      • There can be more than one object and purpose to a treaty and they may not be compatible with one another

        • Purpose of the treaty is to recognize the universal norm that genocide is bad

          • Those opposed wants to continue the unanimity rule

          • They say the point is to have universal condemnation without reservations

        • Another is to have as many states as possible participate, cooperation to safeguard against genocide

          • So do they want a state to be party to everything in it but one aspect, or nothing at all

            • Paradox of having more states or no reservations

    • Who decides?

      • Other states together decide whether reservations are compatible with a treaty

        • States may do a number of things

          • Staying silent – Effect is that the treaty is in force between the two nations, except for the article one state reserved

            • In bilateral relations, that article is not applied to either of them

          • Objecting and saying they don’t deem the other state to be a party to the treaty because it goes against the purpose – The treaty doesn’t apply between the reserving stat and the objecting state

          • Objecting, but saying they don’t deem it to come between them – Treaty is in full force

          • Accepting – Full treaty in force

        • Problem is that staying silent and objecting, but allowing the treaty, those states end up in the same situation

      • Potential solution is to put the authority to decide in the hands of an authoritative third party

    • Some treaties do provide for some rules on reservations

      • Some prohibit treaties

        • Ex; UNCLOS – Took years and years of formatting and the deal unravels when you allow reservations

      • Some create an institution to adjudicate such matters

        • They also determine not only if it’s compatible with the treaty, but if it can be seen to modify it

    • Belios v. Switzerland – Belios wants to appeal a fine in Switzerland, no court to do so, so she files a claim with the ECHR, claiming her right to a fair trial

      • Switzerland says they made a “declaration” but the Court determines that it is not a reservation

        • Switzerland made both “interpretive declarations” and “reservations”, so it was difficult to tell

        • But the declaration does not satisfy Article 64 of the ECHR on the requirements of reservations

          • It was of a “general character” as opposed to being clear and precise as required, and didn’t contain “a brief statement of the law concerned”

      • Even though Switzerland doesn’t consent to this provision, they’re still a party to it – pretty radical

        • But not very controversial here – Switzerland is part of the EU and needs the other nations

      • Turns on the question of consent

        • The court justifies it here on the basis of implied consent

        • So far, classic consent has won out, except in the ECHR

      • ECHR is trying to strengthen commonality on certain issues, especially HR (No mistake this comes up in a HR case)

        • Reservations are a particular problem for HR treaties
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