International Law

What constitutes a treaty?

*The Vienne Convention on the Law of Treaties: acts as means of codifying the background rules states were following in their treaty practice. Including defining what constitutes a treaty, making a treaty, filing reservations, operation of treaties and terminating or suspending treaties. The VCLT defines a treaty as: an international agreement concluded between states in written form and governed by international law - Contracts between two or more countries are called treaties

Benefits of being a state

- Allows the new state to consolidate sovereign control over its territory in the eyes of the world; it brings the new state into a normative system that protects it from foreign interference and intervention The new states can pursue admission to Inlt organizations where it can pursue policies that advances its interests (trade and investment). The new state can also obtain access abroad to assess associated with its territory and can sue in international or national fora to vindicate its rights

Normative approaches

- Law derives from moral values.-There's something about International law that is related to promoting the common good. States need not be the primary subjects of IL, states are a vehicle of getting there. -National interest must be subsumed beneath other, more universal values

How are new states formed out of old states? What happens to their debts and obligations?

-An existing state breaks apart to form two or more states. [-A portion of an existing state secedes -Two or more states merge to form a new state. The Principle of Continuity: A state emerging from the break up of an existing state is bound to the predecessor's treaties. "Clean Slate" Principle: A state emerging from colonialism is not bound unless it so consents or unless the treaty relates to territorial boundaries.

How does the structure of international law compare to domestic legal systems?

-International Law is not created, interpreted and enforced through the kinds of institutions that operate in national legal systems. (Dampish Ch1) - International "law" has been challenged on the ground that there can be no law governing sovereign states. States objecting international law have to obey it only when they wish to, or when it is in their best interest. Similarly to domestic legal systems, international law is the product of its particular society, its political system. International law, too, is a construct of noms, standards, principles, institutitons and procedures. The purpose of international law, like those of domestic law, are to establish and maintain order and enhance reliable ezpenctations, to protect persons (states), property and interests. International law is voluntary and it must yield to the national interest Example: EU

- What is the difference between 'top-down' and 'bottom-up' (or 'horizontal' and 'vertical') approaches to law?

1) Basic Horizontal structure:Interaction of states. International law arises from a horizontal structure that consists of 193 nation states. Each of these nation states is fully sovereign; none of them regards itself as subordinate to any other states not, as a general matter, subordinate to a supranational organization. Decentralized structure, which means that states can only be exposed to restrictions that they have affirmatively accepted. (occurs when they regard the restrictions as advancing national interest). 2) Vertical structure: International Organizations. Int law is not limited to a simple horizontal structure. Over time, states have come together to establish some supranational organizations capable of creating laws that have binding effect on their member states. *Example: The European Union (27 members) have delegated to the EU sweeping powers to regulate broad sectors of their economies, including the movement of goods, services, labor, and transportation. *The international court for justice (66 states) in case they are sued by another state they accept the courts jurisdiction 3) Vertical Structure: Interface with natural law. National legal systems contain rules about whether intl law is received into the national legal system. Some countries see international law and national law as part of the same system of law (monist approach) *In Netherland treaties have the same rank as constitutional law. In other countries and scan-avian countries tend to view Int law and national law as separate, distinguishable bodies of law (dualist approach)

Goldsmith and Posner Behavioral Models

1) Coincidence of Interest Is a situation in which behavioral regularity among states occurs simply because each state obtains private advantages from a particular action (which happens to be the same action take by the other state. 2) Coercion: a state of a coalition of states forces other state to engage in actions that serve the interest of the first state or states 3) Cooperation: Prisonners dilema 4) Coordination: The states find themselves coordinating, each state's best move depend on the move of the other state

- What is the value of being recognized as a state? What benefits are conferred uniquely to states?

1) Consolidate sovereign control over its territory in the eyes of the world. Becomes apart of a normative system that protects it from foreign interferences and intervention 2) Ability to conclude with other states treaties that advance its interest (trade and investment) and can directly seek foreign aid. 3) Can pursue admission into international organizations to secure its interests. 4) Can obtain access abroad to assets associated with its territory and can sue in international or national fora to vindicate its rights.

- What are the three different ways nationality can be acquired? Explain what defines refugees, stateless persons, internally displaced persons.

1) Jus Soli or citizenship by birth 2) Jus Sanguine or derivation of citizenship 3) Naturalization

Explain each of the steps likely to have occurred in the making of this treaty.

1) Representation: State or international organization authorizes a person to represent it in the negotiation, this person is granted a document referred to as "full powers". 2) Negotiation: The two states meet for one or more sessions to hammer out the details of the treaty and the normally initial the final text once the negotiation is completed. When is a multilateral treaty, the process can be somewhat more complicated. Usually a government or international org, invites states to participate in the negotiations of the new treaty and hosts the negotiating session, this may last years if there are many states. 3)Adoption: adoption of a treaty does not mean that the treaty becomes binding upon the states; it simply establishes that the negotiations are over. 4) Ratification/Signature: Once the treaty is adopted, the manner in which a state consents to be bound to it is usually indicated in the treaty itself. A treaty might provide that a states's signature establishes the state's consent to be bound to the treaty. If there are no indications in the treaty that any further steps are anticipated after signature, then signature alone will be regarded as establishing state's consent. *A Multilateral treaty is normally opened for signature for a discrete period of time, such as one year from the adaption. The state's signature simply reflects a commitment by the state to pursue whatever measures are necessary. For certain treaties signature alone does not establish the state's consent to be bound. Many states have internal constitutional requirements mandating legislative approval of a signed treaty before it becomes binding on the state. 5) Entry into Force: A treaty enters into force as agreed upon in the treaty. Bilateral treaties normally provide for entry into force upon or shortly after both sides consent (by signature or exchange of instruments) to be bound. Only once a treaty enters into force does it bind those states who have ratified the treaty.

What are the two defining elements of customary international law?

1) State Practice: there should be a uniform and consistent state practice regarding a particular matter. what states actually do A relatively uniform and consistent state practice regarding a particular matter *In the famous Paquete Habana case before the US supreme court, the issue was whether coastal sighing vessels of an enemy states could be kept as prizes of war. The Supreme court analyzed states practices from 1400 to 1800s, and reached the conclusion that US should not seized the fishing vessel as prize of war. 2) Opinio Juris The states engage in their practice out of a belief that they are compelled permitted by international law. The belief of a state that its actions arise out of legal obligations. Belief among states that such a practice is legally compelled. Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question.

Theories of International Law

1)Formalist Approach (natural law, positivism) 2)Normative 3) Realism 4) New Stream: Critical Approach

- What are the four qualities of statehood, as per the Montevideo Convention?

1. a permanent population 2. a defined territory 3. government 4. capacity to enter into relations with other states

customary international law

Common law system gained through state's practice and international lawyers judicial decisions. Criticism: No clear rules, and may be missed or misinterpreted. It can be time-consuming or impossible to analyze the practice of all states and determine a practice that operates in conjunction with opinion juris. Only some developed states have resources to publish information making this practice accessible to only some privileged states.

What are the two main theories of state recognition?

Elements of state recognition Two theories Declaratory (self-regarding) Constitutive Model (other-regarding) → Do other states think of it as a state? Yes, then it's a state No, then it is not a state: doesn't have the benefit of sovereignty and/or immunities Declaratory Theory of Recognition: An entity is ipso facto a state once the four conditions are met, regardless of what other states say since other states are only declaring something that already exists. Constitutive Theory of Recognition: A new state is constituted only when other states decide that the four conditions have been met and acknowledge the legal capacity of the new government.

b) How would a realist approach to international law explain this behavior, including why this agreement was legalized?

From a realist perspective it boils down to a state's interest, realists are focused on the actions of states because states pursue their own goals. This treaty could lead to opportunities in attracting foreign business through international relations.

What is the persistent object rule?

If a state publicly objects to a norm, they do not have to follow it. Also, states must show through active evidence to support the norm but not choose to NOT to follow.

How is international law enforced?

In many instances trade agreements and rational choice play a role in the enforcement of international law. This is because failure to abide by the provisions of an agreement can have unfavorable reputational consequences. In certain cases International laws is therefore enforced by a state's rational choice to avoid repercussions. These laws can also be enforced by supranational organizations such as the EU. International organizations have the ability to authorize retaliatory trade sanctions or the indictment and prosecution by the International Court of persons for violating laws of war.

US and Int law

In the US, the Alien Tort Statute, 28 USC 1350 provides that federal "district courts shall have original jurisdiction in violations of any civil action by an alien for a tort only, committed in violations of the law of nations or a treaty of the US. Non-US nationals may sue persons in US courts for commission of a tort in violation of the law of nations, such as the torture of prisoner by a government official, which is prohibited by the US convention against torture and under customary Intl law.

Klabbers Individual in International Law

Individuals should be central to international law. States are an abstract concept, it is important that we recognize individuals as subjects of international law. Only through that process we will allow people to live freely and determine their futures. - The determinations of refugee status is left to domestic authorities on the basis of domestic law. Int law should provide individuals with levels of protection and opportunities regardless of where they live and regardless of wether they are refugee, migrants of internally displaced persons.

Relate the concept of sovereignty to the issue of consent. How do these features make IL significantly different than domestic law?

International law is made possible through state sovereignty and state consent. State sovereignty is defined by any nation or people that governs itself independently of foreign powers. State consent means that states can only be exposed to restrictions that they have affirmatively accepted. -Unlike domestic law, international law is largely decentralized and built on the foundation of state consent: there is no system responsible for the creation, interpretation, and enforcement of international law.

What are jus cogens norms?

Is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. *Super customary international law- law so fundamental to the inter-relationship of states that a state cannot through its treaty practice or otherwise, deviate from the law. it follows more from the universal morality concepts.

Critical Approach: Critical approaches

Law is ideological and discursive basis off of realism - The stream approach agrees that the positivists are wrong in approaching international law as though it consists simply of neutral rules wanting to be discovered. Yet, with a heavy reliance on linguistic theory and philosophy, the new

International Legal realism

Law is passed on the self-interest of the state. International law doesn't control, international law clarifies and manages - Classic positivist theory regards international law as something akin to a hard science; rules that have been established by states can be determined through careful, rational analysis and, where necessary, empirical observation. - Serve the population (state) self interest

- Explain the differences between NGOs and corporations. How are they similar? How do they compare to states?

NGO's are generally regarded as groups of persons or societies, voluntarily created, that act independent of governments on a non-profit basis. NGO's are subject to single national legal systems but have transnational scope (ex. Red Cross is under Swiss law and made up of Swiss nationals) Other NGO's (ex. Greenpeace) are more activist in nature, seeking to raise public awareness. Critics of NGOs highlight their overall lack of accountability, Corporations (Legal Persons) which are corporations with multinational business operations are deemed to have the nationality of the state where it is incorporated, though activity is global in scope. Corporations are important players in the field of private international law as it related to economic matters. Corporate codes of conduct form international customary law in ways relating to economics. Corporations have become extremely important actors in the international arena.

Who do each of the theories focus on as key actors in international law? Where they disagree, why is it important?

Natural Law: State ought to follow theses laws- legal obligations without an enforcing body Positive Law: Powerful states violated these principles when it suited them. *v Primary actors: states, international organizations v Marginal actors: individual, corporations, NGOs Normative: States need not be the primary subjects of IL, states are a vehicle of getting there. -National interest must be subsumed beneath other, more universal values * Key element: important shift that people are the primary resource of IL Realism: serve the population (state) self interest -States' interests don't align with their capacity. States primary authors Critical Approach: IL developed so as to secure the interest of powerful, mostly European, colonizing states." (Murphy 17)

Can a state that is not party to a treaty be punished for violation of that treaty's terms?

No (De factor, not agreed to treaty)

Formalist Approach

Notion that law exist and need to be identify by formal structures. 1a) Natural Law: consists in part of fundamental principles of right and wrong. These principles are fixed and universal; they don't change depending on political inclinations or cultural predispositions. They are determined through a process of "right reason" which to a large degree focuses on whether a particular principle is inherent in the notion of society of states and in the essential characteristic of humanity. *Critique: The central problem with Natural law is identifying what norms are compelled by natural law reasoning. States might disagree on the existence and content of such a laws. 1b) Legal positivism: When they passed a law through a legal structure, it becomes 'law'. law is found in the positive (real, conscious) activity of states, activity generates legal obligationThis approach emphasizes the importance of state consent; a state is bound to a legal norm because it has affirmatively consented to the norm.

Operation of treaties

Once a treaty has entered into force, the principle of pacta sunt servanda provides that each party to the treaty must perform its obligation in good faith. A party cannot invoke the provision to its national law as grounds for not performing those obligations. If there is a conflict with national law, the party should seek to alter its law prior to joining the treaty

Does the weakness of its enforcement systems fundamentally change of the nature of IL?

Political bodies like the security council and the general assembly of the United Nations also apply law, their actions and resolutions interpret and develop law, their judgements help deter violations in some measure. The United nations has some enforcement power and there is a "horizontal enforcement" in the reactions of other nations. States see it in their long-term self- interest to comply with International law, knowing that non-compliance will provoke reciprocal non-compliance by other states; states comply because their leader wish to maintain good reputation for their states; states comply simply out of habit, states are drawn to the moral legitimacy of international rules. Even though there is not an enforcement mechanism, every day nations respect the border of other nations, treat foreign diplomats and citizens and property as required by law, observe treaties with other nations. States obey Int law for their self-interest (Dampish Ch1)

How do you decide if a practice is uniform and consistent?

The Four prong test Acting v. words long standing widespread expectation for following the norm do the exception prove the rule?

Recognition of states

The question of whether a particular entity should be recognized as a state can arise from various scenarios. 1) An existing state might fragment into several new states, such as occurred when the Socialist Federal republic of Yugoslavia broke apart after 1990 to form Bosnia-Herzegovina, Croatia, kosovo, Macedonia, Montenegro, Serbia and slovenia. 2) An existing state might secede to form a new state, as it happened when Eritrea seceded from Ethiopia or when South Sudan seceded from Sudan. 3) It is also possible for two states to merge together to form a new state, such occurred in 1958 when Egypt and Syria emerged to form the United Arab Republic

Criteria to be recognize as a state

Under traditional international legal theory, an entity aspiring to be recognized as a new state must have the following factual conditions 1) A defined territory 2) Permanent population 3) An effective government 4) the capacity to enter into relations with other states For example, the anglican church is not a state in part because it does not have a defined territory. Antartica is not a state because it does not neither a permanent population nor government

Is the effectiveness of a treaty weakened or strengthened by the ability of a state to assert reservations, understandings, and declarations?

Weakened

How do international organizations fit into IL?

What ever it mandates and membership an international organization is typically created by a treaty which is often labeled as 'charter' or 'constitution'. Such a treaty is governed by the law of treaties in the same way as any other treaty. The treaty is regarded as having a special status as the constituent instrument of International organization. The treaty provides a basic framework for International organizations: 1) sets the purpose, 2)what kind of states may join the organization (how can they join, membership) 4)structure of the org, 4)creates secretariat as a permanent staff and location of the org, 5) how dispute would be resolve, and 6) addresses privileges and immunities that org and staff has. *While states are the dominant actor in the field of international law, they are governed by (and govern) international organizations. Over time, the importance of international orgs has grown enormously, especially with the rise of human rights and humanitarian orgs and international businesrs.

Reserving to Treaty

When a state consents to be bound in an multinational treaty, it is sometimes possible to file a reservation to the treaty. A reservation is: "A unilateral statement, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, it has the point of excluding or notifying the legal effect if certain provisions of the treaty in their applications to that state" *Reservations are not made in bilateral treaties but in multilateral treaty because they often involve so many states that it cannot be drafted to the satisfaction of all. The issue is whether to not permit reservations (uniformity of responsibilities) or adopt a very substantive treaty that allows reservations (sacrifices uniformity) permitting more states to join

Reserving to treaties

When a state consents to be bound to a treaty they can file a reservation to the treaty. A reservation is a provision that allows states to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. *Mostly use in multilateral treaties because it often involves so many states that it cannot be drafted to the complete satisfaction of all, so the question of wether or not to permit reservation comes in question. The negotiators of multilateral treaties have to decide between adopting the treaty that allows no reservation (preserves uniformity of obligations) must be superficial or attracts few parties, or allowing reservation and sacrifices uniformity but it permits more parties to join.

c) Now assume that Greece would like to terminate its obligations under the treaty. Explain two circumstances that might enable it to do so under international law.

Withdrawal, Termination or suspension: Treaties often have a provision that provides for their automatic termination after a certain period of time (e.g., ten years after entry into force), or for their automatic renewal after such a period of time unless one of the parties provides advance notice that it wishes the treaty to lapse. *Treaties would remain in force unless a party provides notice of termination, which would then take effect after a certain period of time. 1) Termination or suspension of a treaty by a party also may occur when another party has committee 'material breach' (either a repudiation of a treaty that is not permitted by the treaty or a violation of a provision essential to the object and purpose of a treaty. *Treaties are terminated or suspended specially if the treaty is especially affected by the material breach or the breach radically affects every party of the treaty. Otherwise all parties (other than the defaulting state) should agree on the steps to be taken in response to the breach 2) Termination or suspension is permitted of performance has become impossible. Impossibility of performance arises when a object which is indispensable for the execution of the treaty permanently disappears or is destroyed. *The standard of impossibility of performance appears to be a high one; the financial difficulties of a state, for example are not grounds for claiming impossibility of performance.

Is IL a democratic system?

Yes, states receive higher payoff if they engage if they coordinate with one another. Wouldn't it somewhat be democratic since each state gets a vote since there are 193 members of the UN.

What are four main reasons realist theorists believe states comply with CIL? Be prepared to explain these in detail.

coincidence of interest (pg 12 G&P), State A and State B both have nukes, it is in both of their interest to come to a resolution than go to war. (Mutual Assured Destruction M.A.D.) coordination.( pg 12 G&P) driving a car, if everyone follows the rules of the road then everyone is ok. cooperation.( pg 12 G&P) The ability to work together to achieve a common goal. coercion( pg 12 G&P) When say State A a powerful actor, secures State B's compliance by means of forcing the weaker states (B) to engage in acts that are contrary to their interests

Anghie reading

international law was the expansion of european interest