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

A quick ABC of A quick ABC of international lawinternational law

in 21 easy slides…in 21 easy slides…

August 23, 2006August 23, 2006Prof. Cesare Romano Prof. Cesare Romano

What is International What is International Law?Law?

International law is the law of the so-called International law is the law of the so-called “international community”.“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 Subjects of International LawLaw

Members of the international community Members of the international community are are subjectssubjects of International Law of International Law

Subjects have Subjects have international legal international legal personalitypersonality: capacity to have rights and : capacity to have rights and duties under international law.duties under international law.

Objects of international law do not have Objects of international law do not have rights and duties but are merely the rights and duties but are merely the object of subject’s rights and duties (e.g. object of subject’s rights and duties (e.g. a territory and the natural resources a territory and the natural resources within it) within it)


Who are the members of the international Who are the members of the international community?community?

a) States (absolute personality). States make a) States (absolute personality). States make international law.international law.

b) International organizations (functional b) International organizations (functional personality). IOs have international law personality). IOs have international law making powers only if they have been given to making powers only if they have been given to them by their members and only limited to them by their members and only limited to that.that.

c) Legal and natural persons (ie individuals c) Legal and natural persons (ie individuals and corporations, but also peoples etc.) and corporations, but also peoples etc.) (limited personality)(limited personality)


StatesStates Statehood is objective, not subjectiveStatehood is objective, not subjective. .

Recognition does not bestow statehood.Recognition does not bestow statehood. A state is a state under international law A state is a state under international law

(i.e. it has international legal personality), (i.e. it has international legal personality), if it meets certain basic criteria.if it meets certain basic criteria. Must have a territoryMust have a territory Must have a population.Must have a population. Must have a government.Must have a government. Must be sovereign, that is to say must be able Must be sovereign, that is to say must be able

to exercise sovereign functions on the to exercise sovereign functions on the territory (e.g., be able to exclude anyone else territory (e.g., be able to exclude anyone else from claiming it (defense), policing, from claiming it (defense), policing, administration (raise taxes), etc.). administration (raise taxes), etc.).


StatesStates States are sovereignStates are sovereign, meaning they do not , meaning they do not

recognize any superior power other than recognize any superior power other than theirs (theirs (superiorem non recognoscentessuperiorem non recognoscentes).).

All states are All states are equalequal in their relations (since in their relations (since 1648 in Europe and since decolonization in 1648 in Europe and since decolonization in the rest of the world). This is why it is often the rest of the world). This is why it is often said that the said that the international community is a international community is a horizontal communityhorizontal community, as contrasted to a , as contrasted to a vertically-organized community like states are vertically-organized community like states are within their boundaries.within their boundaries.

It is NOT an anarchic communityIt is NOT an anarchic community. It does not . It does not have a political authority superior to have a political authority superior to sovereign states, but it does have its own sovereign states, but it does have its own laws: international law.laws: international law.


International OrganizationsInternational Organizations International organization meansInternational organization means public international public international

organization or governmental organization, that is to organization or governmental organization, that is to say an say an organization created by sovereign states and organization created by sovereign states and whose functioning is regulated by international lawwhose functioning is regulated by international law, , not the law of any given country.not the law of any given country.

There are hundreds of IOs. Some operate at the global There are hundreds of IOs. Some operate at the global level (E.g. UN, WTO, World Bank), others at the level (E.g. UN, WTO, World Bank), others at the regional level (EC/EU, OAS, NATO, ASEAN, AU).regional level (EC/EU, OAS, NATO, ASEAN, AU).

Personality of IOs is limitedPersonality of IOs is limited to what is necessary to to what is necessary to carry out the assigned functions. E.g.. the UN or carry out the assigned functions. E.g.. the UN or NATO must have the power to conclude treaties with NATO must have the power to conclude treaties with states to carry out their mission. Powers are specified states to carry out their mission. Powers are specified in the legal instruments of the organization in the legal instruments of the organization (establishing treaty (e.g. UN Charter) and decision of (establishing treaty (e.g. UN Charter) and decision of the organization itself).the organization itself).


Natural and Legal PersonsNatural and Legal Persons IndividualsIndividuals have certain (inherent) rights under have certain (inherent) rights under

international law (i.e. human rights ) and certain international law (i.e. human rights ) and certain duties (e.g. no to commit international crimes: war duties (e.g. no to commit international crimes: war crimes, crimes against humanity and the crime of crimes, crimes against humanity and the crime of genocide). genocide). They have no international law-making They have no international law-making powerspowers (but can definitively lobby governments and (but can definitively lobby governments and IOs to do so).IOs to do so).

Individuals can act collectively…Individuals can act collectively… (NGOs). E.g. Amnesty International, medecins sans (NGOs). E.g. Amnesty International, medecins sans Non-Non-

governmental organizationsgovernmental organizations frontiers, WWF. There are frontiers, WWF. There are several thousands of NGOs. The legal status of these several thousands of NGOs. The legal status of these organizations is regulated by the laws of the countries in organizations is regulated by the laws of the countries in which they operate.which they operate.

Peoples (e.g. indigenous peoples…)Peoples (e.g. indigenous peoples…) Hybrid organizations (public/private): International Hybrid organizations (public/private): International

Committee of the Red Cross, International Union for Committee of the Red Cross, International Union for the Conservation of Nature.the Conservation of Nature.

Sources of International Sources of International LawLaw

International law has three International law has three primary primary sourcessources customcustom international treatiesinternational treaties general principles of law.general principles of law.

Subsidiary sources (i.e. means to (i.e. means to ascertain the content of law created by ascertain the content of law created by the primary sources)the primary sources) Rulings of courts (mostly international)Rulings of courts (mostly international) The writings of international scholarsThe writings of international scholars


CustomCustom Customary international law is the result of Customary international law is the result of

consistent practice of a majority of states consistent practice of a majority of states supported by the belief that the practice is supported by the belief that the practice is obligatoryobligatory ( (opinio jurisopinio juris). Example: you cannot use ). Example: you cannot use your territory in such a way as to cause harm to your territory in such a way as to cause harm to other states; the territorial sea is 12 mile wide.other states; the territorial sea is 12 mile wide.

Customary international law is law for all states, Customary international law is law for all states, regardless of whether they participated in the regardless of whether they participated in the formation of the customformation of the custom. A state is bound by . A state is bound by customary international law simply by virtue of customary international law simply by virtue of being a state. Where do you look to know what being a state. Where do you look to know what states’ practice is? You look at what states do states’ practice is? You look at what states do and say. Treaty making, unilateral declarations, and say. Treaty making, unilateral declarations, decisions within international organizations, decisions within international organizations, acts…. acts….


TreatiesTreaties International treaty law is comprised of International treaty law is comprised of

obligations states expressly and obligations states expressly and voluntarily accept between themselves voluntarily accept between themselves in agreementsin agreements. Whatever states agree . Whatever states agree to, that is law as far as their relations to, that is law as far as their relations are concerned. Example: ICCPR. are concerned. Example: ICCPR. Treaties can cover areas not covered by Treaties can cover areas not covered by customary law, or can overlap and thus customary law, or can overlap and thus codify custom or can derogate from it codify custom or can derogate from it but… but…


Jus CogensJus Cogens Special category of customary rules: Special category of customary rules:

jus cogensjus cogens.. Jus cogens are rules of international Jus cogens are rules of international

law to which are considered so law to which are considered so essential that they can never be essential that they can never be derogatedderogated. E.g. ban on torture, . E.g. ban on torture, slavery, genocide. Two states or more slavery, genocide. Two states or more cannot make a valid treaty making cannot make a valid treaty making torture, slavery or genocide legal. torture, slavery or genocide legal.


General Principles of LawGeneral Principles of Law General principles of law are those General principles of law are those

principles commonly found in the major principles commonly found in the major legal systems of the worldlegal systems of the world. E.g.: ne bis in . E.g.: ne bis in idem rule, or double jeopardy is a general idem rule, or double jeopardy is a general principle of law (criminal law) common to principle of law (criminal law) common to all legal systems of the world. It is a source all legal systems of the world. It is a source of international law on its own right but it is of international law on its own right but it is resorted to mostly when there is no resorted to mostly when there is no applicable treaty or when there is no applicable treaty or when there is no practice or it is unclear or inconsistent practice or it is unclear or inconsistent (which is rare).(which is rare).

Relationship between Relationship between International Law and International Law and

National (Domestic) LawNational (Domestic) Law International Law and Domestic International Law and Domestic

Laws are two Laws are two different kinds of lawsdifferent kinds of laws. . They have different sources, They have different sources, different institutions, different different institutions, different enforcement mechanisms, different enforcement mechanisms, different legitimacy. legitimacy.

International Law is NOT the sum of International Law is NOT the sum of Domestic Laws! Domestic Laws!


National (Domestic) LawNational (Domestic) Law What is the place of International What is the place of International

Law in Domestic Legal systems? Law in Domestic Legal systems? That depends on the given domestic That depends on the given domestic legal system. Every country can do legal system. Every country can do that in a different way.that in a different way.


National (Domestic) LawNational (Domestic) Law Monism/DualismMonism/Dualism Under the Under the monist approachmonist approach international law international law

and domestic law are ONE. International law is and domestic law are ONE. International law is law of the land. A domestic judge is bound to law of the land. A domestic judge is bound to apply rules of international law. Example of apply rules of international law. Example of monist countries: Russia.monist countries: Russia.

Under the Under the dualist approachdualist approach international law is international law is law of the land only as insofar as it has been law of the land only as insofar as it has been incorporated by a domestic legal act. A domestic incorporated by a domestic legal act. A domestic judge is bound to apply international law only if judge is bound to apply international law only if it has been incorporated. Example of dualist it has been incorporated. Example of dualist country: the U.K.country: the U.K.

The overwhelming majority of countries has an The overwhelming majority of countries has an approach in between these two extremes.approach in between these two extremes.


National (Domestic) LawNational (Domestic) Law The place of international law within the The place of international law within the

domestic legal system depends on the country domestic legal system depends on the country considered.considered.

The legal system of modern democracies has The legal system of modern democracies has Constitution → Laws → Regulations. Federal Constitution → Laws → Regulations. Federal States have both Federal legal system and State States have both Federal legal system and State legal system.legal system.

In some countries international law is above the In some countries international law is above the constitution, in others at the same level of the constitution, in others at the same level of the constitution, or below the constitution but above constitution, or below the constitution but above statutes, or at the same level of statutes, etc.statutes, or at the same level of statutes, etc.

I. L. and Domestic LawI. L. and Domestic LawThe United StatesThe United States

The Supremacy Clause establishes the The Supremacy Clause establishes the Constitution, Federal Statutes, Constitution, Federal Statutes, and Treaties made and Treaties made under the authority of the United States (i.e. duly under the authority of the United States (i.e. duly ratified by the U.S.)ratified by the U.S.) as "the supreme law of the as "the supreme law of the land." land."

The Supremacy Clause: Article VI, Paragraph 2 of The Supremacy Clause: Article VI, Paragraph 2 of the United States Constitution:the United States Constitution:

"This Constitution, and the laws of the United States "This Constitution, and the laws of the United States which shall be made in Pursuance thereof; which shall be made in Pursuance thereof; and all and all Treaties madeTreaties made, or which shall be made, under the , or which shall be made, under the authority of the United States, authority of the United States, shall be Supreme shall be Supreme Law of the landLaw of the land; and the Judges in every state shall ; and the Judges in every state shall be bound thereby, any thing in the Constitution or be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding." Laws of any state to the contrary notwithstanding."


Treaties:Treaties: Treaties have the force of statutes (Federal Laws) Treaties have the force of statutes (Federal Laws)

passed by congress and signed by the President. passed by congress and signed by the President. (Asaura v. Seattle, 265 U.S. 332 (1924). If there (Asaura v. Seattle, 265 U.S. 332 (1924). If there is a conflict between a statute and a treaty, the is a conflict between a statute and a treaty, the later-in-time rule prevails (United States v. later-in-time rule prevails (United States v. Palestine Liberation Organization, 695 F.Supp. Palestine Liberation Organization, 695 F.Supp. 1456 (S.D.N.Y. 1988).1456 (S.D.N.Y. 1988).

Yet some treaties are not Yet some treaties are not self-executingself-executing….. When ….. When do U.S. courts consider treaties self-executing? do U.S. courts consider treaties self-executing? Some look at the intent of the parties (Cheung v. Some look at the intent of the parties (Cheung v. United States, 213 F.3d 82, 95 (2000). Others United States, 213 F.3d 82, 95 (2000). Others focus more on whether the language of the treaty focus more on whether the language of the treaty is susceptible of enforcementis susceptible of enforcement


Customary International LawCustomary International Law

““International law is part of our law, and must International law is part of our law, and must be ascertained and administered by the be ascertained and administered by the courts of justice of appropriate jurisdiction as courts of justice of appropriate jurisdiction as often as questions of right depending upon it often as questions of right depending upon it are duly presented for their determination. are duly presented for their determination. For this purpose, where there is no treaty For this purpose, where there is no treaty and no controlling executive or legislative act and no controlling executive or legislative act or judicial decision, resort must be had to the or judicial decision, resort must be had to the customs and usages of civilized nations…”. customs and usages of civilized nations…”. Paquete HabanaPaquete Habana, 175 U.S. 677, 700 (1900). , 175 U.S. 677, 700 (1900).


Some argue that customary international law Some argue that customary international law is “laws of the United States” under the is “laws of the United States” under the supremacy clause, thus preempting state law supremacy clause, thus preempting state law and on the same level as federal statutes. and on the same level as federal statutes. Whether customary international law Whether customary international law supersedes a pre-existing treaty or a pre-supersedes a pre-existing treaty or a pre-existing statute is unclear.existing statute is unclear.

Others argue that customary law has a place Others argue that customary law has a place in the U.S. legal system only as insofar as it in the U.S. legal system only as insofar as it has been incorporated in it either by the has been incorporated in it either by the executive or the legislature.executive or the legislature.

U.S. Courts tend to give a special weight to U.S. Courts tend to give a special weight to views from the executive branch when views from the executive branch when interpreting customary international law. interpreting customary international law.

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