Outline for international law I. Introduction: What is International Law? Why do States comply with it?



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OUTLINE FOR INTERNATIONAL LAW

I. Introduction: What is International Law? Why do States comply with it?
1. Defining International Law
Definition from Restatement Section 101:

  • “‘International law,’ as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

Public International Law



  • governs the activities of governments in relation to other governments

Private International Law

  • governs the activities of individuals, corporations, and other private entities when they cross national borders


Entities that create international law:

  • States

  • International organizations (which are composed of states)


Subjects of international law, who bear the rights and duties of international law:

  • states

    • international law developed to regulate states because of:

      • the emergence of states

      • state interaction

      • development of the laws of war

        • Purpose for laws of war: it is in the mutual interests of all states to regulate the conduct of war, and in trying to agree on rules that will make it unlikely that war will happen.

    • The Classic Model of relations between/among states

      • States are opaque (billiard ball theory – states hit each other one the outside but do not interfere with one another’s internal affairs) and we don’t really look at what’s inside

        • Thus, international law only regulated relations between states, and did not regulate the internal affairs of states

      • Now, international law is also used to regulate the internal affairs of states

  • Individuals

    • The person has become increasingly accepted as an independent actor, subject to and benefiting from international law (this is a recent development)

    • Individuals are not parties to international law – they can be a bearer of duties and a beneficiary of rights, but they are not parties to international law

  • corporations

  • international organizations

    • for the purposes of our class, an international organization is an organization composed either solely or primarily of states, like the United Nations


Sources of international law:

  • Customary international law

    • Article 38 of the ICJ

  • Treaties

    • A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law (something binding under the laws of one state is not international)

    • Treaties are binding and legally enforced upon the parties to it

    • Treaties can be bilateral or multilateral

  • The general principles of law recognized by civilized nations

  • 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

Both the Statute of the ICJ, Article 38 lists the sources of international law (see p. 3 in book for more)



  • ICJ, Article 38:

    • “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

  1. international conventions…

  2. international custom, as evidence of a general practice accepted as law

  3. the general principles of law recognized by civilized nations

  4. 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

The Restatement, Second, of Foreign Relations, Section 102, defines customary international law



  • Restatement Section 102

    • “(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.” (referred to as “state practice”)

    • so customary law is composed of two elements:

      • it is the general and consistent practice of states

      • the states follow this practice out of a sense of legal obligation

    • it appears that only states make customary international law

    • customary international evolves – if enough states adopt a new practice, which is in violation of customary international law, the new practice becomes the new customary international law


Jus Cogens

  • VCLT, Article 53: “a peremptory norm of general international law which is accepted by the international community of states as a whole as a norm from which no derogation is permitted”

  • Includes genocide, torture, slavery

2. Responses to the Terrorist Attack of September 11, 2001
Did the Terrorist Attacks violate international law?

  • Yes – they hit a civilian target, in violation of international humanitarian law – the law governing conduct of war as conducted by states

    • One of the most fundamental norms of international humanitarian law is that civilians cannot be the direct target of an attack (Fourth Geneva Convention)

  • So…was the attack an armed conflict? Do international humanitarian laws apply?

    • Who were the attackers? Members of a terrorist organization that were provided a haven in Afghanistan.


Responses in the immediate aftermath of the attacks
NATO:

  • NATO invoked article 5 of its charter, which deals with what happens in the event that one member suffers an armed attack:

    • an armed attack against one shall be considered an attack against all, which entitles all to individually or collectively employ self-defense according to Article 51 of the UN Charter; the alliance individually or in concert can take such action as is necessary to restore and maintain the security of the North Atlantic area; this includes armed force; everything that NATO does has to be reported immediately to the Security Council (p. 73)

    • It is significant that NATO considered this an “armed attack” because Article 2.4 of the UN Charter says that states are not to attack other states; so calling it an armed attack suggests that the attack violated Article 2.4.

      • However, Al Qaeda is not a member of the UN, and is not a state…

    • How much complicity must we look for before we can implicate Afghanistan?

      • Bush repeatedly used the phrase “states that harbor terrorists”

      • Can this wrongful conduct be “legally attributed to a state”? If so, we can establish “state responsibility”

United States:



  • Article 51 of the UN Charter says that states may act in self defense “if an armed attack occurs,” which means that a member state of the UN can act in self defense when it is a victim of an armed attack

    • We need to worry about whether the attack came from a state when we have Article 51 because the body of law that has developed around self defense has revolved around defense against attacks by states

UN Security Council:



  • Resolution 1368 (Sept.12, 2001)

    • Security Council recognizes the right to self defense

      • the security council is implicitly agreeing that an armed attack occurred

      • Article 51 says that states have an inherent right to individual or collective self-defense in the event of an armed attack against a member of the UN, until the Security Council has taken measures necessary to maintain international peace and security

      • Even if the Security Council is involved, states may continue to act in self-defense until the Security Council takes action

    • The Security Council says that the attack was a “threat to international peace and security”, invoking Chapter VII, which deals with threats to the peace, breaches of the peace, or acts of aggression

      • Article 2.7 – states cannot muddle with the internal workings of a state, unless the Security Council takes measures under Chapter VII

      • Thus, the Security Council made it possible for another military source to counter the threat posed by the terrorists

        • In essence, Chapter VII provides another route through which armed force may be authorized, albeit a last resort

    • Article 40: deals with recommendations that there are provisional measures for preventing the situation from getting worse

    • Article 41: deals with nonmilitary measures

    • Article 42: deals with military measures

So on its face, the US violated Article II of the UN Charter



  • however, the US acted pursuant to both Article 51 of the UN Charter (self defense) and Chapter VII powers of the Security Council

Action taken by President Bush that involve freezing assets… (see page 71-72)



  • Bush invokes

    • International Emergency Economic Powers Act (50 USC 1701 et seq.)

    • National Emergencies Act (50 USC 1601 et seq.)

    • Section 5 of the UN Participation Act of 1945

    • Security Council resolutions

  • Bush freezes the assets in the US or in possession of US entities of 27 terrorists, terrorist organizations, and charitable organizations believed to fund terrorist activities

The war in Iraq…



  • Was the United States’ attack on Iraq legitimate?

    • Did we violate Article 2.4 of the UN Charter, as we had not been attacked by Iraq, and thus led an offensive, rather than defensive, attack?

    • Was there a previous authorization for the use of force in Iraq in Security Council Chapter VII resolutions?

    • There is an expansive, controversial argument based on Article 51, that we were about to be attacked and didn’t need to wait until we were attacked – Iraq poses such a threat that we must exercise our right to self defense preemptively (the “preemptive strike doctrine”)

      • The US made this argument, but the use of force is still only a last resort, so this was not the best argument


II. Sources of International Law
1. Treaties
Basics:

  • Treaties are a source of international obligation for those states that agree to be bound by them

  • As the United States has not ratified the VCLT, treaties are legally binding under customary international law

  • As for states that have ratified the VCLT, treaties are legally binding under Article 26 of the VCLT: Pacta Sunt Servanda

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

    • Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties is a breach of international law

  • A treaty enters into force when:

    • 1) The state has consented to be bound

    • 2) The treaty has entered into force

  • Restatement Section 96: a treaty requires no consideration – it may create unilateral obligations (example – a treaty of surrender at the end of a war)

  • Some treaties (multilateral treaties) have been called “legislative treaties”

    • These are treaties where states are trying to establish rules that will be followed by as many states as possible (the goal is to establish rules that every state will sign on to)

  • A party is a state that is bound by a treaty; a signatory is a state that has signed but is not bound by a treaty


Vienna Convention on the Law of Treaties (“VCLT”)

  • though the US has not ratified the VCLT, the US regards most of its provisions as customary international law

    • so, because the US is not a party to the VCLT, the US CAN violate the VCLT, but it cannot violate the provisions of the VCLT that are customary international law

  • The VCLT frequently establishes rules that will apply as a default when a treaty doesn’t say how it will operate (Example – Article 24 (entry into force of a treaty))

  • Specific Articles:

    • Article 2 (1)(a): Definition of a treaty – “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”

      • Comments on this article

        • “concluded between states” – customary international law shows that entities other than states can be parties to treaties, including international organization

        • “in written form” – international agreements do not have to be in writing according to customary international law

        • “governed by international law” – VERY important

        • “and whatever its particular designation” – the title of a document does not necessarily determine whether a document is a treaty




    • Article 2 (1)(g): Definition of a party to a treaty – “a State which has consented to be bound by the treaty and for which the treaty is in force”

      • So there are two requirements:

        • 1) State consent

        • 2) the treaty must have entered into force

      • a state party is legally bound to comply with a treaty







    • Article 11: Means of expressing consent to be bound by a treaty:

      • Treaties usually specify how states give consent

      • Article 12: “Signature” – can be a sign of consent

        • in processes with a signature and ratification, the signature demonstrates commitment and intent to ratify, but not necessarily consent to be bound

      • Article 14: “ratification” – used to refer to an act by which a state demonstrates its consent to be bound by a treaty

        • may involve an exchange or deposit of instruments of ratification

      • Article 15: “accession” – an act by which a state expresses its consent to be bound when it has not previously signed a treaty

        • sometimes treaties provide in their text that a treaty is open for signature until a certain date, after which parties may join the treaty by accession (legally, this makes no difference, but it may make a political difference)




    • Article 18: a state is obliged to refrain from acts which defeat the purpose of the treaty if it has signed or ratified the treaty until it makes its intention clear not to become a party to the treaty, or it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed

      • Additionally, in the period between signature and ratification, a state still has the duty not to take acts that defeat the purpose of the treaty

      • Often, treaties (multilateral treaties in particular) will specify what has to happen before the treaty as a whole will come into force

        • VCLT has a provision in it stating when it will come into force

      • What happens when there is a long period when a large number of states have signed and ratified a treaty, but the treaty has not, for whatever reason, come into force? Article 18 states that a state is obliged to refrain from acts which would defeat the object and purpose of a treaty when the state “has expressed its consent to be bound by a treaty, pending the entry into force of that treaty and provided that such entry into force is not unduly delayed.”

      • “unsigning” of the Rome Statute by the US – the Bush Administration merely notified the UN that it did not intend to become a party to the Rome Statute

        • the US’s actions bear significantly on Article 18 of the VCLT

        • because of the “unsigning,” the US is legally free to take acts to defeat the object and purpose of the Rome Statute




    • Article 26: Pacta Sunt Servanda

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

      • Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties is a breach of international law




    • Article 31: Interpretation of treaties: a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose (for more specifics, see supp. p. 58)




    • Article 32: Supplementary means of Interpretation

      • “travaux préparatoires” – preparatory work (drafting history)

      • circumstances of the treaty’s conclusion




    • Articles 34-38: rules regarding third-party states, which can become the bearer of rights or obligations under the treaty if they consent to it

      • Must accept the obligation in writing

      • We worry about this when a treaty creates obligations, rather than when it creates 3d party rights (Rome Statute issues in the United States: the Rome Statute creates the International Criminal Court (ICC), which has jurisdiction to try individuals for war crimes, genocide, and crimes against humanity (and maybe one day the crime of aggression); the ICC can try individuals who are nationals of states parties, or individuals who commit the aforementioned crimes in the territory of a state party)




    • Articles 42-68: invalidity, termination and suspension of the operation of treaties

      • Articles 46-52: invalidity of treaties, covering a state or its representative’s competence to conclude treaties, as well as error, fraud, corruption, duress, coercion

      • Article 53: treaties conflicting with jus cogens

        • A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international law

        • If there is a norm that has the status of jus cogens, states may not opt out from it under a treaty

        • There are cases where this provision has been invoked: Inter American Commission on human rights (Surinam and the Netherlands)



    • Article 60: termination or suspension of a treaty as a consequence of its breach

      • BILTERAL treaties: A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

      • MULTILATERAL treaties: A material breach of a multilateral treaty by one of the parties entitles:

        • The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either

          • In relation between themselves and the defaulting state or

          • As between all the parties

        • A party specifically affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state

        • Any other party than the defaulting state to invoke the breach as ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that the material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty

      • Defines a material breach

      • The provisions relating to breach do not apply to treaties or their provisions relating to the protection of the human person contained in treaties of a humanitarian character (the violation of the Genocide Convention by Rwanda is an example of this – you can’t respond to a breach of the Genocide Convention by committing genocide yourself)

      • NOTE: A breach does not automatically induce an effect – it creates a situation which allows another state to decide what to do

        • States may not want to suspend or revoke the treaty for various reasons (it wasn’t a breach of an important part of the treaty; states are picking their battles; etc.)

        • Options other than those listed in Article 60:

          • Keep the treaty in effect but seek damages

          • arbitration


Reservations to treaties

  • A “reservation” is a statement by a party that wants to become a party to a treaty but wants to amend its rights or obligations under the treaty

    • VCLT definition: Article 2 (1)(d): “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 modify the legal effect of certain provisions of the treaty in their application to that State.”

  • Comes up most in multilateral treaties

  • VCLT Article 19: reservations are allowed unless (a) the reservation is prohibited by the treaty; or (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) the reservation is incompatible with the object and purpose of the treaty.

  • VCLT Article 20: Acceptance of and Objection to Reservations

    • Reservations expressly authorized by treaties do not require any subsequent acceptance unless the treaty so provides

    • Acceptance by another state of a reservation makes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those states

    • An act expressing a state’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting state has accepted the reservation

    • Note: acceptance is assumed if no state objects to a reservation within one year of the notification of the reservation

  • VCLT Article 20 (2) – when the nature and purpose of a treaty require that all provisions of the treaty apply to all parties, in order to or state for make a reservation, that reservation must be accepted by all other states parties

  • VCLT Article 21: Legal effect of a reservation:

    • For the reserving state and other states that accept the reservation, the treaty is modified in its relations between the reserving and accepting states

    • For states that made no reservations, the treaty remains unmodified

    • For states that reject the reservation but do not oppose the entry into force of the treaty between themselves and the reserving state, the provisions to which the reservation relates do not apply between the two states to the extent of the reservation

      • Example: if State A make a reservation concerning a part of a treaty, and State B does not accept the reservation but wants State A to be a party, the treaty will be enforced between states A and B as though that part of the treaty was not in that treaty

    • Fragmentation of a treaty: the process by which reservations create different obligations among the various states parties

  • Pros and Cons of reservations

    • Pros

      • Because the treaty is so important that it is desired that as many states as possible sign on, regardless of their minor problems

      • Treaties are meant to apply a uniform rule and solidify that rule, and so the more states that have signed on, the stronger the treaty will be

      • Fragmentation of treaties allows countries to adapt treaties to internal constitutional requirements

    • Cons

      • It may weaken the treaty, and we want the treaty to be as strong as possible

      • It may defeat the purpose of a treaty

      • It may allow parties to a treaty to reap the benefits of the treaty while not paying the price of being a party to the treaty

  • Note: if a party to a treaty violates another party’s reservation which it had previously accepted, then it is violating the treaty with regard only to the reserving party



Declarations

  • States will sometimes make declarations that are not legally binding, such as the Universal Declaration of Human Rights, FCN Agreement between the US and Japan, and the Economic Cooperation Agreement between the US and the Soviet Union

  • “Soft Law”: instruments that are not legally binding by themselves but are a significant step towards law (a lot of states are made nervous by soft law)

  • Why make declarations that are not legally binding?

    • States aren’t prepared to undertake a legal obligation, or they aren’t sure if other states are ready for it

    • Maybe it creates more political, rather than legal, pressure

    • There is the hope that such documents will gain such sufficient adherence from states that the documents will be a part of the process towards legal obligation (maybe followed by a treaty)

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