B665 International Law
Prof. Waters, Fall 2011
FOUNDATIONS
I. International Law and the Study of It
A. IL as a Subject and a Discipline
1. Unique Features of International Law
a. Regulation of the interactions of multiple actors
b. Deals with the “governance gap”—those things that states themselves do not govern
c. Things that can’t be solved until they come up—wars, environmental problems, etc.
d. Not the same thing as foreign relations law (though it does make up a big part of IL)
e. Usually enforced and applied by domestic actors—domestic processes influence and
interfere
2. Henkin on IL
a. Law is politics and made by politicians—it is a product of society and an expression of the
underlying political values in a system
B. Conceptual Challenges, Methodological Approaches
II. Histories of International Law
A. Antecedent and Classical Systems
1. Early approaches are dominated by natural law—jus gentium, restitution for harm
2. WESTERN ORIGINS OF THE INTERNATIONAL SYSTEM
3. Creation of Modern International Law
a. 1648 Peace of Westphalia: Ends the 30 Years War; states choose to limit their sovereignty
and tolerate minorities and religions for the preservation of the empire
4. Turn to Positivism: Focus on the states—idea that small powers equal to large monarchy, treat
self-governing entities equally
5. The Interwar Period
a. Formation of the League of Nations, International Labour Organization, Permanent Court of
International Justice
b. Beginnings of permanent systematization
B. The Contemporary History: Post-War and Fragmentation
1. Henkin: Essential quality of statehood is AUTONOMY
2. Xue: Sovereignty is everything to developing countries—IL is used as a last resort for
developing countries to defend their systems, but often doesn’t live up to expectations
3. Vagts: Hegemons and international law
SOURCES
I. Customary International Law
A. Sources; Evidence of General Practice
1. Paquete Habana—state practice, comity
B. Completeness and Freedom Principle
1. The Case of the SS Lotus
a. LOTUS FREEDOM PRINCIPLE: Restrictions cannot be presumed—in the absence of a rule,
states are free to act based on their own sovereignty
2. Legality of the Threat or Use of Nuclear Weapons
C. Opino Juris
1. North Sea Continental Shelf Cases
a. Conditions to Reach Opino Juris: The acts concerned amount to a settled practice, AND are
carried out in such a way as to be evidence of a rule of law requiring it
i. States must feel a legal obligation to abide, not just courtesy, tradition, convenience
b. Dissent: General practice of states should be recognized as prima facie evidence that it is
accepted as law
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2. Military and Paramilitary Activities In and Against Nicaragua
a. For a rule to be established, it is not necessary that all practice of the rule be in absolute
conformity with the rule—where practice is inconsistent, it should be generally treated as a
breach
b. A state acting contrary to the rule, but defending conduct by appealing to exceptions or
justifications confirms rather than weakens the rule
D. Objectors
1. States that protect a certain rule may not be bound by that custom when it becomes a general
rule—objectors may not be bound
a. New-born States are technically given the choice, but typically adopt existing rules
b. VERY DIFFICULT TO BE EXEMPT BASED ON PERSISTENT OBJECTOR STATUS
II. Treaty
A. Forming Treaties
1. Vienna Convention on Treaties—declaratory of existing customary law (US not a party, but
treat it as customary law)
2. Maritime Delimitation and Territorial Questions—letters between Qatar and Bahrain
a. TEST: Look at terms and particular circumstances to determine if a treaty exists (VERY
BROAD)
B. Invalidity
1. VERY HIGH THRESHOLD FOR CLAIMING INVALIDITY
2. Ultra Vires Treaties
a. Manifest Test: A state may only invoke its internal law as justification for failure to perform
a treaty if the violation was MANIFEST. A violation is manifest if it would be objectively
evident to ANY state dealing with the matter in accordance with normal practice and good
faith
3. Coercion: Force is physical force (though economic/political pressure has been argued it has
so far been denied); Very few occurrences of coercion resulting in the invalidity of a treaty
C. Reservations
1. 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 modify the
legal effect of certain provisions of the treaty in their application to that state
a. Important to the effectiveness of the treaty regime that reservations remain relatively
few—reservations risk gutting treaties
b. Like counter-offers
2. Objects and Purpose Test (aims to limit reservations and objections):
a. Those reservations that do not go to the heart of the issue should not be objected to. States
decide for themselves whether or not a reservation is violative of the object and purpose of
the treaty (Reservations to the Convention on Genocide)
3. UN Human Rights Committee: States cannot reserve on customary law; committee decides
what can/can’t be reserved.
a. US/Classic View: Reservation is integral to consent
D. Terminating and Suspending Treaties
1. Withdrawal—a treaty may be terminated in accordance with its own rules
2. Treaties without provisions for withdrawal default to Vienna Convention
a. Could be implied by the nature of the treaty (alliances, commercial treaties are, but treaties
on territorial boundaries are not subject to withdrawal, nor are human rights treaties)
b. If all parties agree, it may be terminated
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3. Breach—a violation should give rise to a right to the party against who the violation was
committed to sanction or withdrawal to seek some form of redress
a. Material Breach: material to the purpose of treaty’s legal effect (not necessarily the central
reason the treaty was entered into)
4. Changed Circumstances (Fundamental Changes)—very difficult to invoke
a. 5 Requirements: Fundamental character, unforeseen, essential basis of the consent to be
bound by the treaty, transform radically the extent of the obligations to the party, obligation
must be still to be performed under the treaty
b. Must change the obligation—can’t just change the interests and motivations
c. Fisheries Case; Gabcikovo-Nagymoros Project (no changed circumstances, only for
exceptional cases)
E. Observing and Interpreting Treaties
1. Vienna Convention on the Law of Treaties
a. Interpret in good faith
b. Give text ordinary meaning
c. Consider context
d. Everything in light of the object and purpose
e. May be necessary to use supplemental methods of interpretation if after all these is it still
unclear (NOTE: preparatory work not necessarily analogous to legislative history as helpful
to interpretation)
2. Bosnian Genocide
3. Foster v. Neilson—HORIZONTALITY OF THE SYSTEM—the interpretation of the treaty by one
party will not bind the other party, they only apply in a state’s own sphere
F. Incentives
1. Lots of states sign because they intend to comply, but doesn’t explain when states sign but
don’t implement
a. Appearances (avoid criticism, regional pressures, etc)
b. Nature of legal systems—common law countries less likely to ratify b/c of the power of
interpretation vested in judges
2. Most concerned with the middle, not the extremes
III. Interactions of Custom and Treaty; Other Sources
A. Custom-Treaty Interactions
1. Treaties are typically interpreted so that they do not derogate custom
2. Starting point is to treat custom and treaty as equals—priority will depend mainly on
circumstances
3. Treaties can sometimes bind nonparties
a. If declaratory of pre-existing custom
b. If it crystallizes customary law in the process of formation
c. If it generates new customary law subsequent to its adoption
4. Jus Cogens—a treaty is void if it conflicts with preemptory norms of international law
B. General Principles; Judicial Decision-Making
1. Prosecutor v. Tadic Case
2. Categories of General Principles:
a. Principles of municipal law recognized by civilized nations
b. General principles of law derived from the specific nature of the international community
c. Principles intrinsic to the idea of law and basic to all legal systems
d. Principles valid through all kinds of societies in relationship of hierarchy and coordination
e. Principles of justice founded on the very nature of man as a rational and social being
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3. Judicial Decisions
a. Every court has some potential role in creating and interpreting general principles
b. Even without courts having to formally follow precedent, courts still defer to others
C. Declarations and Resolutions; Soft Law
1. Spectrum spanning clearly formally legal to political/moral
2. Filartiga v. Pena-Irala
a. US ATS Case—custom must be tested against state practice; use declaration by General
Assembly and the approval of declaration as proof of practice and opinions
3. Declaration: formal and solemn instrument; falls somewhere between a binding treaty and
non-binding political pronouncement
4. Security Council “Law Making”
a. Clearer, more realistic powers—formal and binding on certain issues
ACTORS
I. The State and the State System
A. Statehood: Requirements and Recognition
1. SOVEREIGNTY: Capacity to take certain types of actions on the international plane
2. Recognition: An authoritative statement issued by another state. Through it those states
signal the willingness of their state to treat with a new state or government or to accept that
consequences either factual or legal, flow from a new situation
3. MONTEVIDEO CONVENTION (now considered custom)
a. 4 Qualifications: Permanent population; Defined territory; Government; Capacity to enter
into relations with other states
b. Federal state viewed as one legal person
c. Declaratory Theory—existence of state is independent of recognition by other states
4. Constitutive Theory of Statehood—State cannot act until recognition takes place; the act of
recognition by other states itself confers international personality on an entity purporting to
be a state
5. Modern view of the Montevideo Convention goes even further (Yugoslavia/Badinter
Commission)—Democracy Criteria? Will of the People…etc.
6. Question Concerning the Situation in Southern Rhodesia
B. Recognition of Regimes
1. Effective Control Test—Look at who is actually in power
2. Trends in Recognition:
a. Democracy Criteria and Probable Growth (at odds with the effective control test—will of the
people also not in the effective control test)
b. Broad trend towards deformalization of certain subjects
C. Succession
1. Strong conservatism—stability orientation (concerns with debt repayment)
2. Default assumption is a focus on continuity rather than flexible rules
D. Sovereign Authority: Self Determination
1. Claim that non-self-governing territories ought to be the beneficiaries of this right (colonies,
occupied territories, etc.)
a. Options for such states:
i. Become part of the main state
ii. Remain a free association (i.e. Puerto Rico as commonwealth)
iii. Become independent
iv. Choice would be left up to those citizens of that particular territory (most choose
independence)
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2. Territorial integrity, self-determination, no aggression principles work together to preserve
political units as against outside changes
3. Problem: Who are “the peoples” who can claim this right? No good definition
a. East Timor; Reference Re Secession of Quebec
b. External Self Determination: creating a new state out of the boundaries of another state
(independence)
c. Internal Self Determination: could be a set of formal rights, participation in society generally
(lots of options)
E. Powers of States and Interactions with and within the International Law System
1. Monistic: National derives validity from international law, so it is a single system
2. Dualistic: National law and international law are separate legal systems that operate on
different levels; Distinguishes between the creation and performance of obligations
3. More recently created constitutions address the role of international law much more explicitly
4. IL makes claims of being a superior or global system, but operation is often dualistic and
separate with high priority on states to determine how IL works
II. Organizations and Individuals
A. International Organizations (The United Nations)
1. International Organization: Private groups formed under international law and sharing a
common objective—generally formed by states
2. Formed by treaties, or can also be corporations operating under national law
3. INTERNATIONAL LEGAL PERSONALITY—the ability to make rules, bring claims against other
actors, etc.
4. Reparation for Injuries Suffered in the Service of the United Nations Case
B. Individuals
1. Role for individuals primarily in international criminal law
2. Individuals most often act in a mediated way through states—NATIONALITY MATTERS
3. LaGrand Case; Nottebohm Case; Eritrea/Ethiopia Case
4. Nationality
a. WORST STATE—being stateless with no protection—STRONG BIAS AGAINST STATELESSNESS
b. Increasing suspicion against ethnic basis for nationality
c. Preservative Principle—once you get nationality it should be hard to lose
d. Rules against dual nationality are much more relaxed now than previously
C. Private Organizations: NGOs and Corporations
1. NGOs and corporations are relatively similar. NGOs tend to have relatively marginal status and
not much law-making capacity
2. NGO Personality:
a. Contributions of NGOs looks most like lobbyists; not very democratically organized
b. Monitor compliance; say what they think the law is (can be influential
c. Status is thin and marginal, but could have more substantial effect in soft law
3. Corporations:
a. Controversial Aspects—tremendous economic power that can transfer into political power;
they are complex, mobile, and difficult to regulate
b. CORPORATIONS DO NOT HAVE INT’L LEGAL PERSONALITY because they are creatures of
domestic law, but still act in certain capacities:
i. Enter agreements with governments
ii. Make contracts
iii. Have rights under treaties
4. Barcelona Traction, Light and Power Company Ltd. Case
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DOCTRINES
I. State Responsibility
A. Disputes, Attribution, and Breach
1. Principles and international obligations
2. Fundamental Principles of State Responsibility:
a. Breach engages the responsibility of the state for the consequences of the breach
b. If the breach results in an injury to another state, the injured state is entitled to reparation
(even absent a clear statement of right to reparation in a treaty or similar document)
c. Responsibility arises whenever there is a breach of international obligation, whatever its
origin (doesn’t have to come from a treaty, can be general principle or custom, etc.)
3. Attribution—2 ways actions may be attributed to a state
a. Actions committed by an organ of the state (an organ of the state IS the state)
b. Actions committed by direction of the state in some way
B. Responses: Reparations, Countermeasures, Enforcement
1. See Gabcikovo-Nagymoros
2. Reparation
a. Default is RESTORATION—return the parties back to where they would have been but for
the breach
b. Recognition of the wrong preserves the rule of law
c. Other alternatives available depending on the situation
i. Promise not to repeat; Declaratory judgment; Compensation and negotiation
3. Countermeasures
a. What states can do to help themselves in the event of a breach
b. Kinds of Self-Help Countermeasures:
i. Reprisal—action that would otherwise be illegal; made justifiable by another legal act
(ex. Killing of prisoners in war; other instances of use of force)
ii. Reciprocal Measures—non-performance by the injured state based upon the other
state’s breach; wrongful if it weren’t excused by the other party’s prior nonperformance
iii. Retorsion—measures that are usually permissible under international law—broader
catch-all of things you might do that may have an effect (ex. Stop trading, withdraw
ambassadors, etc.)
c. PROPORTIONALITY is always a consideration
II. Jurisdiction and Immunities
A. Interactions and Domestic-Oriented Principles
1. Jurisdiction as a claim follows from the idea of being a sovereign state, but the idea of
extending jurisdiction runs up against the sovereignty of other states
2. Kinds of Jurisdiction:
a. Prescriptive (Legislative) Jurisdiction—prescribing conduct for others through administrative
acts
b. Adjudicative Jurisdiction—power to bring people before courts and enforce legislation
c. Enforcement Jurisdiction—very broad, can mean many different things
3. Classic Idea of Jurisdiction: Ultimate power within the bounds of the sovereign territory and
limited exercise outside of it (IBT Outline—territoriality, nationality, effects, etc.)
a. A state must always justify its exercise of jurisdiction by a REASONABLENESS standard
4. Territorial Jurisdiction—classic model of jurisdiction
a. Standard Territorial (Subjective)—actors act and have effects within the territory
b. Objective Territorial—effects on your territory from things outside it
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c. See ALCOA Case
5. Nationality Jurisdiction—jurisdiction over your own citizens wherever they happen to be
a. Blackmer v. US; US v. Yousef
b. Passive Perosnality Principle
6. Protective Principle
a. US v. Vasquez Velasco
B. Universal Jurisdiction
1. See Pinochet Case
2. Restatement:
a. State having jurisdiction to define and punish offenses recognized as a universal concern
b. Each state defining and punishing as it chooses based on the overarching ideas
c. Reasonableness element dropped in the case of universal jurisdiction (too subjective)
3. Grounds for Universal Jurisdiction:
a. Human rights, piracy, slavery, terrorism (?), genocide, etc. (VERY SHORT LIST)
i. Test to Qualify for Universal Jurisdiction:
 Universal condemnation
 External nature of the crime
b. Must be very heinous behavior
c. Some forms may be based on treaty
4. Policy Implications/Rationales
a. Claim or belief of universal values, as least for a limited set of terrible acts.
b. Practical need for universal jurisdiction, otherwise there will be difficulties in enforcement—
can’t ask the criminal to try himself
c. Set of claims about what you think the state system is—arguments will be appealing based
on whether you think there is a state system of common values
d. Universal Jurisdiction—having equal interest in very different than saying there is no
interest
e. Problems:
i. What qualifies? Which jurisdiction prosecutes (forum shopping)? Poor definitions of
crimes?
ii. Tends to be a more attractive tool to Western, middle powers—could be advancing one
set of values over another
5. Possible Limits
a. Allow international courts to preempt state court jurisdiction for certain crimes—treat the
problems through international courts instead of relying on universal jurisdiction
b. If an international court takes the case, they must first inquire if another state that has an
interest is going to adjudicate the offense.
C. Immunities—Officials (see Pinochet)
1. Classic Principle—states ought to be immune from prosecution in other states and therefore
so are those certain individuals who act on their behalf or are in a certain relationship
a. MODERN PRACTICAL CLAIM: International relations won’t work unless certain people are
immune from lawsuits and criminal prosecution
b. Some of the immunity must continue after a person leaves office otherwise they will be
afraid of the personal consequences of doing their jobs for the state
2. Ratione Personae—full temporary immunity that lasts during the time an official is in office
3. Ratione Materie—continuing partial immunity; immunity for official acts after you leave office
(but not for your private crimes)
4. JUS COGENS CRIMES CANNOT BE A STATE FUNCTION
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ISSUES
I. Control and Division of Physical Space
A. Acquiring and Delimiting Territory
B. Law and the Sea
C. Environmental Regulation
II. Use of Force
A. Classical System to Nuremberg
B. UN System: Aggression and Self-Defense
C. Internal Conflicts, Intervention
III. Regulation of Violence: IHL and ICL
A. IHL Principles: Nuremberg
B. Contemporary ICL
IV. Human Rights
A. UN System
B. Regional Systems
C. Limits: Derogation, Scope of Application, Enforcement
D. Rights, Groups and Culture: Women’s Rights