A quick ABC of international law

1. A quick ABC of international law in 21 easy slides… August 23, 2006 Prof. Cesare Romano

2. What is International Law? • International law is the law of the so-called “international community”. com·mu·ni·tyn., 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.

3. Subjects of International Law • 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)

4. Subjects of International Law • 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)

5. Subjects of International LawStates • 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. • 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.).

6. Subjects of International LawStates • 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.

7. Subjects of International LawInternational Organizations • 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).

8. Subjects of International LawNatural and Legal Persons • 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… • (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.

9. Sources of International Law • International law has three primary sources • custom • international treaties • general principles of law. • 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

10. Sources of International LawCustom • 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….

11. Sources of International LawTreaties • 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…

12. Sources of International LawJus Cogens • 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.

13. Sources of International LawGeneral Principles of Law • 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).

14. Relationship between International Law and National (Domestic) Law • 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!

15. Relationship between International Law and National (Domestic) Law • 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.

16. Relationship between International Law and National (Domestic) Law • 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.

17. Relationship between International Law and National (Domestic) Law • 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.

18. I. L. and Domestic LawThe 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."

19. I. L. and Domestic LawThe United States • Treaties: • 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

20. I. L. and Domestic LawThe 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).

21. I. L. and Domestic LawThe United States • 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.