introduction to international law

1. Introduction to International Law Robert H. Obringer, JD, MA MBA/TM

2. Introduction to International Law Historical Landmarks Law within a State What is International Law? Rules Sources of International Law Relationship of International and National Law Courts ICJ, WTO, NAFTA, EU

3. International Court of Justice “If you have a set of rules which conflict with reality, then reality normally wins.” Jack Straw, British Foreign Secretary, 2003   "The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights...” The European Court of Justice, Van Gend en Loos, Case 26/62

4. International Law?

5. What a way to run the world!

6. Historical Landmarks

7. WHAT IS INTERNATIONAL LAW?

8. Is International Law Really Law? What is Commity? Comity defined: The practice, or courtesy, between nations of treating each other with goodwill and civility. Comity is not law because countries do not regard it as something they are required to respect. Case 1-1. Ignacio Sequihua v. Texaco Inc. et al. Page 3

9. International Organizations

10. Peace of Westphalia 1648 Peace of Westphalia End of Thirty Years War (Religious War) Principle of sovereignty/ autonomy: ‘Cuius Regio, Eius Religio’. Internal policies matter for state governments, not for international conflict. The term Peace of Westphalia refers to the two peace treaties of Osnabrück and Münster, signed on May 15 and October 24 of 1648 respectively, which ended both the Thirty Years' War in Germany and the Eighty Years' War between Spain and the Netherlands. The treaties involved the Holy Roman Emperor, Ferdinand III (Habsburg), the Kingdoms of Spain, France and Sweden, the Dutch Republic and their respective allies among the princes of the Holy Roman Empire. The Peace of Westphalia resulted from the first modern diplomatic congress and initiated a new order in central Europe based on the concept of national sovereignty. Until 1806, the regulations became part of the constitutional laws of the Holy Roman Empire. The Treaty of the Pyrenees, signed in 1659, ended the war between France and Spain and is often considered part of the overall accord. The term Peace of Westphalia refers to the two peace treaties of Osnabrück and Münster, signed on May 15 and October 24 of 1648 respectively, which ended both the Thirty Years' War in Germany and the Eighty Years' War between Spain and the Netherlands. The treaties involved the Holy Roman Emperor, Ferdinand III (Habsburg), the Kingdoms of Spain, France and Sweden, the Dutch Republic and their respective allies among the princes of the Holy Roman Empire. The Peace of Westphalia resulted from the first modern diplomatic congress and initiated a new order in central Europe based on the concept of national sovereignty. Until 1806, the regulations became part of the constitutional laws of the Holy Roman Empire. The Treaty of the Pyrenees, signed in 1659, ended the war between France and Spain and is often considered part of the overall accord.

11. Sovereignty and UN Article 2(7) of the UN Charter: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state…”

12. Sovereignty Used in many different ways: Fundamental autonomy of national legal order from other sources of authority. The ability of the national legal order to act without restraints derived from treaties. The practical ability to control activities within the territory of the national legal order. Other states willingness not to interfere?

13. NAFTA Did not change US’s fundamental sovereignty Was an agreement to limit US law-making in relation to tariffs with Mexico: ‘limited US sovereignty’ in that sense. Less control (?) of US relations with Mexico – but that was desirable (?).

14. Treaties Universal Postal Union, 1874 Treaty of Versailles/ League of Nations, 1919 Kellogg-Briand Pact, 1928 (‘renunciation of war’) Charter of the United Nations 1945 International Convention for the Regulation of Whaling, 1946 General Agreements on Tariffs and Trade, 1947 Universal Declaration of Human Rights, 1948 European Coal and Steel Community, 1951 Vienna Convention on the Law of Treaties, 1969 Convention on International Trade in Endangered Species (CITES), 1973 Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 UN Convention on the Rights of the Child, 1989 Treaty on European Union (Maastricht Treaty), 1992 World Trade Organisation, 1994 International Criminal Court, 2002

15. Law within a State

16. Law within a State A Set of Rules (Law). Sometimes agreed in ‘legitimate’ process. Authoritative Interpreters of Rules (Courts). Enforcement of those interpretations by the state monopoly of legitimate coercion (Police).

17. Police

18. Definition of a State “What is a state? Sociologically, the state cannot be defined in terms of its ends. … Ultimately, one can define the modern state sociologically only in terms of the specific means peculiar to it, … namely the use of physical force. … Of course, force is certainly not the normal or the only means of the state – nobody says that – but force is a means specific to the state. … Today we have to say that a state is a human community that (successfully) claims the monopoly of legitimate use of physical force within a given territory.” Max Weber

19. States Defined: Political entities which have all of the following: 1) A territory. 2) A population. 3) A government capable of entering into international relations. 4) A government capable of controlling its territory and peoples.

20. Recognition? Of a State Usually granted when an identifiable government, people, and territory first come into existence. Of a Governmenta Declaratory doctrine: The legal existence of a government happens automatically whenever a government is capable of controlling a territory and its people. Constitutive doctrine: A government does not truly come into existence until such time as it is recognized by other states Case 1-3. Matimak Trading Co. v. Khalily and D.A.Y. Kids Sportswear Inc. P. 13

21. What is International Law?

22. What is International Law? “International law is the body of rules that nations consider binding in their mutual relations”. PCIJ: International law governs relations between independent states. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions [treaties] or by usages [customary State practice] generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.

23. IL between States 1938 US legal scholars: “the relationship among nations rather than among individuals. It is termed the Law of Nations, or International Law, because it is relative to States or Political Societies and not necessarily to individuals, although citizens or subjects of the earth are greatly affected by it”

24. The Rules

25. ‘Sources’ of International Law ICJ statute: Treaties Custom General Principles of Law Judicial decisions and legal academics

26. Treaties ‘Conventions’ May codify already existing custom Obviously the actual content of treaties matters a great deal…

27. Treaty on Treaties Vienna Convention on the Law of Treaties Every treaty in force is binding upon the parties to it and must be performed by them in good faith. “Pacta sunt servanda” Codified previous customary law on treaties.

28. Customary International Law State practice Which is also considered binding Opinio Juris States can be bound by CIL unless object States can be bound by CIL as codified by treaties which they do not ratify unless object

29. General Principles of Law Sometimes treaties and CIL provide little guidance Look to principles in national law

30. Judicial Decisions and Learned Writers Subsidiary source of international law Difficult to justify selection of decisions and writers.

31. State Responsibility “Every international wrongful act of a State entails the international responsibility of that State” Incentives to comply with international law derived from ‘reprisals’ from other states: diplomacy, reputation, economic sanctions etc.

32. Relationship between International law and National Law International Law view of National Law National Law view of International Law Sometimes treaty requires national law application: Monist approach Dualist approach “Municipal law”.

33. International Law view of National Law International Law looks to the result. Vienna Convention on treaties: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”

34. International Law view of National Law: Example Permanent Court of International Justice, 1931: “a State cannot adduce against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force”

35. Monist Approach International Law an integrated part of all legal systems, part of legal whole.

36. Monist Example French Constitution: “ Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party. ”

37. Dualist approach International law and national law are two distinct legal orders. A dualist nation retains the sovereign right to decide to adopt, or not, the obligations of international law

38. Dualist Example Lord Diplock, British Judge: “If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty’s Treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties … and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty’s own courts”

39. US national law and IL Treaties derogate existing legislation but can be overruled by later statutes.

40. US national law and IL Federal Court Judge: “I am led to conclude that a misconception exists here as to the status, in a federal forum of so-called international law when that law encounters a municipal enactment. International practice is law only in so far as we adopt it, and like all common or statute law it bends to the will of the Congress.”

41. Why does this matter? Can be gaps between international law view of national law duty and obligations in fact enforced by national courts. Who enforces national law? In monist states, national judges can directly enforce (some) international law. In dualist states, national judges enforce international law only if specific national laws require them to do so. Are ‘monist’ judges really obeying international law like a US state judge obeys US federal law?

42. Rules of Statutory Interpretation Lex Superior lex superior derogat legi inferiori Constitution over Statutes (Acts of Congress) Statutes over Regulations (Delegated Powers) If a treaty is introduced by a statute, it is still inferior to the state’s constitution.

43. Rules of Statutory Interpretation 2 Lex Posterior: lex posterior derogat legi priori Last enacted law prevails. 1988 Merchant Shipping Act prevails over the 1978 Fishing Act. If a treaty is introduced by statute, it is inferior to new statutory legislation subsequent in time.

44. Rules of Statutory Interpretation 3 Lex Specialis lex specialis derogat legi generali Specific rules prevail over general ones Unless explicitly repealed Cf. Italian case (Conforti) From a dualist approach employing lex specialis to monist approach by changing Italian Constitution. Not much difference?

45. The Courts

46. International Arbitration ‘Neutral’ third party, judging on basis of pre-existing rules.

47. Analysis of Tribunal Appointment – where do the judges come from? Jurisdiction – required or optional? Nature of the parties – states or citizens? Enforcement mechanism – what happens if states do not comply?

48. Examples of Tribunals International Court of Justice WTO Dispute Resolution Panels NAFTA Dispute Resolution Panels European Court of Justice

49. International Court of Justice Composition: 15 judges, no two from same state. Ad hoc appointments if nationality not represented. Jurisdiction: Only States may be parties to cases States must agree to court’s hearing the case: States may agree after case arisen State may bring proceedings and other may appear. Treaty may provide for it. States may accept ‘optional clause’ which grants court’s jurisdiction over all disputes in international law between two states both of which have accept the clause.

50. International Court of Justice Only States as Parties Enforcement: States are expected to comply UN Security Council ???

51. World Trade Organisation Composition: Dispute Settlement Body Panel of Experts in International Trade Law, not citizens (unless agreed) of a State party to the proceedings. Appellate Body: Standing Body of Seven. Jurisdiction: Compulsory jurisdiction for WTO membership. If benefits of WTO agreements impaired by measures taken by another state.

52. World Trade Organisation Parties: Only States. Enforcement: States are expected to comply by withdrawal of offending measures; Or Compensation; Or Retaliation by suspending obligations as authorised by DSB.

53. NAFTA Free Trade Commission, similar to DSB of WTO. Compulsory jurisdiction for impairment of benefits under NAFTA, but several procedures.

54. NAFTA Chapter 11 Investment disputes Private parties can bring complaint. Binding arbitration, under World Banks International Center for Settlement of Investment Disputes (ICSID). Arbitrators can award damages and restitution of property.

55. European Union European Court of Justice. Composition: Appointed by Member States. No dissenting judgments. Compulsory Jurisdiction

56. European Union Two Different Procedures Direct Actions in ECJ Against Member States or Community institutions. By European Commission or Member State.

57. European Union “Preliminary Rulings” from ECJ to National Courts: Interpret EC Treaty Interpret Community Acts Determine validity of Community Acts Purpose: to ensure Community law is correctly interpreted in Member State courts. Private parties have access to national courts.

58. European Union: Compliance ECJ judgments: Member states expected to comply. Since 1994, fines (which Member States expected to pay). Member state courts apply EC law: Judgment from national court More difficult to evade?

59. International Enforcement Territorial Sovereignty: The right to exercise the functions of a state within a territory. 1) Not an absolute right: Other states may obtain servitudes. a) Positive servitude: The exercise of a right-of-way. b) Negative servitude: Prevents one state from doing something within its territory that causes injury to a second state. Case 1-4. The Trail Smelter Arbitration p. 18

60. Intergovernmental Organizations (IGO) 1) Defined: Permanent organizations set up by two or more states to carry on activities of common interest. 2) Characteristics common to IGOs: a) They are created by two or more states. b) They are meant to pursue interests common to their creators. c) They function autonomously as independent international persons.

61. Non-Governmental Organizations (NGOs)

62. Summary International law has no automatic enforcement. When a person states that international law requires … they mean treaties, custom or opinion of professors; or international courts… International law claims to apply regardless of national law; but national law claims international law applies only when national law so provides. International courts vary: in who has access and what the consequences are of a judgment.

63. This is only a technical introduction to international law… Remember: this discussion is just about rules and procedures. International law is much more than rules and procedures. E.g. Criticism of International Law in China’s Cultural Revolution: “In the Western capitalist world, suppression of the weak by the strong and the eating of the small fish by the big fish are not only tacitly condoned by bourgeois international law but also are cloaked in the mantle of legality”