Transcript Document 7478016

A quick ABC of
international law
in 21 easy slides…
August 23, 2006
Prof. Cesare Romano
What is International Law?
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International law is the law of the so-called
“international community”.
com·mu·ni·ty n., pl. com·mu·ni·ties. Abbr. com. 1. A
group of people living in the same locality and under
the same government. 2. A group of people having
common interests: the scientific community; the international
business community. 3.a. Similarity or identity: a community
of interests. b. Sharing, participation, and fellowship.
Subjects of International Law
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Members of the international community are
subjects of International Law
Subjects have international legal personality: capacity
to have rights and duties under international law.
Objects of international law do not have rights
and duties but are merely the object of subject’s
rights and duties (e.g. a territory and the natural
resources within it)
Subjects of International Law
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Who are the members of the international community?
a) States (absolute personality). States make
international law.
b) International organizations (functional personality).
IOs have international law making powers only if they
have been given to them by their members and only
limited to that.
c) Legal and natural persons (ie individuals and
corporations, but also peoples etc.) (limited personality)
Subjects of International Law
States
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Statehood is objective, not subjective. Recognition does not
bestow statehood.
A state is a state under international law (i.e. it has
international legal personality), if it meets certain basic
criteria.
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Must have a territory
Must have a population.
Must have a government.
Must be sovereign, that is to say must be able to exercise
sovereign functions on the territory (e.g., be able to exclude
anyone else from claiming it (defense), policing,
administration (raise taxes), etc.).
Subjects of International Law
States
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States are sovereign, meaning they do not recognize any
superior power other than theirs (superiorem non
recognoscentes).
All states are equal in their relations (since 1648 in
Europe and since decolonization in the rest of the
world). This is why it is often said that the international
community is a horizontal community, as contrasted to a
vertically-organized community like states are within
their boundaries.
It is NOT an anarchic community. It does not have a
political authority superior to sovereign states, but it
does have its own laws: international law.
Subjects of International Law
International Organizations
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International organization means public international organization or
governmental organization, that is to say an organization created by
sovereign states and whose functioning is regulated by international law, not
the law of any given country.
There are hundreds of IOs. Some operate at the global level
(E.g. UN, WTO, World Bank), others at the regional level
(EC/EU, OAS, NATO, ASEAN, AU).
Personality of IOs is limited to what is necessary to carry out the
assigned functions. E.g.. the UN or NATO must have the power
to conclude treaties with states to carry out their mission. Powers
are specified in the legal instruments of the organization
(establishing treaty (e.g. UN Charter) and decision of the
organization itself).
Subjects of International Law
Natural and Legal Persons
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Individuals have certain (inherent) rights under international law
(i.e. human rights ) and certain duties (e.g. no to commit
international crimes: war crimes, crimes against humanity and the
crime of genocide). They have no international law-making powers (but
can definitively lobby governments and IOs to do so).
Individuals can act collectively…
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(NGOs). E.g. Amnesty International, medecins sans Non-governmental
organizations frontiers, WWF. There are several thousands of NGOs. The
legal status of these organizations is regulated by the laws of the
countries in which they operate.
Peoples (e.g. indigenous peoples…)
Hybrid organizations (public/private): International Committee
of the Red Cross, International Union for the Conservation of
Nature.
Sources of International Law
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International law has three primary sources
custom
 international treaties
 general principles of law.
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Subsidiary sources (i.e. means to ascertain the
content of law created by the primary sources)
Rulings of courts (mostly international)
 The writings of international scholars
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Sources of International Law
Custom
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Customary international law is the result of consistent practice
of a majority of states supported by the belief that the practice is
obligatory (opinio juris). Example: you cannot use your
territory in such a way as to cause harm to other states;
the territorial sea is 12 mile wide.
Customary international law is law for all states, regardless of
whether they participated in the formation of the custom. A state
is bound by customary international law simply by
virtue of being a state. Where do you look to know
what states’ practice is? You look at what states do and
say. Treaty making, unilateral declarations, decisions
within international organizations, acts….
Sources of International Law
Treaties
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International treaty law is comprised of obligations states
expressly and voluntarily accept between themselves in
agreements. Whatever states agree to, that is law as
far as their relations are concerned. Example:
ICCPR. Treaties can cover areas not covered by
customary law, or can overlap and thus codify
custom or can derogate from it but…
Sources of International Law
Jus Cogens
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Special category of customary rules: jus cogens.
Jus cogens are rules of international law to which are
considered so essential that they can never be derogated.
E.g. ban on torture, slavery, genocide. Two states
or more cannot make a valid treaty making
torture, slavery or genocide legal.
Sources of International Law
General Principles of Law
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General principles of law are those principles commonly
found in the major legal systems of the world. E.g.: ne
bis in idem rule, or double jeopardy is a general
principle of law (criminal law) common to all
legal systems of the world. It is a source of
international law on its own right but it is
resorted to mostly when there is no applicable
treaty or when there is no practice or it is
unclear or inconsistent (which is rare).
Relationship between International
Law and National (Domestic) Law
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International Law and Domestic Laws are two
different kinds of laws. They have different
sources, different institutions, different
enforcement mechanisms, different legitimacy.
International Law is NOT the sum of Domestic Laws!
Relationship between International
Law and National (Domestic) Law
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What is the place of International Law in
Domestic Legal systems? That depends on the
given domestic legal system. Every country can
do that in a different way.
Relationship between International
Law and National (Domestic) Law
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Monism/Dualism
Under the monist approach international law and
domestic law are ONE. International law is law of the
land. A domestic judge is bound to apply rules of
international law. Example of monist countries: Russia.
Under the dualist approach international law is law of
the land only as insofar as it has been incorporated by a
domestic legal act. A domestic judge is bound to apply
international law only if it has been incorporated.
Example of dualist country: the U.K.
The overwhelming majority of countries has an
approach in between these two extremes.
Relationship between International
Law and National (Domestic) Law
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The place of international law within the domestic legal
system depends on the country considered.
The legal system of modern democracies has
Constitution → Laws → Regulations. Federal States
have both Federal legal system and State legal system.
In some countries international law is above the
constitution, in others at the same level of the
constitution, or below the constitution but above
statutes, or at the same level of statutes, etc.
I. L. and Domestic Law
The United States
The Supremacy Clause establishes the Constitution, Federal
Statutes, and Treaties made under the authority of the United States (i.e.
duly ratified by the U.S.) as "the supreme law of the land."
 The Supremacy Clause: Article VI, Paragraph 2 of the United
States Constitution:
"This Constitution, and the laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the authority of the United States, shall be Supreme
Law of the land; and the Judges in every state shall be bound
thereby, any thing in the Constitution or Laws of any state to the
contrary notwithstanding."
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I. L. and Domestic Law
The United States
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Treaties:
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Treaties have the force of statutes (Federal Laws) passed by
congress and signed by the President. (Asaura v. Seattle,
265 U.S. 332 (1924). If there is a conflict between a statute
and a treaty, the later-in-time rule prevails (United States v.
Palestine Liberation Organization, 695 F.Supp. 1456
(S.D.N.Y. 1988).
Yet some treaties are not self-executing….. When do U.S.
courts consider treaties self-executing? Some look at the
intent of the parties (Cheung v. United States, 213 F.3d 82,
95 (2000). Others focus more on whether the language of
the treaty is susceptible of enforcement
I. L. and Domestic Law
The United States
Customary International Law
“International law is part of our law, and must be
ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of
right depending upon it are duly presented for their
determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or
judicial decision, resort must be had to the customs
and usages of civilized nations…”. Paquete Habana,
175 U.S. 677, 700 (1900).
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I. L. and Domestic Law
The United States
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Some argue that customary international law is “laws of
the United States” under the supremacy clause, thus
preempting state law and on the same level as federal
statutes. Whether customary international law
supersedes a pre-existing treaty or a pre-existing statute
is unclear.
Others argue that customary law has a place in the U.S.
legal system only as insofar as it has been incorporated
in it either by the executive or the legislature.
U.S. Courts tend to give a special weight to views from
the executive branch when interpreting customary
international law.