Lecture 2 Intl Law and Policy.pptx

International Law and Policy
The beginnings of the details

Topics covered (questions posed):
1. What is International Law?
2. Is International Law Really Law?
3. The Traditional (old) Schools of Intl Law
4. The Modern (current) Schools of Intl Law

WHAT IS INTERNATIONAL LAW?
1. Definitional vs In Practice
2. Defined by law scholars:
1. The body of rules and norms that regulates activities carried on
outside the legal boundaries of states.
2. The Law of Nations: Traditional name for international law.
1. Encompasses the body of legal rules commonly considered
binding on and between states.
2. Does not apply to relations between states and persons and
between persons and persons.
3. In practice, the rules that shape how state, firms, orgs, people, behave.

Classifications of the law of nations:
1. Universal law is considered to be so fundamental or basic that it is binding upon
all states in the community of nations whether they have individually consented
to it or not. Here think R2P
2. General law is that body of norms derived from the conduct and practices of
states in their dealings with each other.
• Unlike universal law, a state which does not consent to a rule of general law is not
bound to observe it.
3. Particular law is law that is binding upon a particular state because of the
conduct and practices of that particular state.

Contemporary International Law
Regulates (through rules) three intl relationships:
I. Those between states and states.
II. Those between states and persons.
III.Those between persons and persons.

IS INTERNATIONAL LAW REALLY LAW?
The Debate:
1. No: it is weak law.
i) There is no international legislative body that enacts international laws.
ii)There is no international executive with straightforward powers to enforce
international laws.
iii)There was (until 1998) no international court where states could be sued
without their consent.
2. Yes, international law is law
i) because states and individuals regard it as law.

What is Law?
The dictionary defines law as:
I. A rule established by authority, society, or custom.
II. The body or system of such rules.
III. The control or authority imposed by such a system of
rules.

When is Law?
Doctrine of intertemporal law
1. Precedent: legal practices regarded as lawful in the past
will continue to be respected in the future.

Comity vs. law
Be careful here as we will see, this is very controversial
1. Defined: the practice, or courtesy, between nations, of granting
each other privileges, not as a matter of right, but as a matter of
goodwill.
2. Distinguish comity from law: it is not law because states do not
regard it as something they must respect.
3. This standard legal notion of law implies states obey the law
because they are required to because it is “law”: a hint of
tautology here?!?

THE TRADITIONAL SCHOOLS OF INTERNATIONAL LAW
1. Historic origins of the Idea of International Law
A. Romans develop different classes of law for different classes of
actors:
1. Jus civile ("the civil law") was the law that regulated Roman citizens.
2. Jus gentium ("the law of nations"), applied to affairs among non-Romans
as well as to dealings between Romans and non-Romans.
3. Jus naturale: ("natural law"), classical Greek and Roman conception of
law.
a) As stated by Cicero (106-43 B.C.):
i. It is universal and immutable.
ii. It is a higher law than the law created by political authorities.
iii. It is discoverable by reason.

2) Medieval sources:
A. Thomas Aquinas (1225-1274), a Christian philosopher and saint,
kept the notion of natural law alive through the middle ages.
i) He believed that it was a principle that was common to all peoples
ii)Divine law revealed in the scriptures gave Christians an additional guide
for their actions.
B. The debate begins to evolve during Renaissance following the
collapse of Europe during the 1300’s due to outside invasions
and plague.

3) The Naturalist School Emerges
1) Renaissance writers drew upon concepts developed in the ancient and medieval worlds.
2) Renaissance developments:
i) Renaissance: Francisco de Vitoria (1486-1546) and Francisco Suarez (1548-1617), Spanish theologians, were
concerned with the legality of Spain's conquest of America and the justness of its subjugation of American
native peoples.
(a)Regarded natural law as the transcendental source of international law.
(b)Argued that international law could be derived from:
(1)an idealized (that is, simplified) conception of a "community" of states, and
(2)from both right reasoning and revelation.

4) The Naturalist School Emerges
1) Grotius: Hugo Grotius, a Dutch jurist and philosopher, is considered one of the founders of the natural
law tradition in international law. His work "On the Law of War and Peace" (1625) argued that there is a
universal moral law that governs relations between states, and that this law is binding on all states
regardless of their consent.
2) Pufendorf: Samuel von Pufendorf, a German jurist and philosopher, developed Grotius' ideas further
in his work "On the Law of Nature and Nations" (1672). Pufendorf argued that natural law is based on
the principle of self-preservation and that states have a moral duty to respect the rights of other states.
3) Vattel: Emer de Vattel, a Swiss jurist, wrote "The Law of Nations" (1758) and was also a key natural
law thinker. He argued that natural law principles of justice and fairness are the foundation of the law of
nations and that states have a moral duty to respect the sovereignty of other states.
4) Kant: Immanuel Kant, a German philosopher, wrote "Perpetual Peace" (1795) and developed a
natural law theory of international relations. He argued that the laws of nature should be the
foundation of the law of nations and that the ultimate goal of international relations should be the
establishment of a "federation of free states" based on the principle of universal peace.

4)Enlightenment perspectives on “Natural law”
1)John Locke (1632-1704), English naturalist philosopher, argued that governments are organized to
protect the life, liberty and property of individuals.
2)Jefferson: 1776 “Life, Liberty, and the Pursuit of happiness…”
3)Madison: 1787 US Constitution and Bill of Rights
4)Lafayette/Jefferson/Sieyes: 1789 The Rights of Man and of The Citizen
5) The Naturalist School in sum:
1) International law is based on natural rights and principles, rather than being solely a product of state consent.
2) International law is a reflection of universal moral principles,
3) Focus on the protection of individual rights and the rule of law in international relations.
4) Idea of "international legal personality," individuals, as well as states, have rights and obligations under
international law.

6. International law according to the Naturalist School is:
i. Superior to the law of the individual states
ii. Normative – how states/people ought to behave -- because it is ultimately
derived from nature which, in turn, is a divine creation.
iii. It sets the standard by which all states must govern their affairs: the law
describes how states ought to behave. Not how they might want to.
7. Recent developments:
i. Naturalism falls out of favor in the nineteenth century, but it has seen a
modest revival in the twentieth.
ii. Example: Natural law ideals were relied on in drafting the UN Declaration of
Human Rights.

8. The Positivist School
A. Beginning in the 17th century, writers challenged the divine
aspects of natural law.
1. Richard Zouche (1590-1690), an English jurist
2. Cornelius van Bynkershoek (1673-1743), a Dutch judge
• Argued that states only had to obey international law if they consent to it.
3. George Hegel (1770-1831) added the idea that states, like
individuals, have independent wills.
• Big leap here: state as an independent actor, with preferences and judgment

9. The Positivist School
C. Positivists view law as being created by governmental authorities
1. International law is created by independent states acting together to make
treaties and to establish customary practices.
D. Pros and cons of positivist view that international law is made by
consent and consensus:
1. Pro: it makes the substance, the rules and the procedures, of that law easier to
identify.
2. Con: it ignores and destroys international law's normative and obligatory
characteristics.
i. Unlike naturalism, it allows a state the option of expressly repudiating its international
duties.

10) The Eclectic School
1)Eclectics contend that certain international rights and duties of states
are inherent from natural law while the duty to observe them is
voluntary from positivist law:
i) you make your choices, you take your chances.
ii)Members of this school are known as "Grotians" after their most famous
member: Hugo Grotius (1583-1645), a Dutch lawyer.
2)Criticism: this conception of international law can too easily be used by
states as a basis for asserting rights while ignoring duties. Such a
philosophy, it is said, "is a sure recipe for disorder.”
3)R2P in response

THE “MODERN” SCHOOLS OF INTERNATIONAL LAW
Basis of the Modern Schools: the social and economic sciences
1. The Sociological School
i) International law is a social artifact.
i) A reflection of the power structure, behavior patterns, and cohesiveness of the groups that
make up "international society."
ii)Founders: Léon Dugit (1859-1928), French law professor, and Max Huber (1874-
1960), Swiss jurist.
i) Dugit: idea of the "law of the social state" emphasized importance of social and economic
rights in the legal system.
i) He believed that the role of international law is to promote and protect these rights,
ii) law should adapt to the changing needs of society.
ii) Huber: argued that the role of international organizations was to promote peace and justice
in the international system and that they should be based on the principles of the rule of law
and the protection of human rights.

Basis of the Modern Schools: the social and economic sciences.
2. The Communist or Economic Determinist School
i) Law is the formal means by which the economically dominant or ruling class controls society.
ii) International law:
i) Applies only to states.
(a)Reason: law itself is an attribute of the state.
ii) Is consensual.
(a)Reason: a true communist society does not need law, so law can only exist for a communist state if it gives
its consent.
(b)Limitation: once a state has agreed to be bound by a rule of international law, it cannot revoke its consent
unilaterally.
iii) Exception:
i) For states where a class revolution takes place, the new socialist ruling class is not bound by the
rules accepted on behalf of the state by the old capitalist ruling class.
iv) Practically speaking: big deal for state succession, when one state disappears, and another(s) takes its place.

Basis of the Modern Schools: the social and economic sciences.
3. The Third/Developing/Emerging Market World's "Activist School"
i)Basic premise:
i) International law (as practiced in the past) sacrificed the Developing
World's (former colonies) interests for the developed world's interests.
ii)The Third World has successfully used multilateral institutions to
establish new norms of international law.
iii)Notable example: International human rights law.

Towards a solution to the anarchy problem:
Key Puzzles
1. IR enforcement mechanism? the confluence of interests?
A. In the domestic setting, social contract clarifies interests and enforcement
of deals between sovereign and subjects, what’s the equivalent in Intl law?
B. How to blur the distinction between domestic and international law without
world government or the elimination of national sovereignty?

How to solve the sovereignty problem?
1. This is the key puzzle: Right or Obligation
A. Sovereignty and the need for enforcement go in opposite directions:
B. Need a social contract for nation-states,
C. e.g. Hobbes and Locke in the domestic sphere, how to get there in the intl
setting?
2. A possible solution lies in self-executing treaties
1. The enforcement mechanism devolves from the intl system level to the
domestic sphere;
2. The way it would work leads to a focus on the question of standing.

How to solve the sovereignty problem?
3. Before self-executing treaties, other standard solutions
A. BOP
i. Realism – this points importantly in the direction of the need for self-
regulating or automatic balancing to sustain sovereignty, e.g., prevent
the rise of global/regional hegemony).
B. International institutions
i. Seem to work well enough in settings with confluence of interests
ii. Problematic where actual enforcement is needed.

Key Puzzles
I. Standing: who gets to sue whom (e.g., claim damages) in what legal settings?
A.What’s the history of the evolution of legal theory on standing?
II. Enforcement: which courts, and hence which/whose police powers get invoked
to enforce agreements,
A.Standard view in US setting is that there’s a triad: exec, leg, judicial, al co-
equals, the intl law solution analogy would be to use states courts to enforce
federal laws
B.What is the existing legal theory on the relationship between state and
federal courts?
III.In EU/ECJ setting, what is the relationship between EU/Members states/ECJ?

Key Puzzles
IV.Treaties as a solution to much of the above?
A.Relationship between fed and state, in various constitutions, which level
takes priority over the others?
A.Leads to questions about comparative legal systems
B.Self-executing: legal understanding of, and effects of
C. What is the empirical record on the behavior of states with self executing
treaties versus sates that have other mechanisms of incorporating
international law into their domestic code?
D.Do states with self executing treaties provide more access to local domestic
courts?

SOURCES OF INTERNATIONAL LAW: Treaties, Custom, courts
A. TREATIES AND CONVENTIONS
1)Introduction
i) Definitions:
(a)Treaties are agreements between two or more states.
(b)Conventions are agreements sponsored by international
organizations.
ii)Reasons for binding effect:
(a)Shared sense of commitment.
(b)Because one country fears that if it does not respect its promises,
other countries will not respect their promises.

SOURCES OF INTERNATIONAL LAW: Treaties, Custom, courts
A) TREATIES AND CONVENTIONS
1) Introduction Continued…
iii) Use of treaties: to finalize agreements between:
(a)States and states.
(b)States and international organizations.
(c)International organizations and international organizations.
iv)Rules governing treaties:
(a)Traditionally customary.
(b)Now codified in the Vienna Convention on the Law of Treaties (in force since
1980).

SOURCES OF INTERNATIONAL LAW: Treaties, Custom, courts.
2) Adoption:
i) agreement by the negotiating states as to the final wording of the treaty text.
3) Consent:
i) agreement by a state to be bound by a treaty.
ii)Signature of an authorized negotiator.
4) Ratification
i) (formal adoption) by a state's head of government.
ii)Sometimes/usually must be done in consultation with the state's legislature.
iii)Depends on each state’s systems of government, hence comparative politics

A) TREATIES AND CONVENTIONS Continued
5) Accession
i) joining an existing treaty by a state that did not participate in a treaty's
negotiation and drafting.
6) Entry Into Force
i) General rule: Treaties only enter into force when all or some agreed upon
number/fraction of the states that participated in their negotiation have
consented to be bound.
(a)The treaty may provide that it will come into force when a specified number
of states consent to be bound.
(b)Some treaties contain provisions making the parties provisionally bound
pending ratification.

7) Reservations
i) Defined: "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..
ii)Effect of making a reservation:
(a)To a bilateral treaty: a proposal to renegotiate the whole treaty.
(b)To a multilateral treaty: a reservation will not defeat the treaty so long as it is
"compatible with the object and purpose" of the treaty.
(1)The treaty is in effect only between the reserving state and other states that
acknowledge or accept the reservation.

8) Application
i) General rule: "a treaty is binding upon each party in respect of its entire territory."
(a)The treaty or a party (at the time it consents to the treaty) may provide otherwise.
9) Interpretation
i) Traditional approaches used to interpret treaties:
(a)Founding fathers approach: look at the "original intent of the parties."
(b)Teleological approach: look at the "aims and objectives" of the treaty.
(c)Textual approach: look at the "clear and ordinary meaning of the words."
ii) Approach emphasized in Vienna Convention: the textual approach.
(a)Other interpretative methods may be used to "confirm" the meaning of a treaty or when the
preferred approach leads to ambiguous or absurd results.

10)Termination — treaties may be terminated by or because of:
i. Consent of the parties (prior notification)
ii. Material breach of the treaty by a party.
iii. Impossibility of performance: the permanent disappearance or destruction of
an object indispensable for the execution of the treaty.
iv. Fundamental change in circumstances: an unanticipated change which
essentially affects the basis on which the parties gave their consent and which
would radically transform the obligations still to be performed by the parties.
v. Emergence of a new peremptory norm (a jus cogens) of international law.

SOURCES OF INTERNATIONAL LAW: Custom
B. CUSTOM or Customary Law
1) Defined: Rules that have been around for a long time or which are generally accepted.
i) Caveat: Customary rules are constantly changing.
2) Establishing the Existence of a Customary Law: Must show two elements—one behavioral and one
psychological (intent):
i) Usus (Latin for: usage): Is the consistent and recurring action (or lack of action if the custom is one of
noninvolvement) by states.
(a) Does not have to be a lengthy practice.
(b)Does not have to be followed by all states.
ii) Opinio juris sive necessitatis (Latin for: "of the opinion that it is a necessary law."): The custom must be
regarded by states observing it as one that they must obligatorily follow.
iii)Then, role of precedent
3) Exceptions to the Application of Custom
i) Persistent objector: A state which persistently objects to a practice during its formative stages does not
become a party to it.
ii) A state allowed by the international community to deviate from a customary practice.

C) GENERAL PRINCIPLES
1)Defined: General principles of law common to the community of states.
2)Common Sources: The domestic procedural laws of states (but not their
substantive laws).
3)Examples of General Principles
i) A state must consent before being bound to an international agreement.
ii)States must be treated equally regardless of their size or strength.
iii)The awards and judgments of international tribunals are to be respected
as final.
iv)One state will not interfere in the domestic jurisdiction of another state.

D) SUBSIDIARY SOURCES OF INTERNATIONAL LAW
1)Writings of Publicists, Legal Scholars
2)Decisions of International Courts and Tribunals
i) Caveat: Doctrine of precedent does not apply in international courts and
tribunals.
ii)"according to what is right and good"
(a)it implies the use of compromise, conciliation, and a friendly
settlement between the particular parties to a dispute.
(b)In practice it is used to mean "equity" as that term is used in common
law courts.

THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
1. Dualism
i)The two law systems are separate, both with respect
to procedure and to subject matter.
i)Procedural matters: municipal courts resolve problems
by reference to municipal law, while international courts
resolve problems by reference to international law.
ii)Substantive matters: only problems affecting the
international relations of nations are within the purview
of international law.

2. Monism
i)Municipal law is a subset of laws within the field
of international law.

3. Monism-Naturalism
i)Natural law is a third and superior form of law, which
determines the respective spheres of both international
and municipal law.

4. Coordinationism
i)International and municipal law operate independently in separate
but coordinated spheres.
ii)Corollary: municipal law is generally supposed to conform with the
norms of international law.

SCOPE OF INTL LAW IN PRACTICE
1. The Practice in International Courts
I. Municipal law is regarded as being subservient to
international law.
II. States have a general obligation to bring their municipal
law into compliance with international norms.
III. Procedurally municipal law is treated as "mere fact."

2. The Practice in Municipal Courts
1)International law is generally treated as being
correlative.
i)Meaning: Once a municipal court determines that a
particular rule of international law is applicable in a
particular case, that law will be treated as law.
ii)This view drives American conservatives crazy.

3. To determine if an international law has been received into the local jurisprudence.
i) Customary law:
i) Doctrine of incorporation:
(a)Customary international law is adopted locally to the extent it is not inconsistent with prior municipal legislation
or judicial decisions of final authority.
(b) Followed in most countries with usual caveat about how important is rule of law in particular country.
ii) Doctrine of transformation:
(a)customary international law does not apply until clearly adopted by legislative action, judicial decision, or
established local usage.
ii)For treaties:
i) Self-executing treaty contains a provision making it apply domestically without a party having to adopt
enabling legislation.
ii) Non-self-executing treaty has no such provision.
(a)Then subject to local rules

Source and Scope in the ICJ
1. The International Court of Justice is the principal judicial organ of the United
Nations in The Hague (Netherlands).
a. It began work in 1946, operating under a Statute which is an integral part of
the Charter of the United Nations.
b. International Court of Justice (ICJ) formally lists the sources which that court
is permitted to use.
c. Its decisions are followed by most other courts.
2. Functions of the Court
a. To settle legal disputes submitted to it by States
b. To give advisory opinions on legal questions referred to it by duly
authorized international organs and agencies.

2. Composition
a. The Court is composed of 15 judges elected to nine-year terms of office by
the United Nations General Assembly and Security Council sitting
independently of each other.
b. The Members of the Court do not represent their governments but are
independent magistrates.
c. The composition of the Court has also to reflect the main forms of
civilization and the principal legal systems of the world.
d. When the Court does not include a judge possessing the nationality of a
State party to a case, that State may appoint a person to sit as a judge ad
hoc for the purpose of the case.

3. The Parties
a. Only States may apply to and appear before the Court.
b. Always be thinking about standing
4. Jurisdiction
a. The Court is competent to entertain a dispute only if the States concerned have accepted its
jurisdiction in one or more of the following ways:
i) by the conclusion between them of a special agreement to submit the dispute to the Court;
ii) by virtue of a jurisdictional clause,
iii)when parties to a treaty containing a provision whereby, in the event of a disagreement over its
interpretation or application, one of them may refer the dispute to the Court. Several hundred treaties
or conventions contain a clause to such effect;
b. Reciprocal effect whereby each has accepted the jurisdiction of the Court as compulsory in the
event of a dispute with another State having made a similar declaration.
i) The declarations of 73 States are at present in force, a number of them having been made subject to the
exclusion of certain categories of dispute.
c. In cases of doubt as to whether the Court has jurisdiction, the Court itself which decides.

1) ICJ looks to:
1)International treaties and conventions.
2)International custom.
3)General principles of law.
2) In interpreting these, the ICJ may also look to:
1)Judicial decisions.
2)Teachings of publicists.
3) Guidelines establish an implied hierarchy.
1)In practice, ICJ turns first to conventions, then to custom, then to general principles.
4) Not all of the sources listed have to be used.
1)Parties by mutual agreement may instruct a court to use only certain sources.

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