#17539 - International Law Final Outline - International Law

Exam

• #1: Issue Spotting & #2 More Synthesizing – Problem Solving (scholarly articles matter more second)

• 4000 words

• Organize by issue

  • The first issue here is jurisdiction, then IRAC, the next issue is XYZ, then IRAC

  • IRAC – apply the law to the facts: here is the issue, here is the law that applies (doctrine – citing cases/treaty provisions), here is how it is applied to the facts

• Citations: Case – (Marbury), Treaty Provision/Law Review Article (GC3, Art. 5), (Koh)

• Memo/Opinion organize your answer in that manner

• Writing credit topic sentences, spell check, etc. & Extra points for interesting arguments

Public International Law

• Prescribed rules governing the relation to nation-states

• Primary Rules and Secondary Rules

  • Primary: tell the law’s subjects what to do & consequences for violation

  • Secondary: rules for rules – identify the primary rules and processes form/change

International Law + International Politics

Is international law really law?

• Henkin

  • Int’l law is so often observed, we don’t even think about it

  • Although there is no international government, there is international society – law helps formalize the relationships and consequences

  • what matters is not whether the international system has legislative, judicial or executive branches, corresponding to those we have become accustomed to seek in a domestic society; what matters is whether international law is reflected in the policies of nations and in relations between nations

• Frank

  • Some int’l law has stronger compliance pull that others:

    • #1: relevant textual determinacy

      • the ability of the text to convey a clear message, to appear transparent in the sense that one can see through the language to the meaning

      • the more determinate the standard, the more difficult it is to resist the pull of the rule to compliance and to justify noncompliance

    • #2: symbolic validation

      • the ability to communicate authority of the rule

      • is it written down as law/signed/etc.

    • #3: coherence

      • are like cases treated alike in application - consistency

    • #4: adherence

      • primary rules & secondary rules

• Goldsmith & Posner

  • States only comply with what is in their interests

  • through communication, negotiation, and drafting common documents, nation can clarify their expectations about the opportunities for the join gains that can be achieved by coordination and cooperation

  • once the rule of cooperation or focal point for coordination is established by custom or treaty, nations comply for one of three general reasons:

    • #1: fear of retaliation in prisoner’s dilemma

    • #2: fear of failure of coordination

    • #3: fear of reputational loss from failing to comply with the rule

• Koh

  • Transnational process: the reason why state’s interests are what they are is because they are in this transnational legal process system

  • transaction generates a legal rule which will guide future transnational interactions between the parties, future transactions will further internalize those norms, and eventually, repeated participation in the process will help to reconstitute the interests and men the identities of the participants in the process

  • Example of this working: Anti-Ballistic Missile Treaty

    • Treaty banned development of space based system for territorial defense of the US. And Reagan admin. wanted to dot hat very thing, so they reinterpreted the ABMT without permission of anyone else. Great anger internationally. In the end, Congress withheld appropriations from those missiles that did not conform with the treaty, and reaffirmed its original understanding of the treaty. Then next admin. did the same.

    • Why did this work? Transnational Legal Process

      • Actors like US Senators and several NGOS – working in this system.

  • Three levels of analysis in which international relations could be explained

    • International system (systemic), state (domestic politics), individuals & groups (psychological/bureaucratic)

History

• Peace of Westphalia (1648)

  • Settling the 30-year war in Europe

  • This establishes the “state” as the primary legal actor in the world in international law

  • This is the agreement that recognizes the sovereign equality of states

    • All states are equal in the eyes of int’l law

RST §102: Sources of International Law

• (1) A rule of international law is one that has been accepted as such by the international community of states

  • (a) in the form of customary law

  • (b) by international agreement

  • (c) by derivation from general principles common to the major legal systems of the world

    • usually gap fillers if no other law to apply

• (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.

• (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.

• (4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.

Treaties

General

• Written agreements between states that has binding effect (statute)

• States consent to be bound (contract)

• “Shall”: indication of binding

• Can be aid to statutory interpretation

Treaties Under US Law

• Constitution

  • Article II: President shall have power, by and with advice and consent of Senate, to make treaties, provided 2/3 of Senators present concur

  • Article VI: Cons. and treaties – Supreme Law of the Land

• Article II Treaty Making Process

  • US Exec negotiates and signs treaty with rep from another country

  • Treaty then sent to US Senate

  • Senate considers treaty– need 2/3 votes to ratify

    • Might add RUDs

    • Limit/clarify US obligations

    • Decide whether “self executing” or not

  • After Senate decides, President has discretion to ratify

• Not defined by constitution

Similar to Treaty: International Agreements

• President may conclude international agreements governed by international law:

  • On congressional authorization

  • President’s constitutional authority to conduct foreign relations

  • Authorization contained in an earlier Article II treaty

Treaties Under International Law

• (a) international agreement

• (b) among states (or other subjects with necessary internal authority and consent to engage) that is

• (c) recorded in a way that evidences

• (d) a shared and manifest intent that the agreement be governed by international law

• (e) without regard to its form

Vienna Convention

• treaty on how to interpret treaties, US not ratified but is essentially CIL

• Defining treaty VC Art. 2:

  • written international agreement + between states + consent to be bound + governed by international law

• Treaties require mutuality – intent to be bound

  • intent is essential criterion: objective manifestations of intent

• Concluding a treaty: express consent to be bound (concrete act by an appropriate rep of the state) + treaty must have entered into force

  • Article 7: Rep. of State

    • for this purpose if (a) produces appropriate full powers (b) it appears from practice of the States/circumstances that their intention was to consider person as repping State for such purposes to dispense with full powers

    • Heads of State, Heads of Govt., Ministers for Foreign Affairs

  • Article 11: Consent to be Bound

    • Signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, or accession, or any other means agreed to

  • Usually effective when the instrument is deposited or exchanged

• Interpreting a treaty:

  • Text is best version of actual agreement (ordinary meaning of their terms in their context and in light of its object and purpose – Article 31), then look to prepatory work of the treaty because history is less reliable – Article 32 (every state has diff. interpretations and don’t want to give advantage to those states who have good history keeping systems)

    • These articles are CIL

• Termination and Suspension

  • Article 54: in conformity with the provisions in the treaty OR any time by consent of all parties

  • Article 56:

    • no provision as such then no withdrawal or denunciation, unless established parties intended to admit the possibility of such OR right as such is implied by nature of treaty

    • 12 months’ notice

  • Article 70: Consequences of Termination of a Treaty

    • Releases party from any obligation further to perform the treaty

    • Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination

• Breach

  • Article 60: Material Breach of Treaty

    • If you sign a treaty, though not legally bound until ratification, state is not allowed to interfere with the object and purpose of the treaty in the meantime

    • If a treaty is silent on the remedy: default – suspension or termination

      • Both parties are off the hook – sovereign equality of states

      • (Except if the treaty is for humanitarian purpose)

RUDs

• Reservations

  • States may wish to accept most, but not all, of the treaty’s terms

  • VCLT:

    • Article 2(1)(d): allows possibility of reservations

    • Article 19: Formulation of Reservations

      • Negotiating states the first choice of whether to allow, prohibit, or delineate specific types of permissible reservations

      • Is the reservation incompatible with the purpose and object of the treaty

    • Article 20: Acceptance and Objection to Reservations

      • Silence to a reservation’s...