Sources of International Law

Question 1

Consent

Answer 1

• int law generally consent-based -> lawyers need to look for evidence of consent to prove that international law on a particular subject exists with respect to a particular State
• no general legislature - consent-based b/c no one state has more authority/weight than another
• independent + equally sovereign states - w/o higher authority, in order to make law + be bound by it, every state must consent

Question 2

International Court of Justice

Answer 2

• primary judicial organ of the UN system
• acts as both legal advisory body to UN system and court for settlement of disputes between states
• 15 judges, chosen to represent different geographic regions + types of legal systems
• can only hear cases if states agree to have them heard

Question 3

Article 38 - Statute of the ICJ - General Significance

Answer 3

• identifies the four traditional sources of law that the ICJ employs to determine applicable international law in a particular case

Question 4

Article 38 - Sources of Law

Answer 4

• “international conventions” (general or particular) establishing rules expressly recognized by the contesting states
• “international custom”
• “the general principles of law recognized by civilized nations”
• “judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”

-> first three create binding legal obs, vs. last one treated as means of discovering what the law is (not binding, more guidance)

Question 5

What happens if a state agrees to be bound and then breaks the law?

Answer 5

• short answer is no real concrete punishment to compel compliance (there are options to encourage compliance, but no enforceable penalty for breaking the rules)

Options for non-compliance:
- might have mechanism in the treaty establishing a dispute resolution body
- UN Security Council can issue binding sanctions
- states can work collectively to impose sanctions

Question 6

Article 38(a)

Answer 6

• provides definition of treaty: “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”

Question 7

Treaties - Basics

Answer 7

• main feature is must be between states (bilateral or multilateral) and states MUST have CONSENTED to be bound
  -> corresponding difficulty sometimes w/in treaties of identifying whether something IS a legal ob that a state has consented to
  -> also keep in mind can’t be non-state actors
• can be called any number of things (protocol, treaty, agreement)

Question 8

Treaties and Int Env Law

Answer 8

• Prof said int env law is primarily governed by treaties (the lawmaking activity usually happens in a treaty context)
• typical model = framework convention (recognizes the problem + sets up institutions) + then from there you may develop more specific protocols
• can have hard law with agreements happening around it

Question 9

Vienna Convention on the Law of Treaties

Answer 9

• governs major aspects of treaties, including negotiation, conclusion, interpretation, amendment and termination, for consenting parties
• for non-consenting parties, it’s generally accepted as a codification of customary international law
• provisions discuss default rules for adoption, authentication, etc - any given treaty can decide to diverge from the default

Question 10

Process of Initiating a Treaty

Answer 10

• initial research, getting initial support
• having the key countries at the heart of the issue is often critical, but then often need other players (may want to make sure it’s not just dictated by the main players, + also sense that w/ global implications you want more players at the table)
• NGOs - visibility, research, global reach
• matters who the players are, what the issues are, + sometimes what’s happening domestically or regionally

Question 11

Treaty Negotiation - Vagueness

Answer 11

• lack of specificity/more fluidity sometimes makes it easier for States to come to the table and agree on a framework convention
• flip side though of how helpful the convention winds up being
• frameworks can establish procedures for ongoing developments

Question 12

Peremptory Norms

Answer 12

• overarching norms of international law that can’t be violated by the terms of a treaty
• no state can opt out, regardless of persistent objection
• if new peremptory norm comes into existence + conflicts with a treaty, that treaty is voided
• can be modified only by subsequent norm of general int law having the same character

Question 13

Challenges to Beginning of Env Treaties

Answer 13

• identification of needs + goals often first step -> many env problems go unaddressed for many yrs b/c people lack sufficient data to convince int community to address them
• there’s also neither the prescribed process nor dedicated institution for assessing need for new env treaties (though UNEP sometimes asked to make such assessments)

Question 14

Adoption vs. Ratification

Answer 14

• adoption just signifies you accept the text of the treaty
• Article 18 of the Vienna Convention - if you signed the treaty, it DOESN’T signify consent to be bound, you only agree not to do anything “which would defeat the object and purpose of the treaty”
• Ratification = process by which you become bound (state needs to formally take affirmative steps to demonstrate its consent to be bound)
  -> may also have period even after ratification before the treaty goes into effect (ex: need certain number of parties to sign on or something)

Question 15

US and Treaty Ratification

Answer 15

• US can’t ratify treaties unless Senate consents
• Prof did say something though about international ratification vs. domestic ratification (think US domestic law requires Senate consent for treaty ratification, vs int law theoretically just requires an authoritative act by which State declares to the int community it considers itself bound)

Question 16

Vienna Convention - Reservations

Answer 16

Default rule under Article 19 is that reservations are allowed unless:
- expressly prohibited in the treaty
- the treaty provides only specified reservations are allowed + these don’t include the one the state is trying to make
- the reservation doesn’t fall under either of the above, but it’s incompatible w/ the object and purpose of the treaty

Question 17

Rationale Behind Reservations

Answer 17

• wanting states to sign on may be more important to the parties than any one provision, but don’t want reservations that undermine the entire treaty mechanism
• ex: reciprocity often super important to trade agreements, so need to be careful re reservations there, vs. int env law weird b/c state obs are more to the global good than each other -> some leeway on whether it’s more important to have broad sign-on + more concerned about overall effectiveness than particular reciprocity

Question 18

Reservations and Consent

Answer 18

• reservations are consent-based - if a state expresses res to a provision, can’t be bound by it
• BUT system is essentially one of reciprocity - if you’ve made a res, other states aren’t bound to you for that same thing (even though they’re still bound to everyone else)

Question 19

Paris Agreement and Reservations

Answer 19

• said no reservations allowed
• BUT double-edged sword - states get so much leeway in defining own obligations that it’s not worth it (vs. could’ve made more core obs at the outset but allowed reservations)

Question 20

Vienna Convention Article 20(4)

Answer 20

• deals with other States’ responses to your reservations
• seems like you need at least one other state to accept the reservation for you to be part of the treaty, but other states can’t individually prohibit you from entering a reservation if it’s allowed by the treaty
• other states can object to your reservation - such objection is not read as they’re refusing to be bound by the entire treaty with respect to you unless they specifically say so (i.e. another state can object to your reservation in a way that expressly refuses to recognize you as party of the whole treaty for having that res)

Question 21

Withdrawal

Answer 21

• Article 54 of Vienna Convention - to terminate or withdraw, State needs to either follow provisions set out in the treaty or receive the consent of all States party to the treaty
• Article 56 - when treaty doesn’t specifically provide for withdrawal, provision can be inferred if parties intended withdrawal to be permitted or nature of treaty was such as to permit withdrawal

Question 22

Paris Agreement - Withdrawal

Answer 22

• withdrawal provision was essentially designed so that withdrawal would take as long as the full term of a US President (political whims impact treaty process)
• Article 28 - you can only withdraw three yrs from the date on which the Agreement has entered into force for a Party, + withdrawal takes effect a year after your notice

Question 23

Amendment and Modification

Answer 23

• can generally amend treaty by agreement of the parties
• there are default rules, but environmental treaties tend to specifically say what they want

Question 24

Reservations and Interpretations

Answer 24

• many recent env treaties prohibit reservations, but States have begun trying to avoid formal reservations by adding interpretive notes to treaties (pre-intepreting selected provisions)

Question 25

Interpreting Treaties

Answer 25

• can be critical for determining state obligations
• need to look first to text itself in determining intent of treaty parties
• Articles 31 and 32 of Vienna Convention outline methodology
• courts can also consider (as supplemental means of interpretation) the negotiating history of the treaty BUT generally limited to confirming an interpretation based on textual analysis or resolving ambiguities or manifestly absurd results from the text

Question 26

Customary International Law - General Concept

Answer 26

• int law is created by customary practice of States where such practice is done under the belief that it is required by law
• once established, it is GENERALLY BINDING on ALL nations (vs. treaties only if you’ve formally consented)
• “regularities of behavior” - empirical rather than normative
  -> not equivalent to simple behavioral regularities (just b/c states do it often doesn’t mean custom, need to show they think it’s law)
  -> regularities but not necessarily uniformities of behavior (mistakes + violations are possible)

Question 27

Customary International Law - Elements

Answer 27

Objective element - state practice
-> need to show that state practice is objectively consistent w/ the custom (extensive + virtually uniform)

Subjective element - opinio juris
-> need to show States act in accordance w/ rule from a sense of legal obligation to do so

Question 28

Persistent Objector

Answer 28

• State can exclude itself from the obligations of a particular customary rule by persistent conduct exhibiting an unwillingness to be bound by the rule/refusal to recognize it as law

Question 29

Env Principles Thought As Binding

Answer 29

Txtbook noted these, Prof seemed a bit skeptical that all fully qualify
- State shouldn’t use its territory in a way that causes env harm outside that territory
- sustainable development
- precautionary principle
- requirement to assess transboundary impacts

Question 30

Erga Omnes Obligations

Answer 30

• circumstances in which State may owe duty to obey a norm to the int community as a whole rather than indiv States
• when violated, any State may bring complaint based on the violation
• no generally agreed list for these

Question 31

“General Principles”

Answer 31

• third prong of the ICJ Statute’s sources of law
• not really agreed upon what specifically qualifies
• usually invoked though when there’s holes in the int legal system + comparable principles to fill them in from domestic law (ex: civil procedure, concepts of equity, evidence)
• Prof’s explanation was that b/c int law made a bit different than common law or domestic law, int legal system winds up w/ certain gaps -> can borrow from domestic systems

Question 32

Core reqs for Sources of Int Law

Answer 32

• equally sovereign states are the subjects of int law
• always looking for consent and intent to be legally bound
  -> these two principles inform the rules about when a document is binding hard law (treaty) vs. soft law + inform the rules about finding customary int law

Question 33

Potential Value of Calling Something Soft Law (vs. Not Labeling)

Answer 33

• creates a side category - allows you to acknowledge the attention paid to these concepts even if you’re not formally recognizing them
• also works if states generally willing to acknowledge principles constraining their actions but don’t want to go the step of being formally bound

Question 34

Why does soft law exist in int env law?

Answer 34

• int econ law very dependent on hard law, vs. nt env law not as directly reciprocal + not as easy to identify monetary benefits
• also living in space w/ hard int econ law -> avoid conflicting obligations

Question 35

Soft Law - Risks

Answer 35

• might allow states to say they’ve done something w/o actually doing much good
• also not evaluating effectiveness or compliance as much when you don’t have firm commitments to measure
• broader concern of commentators labeling env treaties (formally hard law) as soft law due to the squishyness of the obligations - risk that you’re undermining the system by referring to these docs as soft law + creating impression that int env law has no teeth

Question 36

Value of Soft Law

Answer 36

• non-binding things can still move the ball forward
• integral part of int env law system even though not really formally recognized as international law