Intro to International Law

Intro to International Law

• Rules and principles govern the conduct of states, International Organizations (IOs), individuals, and non-state entities
• It composes of binding principles/rules to dictate duties, rights, liabilities, and mechanisms for dispute settlement.
• It is a legal system that governs relations between international community members like States, IOs, individuals, and international corps.
• Legal provisions are crafted and approved by states and they set their own rules, but with some flexibility/exceptions.

Domestic vs. International Legal Systems

• Domestic Legal Systems are hierarchical
• Kelsen's Pyramid has a clear system of who defines rules
• International Legal System uses equally sovereign states to create rules/treaties
• There's no law above each treaty in an international legal system
• Rules/treaties have the same value since they were created by states with the same power

International Rule Creation

• Treaties are agreements of international standards
• Custom is a behavior that becomes a tradition and is recognized by all members of society, known as customary rules
• States can craft international rules
• IOs can craft rules only on matters related to their mandate
• Individuals/other IL subjects can craft rules of a non-binding nature

Functions of International Law

• Regulates the use of armed force and prevents war
• Guarantees peaceful coexistence and allows cooperation in fighting climate change/poverty and protecting human rights

History Behind International Law

• Principles like pacta sunt servanda & good faith existed starting in 2100 BCE
• Ancient Greece developed arbitration systems, state hospitality, and wartime rules
• Ancient Rome established jus gentium & natural law which foundations for human rights
• Treaty of Westphalia established sovereignty through:
  • Territorial authority with independent power of States
  • Non-intervention in state affairs
• Congress of Vienna introduced periodic diplomatic meetings to resolve issues peacefully
• The Congress of Vienna recognized sovereign states as the sole subjects of IL and emphasized state consent and empirical facts over natural law

Nature and Enforcement of International Law

• John Austing & H.L.A Hart criticized IL for lacking a sovereign and secondary rules
• States comply through reciprocity, reputation, and enforcement mechanisms
• IL courts & treaties create binding obligations
• Enforcement of IL comes through:
  • Voluntary compliance driven by long-term benefits, fear of retaliation, and reputation
  • The United Nations, whose Security Council enforces peace & sanctions
  • The International Criminal Court which prosecutes individuals for war crimes & genocides

Relevance and Evolution of International Law

• It helps address global challenges through cooperation
• It stabilizes relations through treaties coexistence
• It regulates war & protects civilians (Geneva Conventions) during conflict
• The Interwar period replaced state conferences with IOs
• The League of Nations was the first attempt at global peace introducing collective security & arbitration
• A permanent court of international justice settled state disputes & developed legal principles
• The United Nations replaced the League of Nations and included a UN Security Council, the main enforcement body
• Principle of Self-Determination was a key part of the evolution

Controversies and Criticisms of International Law

• Philosophical/Theoretical perspectives debate whether IL qualifies as law
  • Austin argued that IL lacks a sovereign
  • Hart argued it's a primitive system with only primary rules
• Practically, aspects examine IL's effectiveness in real-world enforcement
• IL does have secondary rules like:
  • Rule of recognition as it is widely accepted
  • Rule of change for treaties & custom evolving over time
  • Rule of adjudication for international tribunals & treaties to enforce obligations
• Misconceptions about IL are:
  • It is not more broken than domestic law
  • States create it themselves having little incentive to violate it
• Compliance is driven by reputation & credibility, fear of retaliation & reciprocity, and legal enforcement mechanisms.

Challenges of International Law

• The UN struggles to prevent and resolve armed conflict
• States lack cooperation on major global issues
• Powerful nations/leaders undermine international rules
• States commit major human rights violations without consequences

Sources of International Law

• Sources of International Law are the authority from which laws derive their force
• IL is a consent-based system, but states can be bound without consent in some cases
• According to Article 38 ICJ of the Statute of the ICJ, sources of international law that the court applies when settling disputes are:
  • Primary sources like treaties/international conventions, customary law, and general principles of law
  • Subsidiary sources (non-binding) like judicial decisions and teachings of highly qualified publicists
• The ICJ rulings do not create general precedents

Treaties

• Formal agreements between two or more states, states and IOs, and/or two or more IOs
• They're governed by international law and binding only on the parties that sign them
• States are free to choose whether to join a treaty
• They are differentiated by the number of parties:
  • Bilateral if they include two parties
  • Multilateral if they include many parties
• They are differentiated by content:
  • Law-making treaties establish binding principles
  • Treaty contracts create rights and obligations on specific issues

Customary Law

• It exists as law formed by consisted state practices accepted as legally binding
• Elements of Customary Law are:
  • State practice requiring consistency, generality, and duration
  • Opinio Juris, the belief that the practice is legally obligatory

Jus Cogens

• Includes universal, overriding legal principles that cannot be violated
• Fundamental, non-negotiable principles protect human rights that exclude prohibitions of genocide, torture, and slavery recognized by the international community as fundamental & binding
• Erga omnes obligations apply to obligations owed to the whole international community, not just individual states
• Key characteristics for Customary Law are:
  • State behavior must be uniform and persistent
  • It has to be observed by a significant number of states across different systems
  • Practice must be followed long enough to establish consistency
• The Persistent Objector Rule: allows states to opt out of new international rules if they consistently object from the beginning

General Principles of International Law

• These principles are broad standards or guidelines that fill gaps in treaties and customs
• Examples include principle of equality of states, principle of self-determination, and reparations for breaches of engagements

Judicial Decisions & Writings of Publicists

• Judicial decisions are defined as decision by international courts that clarify and interpret international law
• They are binding only on the parties involved in the case
• Courts may follow prior decisions for consistency
• Writings of publicists refer to scholarly work and legal commentary that help interpret international law
• They can be used as subsidiary sources to clarify legal issues lacking in the absence of binding precedents

Relation Between Customary Law and Treaties

• Coexistence and mutual development indicates that treaties can create customary law if they establish norms recognized by numerous states from diverse legal, political, and socio-economic backgrounds
• Crystallization indicates that treaties formalize emerging customs, turning them into binding legal rules
• Treaties can codify existing customary law, though the content may not be identical
• Customary law and treaty norms remain separate with differences in applicability, interpretation, and enforcement mechanisms
• There is no universal solution for conflicts between customary law and treaties
• Resolution depends on the case with the more specific or general applying depending on the situation

The Law of Treaties - Defining Treaties

• Treaties are formal, legally binding agreements between states, governed by international law, and created to establish legal obligations
• They are binding regardless of their specific name
• There are two types which can be easily differentiated
  • Bilateral: Between two states
  • Multilateral: Involving multiple states

The Vienna Convention on the Law of Treaties and Principles of Treaty Law

• Regulates treaties' key aspects and also applies to written treaties between states
• Treaties that violate jus cogens are null and void
• Free consent to treaties apply only applies only to parties that freely agree to them
• Pacta Sunt Servanda says Agreements must be kept
• Good faith says Parties must respect the principle of good faith, even before the treaty enters into force.

Crafting Treaties

• Negotiation
  • The HOS, HOG, Foreign ministers and heads of Diplomatic Missions can negotiate
  • The head of each negotiation team must have full authority to act on behalf of their country also
  • All states must negotiate in good faith
• Adoption of the Text
  • Formal process by which any form/content of a proposed treaty is established
  • Bilateral treaties entail that all parties must agree
  • Multilateral Treaties require a majority for adoption at International Conferences
• Authentication of the Treaty
  • A signature on a treaty confirms its authenticity and creates an obligation for states to act in good faith
  • A signature ad referendum is pending confirmation from state authorities
  • Initialialing represents a preliminary confirmation, not final commitment

Consent to be Bound & Entry into Force

• Consent to Be Bound comes from:
  • A signature that indicates intention to be bound
  • Ratification of domestic process, requiring legislative approval
  • Exchange of instruments where one party sends a note to the other
  • Accession for states joining an existing treaty
  • All adoption consent must be sent to the depository
• Entry Into Force
  • Treaties usually specify when they enter into force within their provisions
  • A depository keeps custody of the treaty

Registration, Publication, & Reservations

• All treaties must be transmitted to the UN secretariat for registration and publication in the UN treaty collection
• Reservations are statements made by a state when it agrees to a treaty but wishes to exclude or modify certain provisions
• Reservations for:
  • Before entry into force may influence the treaty's final text and other states' willingness to accept it/obligations
  • If accepted, a reservation becomes part of the treaty's obligations, therefore only applying between between the reserving State and those that accept it after entry into force
  • Other states may accept or object to the reservation, affecting how the treaty applies between them as well
• Objections to reservations include:
  • Must be in writing and include a legal reason/be submitted within 12 months
  • Types include regular agreement except where reserved provisions are an issue, and a qualified objection where treaty relations with the reserving party is blocked
• Impact of Objections on Non-Involved Parties
  • The reservation is accepted if silent
  • Objections and reservations can be withdrawn at any time, however a reservation is binding once accepted
• Tribunals assess allowance of reservations based on:
  • Object/purpose tests, Specific Treaty Provisions, State Practice Consent, and Legal Principles

Other Ways of Acceptance W/Conditions or Clarifications

• Interpretive Declaration allows countries to accept the treaty but want to make clear how they understand a specific part of it - without a legal change
• Conditional Interpretative Declaration lets a country to accept the treaty only only if other countries agree with its interpretation of certain parts

Interpretation and Application of Treaties

• Treaties must be interpreted in good faith with ordinary meaning, while considering context and purpose
• This should also ensure the treaty remains meaningful and effective using the following methods:
  • Textual: Ordinary meaning of words
  • Systematic: Treaty's context
  • Teleological: Treaty's purpose
  • Historical: Review negotiation records

Amending, Modifying, and Applying Treaties

• Treaties only apply to consenting parties on a provisional basis pending full ratification
• Registration with the UN is mandatory for enforceability/transparency
• Amendments require agreement among all parties and affects all parties
• Modifications apply only to some parties instead and require an implemented new protocol

Treaty Withdrawal, Suspending, and Terminating Treaties

• Treaties can only be withdrawn in cases where the treaty allows it, or if all parties consent
• Terminating an agreement is only valid based on the agreed terms of the treaty
• Suspension of Treaties
  • When a treaty exists though effects are completely or partially suspended which can occur due to a mutual agreement, breach, or other change in circumstances
• Settlement of disputes requires notification, consultation, peaceful means, and special jurisdiction for jus cogens

Rules on Treaty Application & Grounds for Nullity

• Special law prevails in all treaties, meaning all specific rules take precedence
• Newer laws take precedence over older ones, while higher-ranking laws overrides all lower-ranking ones
• Grounds for Nullity: Only applicable in cases affecting an involved party of clauses where the treaty or a treaty action violates a domestic law, contains an error, represents fraud, or involves corruption
  • Affects concerned parties with invalid coercion of a state representative
• These include coercion of state representative/state and violation of the jus cogens

###Secondary Sources of International Law

• Secondary sources of law encompass rules made by Int. Organizations and sometimes include members
• Includes intergovernmental organizations whose groups work together but act independently.

Intergovernmental vs Supranational Organizations & Unilateral Declarations

• Intergovernmental organizations rarely enact binding rules
• Supranational organizations possess power over countries and the ability to impose rules on members
• Unilateral Declarations
  • Statements intentionally and publicly made by a state that can create its own legal obligations
  • Some declarations may be considered treaties as long as they comply with VCLT and shape customary law
• Soft law has no binding norms but covers the agreements of groups and can be implemented

The RelationshipBetween International and Domestic Law

• Dualism: International and domestic law are separate
  • States must individually make a national law to validate a treaty
  • Domestic law wins in conflict
• Monism: International and domestic law form a single system where int. law is supreme and applies automatically

###International Legal Personality

• International legal personality allows ability to have rights under international law
• States following the following conditions have it - Have Statehood under the Montevideo Convention 1933
  • Recognition if granted by founding treaties
  • Be insurgents if controlling a territory

International Law in National Courts

• The international law can be refused if conflicting with domestic policy
• USA has unique enforcement rules and divides the categories into self/non enforcing policies

The Concept of the State & Theories on Recognition

• To be considered a state, must follow the specifications provided in the Montevideo Convention -Includes, capacity for foreign relations -Must indicate with a UN compliance and willingness to oblige
• The recognition theory states that international law is only applicable with acknowledgement
  • Recognition is political.
  • Explicit recognition: Formal statements
  • Implicit recognition: Conduct

Statehood & Determination

• Statehood is suggested at admittance, despite not being universal recognition
• Determination can occur after the decolonization of colonies
  • Free associations with an independent state
• International law cannot have it’s borders changed forcefully.

State Succession & Sovereignty

• Modern international law necessitates population content when purchasing territory
• Sovereignty is the supreme authority of a territory -Though is delimited in the treaties and human rights

Jurisdiction

• A key component of International law is jurisdiction.
  • Prescriptive: Can create law
  • Adjudicative: Courts to settle disputes
  • Territorial Jurisdiction: the jurisdiction over all its borders and waters
• Extraterritorial Jurisdiction: a country applying the law beyond.
  • Used with crimes, agreed upon through treaties
  • Universal occurs with anyone, regardless of nation

US Alien Tort Claims Act

• In the US, lawsuits have been filed using this act
• Paraguyan officials have been convicted of torture , setting new precedence globally