International Law Outline Sovereignty 2 elements: International legal sovereignty (what are your rights and roles in world)

) and Westphalian sovereignty (control flow of societal values/culture). You either are or you arent a state, but Westphalian sovereignty is more of a spectrum. Primary rules what you must or must not do. Secondary rules the process of carrying out the primary rules. YOU MUST frame policy choices in relation to the law youve agreed to All states possess equal rights and responsibilities in the international legal system. How does a state come into being? - territory must not be controlled by another state. Effective control over borders. CENTRAL AUTHORITY! - recognition recognized by other states, gives state legitimacy, a recognizing state cant go back and say that the state is not a state after its been recognized as a state. UNIVERSAL recognition not required - harder to lose statehood than to become a state. Also important for states to be stable. Recognition of unstable states = bloodshed on hands of intl community. Other subjects to intl law: - insurgents aspiring to become the state, therefore subject to intl law. Should obey law of war, intl humanitarian law. Alienates the established govt but its probably going to be taken down anyway. Do they control territory? What is the intensity of the civil strife? If you reach insurgency status, your prize is you now have to follow the rules (womp womp). - International Organizations must govern in accordance with intl rules. - individuals individual liability in criminal law - National Liberation Movements! fight on behalf of people, might get territory, possess: right to self determination, bound by the law of war, and other people bound by it with respect to you, enter into treaties/agreements with other states, official protections for representatives How does a state go away? - localized treaties attach to the specific territories ex: water rights or other regional treaties apply to new states anything that deals with land. - Non-localized treaties dont apply presumably government was overthrown bc it didnt have best interests of people, so dont want to hold new govt to treaties. - you have to follow the human rights treaties already entered into. - new state shouldnt have to pay debt old state got fighting new state should determine equitability by international arbitration panel International Organizations - if it acts as an extension of the member States pooled sovereignty, its not an IO. Regional economic coalition is NOT an IO. - IOs can be part of intl agreements that have to do with IO. Cannot be subject to state law in which IO is operating as long as theyre doing IO-related business. Can bring intl claims. Rise of IOs - federalism: states want power in their own boundaries and larger body to act internationally and protect us - functionalism: get more from intl community if you take advantage (ex: trade agreements) - collective action: use of public goods, but you have free riders who dont help build shit but then they want to use it.

spillovers affect people outside the transaction at hand short term benefit to one state results in damages to intl community (selfish assholes) - free-riding assholes UN (1945) - security council has 15 members. US, UK, France, Russia, China are permanent members, must have unanimity by these 5 in order to do anything. If authorized by SC, use of force is lawful. - UN charter act 2 self determination, peaceful settlement of disputes, prohibition on use of force or threat of force. - UN Charter defines peace as absence of war. Problem if you dont allow the UN to engage in forcible intervention to help ease tensions - Obligations prior to actual conflict: o try to peacefully settle disputes o any state can bring dispute that they believe endangers intl security to UN SC o SC can call on parties involved in dispute to resolve using peaceful means o SC can investigate whether dispute poses threat to intl security o recommend procedures for resolution of dispute International Law Commission ILC - works to codify intl law, redevelopment of law. Not really the law though states join conventions. However, kind of sets view for states of customary international law. - declares what the law is, crystallizes ambiguities, generates rules that wouldnt have existed. - problem though because U.S. doesnt want the same things as Pakistan or India or Italy. International Court of Justice ICJ - ICJ should look to intl conventions, customary international law, general principles (ex: brought before judge prison), scholarly writings Customary Intl Law - requirements: state practice, opinio juris (sense of legal obligation to do/not do), usually takes forevs - universally applicable. Could have persistent objector rule but doesnt practically exist. - you have to have practice of 50% + 1 - regional customary intl law must be unique in touching upon the land, distinct to states, stay within states, must be state practice, opinio juris, tacitly accepted by parties, existence proved by state that invokes it - People prefer treaties statute says your rights. - But intl organizations want more CIL because you cant obligate someone to sign onto treaty but if CIL is valid law you can hold people to do something just because others are doing it (ex: U.S. executing juveniles) - JUS COGENS - benefits of CIL: o coordinating actions with other states if most states act this way the others should do so too o cheaper to come up with CIL because it just flows from what youre doing dont have to make a treaty o gaps in treaties need to be filled

o good basis/framework for international law cons of CIL: o cant object, cant consent to be bound o ignores the individual preference for states preference o hard to nail down state practice/opinio juris with certainty o how do you enforce it? o gives excuse not to make treaties, who determines what the law should look like International Humanitarian Law - tries to make warfare as humanitarian as possible Martens Clause - in 1899 Hague Convention. Allows rules of international humanitarian law to emerge without prior state practice. That way the holocaust doesnt have to happen before we can say its bad. - when there are competing interpretations, the laws of humanity/dictates of public conscience can favor one interpretation over the other. TREATIES!!! - an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. - Only binds those who sign onto it - treaties in solemn form (diplomats sign, hash out language, must be ratified) and simplified (law once signed by diplomat like executive agreements) - Vienna Convention on the Law of Treaties conflicting with jus cogens of intl law are void. Geneva Convention. Treaties can contract out of CIL, but not jus cogens. Jus cogens binds all. Prohibits coercion. - Under traditional intl law, parties of treaty could consent to another partys reservation if it was unanimous, but under VCLT reserving state can reserve unless reservations are expressly prohibited or the reservation conflicts with basic object of treaty. This way more people will sign on. - Treaty Invalidity from VCLT: coercion, intimidation/force against state official, misrepresentation, error in fact/fraud, corruption Subsidiary Sources of Law - general principles idea use legal principles found around world to fill gaps, in fields like ICL and Humanitarian rights. Principles from CIL or particular to a certain branch of law - IOs create binding rules on states that are party to the IOs creation treaty. - If you signed onto a treaty that has a body that creates jurisprudence, then the decisions made by that court bind you. If based on equity, creates binding law between parties to the dispute - ICJ decisions only binding on the parties in front of them, only for the dispute. But since they are so rare precedent is important. But what if its bad precedent? Then what? - Soft law may be loosely defined as declared norms of conduct understood as legally nonbinding by those accepting the norms. o statements reflect modern trends in intl law o reflect new concerns o some obstacle to making this statement binding o doesnt create binding law -

soft law doesnt mean anything to anyone but its flexible and can frame what the CIL should be. - unilateral actions protests, recognition, renunciation, notification - JUS COGENS! o accepted by intl community, you cant derogate from in treaty o ex: prohibiting aggression, colonial domination by force, slavery, genocide, apartheid, massive pollution of the atmosphere or the seas o effects of jus cogens: treaty null/void, declare null/void the provision that violates jus cogens, interpret treaty to show it didnt intend to offend jus cogens International Law and National Law! - monistic view national law wins, intl law is external to the state. Social contract with citizens to give power to intl law is to breach contract with citizens. - dualism distinct but integrated domestic deals with individuals but intl deals with states. Sources, content of law are different. To become binding on states, the treaty must be adopted by authority of state. - dualism more realistic. But monistic view without natl law theres no intl law, if intl law > natl law then we take away basis of intl law. Natl law better understands states more than intl law. International Law National Legal Systems - if the treaty isnt self-executing, then you need to figure out what you have to do. If you have to go through natl org to enforce treaty, then so be it. o cant invoke domestic processes against intl law. Cant use domestic limitations as a reason to not carry out treaty obligations. o You have to bring domestic law and international law together. Problems here. o Freedom on HOW to carry out obligations, but not freedom on whether or not you can do it. Have to fulfill obligations of treaty. - legislative ad hoc incorporation create new legislation stemming from treaty provisions (statutory ad hoc); create new legislation that is adopting provisions (automatic ad hoc) - automatic standing incorporation automatically binds and permanently binds - most states if the state believes that natl law = intl law, then natl law made after treaties supersedes these. - CIL USA uses later in time doctrine, if law made after CIL then law supersedes CIL. - where there is tension between intl and natl law, we should read the federal law as to not violate the intl law unless NO other reasonable interpretation(Charming Betsy canon). Where there is tension between intl law and natl law, which should determine which of the laws is more on point (specialty canon). Also last in time canon. - Don Juan case wanted to bring claim but only Spain could bring it, not individual. If there is a breach, it depends on whether you characterize the breach as a violation of a right that vests in the individual or a restraint on the State. If restraint, political consequences. But if right, individual remedies! INTERNATIONAL LEGAL RESPONSIBILITY - collective, state responsibility - what does violated have a right to recover? - two forms of state accountability: ordinary and aggravated

ordinary: imputability of wrong to state and need for fault. Every action taken must be attributable to instructions by state/state overall control/lack of due diligence o aggravated involves fundamental violation US and International Law - federal government only has the powers delegated to it by the Constitution. Whatever isnt granted resides with the states. Foreign relation powers from sovereignty. - power from sovereignty, limitations from constitution. - extra-constitutional sovereignty theory powers came from England and we inherited them. - treaties dont have to be made pursuant to Constitution, just have to be made with authority of U.S. - president has power to make treaties, needs supermajority of the senate. If you need an additional act by the state in order to put treaty into effect, then its non-self executing. o treaty makes the provisions non-self executing o provision cannot be enforced directly by the courts due to separation of powers o the treaty makers lack the constitutional power to accomplish by treaty what they purported to accomplish o does not establish a private right of action and there is no other legal basis for the remedy being sought by the party relying on the treaty. - the more specific the obligation, the more likely it is its self-executing. Rights selfexecuting. Restraint non-self executing. - Congress cant delegate its legislative authority elsewhere. So how does this play into intl law? MO v. Holland treaties made by the federal government are supreme over any state concerns about such treaties having abrogated any states rights arising under 10th amendment. Sullivan worst holding ever, too broad. USE OF FORCE PEW PEW PEW - jus ad bellum right to enter war; jus in bello laws needed to follow during wartime - state allowed to use force when: self defense, or collective defense authorized through UN Charter - state can do things to its citizens when theyre abroad. Sanctions - SC authorized economic sanctions, ending diplomatic relations with violating state, condemns action taken by state, non-recognition of illegal situations. - up til 1991 condemnation, economic harm, authorization of force. - when is the UN authorized to use force? o after state has acted in aggression against another state o multi-national force to handle threats to peace o intl humanitarian crisis Unilateral State Action for the Use of Force - self defense reaction to aggressive armed attack. cant be repelled by other means cant occupy attacking state unless its necessary. Must be proportional to attack, consistent with IHL. - NINO no anticipatory right to self defense. Proposed: compelling evidence of attacks coming; imminent, inevitable, big; proportional reaction; forestall the attack; after attack, state goes to UN o

Geneva Conventions yall - GC3 POWs, GC4 civilians - combatant: commanded by person responsible for his subordinates; fixed and distinctive sign from a distant; carry arms openly; conduct ops in accordance with laws and customs of war; must belong to party of conflict. - guerillas link to party, responsible command, comply with laws of war, distinction from civilians. - mercenaries are not armed combatants - weapons: outlaw nukes, chemical and biological warfare, land mines indiscriminate killing basically - cant attack civilians (duhhhh), dams/dykes/nuclear stations/places of worship, cant surrender and then kill the person coming to capture you - cant attack civilians UNLESS the civilian takes direct part in the hostilities. Targeted killings must be based in strong evidence regarding ID and activity, only do if other means, retroactive examination, avoid civilian deaths - civil war o in combat between legitimate government and insurgents, no status for insurgents under lawful belligerency. Insurgents engaged in domestic criminal law, not privileged, cant get POW status. - CIL should treat intrastate conflicts more like interstate conflicts because of frequency and conduct of them. 3rd parties threaten international peace. 3rd parties have interest bc of duty to human rights law - basic rights in armed conflict: o must be convicted by regularly constituted court o treated humanely and equally o state prohibited from certain violent acts o must take care for the wounded and the sick of your opposition - TERRORISM peaceful and coercive responses. Loose definition civilians are targeted, the objective is to spread terror among civilian population, political purpose - Forceful means against terrorism authorized by UN SC or self-defense in relation to armed attack. Must be pattern of violent activity. - State support of terrorism: o state officials o employed/controlled by state o independent group but state-funded o logistical support o state acquiescence letting terrorists continue to operate in your state o uncontrolled territory INTERNATIONAL CRIMES - used to be just pirates but then Nuremberg intl criminal law became more important - must be CIL/treaty violation, violations can be prosecuted by any state as long as alleged perpetrator is on their territory, no immunity - Classes of crimes o war crimes violations of the law of war (Tadic definition in ICTY) serious violation of the law of war infringes on important values, grave consequences for victim rule violated must be CIL or treaty law entail individual responsibility

 now includes both interstate and intrastate conflicts mens rea subjectively. culpable negligence may be enough. o crimes against humanity murder, extermination, enslavement, persecution, etc. against civilian population, before or during war. Can be punished in times of peace and war. mens rea need mens rea for underlying crime and awareness of the pattern condoned by ruling authority. For persecution also need aggravated criminal intent discriminatory animus. o genocide intentional killing, destruction or termination of members of groups for being members of groups for being members of that group as such. genocide convention: killing members, serious bodily/mental harm, conditions to bring about destruction, prevent births, forcible transfer of kids of the group to another group pattern mens rea: intent to destroy group must prove perp wanted end of victims AND group. doesnt include cultural genocide, political grounds o torture can be war crime, CAH, or distinct crime. depends on context war time = war crime, pattern = CAH, peacetime no pattern = distinct crime - crimes against humanity v. war crimes: o war crimes has command responsibility. If commander doesnt know about war crime but is willfully ignorant, can be liable. If you dont know, youre not liable. cant take place if theres no war. being unfair in armed conflict. o crimes against humanity enables you to get liability for people higher up in the policy chain. can occur during peacetime. doing awful things to people. - intl criminal law movement toward ad hoc tribunals, hybrid tribunals, peace/reconciliation, ICC - ICC permanent (Rome Statute, to which U.S. not a party), very important because of how permanent it is. Outlines a body of law and then prosecutes. To have jurisdiction, must have occurred on soil of a party to the statute or by a party to the statute. HUMAN RIGHTS, HOORAY - different laws because theyre more focused on the individual - given rights can be taken away, recognized rights cant be taken away. Rights attach because of their humanity. Duty to refrain from doing something, rights individually vested. - International Covenant on Civil and Political Rights o voting, equal treatment by government o rights had physical integrity, procedural fairness, equal protection norms, freedom of speech/belief/political action, political participation - rights: life and survival, liberty/security of person, freedom of movement, equality before the law, peaceful assembly - can derogate from things in time of public emergency, but not things like right to life/slavery/degradation - U.S. signed onto ICCPR minus capital punishment, free speech, torture

International Convention on Economic, Social, Cultural Rights education, labor, non-discrimination, right to food, adequate standard of living, social security system, right to conditions of work, access to info - U.S. likes ICCPR, not ICESCR are these rights really rights? In ICCPR, states allow you to exercise rights. ICESCR states are supposed to give you shit. Problems with the Security Council - should we change or englarge? Permanency and veto. Just because you are permanent doesnt mean you should have veto power. Brazil and India are super important, populated and they dont have permanency kind of messed up? - Should permanency be determined by population or contribution? Move away from individual countries, toward GDP, economic power? Whats more important representation or those that contribute the most? Terrorism - direct participation, mercenaries no POW status - mercenary definition person recruited to fight, locally or abroad who does fight and who does so for more money than the average soldier gets. Not a national to a party of the armed conflict, and not sent by another state in their official duty. Not POWs and not combatants. - International law doesnt like mercenaries because theyre just fighting for money. Mercenaries might be more likely to be assholes/violate laws of war because they dont have combatant privilege or POW status so they dont want to be captured. INTERNATIONAL LAW ENFORCEMENT DOCTRINE - reprisals engaging in a certain act that would otherwise be a violation except that youre responding to an intl law violation that justifies your action - retortion engaging in a political/diplomatic act to punish the party for a violation of intl law that youre complaining of. breaking off diplomatic relations, political costs. - countermeasures/sanctions cant breach 3rd party rights, super formal THEORIES on why we follow international law - legitimacy theory made clearly, transparently, everyone is part of the process - transnormative legal process states follow international law norms because they become implanted into states fabric, states buy into the norms once adopted - acculturation complements transnormative process the more you use international law, the more you become like it. - realism international law works a lot because (a) coincidence of interest, (b) coordination value Some Articles - art. 5 of 3rd Geneva Convention when in doubt as to status of prisoner give them a hearing to determine in interim if hes a POW - art. 129 state parties must criminalize grave breaches of convention - art. 130 willful killing, torture/inhumane treatment, biological experimentation, willfully causing great suffering/serious bodily injury or compelling a POW to serve in your military - art. 132 hold until no longer a threat must be reviewed every 6 months - art. 117 the law of the state being occupied is in force. If you possess the ability, you have to have them go through the regular procedures that they would go through if the state wasnt being occupied. - art. 47 deals with mercenaries