CHAPTER 1: NATURE OF INT’L LAW INTERNATIONAL LAW:
A. Is it Law? (or a series of moral & political standards?)
• Austin/Positivism: Skeptics use this theory to say Int’l law is not ‘law.’ 1. THERE IS NO SOVEREIGN TO MAKE THE RULES –
i. Argument: There is no global parliament/sovereignty – UN Charter only have the GA power to make nonbinding recommendations and the Sec Council the power
enforce laws in limited circs
ii. Opposing Argument: Instead of asking whether there’s a rule-making body, we should ask whether there is a method for creating those int’l laws (Henkin)
a. Treaties & Customary international law - both can only become a law based on the State’s consent –
i. This is diff than domestic law b/c if congress decides to adopt a law and the pres signs it, you are bound by that law whether u consent or not. b. Practice of states over a long period of time in the belief that they are
obligated (jus cogens)
2. NO JUDICIARY TO INTERPRET – no court with jurisdiction to decide a dispute between 2 states about the meaning of a rule of customary law or treaty, unless the states consent to the jurisdiction
i. ICJ has limited jurisdiction
ii. New Courts Today –ICC, ICTY, Rwanda, Sierra Leon, European Court of Human Rights
iii. What can States do?
1. Bring in mediator, arbitrators, etc
2. If they don’t voluntarily want to do any of these options, they can each stick with their interpretations and take action to signal their displeasure
3. NO BODY TO ENFORCE IT
i. Domestic law - enforced through the police power instilled in the state.
In domestic society, ppl observe the law principally from fear of consequences (both extralegal and legal) deterrence. Believe it is in their interest to
observe.
ii. Int’l Law – Congress decides to enact laws that may detail sanctions against other countries. Then the president may impose the sanctions
a. Ex 1: Treaty on the Non-Proliferation of Nuclear Weapons (NPT) prohibits the making of nuclear weapons/bombs. Iran signed/accepted the Treaty and in exchange received benefits related to creating nuclear energy, w/ the proviso they couldn’t use it to build weapons. The US thinks Iran is using it to make weapons, and is imposing sanctions on them as a violation of the treaty. UN Sec Council is also imposing sanctions, based on their power under CH. 7 of the Charter, which authorizes an organ of the UN to impose binding resolutions/sanctions on States
i. The UN Sec Council must make a determination about the existence of any threat to the peace, breach of the peace, or act of aggression before imposing sanctions (Art39)
b. Ex 2: NAFTA – trade agreement – has a body to which any state that claims another state is violating it, can bring the claim.
i. States will generally accept the determination to gain their various rights under the treaty
c. Ex 3: Period when Soviet Union refused to let ppl leave the country, and they decided to stop delivering mail to these ppl. The post office decided they wouldn’t deliver mail in the US unless the Soviets started delivering mail to everyone in their country
B. Is it binding Law? Restatement - it is just like other law that promotes order and requires legal obligations.
C. Compliance with Int’l Law – Why do states comply? There is no executive authority and no effective sanctions
• States are compelled to adhere by external sanction; they see it in their long term self-interest to comply; they know non-compliance will be reciprocated; wish to maintain a good reputation; out of habit…
• “Its probably the case that almost all nations observe almost all principles of intl law and almost al of their obligations almost all the time” (Henkin)
o Everyday nations respect the borders of other nations, treat foreign citizens, diplomats, and property as required by law, and observe thousands of treaties. o Ex: Mail System, Currency Exchange, Flying treaties (treaties to land or fly over
certain countries)
D. Enforcement of Int’l Law - What happens when a state chooses not to comply?
• Sanctions: force of public opinion; Coercive sanctions (countermeasures and economic sanction); Non-forcible remedies in national courts’; self-defense; ad hoc Int’l Crim Tribunals for the Former Yugoslavia and for Rwanda;
o Breaches of int’l law entail possible reciprocal suspension of obligations owed to the breaching state and other retaliation
o Countermeasure – a non-forcible act that would normally be contrary to the int’l obligations of a state, but is deemed permissible when taken in response to a wrongful act of another state and in order to induce cessation or and reparation for the act
• Example: War is a breach of int’l law
o UN Art. 2.4: Prohibition of the threat or use of force against the territorial integrity or political independence of any state
Theory that “there is no int’l law b/c it cannot stop war”
No state will obey intl law if doing so means it will be destroyed. Martyrdom is not required by any legal system (Art. 51 = self defense as an inherent right)
CHAPTER 2. SOURCES OF INTERNATIONAL LAW 1. SOURCES AND EVIDENCE OF INT’L LAW GENERALLY
• Doctrine of Sources – provides objective standards of legal validation.
o Voluntarism – Says that int’l legal rules emanate exclusively from the free “will” of states as expressed in conventions or usages generally accepted as law.
o Positivism – emphasizes the obligatory nature of legal norms and the fixed
authoritative character of the formal sources. In order to be ‘law’, the int’l law must be capable of application by a judicial body (in principle)
• Article 38 of the ICJ Statute:
a. Int’l Conventions (treaties) , whether general or particular, establishing rules expressly recognized by the contesting states;
i. MAJOR CAVEAT – treaties are ONLY applicable to the extent that they are expressly recognized by the States who are party to the dispute
b. Int’l custom accepted as law, as evidence of a general practice accepted as law; requires:
i. practice by large number of states over a period of time and ii. done in belief there is an obligation to do it;
c. General principles of law recognized by civilized nations
i. Jus Cogens – fundamental principles universally recognized by “civilized” nations
ii. e.g., right to legal process, impartiality of trier of fact
d. judicial decisions/highest teachings of publicists of various nations as subsidiary means
Judicial decisions and well-respected legal scholar’s work can be a SUBSIDIARY source of law for ICJ consideration
• This is diff from the common law system – there we look at decisions of higher courts as important precedence. This statute adopted view of civil system that doesn’t give great weight to judicial decisions
In Paquette Habana (see below), the ICJ noted that jurists and scholars might be more familiar with the relevant customs and therefore should be consulted Restatement §102 : refers to judicial decisions as evidence of whether a
rule has become int’l law. (rather than subsidiary means, like the ICJ 38) 2. CUSTOMARY INTERNATIONAL LAW
• Art. 38(1)(b): “international custom, as evidence of a general practice accepted as law.” o Customary Law - The acts concerned must amount to a settled practice and there
must also be evidence of a belief (subjective element) that this practice is rendered obligatory by the existence of a rule of law requiring it.
o Elements:
1) State practice
2) in the belief that there is an obligation to do so – i.e. opinio juris - the belief that an action was carried out b/c it was a legal obligation
(rather than a cognitive reaction or habitual behavior) 3) over a long period of time – this element is now debated
• Once there is a rule of customary IL, any new state that comes into being is bound by it. • Persistent Objection Rule: States are bound by international rules of customary IL
unless they object! (silent = bound)
• Regional rules of customary law: States are not bound unless they consent to be (silent = not bound)
• THE PAQUETE HABANA , US SC 1900 (J. Gray) – LANDMARK CASE
Facts: During the Spanish-American war, two fishing ships flying Spanish flags were
captured near Cuba (for violating a US military blockade) and brought to Key West. The US wanted to confiscate the vessels as “prizes of war”
Issue: Will the US recognize the international custom that exempts fishing ships from being confiscated as prizes of war?
RULE: Where there is no treaty, executive or legislative act, or binding precedent, the court will resort to int’l custom.
o In this case, it was an established rule of international law that small coast fishing vessels, pursuing their peaceful vocation of catching and bringing in fresh fish and are unarmed, are exempt, with their cargoes and crews, from capture as prize of war. (humanitarian law)
* Statement of role of int’l law in the US : “IL is part of our law, and must be ascertained and administered by the courts of justice of approp jurisdiction as often as questions of right depending upon it are duly presented for their determination.”
o The Constitution says NOTHING about international law in this context -- This case established the precedent that in the absence of US law on a subject of
international law, customary international law controls
o There is a debate as to whether the inverse is axiomatically true – Does contrary US law always trump international custom? What if there is a domestic exec order? Does it supersede the customary IL?
One argument -When there is a domestic law of the kind described, then the customary law would not apply.
Opposite argument – Read the negative implication – it applies only when there isn’t any legislation or exec act.
* Not a unanimous decision –There is often no certainty of whether something is a rule of customary IL
• THE CASE OF THE S.S. LOTUS (France v. Turkey) – P.ICJ, 1927 – LANDMARK CASE
Facts: French steamer collided with Turkish steamer in international waters. Turkish sailors and passengers died. The officer on watch of the French ship was a French citizen, and was arrested after complying with Turkey’s request to go ashore to give evidence. The Turkish officials never notified the French consul. He was tried and convicted of manslaughter. France brought this action, alleging that Turkey had no jurisdiction over the officer.
o France argued that Turkey did not have jurisdiction b/c the flag nation is the only State that can exercise jurisdiction over things that happen on a ship bearing its flag (Rule of Customary International Law) – “A state only has Jurisd if it can point to a rule of IL that gives it jurisd.” France argues there is no rule of IL that would grant them jurisd. turkey
The Court rejected this proposition (today, this is a codified rule in LOS) o Turkey argued : there is jurisd Unless IL prohibits it
Issue: Under IL, may a state do whatever it wants unless there is a prohibition, OR may it only do whatever there is a rule of Int’l permitting?
Holdings: 2 bases for jurisdiction – case has alternative holdings; no way to know which 1 is holding, which is dicta
1. States are sovereign and can do whatever they want unless there is a rule of IL saying that they cannot. - In other words, under int’l law a state does not need a rule permitting it to exercise jurisdiction.
- There is no rule here prohibiting, therefore Turkey has jurisdiction.
2. Territoriality: an offense is committed within a national territory if the offense, or the effects of the offense, occurred there since the effect of the offense was felt on a Turkish ship, Turkey got jurisdiction based on the theory of objective territoriality
• LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (ICJ, Advisory Opinion, 1996)
Facts: This came to the ICJ as an advisory opinion requested by the UN Gen Assembly - Asked if threat or use of nuclear weapons in any circumstances ever permitted under IL? Two jurisdictional rulings:
1) The Court can give the General Assembly an advisory opinion based on Article 96 of the U.N. Charter
2) An advisory opinion on this issue would be answering a “legal question.” The Court said it doesn’t matter that this is a political question as long as it is also a legal issue. As long as it is not a purely political issue, the Court can give an opinion.
Legal Question Holding: the court could not reach a definitive conclusion on the legal question
o Court relied on LOTUS principle -> look to see if IL prohibits the threat of nuclear weapons in any circumstance.
o Court analyzed 2 treaties to see if they create a custom:
Non-Proliferation Treaty: to reduce the number of weapons held by states. It does not seem to prohibit it, just requires ‘reducing’ it
Partial test ban treaty (?) : restricting the testing, so some other testing must be permissible
o Customary Law Elements:
State Practice - US used nuclear weapons on Japan in 1945, but not since. This is enough to show a general practice not to use them
A belief that there is a legal obligation (opinion juris)
• Look to Gen Assembly Resolution – resolution which said that using the weapons would be a direct violation of the charter.
o One view: Can indicate an acceptance as an obligation: If a resolution is adopted and a lot of states vote for it, then there must be an underlying assumption that this is the law
o 2nd view: May not indicate acceptance: they only passed the resolution b.c its good PR
• Look at Law of Armed Conflict: 1 rule is that you cannot target civilians, only military. Here, the argument is that you could not possibly minimize civilian causalities
• Laws of War: The court says it cannot rule out nuclear weapons when a state needs to defend itself for the very survival of its existence
Schwebel’s Dissent: Court should have found self defense b/c using nuclear weapons is permissible in extraordinary circumstances
o Says that if a resolution is adopted unanimously or by consensus AND there is practice may be declaratory of customary IL
Shahabuddeen’s Dissent: Lotus has been extended too far; the principle of sovereignty (that states can do whatever they want unless its prohibited) should not apply to nuclear weapons b/c there is a possibility that it could annihilate mankind
• North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) 1969
Facts: dispute over the delimitation of the continental shelf shared by Denmark, Netherlands, and Germany.
Issue: Is Article 6 of the Geneva Convention, which sets forth the principle of equidistance, customary international law?
provision to become the basis of a rule of international law, it must:
1) Be a rule which is viewed as a “basic rule” or norm - here it was not general enough; 2) Be ratified by a number of states -> it was ratified by very few, took 5 years to go into effect; therefore, they could not have thought that they were ratifying a rule of customary international law
The fact that you were allowed to make a reservation showed that they were not creating a rule of customary law
o Ct follows the Lotus view – held that there is no evidence here that the states that have in the past agreed to draw boundaries according to the principle of
equidistance did so b/c they felt legally compelled to b.c of a rule of customary law. (It was a secondary principle)
• The Relationship of Custom And Treaties
o If a treaty says A and a rule of custom says B, treaty comes first if its binding on both states.
EXCEPTION: jus cogens – rules that even if they are customary, cannot be changed. (ex: i.e cant have a treaty providing for slavery, genocide,
apartheid, some acts of terrorism)
• if its not jus cogens, they can change it
Usually a specific rule of customary IL will prevail over a general treaty rule The parties must show common intent to replace a treaty with a custom. If there is no intent, treaty and custom have equal weight with priority to the later in time
o Treaty rules may be accepted as customary law and binding on states not parties to it when:
The treaty rule is declaratory of pre-existing custom
The treaty rule is found to have crystallized into customary law in process of formation (other states adopt the same practices that the treaty laid out) The treaty rule is found to have generated new customary law subsequent to
its adoption
The treaty is ratified very widely (i.e. genocide convention was a treaty but now been ratified by almost all states in the world – so now theres an argument that its customary law and binding)
o Today, a substantial part of customary IL has been codified in multilateral
conventions by IL commission, approved by Gen Assembly – i.e. law on treaties, diplomatic and consular immunities and the law of the sea
o Advantages of recognizing customary law parallel to treaty law:
States are not free to withdraw from customary law as they can from treaties In many states, cust law is part of domestic law whereas treaty rules only
become domestic if the legislature decides so
Customary law (general IL) has more weight than contractual obligations --may give states legal interest in complying with them
CHAPTER 3. THE LAW OF TREATIES 1. DEFINITION AND GOVERNING LAW
• Treaty = binding agreements between subjects of IL that are governed by IL.
o Used to set up/create international law, codify customary international law, or may even be the source of an int’l law
o Other names are int’l agreements, convention, pact, protocol, charter, covenant, declaration
o Under US law, a treaty is specifically an agreement that the president ratifies after he obtains a resolution of advice and consent by 2/3 of the senate
• Types of Treaties:
o General treaties : establishing rules of behavior which are of fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law (open to all states)
o Bilateral agreements (2 parties): drafted in contractual terms of mutual exchange of rights and obligations
o Multilateral treaties : > 2 parties
• The law of treaties is comprised of customary int’l law, general principles (including jus cogens), and the 1969 Vienna Convention on the Law of Treaties.
2. THE VIENNA CONVENTION OF THE LAW OF TREATIES:
• The Convention was based on draft articles prepared by the ILC; was concluded in 1969 and entered into force in 1980.
o Nixon presented it to the Senate but they never gave advice and consent. (Article II, § 2).
o U.S. is not a party to the convention - did NOT ratify it but took the position that the convention simply codified existing principles of customary international law; ergo the U.S. follows most of its provisions notwithstanding its failure to ratify the convention
• Art. 1: The Vienna Convention only applies to: Treaties between States, in writing, and governed by International Law
o Therefore, the Vienna Convention does NOT apply to:
Agreements between a state and an int’l organization, A state and a corporation,
Oral agreements.
• Under the Vienna Convention, the head of state or an appointed minister with the appropriate credentials has the authority to represent a state (and enter into a treaty) • Convention is not retroactive – unless about a rule of jus cogens
• Interplay Between International Custom and Vienna Convention
o General international law defines a “treaty” more broadly than the Vienna Convention - ICJ has held that an oral treaty is still a binding, valid treaty;
agreements b/n an int’l org and a state can also be a binding treaty under general international law
o It is important to determine whether a treaty does or does not codify existing
customary law b/c customary law is binding on all states, not just the states that ratify the treaty.
There is a caveat though: a treaty that creates new law can become customary international law by virtue of being ratified by many states
o Pacta sunt servanta – The whole concept, jurisprudentially, that treaties have to be observed is in itself a principle of customary law. (codified in Art. 26 of the Vienna Conv)
• Conclusion and Entry Into Force
A. Existence of a Treaty - How do we know when an agreement has come into existence?
• Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) ICJ, 1994
Facts: Foreign ministers of the countries met and they negotiated. Qatar invoked the jurisdiction of the ICJ on the basis of 1) exchanges of letters dated Dec 1987 and 2) a document headed “minutes” which had been signed at Qatar in 1990 by the Ministers of Foreign Affairs of Bahrain, Qatar, and Saudi Arabia (as mediator) Bahrain.
o Bahrain argues: the documents are just a record of negotiations and the foreign minister did not have authority to sign a treaty.
Issue: do these documents constitute international agreements creating rights and obligations for Qatar and Bahrain? (obligation to subject to the ICJ all of their
disputes)
Held: Both the 1987 exchange and 1990 Minutes are International Agreements. Int’l Agreements may take a number of forms. The Minutes are not a simple
record of a meeting, but rather enumerate the commitments to which the parties have consented and constitute an Intl Agreement. They thus create rights and obligations in IL law for the parties.
Art 7 of the Vienna Conv gives the foreign minister the authority to make a treaty (in addition to Heads of State, Heads of Government )
B. Expression of consent to be bound
o Art 7 of Vienna Conv: General Rule a person is considered as representing a state for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the state’s consent to be bound by a treaty if
(a) he produces full powers and
• “full power” = a formal document which designates a named person to represent the state for the purpose of negotiating and concluding a treaty (b) it appears that the intention of the state was to allow that person to represent the state and thus dispense with full powers (look to how a second state would perceive the state’s intention)
(b) is intended to preserve the modern practice of states to dispense w/ full powers and just rely on heads of state/gov’t
o Methods of Expressing Consent – signature, ratification, acceptance, or any other means if so agreed
C. Obligation not to defeat the object of a treaty
o US Constitution Art 2. §2, cl. 2: Treaty Clause – The President may sign on a treaty on his own, but must get a resolution of advice and consent from 2/3 senate to enter the treaty. If we ratify the treaty, we are bound. Often before it gets ratified it gets signed.
o Obligations of a state that has signed but not yet ratified the treaty? If ratification does take place, a signatory’s misuse of its right prior to
ratification may amount to a violation of its obligations.
• Article 18: “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, {until it shall have made its intention clear not to become a party to the treaty} or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
• Ex: US and USSR signed the Strategic Arms Limitation Treaty II in 1979 but did not ratify it. Each accused the other of violating it.
o If both agreed they would destroy a substantial number of their nuclear weapons, you can argue that before the treaty was ratified, it imposed the obligation not to create any new weapons.
• Ex: Rome Statute: Art. 18 allows you to make your intention clear that you don’t want to be bound by it
o The US wrote a letter to the UN secretary general saying they don’t intend to become a party to the treaty. (p 137) – this satisfied the ‘until’ clause
They didn’t ‘unsign’ or ‘withdraw a signature’ – they notified that they did not intend to ratify and thereby the obligations imposed by art 18 are no longer applicable
• RESERVATIONS
o Reservation: 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 the state. (Art. 2(1)(d))
Multilateral Treaty Reservation : A state agrees to obligate itself to a treaty, but says that X paragraph doesn’t apply to us.
Bilateral agreements Reservations - like a counter-offer by the reserving state
• No reservations in bilateral treaties, b.c then you just wouldn’t put the provisions in
o Article 19 – A State may ratify a treaty subject to certain reservations UNLESS a. Reservations are prohibited
Some treaties like the Convention on Sea and the Rome Statute of the International Criminal Court do NOT allow for reservations
o The US has NOT ratified either BUT benefits from most of the provisions in the Convention on the Sea insofar as they are a part of customary international law
b. The treaty specifies that ONLY certain kinds of reservations are allowed and the one at issue is not one of those specified kinds
c. The reservation at issue is otherwise incompatible with the object and purpose of the treaty
o Examples:
o Reservations to the convention on genocide (ICJ, Advisory Opinion 1951)
Facts: The U.S. ratified the Genocide Convention with a reservation: that nothing in the Convention “requires or authorizes legislation or other
action...prohibited by the Constitution of the United States as interpreted by the United States.” The reason for this reservation is that the Convention prohibits incitement to genocide; this prohibition is inconsistent with U.S. First Amendment law. (S.C. defines free speech as “you can say anything you want unless there is an imminent danger of violence.”)
Issue: Is the reservation valid under Article 19?
Held: Yes – Court says you can reserve, as long as it does not go against the object/purpose of the treaty. This holding is basically a restatement of art. 19(c).
• We want this convention to be adopted by as many states as possible, so we’ll allow reservations on this ground
Note: Is the US’s reservation consistent with the object and purpose of the genocide convention?
• NO, its inconsistent b/c the point of the convention is to prevent genocide.
• YES – given america’s history upholding human rights, there is not a serious concern that this understandable nuance in US const law will result in genocide (the argument is strong that it is consistent)
Convention on Discrimination Against Women (CEDAW) is the most widely accepted convention, but there are an extraordinary number of reservations.
• Is the Islamic reservation––the treaty is binding to the extent that it does not conflict with Islamic Sharia law as interpreted by Islamic religious authorities––valid?
• We would have to look at how the authorities have been interpreting Islamic law (evaluate whether this reservation is incompatible with the object and purpose of the treaty)
o Can argue that it is inconsistent with object and purpose of CEDAW b/c Sharia law permits the overt discrimination of women (not allowing to drive, participate in schools, etc) o Reservations to Human Rights Treaties: Many reservations to the human
rights treaties
US has ratified International Covenant on Civil and Political Rights w/ a reservation that its not self executing (no form of implementation). The ICCPR established the Human Rights Committee, which reviews and comments on periodic reports made by parties to the covenant.
Human Rights Committee’s General Comment No. 24 of 1994 : in tension with the ILC
• Committee states it was empowered to determine whether a specific reservation is compatible with the object/purpose of the covenant
o If it decides its inconsistent, then the reservation is invalid, but the state is still bound by the treaty AND the article which it said it would not keep THIS WAS STARTLING – US and UK wrote answers rejecting this (see below)
Arguable that states would simply not join treaties if this was the case!
• Observations by the US on General Comment No. 24: challenges the Committee’s claim of authority to determine the validity of
reservations and the legal effects of “impermissible” reservations – o In reality, the compatibility of a proposed reservation is reviewed by the
non-reserving parties to the treaty (the other states)
o Possible scenarios for a state filing a reservation:
State files a reservation and the other states accept it the reserving state becomes a party to the treaty with the reservation in force
State files a reservation, but one state objects to the reservation
• the treaty will enter into force as between it and the reserving state, except for the provisions to which the reservation relates (those provisions fall out of the treaty)
o in practice, most objecting states allow the treaty to enter into force as b/n them and the reserving state
• An objecting state can also assert that the treaty does not exist as between them and the reserving state, if it finds the reservation is inconsistent with the purpose of the treaty.
A. Observance
o Art. 26: Pacta Sunt Servanda and Good Faith– “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
The purpose of the treaty and intentions of the parties should always prevail over the literal application of it. Good faith obliges the parties to apply it in a reasonable way and in such a manner that its purpose can be realized
Pacta Sunt Servanda is a rule of customary IL which signifies that the agreements and stipulations of the parties to a contract must be observed. o Internal law and Treaty Observance - What if a treaty is contrary to
domestic law?
Article 27: bars states from raising contrary domestic law as a defense to abrogation of its responsibilities under a treaty – A state cannot assert its own law as a defense for non-compliance with a treaty it entered into lawfully
• “Later in time” rule: If a later statute conflicts w/ an earlier treaty, a domestic court will apply the statute over the treaty. However, the state remains internationally bound by the treaty
Art. 46: a state may invoke the fact that its consent to be bound by a treaty was expressed ‘in violation of a provision of its internal law regarding
competence to conclude treaties’ if and only if the violation was ‘manifest and concerned a rule of its internal law of fundamental importance.’
• Ex: If its clear that the consent was expressed in violation of a
fundamental provision of internal law that others are aware of (the US Const. requirement that 2/3 Senate give its advice and consent)
o The US has extra-constitutionally developed a whole new way of entering treaties (executive agreements) which doesn’t require senate’s advice/consent
• To be clear, Article 46 is NOT an exception to Article 27
o Article 27 is a general rule that domestic law NEVER provides a defense for non-performance of a lawfully entered-into treaty o Whereas Article 46 sets a general rule prohibiting asserting
domestic law as an explanation for why a treaty was never entered into in the first place BUT it contains a narrow exception for manners of acceptance that manifestly violate principles of domestic law
o Breard v. Greene (1998): The US S.C. was asked to stay the execution of a Paraguyan national, pending resolution of a dispute over consequences of non-compliance with a treaty. The Dispute had been before the ICJ and the US Courts.
The US gov’t conceded in both forums that there had been a breach of treaty, but the gov’t argued that neither court could accord a remedy for the breach since the petitioner had failed to raise the treaty question in the courts of the state of Virginia at the time of his trial and later appeals.
Held: Assertions of error in criminal proceedings in the US must be first raised in the state court in order to form the basis for relief in habeas. Since Breard did not do so, he cannot raise a claim of violation of the Vienna Convention now.
• Interpreting and Modifying Treaties
o Article 31 – sets the general rule that treaties should be interpreted in good faith and according to their plain meaning (emphasis on the text)
Even though a unilateral interpretation of an int’l agreement of one
contracting state is not binding upon the other contracting state, countries should still protest what they believe to be an erroneous interpretation
o Article 32 – allows you to consult the legislative history (travaux préparatoires) only to:
confirm the plain meaning of the text of the treaty OR
When the plain meaning of the treaty, without more, is ambiguous or would lead to an absurd or unreasonable result
o Article 40 – In order to modify a multilateral treaty, ALL parties to the treaty must agree
o Application of the Convention on the Prevention and Punishment of the Crime of Genocide (ICJ, 2007 – p. 166-167)
Facts: Bosnia and Herzegovina sued Yugoslavia (Serbia-Montenegro) under the Genocide Convention in 1993.Ps claimed that Serbia-Montenegro was responsible for many breaches of the Convention in relation to protected groups in Bosnia, particularly the Muslim population
Held: Serbia did violate their responsibility under the Convention to prevent the crime of genocide and violated their obligations to punish genocide.
• ICJ interpreted the provision “the undertaking to prevent and punish
genocide” of Art I to find that Art I imposes distinct obligations over and above those in the other Articles (not to commit genocide) , relying on the preparatory work of the convention and the drafting history
• Coercion
o Article 51 – Coercion of a representative of a State
“The expression of a State's consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats
directed against him shall be without any legal effect”
The ratification of a treaty procured from a State’s representative by acts of coercion or threats of violence has NO legal effect
A treaty ratified under coercion is AUTOMATICALLY invalid o Article 52 – Coercion of a State by the threat or use of force
“A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations (Art. 2(4))”
A treaty ratified under the threat or use of force is AUTOMATICALLY invalid (A country can’t use force to compel someone to sign.)
• This presents an interesting paradox: On its face this provision would appear to invalidate all peace treaties, because presumably one state used force in violation of int’l law!
• Ex. Negotiation b/n Israel and Palestinians – suppose they enter into a treaty and agree to boundaries on west bank. 10 years later, one of them could turn around and say the agreement is not valid because it only agreed because it was afraid the other was going to use force against them
• Conflict with peremptory norm (jus cogens)
o Article 53 – A treaty is void if, at the time of its conclusion
[non-retroactive], it conflicts with a peremptory norm of general international law.
A preemptory norm of international law is norm accepted and recognized by the international community of States AND is a norm from which NO
derogation is permitted
• You can’t make a treaty that violates principles of jus cogens -- piracy, slavery, genocide, use of force in violation of UN Charter, perhaps certain acts of terrorism
o Article 64 – “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”
The emergence of a new rule of jus cogens is not to have retroactive effects on the validity of a treaty. The invalidity is to attach only as from the time of establishment of the new rule.
Melvina’s problem: How do you modify it if you can’t have a treaty and CIL can’t derogate it as well? How do you modify a rule which you cannot change by definition?
• first it says it’s a norm that cant be changed; then they say it can only be changed in a certain way
• Termination or Suspension of Treaties
1) Article 54: The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States.
Most treaties today contain clauses specifying: their duration, the date of termination, an event or condition to bring about termination, or a right to denounce or withdraw from a treaty.
2) Denunciation/ Withdrawal from a treaty which contains no provision regarding termination
Art 56 of Vienna: “A treaty which contains no provision regarding its
termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
“may be implied by the nature of the treaty” = treaties of alliance and of commerce
Ex: The ICCPR does not contain a termination clause. It is clear that the parties did not intend to admit the possibility of denunciation/ withdrawal, considering the importance of human rights. The committee believes that IL does not permit a state which has ratified or acceded or succeeded to the Covenant to denounce or withdraw from it.
3) Art. 60: Termination of a Treaty as a Consequence of Breach
60(1) A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part
• If one side breaches a bilateral treaty, it’s not automatically over – but it permits the other party to invoke it
60(3): A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
Art. 60(5): Exception for humanitarian treaties
“Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”
• These are designed to protect human beings, so we don’t want a breach to then make it void
4) Advisory Opinion on Namibia (ICJ, 1971)
Facts: S. Africa had a mandate over Namibia from the League of Nations. In 1996, the GA adopted a resolution to terminate the mandate b/c it found that South Africa had breached it introducing apartheid into South West Africa.
Issue: The Security Council asked for an advisory opinion on the question of “what are the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276?
Holding: the continued presence of S. Africa in Namibia is illegal and S. Africa must withdraw from the territory.
Mandate has the “character” of a treaty (same rules apply)– The Mandate serves as a “treaty” b/n S. Africa and the League of Nations
South Africa’s presence has become illegal b/c imposing apartheid was A MATERIAL BREACH of the mandate, therefore the Security Council can cancel the Mandate (as the successor to the League of Nations)
ICJ assumes that the proposition of “a right to termination should be
presumed to exist in every treaty, except humanitarian treaties” is customary international law, despite that the Vienna Convention does not say this
5) Appeal Relating To The Jurisdiction Of The ICAO Council (India v. Pakistan, ICJ 1972)
Facts: Pak brought a complaint against India before the ICAO on the ground that India had violated provisions of the Convention on International Civil Aviation and the Int’l Air Services Transport Agreement by unilaterally suspending flights of Pakistan planes over Indian territory. ICAO assumed jurisdiction based on clause in the treaty, and India appealed on ground of breach.
Issue: Whether the ICAO has jurisdiction Arguments:
India – claimed that its right to unilateral termination or suspension for material breach had been properly exercised and therefore, the treaties were no longer in force. It followed that the ICAO had no jurisdiction. India’s conduct in
suspending Pakistan flights was therefore, outside of the treaties.
Pakistan – objected to jurisdiction on the ground that India’s contention that the treaties were not in force or operation meant that India did not have standing to bring a case on the basis of the treaty jurisdictional clauses. Court: Rejected the Pakistan argument because if a mere allegation that a treaty was no longer in force could be used to defeat jurisdictional clauses, all such clauses would become dead letter. Rejected the India argument b/c a mere unilateral affirmation of a breach, contested by the other party, cannot be utilized to negate the Council’s jurisdiction.
Court must decide whether xyz constituted a breach. If Pakistan argues Court can’t decide because India is saying they breached it – then every time one party claims breach then the question would never come to the court. THUS, ICJ jurisdictional provisions are never invalidated in these situations
• Fundamental Change of Circumstances - allows for treaties to become inapplicable. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept).
1) Art. 62: Fundamental change of circumstance
Circs which must be met before a fundamental change of circumstances can be invoked:
• Change must have been fundamental & must have been unforeseen • The circs which have changed must have been an ‘essential basis of
the consent to be bound by the treaty’
• The effect of the change must be to transform radically the extent of the obligs of the party invoking the change
• The obligs in question are still to be performed under the treaty
o HYPO 1: Israel and Palestine enter peace treaty, signed (and ratified) by Abbas and Netanyahu. Israel agrees to withdraw from parts of west bank. Hamas, who actually won in the elections, creates a coalition with the Palestinian authority and made a coup. Hamas is now in sole charge of Gaza. Suppose they did the same in west bank. The Hamas Charter says it will never acknowledge existence of Israel and will do whatever it can to destroy it. Must Israel still abide by the treaty with PA?
Art. 62 Checklist:
• Fundamental? – yes
• Unforeseen? – No, its happened before in Gaza
• The circs which have changed ARE an ‘essential basis of the consent to be bound by the treaty’
• The effect of the change radically transforms the extent of the obligs of the party invoking the change - now removal would endanger ppl of israel
• The obligations in question are still to be performed under the treaty ? Therefore, Israel might be able to legally terminate the treaty (despite the
unforeseen prong)
o HYPO 2: If Israel had already withdrawn before the coup, then there are no obligations still to be performed under the treaty
• War Between Contracting Parties
1) Article 73:Cases of State succession, State responsibility and outbreak of
hostilities: The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the
international responsibility of a State or from the outbreak of hostilities between States
i.e. Vienna Convention does not contain any provision concerning the effect of the outbreak of hostilities upon treaties
2) Techt v. Hughes (Court of App of NY, 1920)
Issue: whether the provision under which rights are asserted is incompatible with national policy in time of war
Held: Mrs. Techt is not an alien friend and not entitled to the statute’s protection. Her claim therefore depends entirely upon the continuing effectivenesss, despite the state of the war, on the treaty of 1848. The treaty is not terminated.
If a treaty is in force, the plaintiff has an estate of inheritance
During wartime, treaties of alliance will necessarily fall, and treaties of boundary or cession, dispositive, or transitory conventions (+ treaties which regulate the conduct of hostilities; treatment of prisoners of war;
belligerency) will survive.
Cardozo: Provisions compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected
CHAPTER 4. OTHER SOURCES OF LAW Art 38 of ICJ Statute - sources of law:
a) international conventions
b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations;
d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
1. GENERAL PRINCIPLES OF LAW - recognized by civilized nations (Art 38 (c) of ICJ Statute)
• Prosecutor v. Tadic (International Criminal Tribunal for the Former Yugoslavia (ICTY), 1995)
Background: ICTY was created by the UN Security Council in 1993– authority is the UN Charter
o There is nothing specific in the UN charter giving authority for the Sec. Council to create the court, but the ICTY has interpreted the charter as giving authority to Security Council (p. 235, the ct views that “the security council was endowed with the power to create this int’l tribunal as a measure under Chapt VII in the light of its determination that there exists a threat to the peace.”
Facts: Tadic was the first person tried by ICTY. He was accused of committing atrocities at the Omarska concentration camp in Bosnia-Herzegovina in 1992. It was the first war
crimes trial since Nuremberg and Tokyo after WWII. Tadic argued that ICTY had no jurisdiction b.c the Tribunal had been created subsequent to the acts to which he was accused. He argues that the International Tribunal was not established by law, and therefore was created in violation of the “GENERAL PRINCIPLE” that “You cant try someone except by a court which has been established by law.”
Holding: this International Tribunal has been established in accordance with the approp procedures under the UN Charter and provides the necessary safeguards of a fair trial. It is thus “established by law.”
i. 3 possible interpretations of the term “established by law.”
1. Established by the legislature there is no legislature in the UN, so this interpretation cant apply in an international law setting
2. Establishment by a body which, though not a Parliament, has a limited power to take binding decisions
a. Ct believes that the Security Council, when acting under Chap VII of the UN Charter, makes decisions binding by virtue of Art. 25 of the Charter therefore, it was endowed with the power to create this Int’l Tribunal in light of its determination that there exists a threat to peace
3. Establishment must be in accordance with the rule of law must be established with the proper Int’l standards; must provide all the guarantees of fairness, justice, and even-handedness, in full conformity with internationally recognized human rights instruments.
a. This is the most likely meaning of the term in this context!
ii. Alternative Argument: this general principle only applies to domestic tribunals. Par. 42 • 5 categories of general principles that have been applied to IL (Schacter):
1) Principles of municipal law recognized “by civilized nations” (how ICJ 35 defines general principles)
In reality, neither courts or political organs of States have significantly drawn on municipal law principles as an autonomous and distinct ground for binding rules of conduct
2) General principles of law derived from the specific nature of the int’l community
i.e. necessary principles of co-existence pacta sunt servanda, non-intervention, territorial integrity, self-defense, and legal equality of the States.
3) Principles “intrinsic to the idea of law and basic to all legal systems”
juridical postulates/legal logic the later supersedes the earlier law, if both have the same source
even though these principles are “intrinsic”, they still rest on the implied consensus of the relevant community
4) Principles valid through all kinds of societies in relationships of hierarchy and co-ordination
Idea of unity of the human species, evidenced by 3 global developments: • Global movement against discrimination on grounds of race, color, and
sex
• Move towards general acceptance of human rights • Increased fear of nuclear annihilation
5) Principles of justice founded on the very nature of man as a rational and social being
Principles of natural justice – 2 aspects
• The minimal standards of decency and respect for the individual human being largely spelled out in human rights instruments
• Concept of equity which includes such elements of natural justice as fairness, reciprocity, and consideration of the particular circumstances of a case.
• Humanitarian Principles
o Corfu Channel Case (UK v. Albania), ICJ 1949
Facts: Mines exploded in Albanian territorial waters which damaged British warships and killed the personnel on the ships.
Proc: UK claimed Albania was internationally responsible and had a duty to pay damages.
Held: Albania had an obligation to warn the UK of the existence of a minefield & Albania had to know that its territory was used for acts contrary to the rights of other states
• This is based upon certain general and well-recognized principles
elementary considerations of humanity, the principle of freedom of maritime communication
• Substantive Equity: Estoppel, unjust enrichment and abuse of rights have been treated as general equitable principles of law
o Litigants before int’l tribunals assert ‘clean hands’ doctrine in reliance on Diversion of Water from the Meuse and other cases, but aren’t always able to persuade the court that the facts warrant the application of the doctrine.
2. JUDICIAL DECISIONS AND PUBLICISTS A. JUDICIAL Decisions
• ICJ: Art. 38(1)(d) of the ICJ Statute – directs the court to ‘apply judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’
o It is subject to Art 59, which states that the “decision of the ct has no binding force except bet the parties in respect of that particular case.” Stare decicis does not apply to ICJ decisions.
However, despite the above provisions, ICJ decisions are usually regarded by int’l lawyers as highly persuasive authority of existing IL
Cardozo: a decision of the ICJ is the “imprimatur of jural quality” when the Ct speaks with one voice or the support of most judges. When they are
o States do not wish the world courts to ‘create’ new law however, there are discretionary elements in the art of judging
o Many judges on ICJ are well known legal scholars. • Decisions of Other International Tribunals
o Other International Tribunals: ICJ is not “above” these other courts
Arbitral tribunals: These decisions are referred to as persuasive evidence of law
European Court of Justice and the European Court of Human Rights: hand down decisions that express/interpret principles and rules of IL
Inter-American Court of Human Rights
Int’l tribunals of specialized subject-matter jurisdiction: Int’l criminal tribunals for the former Yugoslavia and Rwanda; Int’l tribunal for the law of the sea
o Will the decisions of these courts will be treated by the ICJ and other law-applying bodies as a ‘subsidiary means’ under ICJ article 38(1)(d)?
• Precedents in International Tribunals - Even though Art 59 excludes stare decisis, the Court still cites its earlier decisions and incorporates their reasoning, creating a consistent jurisprudence
o The US Supreme Court has declined to follow an interpretation of an int’l treaty rendered by the ICJ. It has held that the ICJ’s interpretations are not binding on them, since it is not even binding on the ICJ itself.
Ex: Sanchez Llamas v. Oregon & Medellin v. Texas - one of the arguments was article 59
• Decisions of National Courts - may be treated as a subsidiary source independently of their relation to state practice.
B. THE TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS IF THE VARIOUS NATIONS
The use of the scholarly writer in IL has been more important than in municipal systems. The basic system of IL is largely the work of publicists. The extent to which writers are referred to as “subsidiary” authorities differs according to the tradition of the court and the individual judge.
o In the civilian system, reference to textbook writers and commentators is normal practice.
The practice of the ICJ has typically been to refer to scholarly writings only generally. o The major treatises of IL usually cited by states and tribunals were generally
produced by jurists of Western Europe many of the legal scholars were
pressured by their county to conform to the ‘official’ point of view or were biased themselves
o International bodies of publicists
The International Law Commission – an organ of the UN of 34 ppl elected by the UN Gen Assembly based on gov nominations
• They are supposed to agree on what the IL is on various matters and write it up. Sometimes draft what later become treaties if states agree (i.e. Vienna Convention)
• They’re publications have been used as a reputable place for
determining what the law is (but not a source of law in the sense that treaties and customary law are)
International Law Association – great weight afforded to resolutions adopted by consensus or large majorities of reps of diff regions
• Branches in many countries – we have the US branch
reports on various issues; meet biannually to determine whether they should be adopted.
o Cited quite frequently.
The Restatement of the Foreign Relations Law of the U.S – prepared by American Law Institute (a private organization of prominent lawyers, judges, and law professors. You become a member by invitation by another member of the institute)
• The ALI appoints someone to be a reporter for the Restatement. They then draft proposals and send them to rest of the members. Then they discuss them at a meeting.
o Reporter was Prof. Henkin for the Foreign Relations
Restatement. Many groups opposed this restatement, so they postponed the adoption to give others to comment on it
• Contains rules of IL as it applies to the US in relations with other states and also rules of US domestic law with substantial significance for US foreign relations
o ALI adopts standards that aims at an objective determination of general IL – it’s viewed by US courts as the most
authoritative US scholarly statement of contemporary IL 3. UN DECLARATIONS AND RESOLUTIONS
A. General Assembly Declarations and Resolutions
• Not mentioned in Art 38 of ICJ Statute as a source of determining IL.
• Charter doesn’t grant authority to Gen Assembly to enact binding rules of conduct or adopt binding decisions It can only discuss any questions abt the Charter and make recommendations to the UN members or the Sec Council (Art 10)
o One caveat – they can adopt a budget and require all members to pay
• Legal effect of resolutions that express/clearly imply legal principles or specific rules of law -
o Can be considered by gov’ts and courts as evidence of international custom or as expressing a general principle of law
o Can serve to set forth principles for a future treaty
o If its been adopted without a negative vote or abstention, there is a strong
presumption that it contains a correct statement of law (if its not unanimous, then its more questionable)
o Generally becomes binding because it has become customary law
• There are many Gen Assembly resolutions adopted by large majorities, and yet state practice is to the contrary - Since they’re not binding, they don’t have to abide by them so they vote for things that sound good b/c its good PR.
• Filartiga v. Pena-Irala (2nd Cir, 1980) *Landmark - resurrected the Alien Tort Statute//human rights
Facts: a wrongful death action brought in fed district court by 2 nationals of Paraguay for the death of their daughter/sister who was tortured by Pena-Irala, the Inspector General of the police at that time. They gained personal jurisdiction b.c Pena-Irala was visiting the US at the time and the sister/father saw the article. They got a lawyer who brought an action based on the Alien Tort Statute, which states “the district courts shall have orig
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the U.S.” (this statute was adopted 100 years earlier but had never been adopted by a US court.)
o Claimed that the conduct that led to the wrongful death constituted torture and violated the “law of nations” (customary IL).
Held: Deliberate torture under the color of official authority violates the law of nations o Court relied on 2 Declarations, adopted without dissent by the General Assembly, as
evidence that a prohibition of torture had become part of customary IL:
o The Universal Declaration of Human Rights: a Gen Assembly resolution Eleanor Roosevelt was the major force behind this resolution –
declared it was a common standard of achievement, not a binding agreement imposing obligations
Some say The Universal Declaration of Human Rights is now an authoritative statement of the int’l community, rather than just a binding treaty to its parties
o 1975 UN Gen Assembly Declaration on the Protection of all Persons from Torture : also not binding
o Also cited the Int’l Cov of Civil and Political Rights as a source of customary law, but not as a treaty, b/c it had not yet been ratified by the US
o Torture is prohibited by the laws of 50 or more states tried to establish rule of customary law, but Amnesty Int’l had conducted a survey which found most states DID use torture therefore, it fulfills the element of ‘opinio juris’ but not the ‘practice’ element.
o At the time, the Torture Treaty was not yet in force!
*this case allowed people in the US to bring actions from torture committed abroad
• Sosa v. Alvarez-Machain (US, 2004)
Facts: Alvarez-Machain was a doctor in Mexico. Allegations that Mexican drug cartel captured US DEA agent. They tortured him to get info. When he passed out, Alvarez revived him so he could be questioned more. The DEA agent died. DEA said if anyone brought Alvarez to the US, they would get a $50K reward. He was kidnapped, brought to border, and arrested by DEA. He was tried and acquitted by district ct. Then he brought an action under the Alien Tort Statute against the US for being involuntarily detained without legal authority by bounty hunters operated as US agents who captured him in Mexico and brought him to the US.
Issue: whether Alvarez had been arbitrarily arrested in violation of IL, whether arising from treaties or from customary IL
• To state a cause of action under ATS, must show that substantive violation of the treaty or customary law to get into court for jurisdiction purposes (here he tried to use customary law)
o P argued that this detention violated customary law relying on UN resolution argued his abduction by Sosa was an “arbitrary arrest” within the meaning of the Universal Declaration of Human Rights : court held that b/c the Declaration was non-binding at its inception, it could not established the relevant rule of IL
o Also within Article 9 of the Int’l Covenant on Civil and Political Rights . Art 9: Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
P claimed it was so widely ratified that its provisions constitute customary IL and therefore he could invoke the Alien Torts Act – US reservation to ICCPR said it could not be enforced in US courts though (not self-executing)
Held: There is no relevant treaty obligation creating obligations enforceable in US courts The Declaration and the Covenant themselves do not establish the relevant
and applicable rule of IL (they are not customary law)
• Ct said a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary IL (that the minimal period of time involved here is not so egregious as to constitute a violation of customary IL)
Note: the SC clarified the Filartiga Court’s use of the ATS to say that ATS is solely a jurisdictional statute; it does not itself provide a cause of action. (don’t forget, a cause of action can be found in a treaty or in customary IL)
B. Security Council “Law-Making”
• Nothing in the UN charter gives the Sec Council authority to make law, but the UN charter gives the Council power to take compulsory measures under Chap VII (Art. 39-51) of the Charter, which UN members are bound to implement under Arts 24 and 25.
o Starting in 1990, the Council has acted in many international and internal conflicts by imposing economic sanctions and other nonforcible measures.
Legal challenges to Security Council’s legislative authority have been brought and continue to be brought. The authority has not yet been fully tested or settled in the post 9/11 era.
o They have began exercise of authority that are “law-making” in character
adopting resolutions ‘affirming’ or ‘declaring’ certain propositions of law which were widely accepted but not entirely beyond dispute
1991-2001: asserted itself w. respect to global threats from terrorism, weapons of mass destruction, and violations of human rights. (sanctions for Libya, Iraq)
• Resolution 1373: adopted 9/28/01 (4 weeks after 9/11). Reaffirms resolution 1368 (dated 9/12/01)
(1) All States Shall ,“acting under ch. VII of the UN Charter”: (a) Prevent/suppress financing of terrorist acts
(b) criminalize the willful collection or provision of funds w/ the intention that the funds will be used,
or the knowledge they will be used, to carry out terrorist attacks (US criminalized this)
(c) freeze assets of those who commit terrorist attacks –
(d) cannot make funds or financial resources available to benefit those who commit terrorist attacks
(2) All States Shall:
(a) prohibits recruitment of terrorist groups
(c) deny safe haven to those who plan or commit terrorist attacks
(e) terrorists acts are established as criminal offenses with sever punishments ensure that terrorists are brought to justice and
(g) prevent movement of terrorists across borders
(3)(f): before granting someone an asylum, you must make sure they did not commit a terrorist act
(6) Establishes a committee of security council to monitor implementation of the resolution; calls upon all
states to report to committee 90 days after the adoption on the steps it will take o Resolution 1373: Requires ALL states to take obligatory measures to combat
terrorism this is an intrusion on states. Is this legal? What provisions in the charter give it this power?
articles state; but that doesn’t mean its unlawful; You can argue both ways Strong Argument: The kinds of things art.’s 41 and 42 permit the sec
council to do (41) impose economic /communications sanctions that could cripple a state OR 42) use force to attack a state) then a fortiori they can do something less intrusive
No one today strongly agrees w. sec council’s authority to do it, but its certainly not explicit in the charter
o This is as close as you get to law-making at the Int’l Level • Three possible legal limits to Council legislation :
1) Restrictions deriving from the text of the UN Charter - Council’s leg power must be exercised in a manner that is conducive to the maintenance of int’l peace and security (It’s a single-issue legislator)
a. Certain provisions in the Charter provide for only recommendatory powers of the Council.
2) The principle of proportionality - Council legislation must be necessary in order to maintain int’l peace and security Council legislation is always emergency legislation 3) The concept of the integrity of treaties - Can the council make decisions to
amend treaties?
a. Lockerbie Case– ICJ held that obligs imposed by the council take precedence over obligs under int’l treaties. A precondition is that the council may impose the obligation in the first instance.
b. RULE: The council cannot impose whole treaties on states since they contain not just substantive obligations, but also purely technical or administrative
precisions whose imposition will not be necessary to address a threat to Int’l peace and security.
4. UNILATERAL ACTS - what are the legal consequences of unilateral declarations by states (as opposed to agreements “between states”)?
• Nuclear Tests Case (Australia & New Zealand v. France) ICJ, 1974
Facts: Australia and NZ brought applications to the ICJ demanding cessation of atmospheric nuclear tests being carried out by France in the South Pacific. France asserted that it was done testing and it wouldn’t do any more. The court dismissed the applications
Held: France’s prime minister and Minister of Defense’s unilateral act declaring that that they would not conduct anymore tests is binding. France also conveyed to the world at large that it intended to terminate the testing.
o Reason: it is well-recognized that declarations made by unilateral acts may have the effect of creating legal obligations.
Not all unilateral acts imply obligations, but when states make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. It doesn’t matter if the statement is oral or in writing. The only criteria is whether the declaration reveals a clear intention.
The principle of good faith is key in unilateral declarations (just like pacta sunt servanda in treaties)
• Frontier Dispute Case (Burkina Faso/Mali) ICJ, 1986 Facts: Mali’s unilateral act: statement by Mali’s head of state
Held: The declaration is not a binding unilateral act. The court must assess the intention of the state that made the declaration to determine whether that intention confers on the declaration the character of a legal undertaking
• **there was nothing to keep the parties from manifesting an intention to accept the binding character of the conclusions of the Organization of Africa Unity Mediation Commission by the normal method, which is a formal agreement on the basis of reciprocity.
