law school outline: international law



International Law 
Introduction
  1. Definition

  1. Determination of rules or process to determine rules
  2. Continuity of classic and new international law
  3. The law of the society of States (Westlake)
  4. Assures coexistence of different interests worthy of equal protection (Max Huber�s Las Palmas)

  1. Division between pre-WWII and post-WWII philosophies

  1. Cold War underscored differences in attitude towards internaitonal law, muddied difference between war and peace.
  2. China initially dismissed international law, but renewed interest in 1970�s.
  3. Decolonization in post-WWII has necessitated third world bloc voting in international organizations in order to assert sovereignty against economic imperialism from foreign investors.

  1. Development of legal system

  1. Primitive legal system

  1. Lack of legal certainty and physical security
  2. Limited range of legal norms
  3. Importance, domination of custom
  4. Self-help, retaliation, lex talonis (eye for eye)
  5. Close link to religion
  6. Trial by battle and ordeals
  7. Use of legal fictions
  8. Excessive formalism
  9. Liability of inanimate objects

  1. Primitive international law

  1. Lack of legislation, adjudication, law-enforcement
  2. Wide spectrum of legal norms
  3. Reducing role of customs
  4. Remain as sanction � self defense as use of the armed force
  5. Collective responsibility of subjects reduced
  6. No religious connection
  7. Prohibition of the use of force
  8. Reduced
  9. No formalism
  10. Elimination of dangerous elements

  • Sources and Evidence

  1. Treaty

  1. Reflects contractual international agreements, binding only to the parties to the agreements.
  2. Breadth

  1. Multilateral agreements which act as legislative processes.
  2. Area-specific collaborations (administrative)
  3. Bilateral agreements reflecting mutual exchange of rights and obligations.

  1. Codification versus development

  1. Codification of existing mores: Law reflects rather than imposes order. Reducing the unwritten law of precedents to written generalized rules, such as a Restatements. May impede the pace of change.

  1. Creation in the United States

  1. Only the Federal government can enter into a treaty with a foreign government.
  2. In practice, treaties are ratified by the President after the Senate has given its advice and consent.
  3. Congress then must implement the agreement, unless it is self-executing (such as those creating obligations to refrain from acting).
  4. House of Representatives is now being included more via Executive Agreement by seeking agreement of both houses of Congress.

  1. Improves democracy
  2. But limits balance of power and checks.
  3. Such agreements must be transmitted to Congress within 60 days.
  4. Can be self-executing and have status of law of the land, but can be overridden as such by subsequent act of Congress.

  1. Termination by agreement (by President � no Senate approval needed) or fundamental change in circumstances.

  1. Custom

  1. Uniform (consistent) practice over a period of time.

  1. corpus juris:
  2. jus cogens:
  3. opinio juris: General practices which evolve into international law via custom.  Ius cogens: Norm from which no derogation is permitted, such as the prohibition of genocide, slavery, agression. Fundamental principals: Sovereign equality, territorial integrity, etc. which cannot be set aside by majorities though practice nor agreement.
Can be indicated by national law, regional custom, decrees, military comanders, judicial decisions, established writers. Whether a customary law is binding on a party depends on whether the party has protested or acquiesced to the custom.

  1. Protests must be unambiguous and persistent during hte formation of the custom. Acceptance of custom is presumed unless state indicates otherwise.
  2. Acquiescense must indicate that the state regards its conduct as conforming to what amounts to a legal obligation.
  3. Acquiescense can occur by a state justifying incompatible conduct by appealing to exceptions or justifications in the rule itself, thus confirming the rule.
Treaty may be accepted as customary law and therefore binding on nations not parties to the treaty if the treaty either restated existing custom or generated new custom. Customary law may be superior to treaty law because

  1. States cannot withdraw from customary law
  2. Customary law may already be a part of domestic law
  3. May carry more weight than a treaty for enforcement
General Principles

  1. Sources

  1. Municipal laws that are sufficiently widespread to be considered international.
  2. General principles derived from nature of international community, such as non-intervention, territorial integrity, self defense and legal equality of the states.
  3. Principles intrinsic to all legal systems
  4. Principles valid through all forms of societies
  5. Natural justice

  1. Equity

  1. Individualize decisions and allow exceptions to the general rule, either within the law, outside the law, or against the law.
  2. Proportionality
  3. Not applicable if agreement setting up arbitration required decision based on law (not equity).

  1. Estoppel
  2. Unjust enrichment
  3. Abuse of rights
Judicial Decisions

  1. International Court of Justice

  1. No stare decisis nor precident, but decisions are highly persuasive.
  2. Reference to prior decisions for consistency.
  3. Governed by articles 38 and 39 of ICJ Statute
  4. Does not create rights that are enforceable by individuals in US courts.

  1. International Arbitral Tribunals
  2. Other International Courts
  3. Municipal Courts (such as USSC)
Legal theorists and bodies of theorists

  1. Sources

  1. International Law Association
  2. International Law Commission
  3. Hague Academy of International Law
  4. Restatements

  1. Not used by the ICJ, but useful as evidence of international law rules.
UN General Assembly

  1. Recommendations have no teeth.
  2. Declaration creates an expectation of adherence among the international community.
  3. May create international custom (opinio juris)

  1. Assumption that if all or nearly all states agree on what is the law, that is enough to be conclusive evidence of International Law.
  2. Lack of general consensus negates declaration of international law.
Other acts of governments which serve as estoppel to prevent the government from acting inconsistently when other nations reasonably rely on the act.

  1. Political declarations
  2. Non-binding agreements
  3. Good faith
Patriarchy

  1. Feminist theory says that women would be more concerned with basic human, social and economic needs.
Incorporation to municipal law

  1. Theories

  1. Dualistic or separate systems
  2. Monistic or unified system, with international law superior
  3. Some constitutions explicitly incorporate international law: Germany, Italy, Austria, Greece, France.
  4. Others have no explicit reference: Switzerland, Netherlands
In America

  1. America inherited international law via its inheritance of common law from England. Two theories:

  1. The thirteen individual states inherited IL, therefore the federal laws are supreme. This argument looses, because when the 13 states formed the nation, IL was passed up to the sovereign state.
  2. Better view is that IL was inherited directly from England by the entire nation, as a sovereign state.

  1. International law is treated as being incorporated and applied as domestic law, but inferior to the Constitution.

  1. More recent laws supercede prior laws.

  1. Constitution provides for enforcement of "offenses against the law of nations" but that has been held only to apply to ships and airplanes. Clause doesn�t really apply to individuals since Constitution can only limit states, not individuals.
  2. President has the power and obligation to enforce the laws. Enforcement of this obligation is a political question, so not really touched by the courts.
Authority

  1. Basis of obligation

  1. Consent of the states

  1. International tribunal only effective when parties have accepted the compulsory jurisdiction of the tribunal.
  2. Legitimacy of the law increases likelihood of compliance

  1. Customary practice
  2. Sense of "rightness"
  3. Natural law
  4. Social necessity
  5. Consensus of international community
  6. Intuition
  7. Common purposes of participants
  8. Effectiveness
  9. Sanctions
  10. Systemic goals
  11. Shared expectations as to authority
  12. Rules of recognition

  1. Myth: Nations would act the same way if there was no law. In fact, law aims at nations which are in principle lawabiding, but which might be tempted to commit a violation if there was no threat of undesirable consequences.
  2. Balance of power
  3. Society (especially the international community) places constraints upon man to believe that order and not chaos is the governing principle of the world in which he has to live.
  4. Deviations from established law may be effective ways to change the law, but risky (Invasion of Panama).
  5. Vis-�-vis sovereignty

  1. Sovereignty: The whole body of rights and attributes which a State possesses in its territory, to the exclusion of all other States, and also in its relations with other States. Confers rights and imposes obligations upon States.
  2. States are political organs, and thus operate in continuous political relations with one another.
  3. A treaty is not an abandonment of sovereignty; the right to enter into such international engagements is an attribute of sovereignty.
  4. Increasing interdependence results in global ethos.

  1. Tension between international law and national interest

  1. When there is a problem, people become nationalistic even in defiance of international legal prohibitions.
Enforcement

  1. Decentralized system means no central enforcement organ or international police force, and this presents problems in identifying violations, relies on self-restraint and reconciliation.
  2. A state is responsible for violations by any branch or subdivision of its government, and may not use its own laws as an excuse for failure to perform a duty.

  1. States often place reservations on an international law to conform to the Constitution.

  1. Horizontal enforcement between nations or groups of nations is main enforcement of international law (but sometimes preponderence of force is on law-breaking side).

  1. Includes reproach or praise of other nations, including termination of relations and retaliation.

  1. MFN status
  2. Unlawful measures may be permitted in response to another state�s violation of laws.
  3. Aggrieved state must first seek peaceful vindication of asserted rights.

  1. These "extra-legal" consequences are effective deterrences.

  1. UN has some enforcement powers
  2. Observence of the law may be in their own interest.
  3. Moral sanctions
  4. Act of State doctine: Domestic courts will not entertain a cause of action arising in another jurisdiction against a foreign government.

  1. Overridden by legislation in America, unless President determines that doctrine needs to be applied for foreign policy interets.
Use of Force

  1. Traditional Law

  1. Prohibition on intervention and interference in the affairs of other states, i.e. complete independence. Less realistic today.
  2. Exceptions for safety of nationals, previous unlawful use of force by other state, chronic disregard of international obligations, self defense, humanitarian intervention, armed assistance to a government at its request.
  3. Forms

  1. Severance of diplomatic relations
  2. Retorsion: Unfriendly measures not prohibited by international law, such as shutting of ports, travel restrictions, denial of entry visas, revocation of tariff concessions, display of naval forces.
  3. Reprisal: Use of force as self-help justified by necessity, in approximate proportion to the offense. Must be preceded by unsatisfied demand.
  4. Self-defense: Confined to cases when the necessity of self-defense is instant, overwhelming, and leaving no choice of means and no moment for deliberation. Requires porportionality.
  5. Declared war

  1. Duty to observe rules of war (no duty if war is not declared?)
  2. Respect neutrality of non-belligerent states. Assertion of neutrality is not required.

  1. Neutral country must apply policies equally to all nations at war
  2. Neutral country is guaranteed inviolability of his territory and freedom from belligerent acts.

  1. League of Nations (1919): Failed attempt at disarmament, mandating a peaceful settlement of disputes. Member nations must defend each other.
  2. Kellogg-Briand Pact (1928): Mandated peaceful settlement of disputes.
  3. UN Charter (see United Nations)
United Nations (1945)

  1. International security system that accorded a veto power to each of the major protagonists, insuring its ineffectiveness.
  2. Membership is compelling proof of statehood.
  3. Purposes

  1. Maintain and restore international peace and security (A39)
  2. Outlaws "threat or use of force" (now recognized as jus cogens; A2�4)

  1. "Force" is ambiguous � probably applies to all force that involves a non-consensual use of a State�s territory or compels a State to take a decision it would not otherwise take, except self-defense
  2. Threats would include ultimatim backed by threat of war given to a country as a coercive measure, or other coercive measures.
  3. First use of armed force is prima facie evidence of an act of agression.
  4. Most likely excludes economic coercion.

  1. Friendly relations among nations
  2. International cooperation to solve problems peacefully, respect for human rights, fundamental freedom for all.

  1. Structure

  1. General Assembly

  1. All members of the UN are members of the General Assembly.
  2. Switzerland is not a member due to permanant neutrality.
  3. General Assembly can only make recommendations.
  4. Each member has one vote. Two-thirds majority required for important decisions.

  1. Security Council

  1. Ensure international peace and security

  1. Using force only against acts of aggression or breaches of peace. Used only in Korean war and Gulf war.
  2. Economic sanctions widely used.

  1. Consists of five permanent members: China, France, UK, US and Russia.

  1. Largely incapacitated during cold war.

  1. Consists of 10 non-permanent members who are elected to two year terms by and from the General Assembly.

  1. Secretary General

  1. Five year term
  2. Elected by General Assembly upon recommendation from Security Counsel.

  1. International Court of Justice

  1. Sanctions

  1. Self-help acts (self-defense; A51 of UN Charter)

  1. Retortion
  2. Reprisals
Imperialism

  1. There is no universal acceptance of Western notions of sovereignty and moral law. The word "law" does not translate easily into a number of foreign idea systems.
States

  1. Primary subject of international law
  2. Recognition of States

  1. Perminant population
  2. Defined territory: Not necessarily precise (Israel)

  1. Territorial sovereignty: Exclusive right to display activities of state.
  2. Requires continuous and peaceful occupation

  1. No territorial acquisition resulting from threat or use of force shall be recognized as legal.

  1. Discovery alone without subsequent act of display of authority is insufficient.
  2. Adverse possession ok
  3. River and lake boundaries are split down the middle (Thalweg doctrine).
  4. Sovereignty extends into airspace, and 12 miles into the sea.

  1. Government

  1. State does not loose recognition when occupied by foreign power or when government becomes ineffective or defunct.
  2. Multiple governments claiming entitlement is determined on case by case basis.
  3. Succession

  1. Does not affect private law nor debts.
  2. Does affect public law
  3. Successor state assumes no responsibility for prior state�s international law violations.

  1. Capacity to enter into relations with other states.

  1. Recognition of Government

  1. Exchange of diplomatic representatives
  2. May be done via other nations (Cuba via Swiss)

  1. Diplomatic relations
  2. No obligation to recognize state which has achieved statehood through use of force or threat.
Misc

  1. State may not exercise its power in the territory of another state, absent an agreement to the contrary.
  2. United States violated UN Charter in Nicaragua, probably Panama.
Organizations

  1. Created by international agreement
  2. Legal status

  1. Can be sued and can sue on behalf of its agents
  2. Court must enquire whether Charter permits Organization to require members to act.
  3. Members entrust certain functions to the Organization and must agree in order to be bound.
  4. Privileges and immunities when acting in member nations

  1. NGO (Red Cross)
  2. Multinational Public Enterprises
  3. Transnational Corporations

  1. Treated in international law as a national of the state of incorporation or PPB.
  2. Home nation may take up Corporation�s case at international tribunal.
People

  1. People are generally not under the jurisdiction of international law. It is up to their home nation to try or extradite their citizens. There have been some exceptions for horrible war crimes.
  2. Acting persuant to governmental order does not excuse responsibility, but may mitigate punishment. Test is not whether there was an order or not, but whether there was a moral choice that could have been made.

  1. But did not happen in May Lai nor Cambodia/Vietnam civilian bombings.
  2. Exception for political offenses.
  3. No exception for terrorists (Libya). US has bombed Libya in retaliation, claiming self-defense under Article 51 of the UN Charter.
Law of the Commons

  1. Oceans & Air

  1. Bay: Closing line of 10 miles
  2. Territorial Sea: 12 miles (US: 3 miles)

  1. Includes air space and sea bed
  2. Full sovereignty

  1. Contiguous Zone: 24 miles (US: 3+12 miles)

  1. Limited policing rights, including enforcement of customs, immigration, sanitation

  1. Customs Zone: 62 miles from US costline.
  2. Continental Shelf (or 200 miles)

  1. Sovereign rights over natural resources

  1. Economic Zone: 200 miles

  1. Sovereign rights over economic exploitation of living and nonliving resources, limited jurisdiction over research and environment.
  2. Other states may navigate through and over, and lay cables, pipes, etc. but their right to fish is limited by the coastal state.

  1. High Sea: Belongs to everone/noone
  2. Right of innocent passage (by ship and air)

  1. Between islands, through straits and canals
  2. Through territorial seas, although submarines must be surfaced and have flag flying.
  3. Innocent so long as no prejudice to peace or security of coastal state.
  4. No unauthorized research or survey activities permitted.
  5. Bordering states may prescribe traffic patterns and enforce safety, customs, immigration, sanitation, etc.

  1. Right of hot pursuit, commencing in internal, territorial or contiguous waters, ceases when ship pursued enters territorial sea of another state.
  2. Federal government has supremecy over state governments.
  3. Air defense zones extend several hundred miles into the sea.

  1. Polar regions

  1. US has not asserted sovereignty over South Pole, and does not recognize such claims by other states, but has reserved the right to make such claims.
  2. South Pole can be used for peaceful purposes only.
  3. North Pole is divided by "sector theory." Each state contiguous to the arctic region has a claim to a sector.

  1. Space

  1. Free for exploration by all states. Free access.
  2. Not subject to sovereignty, including by occupation.
  3. Cannot put nuclear weapons or other weapons of mass destruction into space.
Jurisdiction

  1. Territorial: Covers all acts in, on above or under the territory of the state.
  2. Nationality: State�s laws may cover all nationals, regardless of location of act.

  1. Of actor
  2. Of victim
  3. Of vehicles and objects (aircraft, ships, spaceships)

  1. Protective
  2. Universal (heinous acts)
  3. Treaty
  4. Conflicts must be worked out by agreement between the states, often in a treaty.
  5. Extradition

  1. No right to extradition unless treaty exists granting that right.
  2. However, a nation without an extradition treaty may still voluntarily extradite. But cannot be forced to.
  3. Extradition generally available only when the act is a crime in both states.
  4. Doctrine of specialty: Extradited person can only be tried for the crimes specified in the extradition treaty.
  5. Does not prohibit international abductions.

  1. A sovereign cannot, without his consent, be made a respondent int he courts of another sovereign.
Immunity

  1. States themselves have immunity
  2. Head of state
  3. State agencies
  4. Officials have immunity to the extent provided for in agreements.

  1. Against transactions within the scope of official authority.

  1. Ensure transit, shall not hinder passage.
  2. No immigration restrictions, although US does impose some protections against aliens, but generally no restrictions on passage to embassy or place of work.
  3. Complete freedom of speech
  4. Exempt from customs duties, most taxes.

  1. Papers & documents

  1. Host country may demand recall of immune person who violates law.
  2. U.S. requires immune people to carry liability insurance.
  3. Foreign country may waive immunity.
 

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