8/17, 19/10

International Law
Toman
TuTh 7:30-8:45 pm

Reality of International law

o Daily activity of governments
o Interdependence of states necessitates IL
Nature and Concept
o Organization of international community and its development
European international law: Turkey invited to Paris Peace Treaty,
mid-1800's
Definitions
o 1970 Principles
Refraining from the use of force (unless allowed under UN
Charter)
Settle international disputes using peaceful means
Duty not to intervene in matters within the domestic jurisdiction
of any state in accordance with the Charter
Duty of states to cooperate with one another
Equal rights and self-determination of peoples
Sovereign equality of states
Fulfill obligations of Charter in good faith
o Huber: International law has as object to assure the coexistence of
different interests, worthy of equal protection
o Lotus: governs relations among independent states, with the purpose
to regulate the coexistence of independent communities or to pursue
the common objectives
o Higgins: continuing process of authoritative decisions
o Restatement of foreign relations law of the US
IL is
the rules and principles of general application dealing with
the conduct of States and of international organizations and with
their relations inter se, as well as with some of their relations
with persons, whether natural or juridicial
International Law and Municipal Law
o Major distinctions
Subjects
IL:
o States, IGOs (first admitted to IL through League of
Nations)
o Individuals, corps?
ML:
o State
o Individuals
o Corporations

Criminal Law
o Versailles Treaty Art. 227
o Wanted to prosecute Wilhelm II
o Nuremburg Tribunal
o Tokyo Tribunal
o ICJ
Notes
Created by UN Charter
Preceded by PCIJ
League of Nations mentioned such a
court, never established by the
Covenant
Litigation area
Advisory function
Relations between subjects
o IL: very horizontal (state equality, but some are
more equal than others)
o ML: Subordination, vertical relationship
Sources
Lack of central authority for IL
Art. 38 of Statute of ICJ
o Customs
o Treaties
o General Principles recognized by civilized nations
o Subsidiary sources
Judicial decisions important
Writing of experts
No legislation, no binding tribunals, no explicit
enforcement
Custom
o Usus longaevus (rules of law derived from the
consistent conduct of States)
o Opinio juris sive necessitatis (acting out of the
belief that the law required them to act that way )
o Examples
Diplomatic law (led to Vienna Convention)
Law of the treaties
o Preemptory norms (Jus cogens) (Vienna Convention
on Law of Treaties)
fundamental principle of international
lawwhich is accepted by the international
community of states as a norm from which
no derogation is ever permitted.
Examples
Genocide
Maritime privacy
Slavery

Treaties
o Agreed text
o Obligation to respect only for those who have
accepted it
o Attitude of the new states and formerly also of the
USSR to custom and treaty
Sanctions
How to have sanctions against sovereign independent
equal parties (states)
Horizontal position
Form
o Self-help
Self-defense exists in all legal systems
Exceptional in national law
Regular in international law (Art. 51 of UN
Charter)
1907 Drago Porter Convention: no use of
force to compel payment of debt
Kellog-Briand Pact 1928: No use of force to
settle disputes (epic fail)
Art. 51 gives exceptions that allow the use of
force
Practical use
Entebbe
American rescue of hostages in Iran
o Retorsion
Lawful act which injures wrong-doing state
Cutting economic aid
Interruption of trade relations
Refusal of most favored nation treatment
o Reprisals
Act which would normally be illegal
Rendered legal by a prior illegal act against
the State
o Comparisons
National Law: individual responsibility
International law: State punished for
individuals? Individuals punished for state?

Voluntarism v. Objectivism
o V: international law is based on the consent of states (WILL OF STATES)
o O: origin of IL is outside of the will of states (and of human will). Origin
is
In fundamental norm
In social fact (society creates its own system of legal norms)
Operational decisions: process of decision
o V leads to dualism

International law on one side

Domestic system on the other side
o O looks to monism
Unity of the two systems
With the priority to one or to another
Methods
o Incorporation
o Transformation
Domestic act of legislation
Gives value to international legal norms
UN Charter Art. 39
o UNSC shall determine the existence of any threat to peace, breach of
the peace, or act of aggression and shall make recommendations, or
decide
Art. 41
o UNSC can decide what measures (non-armed) should be employed to
give effect to its decisions
o Can call upon members to apply such measures
o Can include cutting off of economic ties
Communications
Or diplomatic relations