Sources of International Law 1. Primary Sources 2.

Secondary Sources

Treaties 1. Invalidity a. Coersion i. Pacta Sunt Servanda doesn t apply to coercion ii. VCLT: Article 51 and 52 1. 51 coercion of a representative voidable. 2. 52 coercion of a state by threat or use of force treaty is void. a. Coercion through hostages: depends on how narrowly defined use of force is in this instance. As the threat against hostages is not a threat of force against the territorial integrity or political independence of the state, it is unlikely to be coercion. b. Conflict with Jus Cogens i. VCLT: 53 1. If it conflicts at the time of conclusion with a peremptory norm, it is void. ii. VCLT: 64 1. Voids future actions happening after a new jus cogens is established. a. Not held liable or accountable for the actions under the treaty beforehand. c. Termination or Suspension of Treaties i. VCLT: 54 1. Conformity with the provisions of the treaty 2. At any time with consent of all signatories ii. Denunciation or Withdrawal 1. VCLT: 56 a. If there is no specific provision, treaty is not subject to denunciation or withdrawal unless it can be established that the parties intended to admit the possibility of denunciation or withdrawal or a right to do so is implied from the nature of the treaty. b. This does not happen often! iii. Termination of a Treaty as a Consequence of Breach 1. VCLT: 60 a. Material Breach defined i. Repudiation of the treaty not sanctioned by the present convention; or ii. The violation of a provision essential to the accomplishment of the object or purpose of the treaty b. Treaties weather minor breaches for stability and pacta sunt servanda.

c. Breach can be invoked as grounds for termination, a breach does not automatically void the treaty, nor is a states party allowed to allege breach and withdraw. iv. Fundamental Change of Circumstances 1. VCTL: 62 2. Must be: a. Fundamental character b. Unforeseen c. Essential basis of the consent to be bound by the treaty d. Transform radically the extent of the obligations of the pary invoking the change e. Only obligations still to be performed 3. Exception: Treaties establishing territorial border 4. Exception: Cannot be a change as a result from a party s breach 5. Exception: CIL, doesn t generally apply to treaties with fixed duration v. As to war between contracting parties 1. Treaties lose their efficacy in war only if their execution is incompatible with war 2. Provisions compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected. d. Other Sources of Law i. General Principles of Law 1. Five general catagories a. Principles of municipal law recognized by civilized nations b. General principles of law derived from the specific nature of the international community c. Principles intrinsic to the idea of law and basic to all legal systems d. Principles valid through all kinds of societies in relationships of hierarchy and co-ordination (judicial reasoning) e. Principles of justice founded on the very nature of man as a rational and social being (rational law) ii. Equity, Proportionality, and Humanity 1. Equity and Good Faith a. Equity as a basis for individualized justice tempering the rigours of strict law b. Equity as consideration of fairness, reasonableness, and good faith c. Equity as a basis for certain specific principles of legal reasoning associated with fairness and reasonableness, eg estoppels, unjust enrichment, and abuse of rights d. Equitable standards for the allocation and sharing of resources and benefits (notably, in boundary delimitation) e. Equity as a broad synonym for distributive justice used to justify demands for economic and social arrangements and redistribution of wealth 2. Proportionality

a. an equitable principle, has the effect of attempting to contain situations. It is a requirement in the legality of countermeasures. 3. Humanitarian Principles a. often used as gap fillers when no other positive means of international law addresses the particular issue. iii. UN General Assembly Resolutions 1. Non-binding authority (except over UN administration) 2. 4 Questions a. Is the language declarative? b. Has it been repeated over time? c. Did it have unanimous support? d. Does it correspond to state practice iv. Security Council Resolutions 1. Even non-member states must comply with resolutions. 2. Subject to: a. The principle of proportionality b. Text of enumerated powers c. Integrity of international treaties 2. International Legal Persons a. States i. Characteristics of Statehood (1933 Montevideo Convention Art1) 1. Permanent population a. Not specifically enumerated 2. Defined territory a. Need not be exactly defined so long as the territory is consistently maintained 3. Government a. Stable political organization and authority strong enough to assert itself throughout the territory (leeway once statehood is attained) 4. Capacity to enter into relations with other states a. Beware of protectorates or puppets of larger powers ii. Political Existence is independent of recognition by other states (Art 3) 1. Right to defend its integrity and independence 2. Provide for its conservation and prosperity 3. Organize itself as it sees fit 4. Legislate upon its interests 5. Administer its services 6. Define the jurisdiction and competence of its courts iii. Benefits of Statehood 1. Sovereignty over its territory and nationals 2. Status as a legal person 3. Capacity to join with other states to make international law b. Recognizing Governments i. De Facto Government vs De Jure Government 1. De facto government: in fact controlling all or most of the country

2. De Jure government: legitimate claim to governance but is either in exile or controls only a portion of the country a. Government in exile: based on the premise that the territory had been illegally occupied and that the legitimate government would be restored to power in the foreseeable future ii. Effective Control Doctrine 1. Whether newly formed government has effective control of its state. a. Degree to which the government commands the obedience of the people within the state. iii. Estrada Doctrine (Minority) 1. Recognition of the government is unnecessary once the state has been recognized. a. Movement away from recognition of a specific government to a choice as to whether to enter into diplomatic relations with the State c. Self-Determination i. Concept reflected in 3 primary sources: 1. Treaty: UN Charter (Article 1) is the first concrete reference to selfdetermination in hard law. a. States have an affirmative obligation to protect and promote self-determination under the UN Charter. 2. Customary international law 3. A general principle of law recognized by civilized nations a. Minority argue that it has risen to a jus cogens ii. An actual definition has yet to be formed. iii. Secession 1. Unilateral only available to: a. Colonial peoples seeking independence b. People subject to alien subjugation, domination, or exploitation outside of the colonial context c. People blocked from meaningful exercise of the right to selfdetermination internally as a last resort. 2. Self-Determination is NOT a Right to Unilateral Secession it is legally neutral. a. Self-determination has evolved w/in a framework of respect for the territorial integrity of existing states. 3. Effectivity Principle: an illegal act may eventually acquire legal status if, as a matter of empirical fact, it is recognized on the int l plane. a. However, a subsequent condoning of an initially illegal act does NOT retroactively create a legal right to engage in the illegal act in the first place. 4. Uti Possidetis Juris ( as you possess ) a. Acts as a limitation on the right to self-determination b. Secession must be done within the colonial boundaries imposed. i. Redrawing borders would create too much instability c. Primary aim is to secure respect for territorial boundaries. d. IGO/NGO

i.

ii. iii.

iv. v.

vi.

vii.

IGOs formed by states under international law (treaties) 1. Stronger international legal personality due to grounding in international law. NGOs are created by individuals and private interests (IN a state, not by a state) and formed under national/municipal law. Interpreting International Legal Personality/Capacity 1. Evaluate the constituent instrument (treaty, charter, etc) 2. Practice of the organs of the IGO rules of procedure, precedent, etc 3. Analyze in view of the background of international organizational law 4. The powers in question have to be interpreted in the broader context of international law as a whole Interpreting Powers of an IGO 1. Test: relation of the action to the purpose of the IGO NGO Legal Personality 1. Only have legal personality in municipal law 2. They have lobbying capacity and submit amicus briefs as well as play a significant role in assisting with collective enforcement efforts and state compliance. 3. They play a consultation role insofar as they provide expertise where it is needed but may be otherwise lacking. Individuals 1. Classical view: State centric a. Individuals have no interaction with international law. b. 5 Exceptions poke holes i. Piracy ii. Forceful intervention of a state to protect its nationals iii. Individuals have long been implicated under CIL of state responsibility iv. International agreements create rights in individuals and juridical entities against foreign states v. Large body of international agreements/custom/national law has long governed transnational transactions involving private parties c. Still, state brings claims on behalf of individuals Transnational Corporations 1. Document abuses and accountability 2. Market forces are not enough 3. Need for binding common benchmarks 4. Victim s rights for remedy and reparation 5. Inability or failure of host states to hold businesses accountable 6. Why human rights standards? 7. Power needs to be constrained by law 8. What can and what should international law do about the race to the bottom a. Race to the Bottom: countries lowering the bar further and further on labor, environmental, compliance, and human rights regulation in order to attract foreign corporate investment/presence.

9. Accountability is a huge problem as many of these companies are nearly impossible for a single state, especially developing countries. 10. Voluntary codes of conduct are the ways through which this is addressed, however it is debatable whether or not voluntary, hence non-binding, measures are worth anything. 3. International Dispute Settlement a. Definition of Dispute i. It needs to be capable of resolution through these means. Requires specificity and contestation. PCIJ defines it in the Mavrommatis Case: a disagreement on a point of law or fact, a conflict of legal views or interests between two persons. 1. A disagreement is not a dispute if its resolution would not have any practical effect on the relations of the parties. b. Negotiations i. Dominant form of dispute resolution ii. Parties maintain control over the process, no third party involved. iii. Obligation to pursue in good faith and bring to a conclusion c. Good Offices i. Third party and neutral setting to facilitate an agreement d. Conciliation i. Third party makes a neutral evaluation of the dispute and makes a recommendation for resolution that the parties may choose to accept e. Inquiry/Fact Finding i. impartial third party investigates and renders a report f. Mediation/Arbitration i. Mediator is very active between the two parties and pushing/wooing the parties towards a settlement. More aggressive than Good Offices ii. Mediation can form flexible solutions that are not otherwise available due to restrictions of international law. 1. Mediation is non-binding 2. Arbitration is binding. g. Big power wants to push for Negotiation (or other non-binding methods). Little power wants to push to equal the playing field (especially getting them in court if their case is strong). 4. ICJ a. Primary court of the united nations i. Created by Article 92 of the UN Charter, based in the Hague. ii. Replaced the Permanent Court of International Justice b. Judge does not have to recues themselves in a case involving their parent state c. Ad hoc judge may be appointed by a party which does not have a judge of their nationality on the panel if the other party has a judge of their nationality on the panel. d. Contentious Cases (Jurisdiciton) i. Only states may be parties ii. Consent 1. Mutual Agreement 2. Treaty Clause 3. Compulsory Jurisdiction via Optional Clause declaration a. Includes old declarations made to the PCIJ

4. Forum Prorogatum a. Consent implied by conduct, if you respond on the merits without objecting to jurisdiction, too bad. iii. Reciprocity 1. 36-2, compulsory jurisdiction e. Jurisdiction by special agreement i. Mutual agreement by the parties to submit (as a compromis) specifically defined disputes and questions to the jurisdiction of the ICJ f. Jurisdiction by Treaty i. As it sounds, it must relate to the object and purpose of the treaty, and the jurisdictional clause within the treaty. g. Compulsory Jurisdiction under the Optional Clause i. Reciprocity, you accept the jurisdiction of the ICJ over the below matters with any other states party acceding to a similar optional clause 1. Interpretation of a treaty 2. Question of international law 3. Existence of any fact which would constitution a breach of an international obligation 4. The nature or extent of the reparation to be made for the breach of an international obligation ii. Reciprocity exists in three ways 1. Jurisdiction exists under the Optional Clause only to the extent that both parties have accepted a common commitment 2. Determination of reciprocity takes place only at the moment the Court is seised of a case 3. Reciprocity applies only to the scope and substance of the commitments, not to the formal conditions of their creation, duration, or extinction. h. Provisional Measures of Protection (Interlocutory Injunctions) i. Article 41 & 42 1. ICJ has power to order provisional measures to preserve the respective rights of the parties while the court resolves the merits of the dispute. Prevent the parties from prejudicing the case. a. Criteria: urgency & irreparable injury b. Pre-req: prima facie showing of jurisdiction i. Procedural Problems i. Non-Appearance (article 53) 1. Court must have jurisdiction 2. Court decides on its own taking special care to act with circumspection ii. Third Party Intervention (article 62) 1. ICJ is restrictive in granting this 2. Two Situations a. Third party has an interest of a legal nature in the case b. Third party is a party to the convention which is before the court iii. Counter-claims (article 80) 1. Must be directly connected with the subject-matter of the claim of the other party

2. Must come within the jurisdiction of the court Advisory Opinions (article UN 94(2)) i. May give an advisory opinion on any legal question requested by an authorized body or in accordance with the UN Charter 1. Must fall within the scope of activities of the body in question 2. Must be a legal question 5. International Law and Municipal Law a. Monoism v Dualism i. Mono: National and international are the same body of law, International law trumps national law. ii. Dual: national and international law are distinct, separate, and international law must be implemented by national law in order to be effective. b. Critique: Reduces national law issues to issues of sovereignty c. j.