International Law Outline

Transcription

1 International Law Outline Professor: Upendra Acharya Note to the reader: I am professor Acharya s research assistant and I have first hand knowledge that he plans on changing the format of this class. But I can tell you as his reaseach assistant, he really likes when you bring all the aspects. Deep analysis of all issues and thoughtful content will get you points! INTERNATIONAL LAW OUTLINE IN GENERAL: How do you make international law? International Court of Justice Article 38: International law comes from International Conventions, Customs, General Principles of law recognized by civilized states, and judicial decisions. This is not textually a hierarchy of law, however, over time it has been seen this way. TREATIES: What is a treaty? Vienna Convention Art. 2 (1)(a) an international agreement written a treaty may be signed or two or more documents. Vienna Convention Artl 3: Although the VCLT does not apply to oral treaties, it does not affect the legal force of such agreements. Vienna Convention Art. 5- Allows the application and enforceability of international treaties between states and international organizations. A treaty may be a covenant, convention, accord, etc. How do you make a treaty? Parties discuss the problem, negotiate, and come to a political solution. Essentially the same elements of a contract apply. There must be intent of the parties to make a treaty. There must be a good faith effort to comply with the conditions of the treaty. What is a Unilateral Treaty? Is it enforceable? A treaty in which only one country makes an express promise, or undertakes performance without first securing a reciprocal agreement from the other country. The International Court of Justice states that unilateral treaties are valid if there was an intention of the parties to make a treaty. The country which under took the obligation must have intended to do so, and the country which allowed this to be done on their behalf must have understood this to be the case as well. Why do States enter into treaties? What are the benefits? Generally speaking, once a treaty is ratified it becomes domestic law among the parties. This gives a binding force to agreements made. Explain the Agreement, Treaty, and Accord which dealt with the situation in Cyprus. Page 1 of 6

2 1878 Agreement Turkey agreed to transfer administrative control of Cyprus to Great Brittan in exchange for defense against Russia Treaty- Treaty of Lausanne Greece and Turkey both accept Great Britain s rule over Cyprus, making Cyprus a GB territory in Accord Turkey, Greece, and Britain as well as representatives from Cyprus met in London to sign the London Accords, formalizing Cyprus as an independent Country. Notice, the representatives did not sign the treaty. Ultimately these three treaties play a major part in the Cyprus conflict. Who has the authority to make a treaty? Vienna Convention Article 6: Every state possesses capacity to conclude treaties. Vienna Convention Article 7: a state representative in treaty making must: a) produce appropriate full powers, or b) it appears from practices there is an intention for this person to possess full powers. (Exmp: heads of state, heads of government, ministers of foreign affairs, members for to an international organization for the purpose of adopting a treaty.) Vienna Convention Article 8: An act performed by a person without appropriate full powers will be considered ineffective, unless otherwise confirmed by the state. When is a treaty valid? Invalid? Vienna Convention Article 42: Validity and Continuance in Force of Treaties- the validity of a treaty or of the consent of a state to be bound by a treaty may be impeached only through the application of the present Convention. Vienna Convention Article 45: After becoming aware of certain facts, which would otherwise invalidate the treaty, if the parties expressly consent, they are bound to the treaty. Vienna Convention Article 46 (1): A treaty which violates provisions of international law will be invalid if the treaty is a) manifest and b) concerns a law of fundamental importance (see (2) for definition of manifest). Vienna Convention Article 50: a treaty produced by corruption is invalid Vienna Convention- Article 60: A material breach of a bilateral treaty by one of the parties is grounds for termination of the treaty in whole or in part. Vienna Convention Article 62: A treaty may be invalidated based on a change in circumstances. However, it depends on what the circumstances are, and if the parties relied on the circumstances. Look at the Article itself for the test to determine if it would invalidate. How should a treaty be interpreted? Vienna Convention- Article 31-32: How to interpret Treaties. Treaties should be interpreted in accordance with their ordinary meaning in terms of their context and in light of the objects and purpose of the treaty. Context should be made up of the text of the treaty, any agreement relating to the treaty which was made by all parties, any instrument which was made by one or more of the parties and accepted by the other parties as an instrument of sorts. Take into account, subsequent agreements between the parties regarding interpretation, subsequent practices in application and interpretation, and relevant rules of international law applicable in relation between the parties. Special meaning should be given to terms if it was established by the parties. Recourse may be made to confirm meaning, or where meaning is ambiguous or obscure or leads to results which are manifestly absurd or unreasonable. UN Charter Article 103: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. Page 2 of 6

3 Explain Reservations and their legal effects. Vienna Convention Articles 20-21: Legal effects of reservation and objection to reservation: A reservation is allowed when it is not inconsistent with object and purpose of the treaty. You must have the consent of all parties. What is a reservation: 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. (Article 2 (1)(d)). In effect, a reservation allows the state to be a party to the treaty, while excluding the legal effect of that specific provision in the treaty to which it objects. A reservation doesn t work well with bilateral and trilateral treaties, becuase there are too few countries; if one country didn t agree the treaty wouldn t work. Universal treaties also don t work well with reservations, because they are meant to create a universal principle, to make a reservation would be to make an exception. CUSTOMARY INTERNATIONAL LAW: Briefly explain relevant doctrines which emerge from the Mexico- USA FDI conflict. Shifts in political ideologies lead to a shift in trends, where home states demand expropriation of foreign direct investments. Domestic states tended to believe the foreign investments did not have a right to full compensation upon divestment, while foreign states believed otherwise. The Hull Doctrine- After expropriation, the foreign state is entitled to prompt, adequate, and effective compensation Mexico counters this argument claiming there is both domestic law to support their method of expropriation and compensation, and CIL which supports their right to determine the method used. (This is CIL!!!!) GA Resolution 1803: UN General Assembly on Expropriation: Permanent Sovereignty over Natural Resources (1962). Expropriation should be based on grounds or reasons of public utility, security or the national interests which are recognized as overriding purely individual interests, both domestic and foreign. the owner shall be paid appropriate compensation in accordance with the rules in force in the state taking such measures GA Resolution 3173 (1973): implies that each state is entitled to determine the amount of possible compensation and the mode of payment, and that any disputes which may arise should be settled in accordance with the national legislation of each state carrying out each measures GA 3281: Charter of the Economic Rights and Duties of States (CERDS) 1. Sovereignty of states over wealth, natural resources, and economic activities 2. States have the right to : Nationalize, expropriate, or transfer ownership of foreign property, and should pay appropriate compensation. Where a question of compensation gives rise to controversy it shall be settled under domestic law of the nationalizing state and by its tribunals, unless mutually agreed by all states concerned to use other measures. SEDIRAN and TOPCO Page 3 of 6

4 These are two additional cases of FDI. SEDECO argues that customary law allows full compensation during their expropriation from Iran. The court awards full compensation, but based on a treaty, and states that full compensation is not supported by CIL. In TOPCO an arbiter ruled that Libya must compensate TOPCO based on GA resolution The court ruled that CID may be created on the basis of voting in the GA. A major criticism of this ruling is the possibility for powerful countries to create CID artificially through their power in the GA. Where does CIL come from? ICJ Statute Article 38(1)(b): Customary International Law (CIL) is made up of two things: State Practice + Opinio Juris. Repeated state acts become custom as divergent practices of various states converge and achieve a level of uniformity, consistency, and regularity that becomes a legal obligation; implicit state consent. Opinio Juris: a subjective obligation, a sense on behalf of a state that it is bound to the law in question. States can opt out of emerging customs by objecting. Customary rules are binding on all states that did not object, even if said state did not have an opportunity to object. Persistent Objector: If a state persistently objects to the custom, they are not subject to CIL. The objection must be consistently throughout the existence of the custom. International Law Association (IRA) holds the theory that state practice automatically includes legal obligation, and we must practice that way. Equity does not have to have a sense of legal obligation or opinion juris. International Committee of Red Cross (ICRC) holds the theory that you cannot disentangle the two notions of state practice and opinio juris. US Response There is no test to determine when a state practice become CIR or law, what is the density that must be established? What is the Paquete Habana standard? CIL emerges when the following timeline occurs, but note, there may be setbacks in the timeline. This does not necessarily prevent CIL from emerging.! Generally Observed Facts (state practices)! Repetitive Observation (effective and determinative)! Density of Facts (stabilized social interests)! Creation of law Explain the role of the World Bank in creating CID. Soft law is quasi- legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law, for example non- binding agreements between states or trade publications. Hard law refers to actual binding legal instruments and laws, for example, treaties and CID. The benefits of soft law are that there may be more of an incentive to follow soft law because it is non- binding and risks are low if it is broken. Additionally soft law may become binding through CID. The benefits of hard law are that it is redressible. It may be more likely to be followed because it is official and binding. World Banks regulations on FDI are an example of soft law. Including their definitions of adequate, effective and prompt. Another example is the Helsinki Final Act of 1975, which Page 4 of 6

5 confirmed borders in Pan- Europe for the purpose of facilitating trade agreements and economic cooperation. THE STATE AS AN ACTOR Who is an actor in IL? Traditionally, only sovereign states. In Contemporary IL NGOs, International Organizations, Corporations, Individuals (think about human rights laws), rebels, terrorists (think about groups of reformers and opposition to government), ethnic groups and indigenous peoples. What is a state? Why would a territory want to be a state. The Montevideo Convention of Article 1: The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states By what process can a state change or form? Explain the Right to self- determination and the connection to state formation. UN Charter- Article 1(2): (the purpose of the UN are) To develop friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples UN Charter- Article 73: This article explain the duties of a member state who has assumed the role of governing states which are not self- governed. Self- determination is not explicitly stated, but is implicit in the duties, such as a duty to respect culture. GA Resolution 1514 (1960): Declaration on the Granting of Independence to Colonial Countries and Peoples GA Resolution 2625 (1970): Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations INTERNATIONAL ORGANIZATIONS: Why do states create IOs and what are potential problems? States create IOs in order to have participation in the global economy. See the Aparthtied problem in notes. Kinds of IOs: International non- governmental organizations (NPOs and Corporations) and Inter- governmental Organizations Treaty body, charter body, specialized global, general, or regional? Core Elements of an IO: A constitutive element (a charter, some sort of written document), members, and a secretariat What gives IOs a legal personality? UN Charter - Article 104: the UN has special capacity over its members UN Charter Article 2(7): The UN can intervenein the domestic affairs of a nation The charter? Page 5 of 6

6 Reparations? Peace keeping operations? Treaty making powers? The Vienna convention gives treaty making powers Page 6 of 6