International Law
5th Edition (2013)
Carolina Academic Press
Professor Valerie Epps
Copyright © Valerie Epps, 2013
All Rights Reserved
Copyright © 2013 Valerie Epps. All rights reserved.
International Law
 Professor … (add name, plus other course
instructions).
 The page numbers referenced are to Valerie
Epps, International Law (5th edition 2013)
and Valerie Epps, Documentary Supplement
to International Law (4th edition 2009).
Copyright © 2013 Valerie Epps. All rights reserved.
Introduction, p. 3
What is International Law?
 Classic Divisions
 1) Public International Law (IL):
 Traditional definition of public international law: “IL
concerns the legal relationship between sovereign
states.” The only relevant actors were states. After
WWII, the number of entities within the scope of IL
began to change: the human rights field added the
individual and certain groups to the actors in
international law. Then multinational corporations,
GOs, NGOs, non-state actors, such as paramilitary
groups, and multi-national corporations all began to be
assigned either obligations and/or rights under IL. The
subject matter covered by IL also expanded
dramatically.
Copyright © 2013 Valerie Epps. All rights reserved.
Classic Divisions continued
 2) Private International Law: basically concerns the legal
relationships occurring in international business
transactions and the legal regimes that govern them, e.g.,
WTO (World Trade Organization), TRIPS (Trade Related
Intellectual Property), intellectual property treaty rights,
international trade, transnational commercial contracts,
transnational taxation etc. Some people argue that we
should not separate the two sides of IL but teach them as a
whole…but...we only have so much time, so this course
focuses on public IL. Much of what you learn in this course
will be applicable and useful in private international law
courses, e.g., the law of treaties, international jurisdiction,
how international courts work, etc.
Copyright © 2013 Valerie Epps. All rights reserved.
So…What is International Law?
 First, what is law?
 If you landed in a new country and wanted
to know if it had a legal system, what sort of
structures would you look for to answer that
question?
Copyright © 2013 Valerie Epps. All rights reserved.
How Is IL Made and Who Makes It?
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Is there an international legislature?
Is there an international executive?
Is there an international judiciary?
If not, or if only in a rudimentary sense, how
does IL get made? Can it really be said to
be a system of law or is it just a set of
hopeful prescriptions?
 First, we shall study the mechanisms for
making international law.
Copyright © 2013 Valerie Epps. All rights reserved.
Sources of IL, pp. 5–32
Who Makes Up IL?
 1) Custom
 What is custom? “A consistent practice of states engaged
in by them out of a sense of legal obligation.”
 How consistent does the practice have to be?
 What sort of practices? What is a sense of legal obligation?
 Does custom bind even those states that disagree with the
custom?
 What is opinio juris?
 What is a jus cogens custom? Note: ICJ Judge ad hoc
Dugard in Armed Activities in the Territory of the Congo
(Democratic Republic of Congo v. Rwanda) (Jurisdiction
and Admissibility), 2006 I.C.J. 6, Separate Opinion, para.4,
noted that the Court had acknowledged the existence of
peremptory norms (jus cogens) (specifically, the prohibition
of genocide) for the first time in its judgment in this case.
Copyright © 2013 Valerie Epps. All rights reserved.
Article 38 Statute of the ICJ
 Turn to Epps, Doc. Supp. p. 32, or find the Statute
of the International Court of Justice (ICJ) on the
Court’s website at: www.icj-cij.org
 Note the sources of law that may be applied by the
ICJ: international conventions, international
custom, general principles of law, and judicial
decisions (but see art. 59 of ICJ’s Statute, Doc.
Supp. p. 35) and teachings of international law
scholars as a subsidiary means for determining
the rules of law.
Copyright © 2013 Valerie Epps. All rights reserved.
The Paquete Habana,
US Supreme Court 1900
 http://commons.wikimedia.org/wiki/File:Cuba-Florida_map.jpg
What was the custom found by the S.Ct. in The Paquete
Habana? (This is a decision by a US court but is fairly typical of the
way that national courts go about finding international custom).
 How did the Court go about finding the custom?
 What persuaded the Court that the custom was binding?
 Why are US courts obliged to follow international custom?
 Would the Court have followed the custom if Congress had
passed a law stating that no vessels were exempt from capture
as prize of war?
 If there is an internationally binding custom, are states free to
pass contrary legislation?
 If they are, won’t that mean that states are only bound by
custom if they want to be so bound?
 Are there any international customary laws which states may
disregard (derogate from)?
Copyright © 2013 Valerie Epps. All rights reserved.
The Relationship of IL to
Domestic (National) Law
 Common law and civil law countries usually
incorporate IL into domestic law provided it does
not conflict with existing national law. A few states
make IL supersede national law.
 All states enter into agreements with other states
(treaties). Some nations require legislation before
the treaty will become operative as law but others
make treaties operative as soon as the required
national and international procedures are
completed.
Copyright © 2013 Valerie Epps. All rights reserved.
The Relationship of IL to
Domestic Law (continued)
 Can subsequent legislation override existing
treaties? The answer in the US, and a number of
other countries, is “Yes,” but other countries make
treaties supreme over regular legislation. Note: At
the international level, a state may not rely upon
its internal legislation to excuse non-performance
of an international obligation. (Vienna Convention
on the Law of Treaties, arts. 27 & 46, Doc. Supp.
p. 27 & 46).
Copyright © 2013 Valerie Epps. All rights reserved.
Abdullahi v. Pfizer, Inc.,
US Court of Appeals 2009
 What was the binding international law custom found
in the Abdullahi Case?
 What sources of law did the majority opinion rely
upon? Read art. 7 ICCPR , Doc. Supp. p. 285.
 Is the US a party to the ICCPR?
http://treaties.un.org/pages/ParticipationStatus.aspx If
so, why didn’t the plaintiff’s lawyers rely on that treaty
to clinch the case?
 Why did the dissenting judge disagree with the
majority?
 If Nigerian governmental officials had agreed to go
ahead with the treatments without patient or parental
consent, thus probably barring actions in Nigerian
courts, should Nigerians be able to sue in US courts?
Copyright © 2013 Valerie Epps. All rights reserved.
The full set of PowerPoint slides is
available upon adoption.
Email crutan@cap-press.com
for more information.