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Weekly discussion board international law
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LSTD507 INTERNATIONAL LAW ALL WKS READING MATERIALS
WK1
The Nature, Development, and Sources of International Law
Welcome Ambassadors!
Throughout this course, we will be using a simulation of three nation states for our discussions
and the projects in the Assignments tab. At times, you may need to reach out to a fellow student
or your professor to complete the tasks. Each person in the class will be assigned to one of the
three island nations of:
State of Anarchy (A)
State of Boring (B)
State of Cabal (C)
For the purposes of this class, you will be an ambassador representing the people of a nation state
based upon your last name:
If your last name starts with A through I – You represent the State of Anarchy (A)
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If your last name starts with J through Q – You represent the State of Boring (B) (I am
here)
If your last name starts with R through Z – You represent the State of Cabal (C)
*If there are no students in the class with a last name that can be assigned to one of the above
nations, your professor will be reassigning students to different countries or will be filling in and
representing that country. You may contact them to complete any assignments or discussions as
needed.
Background of Your State:
Please read below to learn more about the background of your Island, before completing this
week’s discussion.
State of Anarchy (A):
In this country, the people do not believe in a central government. Despite this fact, this nation is
a recognized state in the United Nations and recognized by the rest of the world as a member
state. Its lengthy existence and role in the world has outweighed its need for a centralized
government. It rules in a very lawless way, through the use of the citizens’ own firearms and
make the rules up in each town or city as needed, which is governed by a sheriff of their
choosing. Despite the lack of regulation, the citizens tend to be quite self sufficient, living off
the land and sea. They do not believe in taxation of any sort. Living here can be quite dangerous
due to gangs and the ruthless individuals who roam the countryside. Due to the lack of laws,
there are many vices, such as gambling, prostitution and drugs. Many tourists enjoy coming to
visit to partake in the party lifestyle offered by Anarchy, which contributes greatly to its
economy.
State of Boring (B):
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The State of Boring is ruled by a King, who controls all lands on his island nation. It too is a part
of the United Nations and maintains member state recognition. The ruler comes from a familial
dynasty that has ruled for hundreds of years and will someday be passed to his son, the
prince. The country is an industrial nation that creates goods which are exported to many other
nations. It also has a rich farming history. Due to its tight regulations, the people of this nation
value environmental conservation, organic foods, well made luxury items, and a much quieter
life than its neighbors in the State of Anarchy. In fact, obtaining a visa to visit Boring is quite
difficult; it has highly monitored borders. This prevents many outsiders from entering the lands,
and in some cases, has separated families with those who have left the island for many
years. Lastly, the taxes required to be paid to the monarchy here are quite high and can be at
times oppressive to those in the working class.
State of Cabal (C):
The state of Cabal consists of residents of Anarchy and Boring who braved the dangerous ocean
waters in their boats to travel to a new island that was vacant. Having resisted the overbearing
rule of the State of Boring and fearing for their lives on the State of Anarchy, these residents
sought refuge in a new land where they could create a country of their own. This land is one of
peace and harmony that is governed by a centralized government chosen by the people. They are
interested in pursuing trade with other countries to import and export their goods, as well as
beginning an industrial revolution in manufacturing. It is a capitalist society. The taxes go to
fund social programs to benefit the residents. The country has submitted for statehood to
become a member of the United Nations; however, Anarchy and Boring refuse to recognize it as
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one as they see it only as composed of traitors who left their respective countries. This tends to
be one of the few things that Anarchy and Boring have ever agreed upon throughout history.
Participation:
Please note that the activities in this class will require you to actively participate with your
classmates and instructor each week. You are encouraged to participate as early as possible in
the discussions each week, so that you have plenty of time to complete your weekly assignments
in the Assignments tab. However, the standards have been built so that even if nobody else
participates, you can still succeed. Because you will be graded in this way, there is no reason to
fear any possibility that your grade will be negatively affected if your classmates or a partner
does not fully participate. If that should ever happen, such a failure will affect only those who do
not carry out their collaborative duties; it will not affect those who do fully participate. If you
have DSA extension paperwork, please be sure to provide this to your instructor as soon as
possible in Week 1. Don’t hesitate to communicate actively and often with your instructor, as
well as your partner on assignments. Your instructor can step into the role of a partner or
classmate as needed throughout the class to help you complete discussions and
assignments. They can also assist you if you need additional time to complete an
assignment. Your instructor’s email address is found on the ‘Course Home’ tab of the class above
by scrolling down and looking to the right-hand side of the page under their photograph. Most
importantly, have fun!
Week One Introduction:
This week, we will be examining and discussing what international law, where it comes from,
and sources of international law. As you learn about these topics each week, consider how they
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apply to your island state, their importance in the world today, as well as how these issues are
changing daily around the world depending on your perspective.
In addition to our Welcome Discussion, you will complete the Week 1 Discussion in which there
are two parts. Part 1: We will be discussing whether international law truly is law, as well as
where it comes from. Part 2: You will need to find the others in the class to discuss your
assigned country. There will be questions posed to your country that you should decide upon as
a group. You may discuss these directly in your assigned discussion forum, via instant message,
email or by phone. However, don’t forget to post your answers to share with the class in the
discussion forum.
After you complete these tasks in the discussion, you should then complete the Week 1
Assignment in the Assignments tab under Course Tools, as well. Don’t forget, if you are the only
one assigned to a particular group, you may consult with your professor. However, for the Week
1 Discussion, if you are alone, you are free to make all of the selections independently and do not
need your professor’s input or approval.
What is International Law?
Quite simply, international law is the study of the laws that govern the world. It involves the
legal analysis of basic fundamentals of the source of law that are applicable to many nations,
individuals, organizations and businesses. International law is incredibly vast in that it contains
many topics, such as travel, commerce, war, fundamental rights, environment, species, human
kind, maritime, agreements, politics, communications, etc.
As a student of law, you have the ability to further advance your studies in many specific areas of
international law. In this course, we will be examining the fundamentals of international law,
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such as statehood and subjects, use of force and war, international human rights and international
humanitarian law, world courts, law of the seas, and international environmental law.
Many scholars have long debated whether international law is law at all. When analyzing
national law, such as in the United States, it is much easier to examine the history, context
creation, enforcement and adjudication of law. We have rigid societal norms that carry out the
creation and application of laws. For example, governmental leaders create laws which have the
intent to protect the people which are limited to certain geographic boundaries in which they
maintain jurisdiction. Individuals in that jurisdiction are also in charge of enforcing those laws
and, should they be breached, there are set mechanisms for enforcement and adjudication. Real
consequences exist in society for a breach of law, which in turn are enforced by someone or
something in society.
Unlike national laws, there is not one individual/organism/organization that is in charge of the
entire planet that creates laws, enforces them and adjudicates them. While many have argued
that the UN functions in many ways as the controlling authority for international law in the
world, it is not alone and it only governs those nations that are members. We will examine this
further in the upcoming weeks.
Therefore, international laws are much different in that they come from a multitude of sources,
are enforced in many different ways and the adjudication mechanisms or consequences of their
‘breach’ are much more difficult to enact. In some ways, international law (or the study of it) is
much more philosophical in nature. International law requires commitment by nation states and
individuals in their creation, application, enactment, enforcement and adjudication.
Sources of International Law:
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The most common sources of international law include treaties, soft law, customary international
law, international declarations, international court rulings and statements, as well as joint
statements made by various foreign countries. “The sources of international law can be defined
as the processes by which legal norms are created, modified and annulled. Customary
International law, as one of the two sources of unwritten international law, is based on two
elements: (i) a general state practice, and (ii) the state’s conviction that this practice is legally
binding.”[1]
“The traditional theory of sources recognizes three sources of international law, as enshrined in
Article 38 of the Statute of the International Court of Justice (ICJ): treaties, custom and general
principles.”[2]
[1]
Ezequiel Heffes, Book Review Essay: Some Reflections On The Theory Of Sources Of
International Law: Re-Examining Customary International Law, 51 Isr. L. Rev. 485, (2018),
available at https://advance-lexis-com.ezproxy2.apus.edu/api/document?collection=analyticalmaterials&id=urn:contentItem:5VP3-XNY0-00KD-H1GX-00000-00&context=1516831.
[2]
Id.
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International Conventions or Treaties:
Treaties are simply agreements between countries. Most often, they are written contracts, which
are ratified by a country’s government and signed into effect. They are supposed to binding
agreements on the actions, enforcement and consequences which may occur based on the subject
of the international agreement. They can be extremely complex or very simple. They may
involve only two countries, or many more. In some cases, international agreements may directly
involve international organizations, as well as individuals (leaders of countries) and businesses.
It is important to note that international agreements may also be soft law. This means that they
are not legally binding. Many international agreements, principles and declarations may be soft
law, such as United Nations General Assembly Resolutions. Whereas hard law is defined as
international agreements which are legally binding in nature and discussed further below.
“International conventions, commonly referred to as treaties, are legally binding instruments
given various names (charter, protocol, pact, among others) and govern the rights, duties, and
obligations of participating states. The Vienna Convention on The Law of Treaties (the
authoritative source) defines a treaty as an international agreement between States in written
form and governed by international law, whether embodied in a single instrument or in two or
more related instruments. Articles 31 and 32 of the Convention are important provisions that
supply the rules for the interpretation of treaties. Although the United States is not a party to the
Vienna Convention, it consistently acts as though the Convention is binding international law.
A treaty can come into force once a certain number of nations ratify the treaty, as specified in the
treaty, or upon signature by the parties. However, a treaty cannot bind a nonparty or nonparticipating state. In addition, specific provisions in most treaties will identify when it becomes
legally binding, how compliance will be monitored and measured, how other nations may accede
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to the treaty, how and whether the treaty may be amended or modified, and how and when the
treaty will terminate. Treaties are only binding upon states that choose to ratify the treaty.
Generally speaking, states may not invoke a conflicting domestic law to avoid an obligation
under an international agreement. Bilateral treaties between two states are deposited with one of
the parties to the treaty, while multilateral treaties between three or more states are registered
with the United Nations and made available to the public.” Georgetown University Writing
Center, A Guide to the Basics of International Law (2019), https://www.law.georgetown.edu/wpcontent/uploads/2019/08/A-Guide-to-the-Basics-of-Intl-Law.pdf.
General Principles of Law:
“General principles of law constitute common themes familiar to most of the global legal
systems. These rules are essentially domestic laws found in nearly all legal systems (such as civil
law, common law, or Islamic law), that have entered into international law because they are
manifest in most states around the world. Below are some accepted principles that animate many
areas of international law:
• Pacta sunt servanda (“agreements must be kept”) (ex: treaty enforcement),
• Lex specialist derogate generalis (“the specific prevails over the general”) (ex: conflict of
laws); and
• Sic utere tuo ut alienum non laedas (“use your own so as not to injure another”) (ex:
international environmental law).” Georgetown University Writing Center, A Guide to the Basics
of International Law (2019), https://www.law.georgetown.edu/wp-content/uploads/2019/08/AGuide-to-the-Basics-of-Intl-Law.pdf.
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International Judicial Decisions:
While we will discuss this in much further detail in Week 6, world courts exist and function
similarly to national courts. However, international judicial decisions are much more difficult to
enforce and require countries’ and/or individuals’ acquiescence to be bound by the court and/or
an international agreement providing for such a dispute resolution mechanism. Even then,
enforcement of a judicial decision may be extremely difficult.
“States have an affirmative obligation to resolve disputes through peaceful means. There are both
non-adjudicatory procedures (not legally binding) and adjudicatory procedures (legally
binding). Non-adjudicatory procedures (in order of formality) are: negotiation, mediation, and
conciliation. Arbitration and judicial settlement are formal adjudicatory procedures based on
law. International arbitration may occur between various parties: a state and an international
organization; a state and a non-state actor; and a foreign investor and a state. There are more
than 125 international judicial settlement bodies and approximately 80 are active and functioning
as judicial bodies. Some courts are regional and others operate based on specialized subject
matter.” Georgetown University Writing Center, A Guide to the Basics of International
Law (2019), https://www.law.georgetown.edu/wp-content/uploads/2019/08/A-Guide-to-theBasics-of-Intl-Law.pdf.
Customary International Law:
What is Customary International law? Article 38(1) of the ICJ Statute identifies its second
formal form of international law as “international custom, as evidence of a general practice
accepted as law.” Therefore, it is something that states do or don’t do for long periods of time,
thereby becoming custom and obligatory in a sense around the world. “As a source of
international law, customary international law (CIL)…it is determined on the basis of ‘state
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practice’ (usus or diuturnitas) and the corresponding views of states (opinio juris or opinio
necessitatis).” Ezequiel Heffes, Book Review Essay: Some Reflections On The Theory Of
Sources Of International Law: Re-Examining Customary International Law, 51 Isr. L. Rev. 485,
(2018).
Please complete the following CALI Lesson regarding customary international law at this
link. As a reminder, the log-in information is on the ‘CALI Use and Access’ slide above this one
in the Week 1 Content tab.
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Welcome to Week 2.
Statehood
Statehood Under International Law:
This week, we will examine the elements required for statehood under International Law. The
recognition of a state under International Law is a declaration of intent by one state to
acknowledge another power as a “state” within the meaning of International Law. Subjects of
International Law include states, individuals and international organizations. Other lesser
subjects also include multinational corporations, non-governmental organizations, and non-State
actors, such as national liberation movements.
What is a State?
Per the Montevideo Convention, the criteria for statehood are:
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Possess a defined territory
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Inhabited by permanent population
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Controlled by an independent government
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Capacity to engage in formal relations with other states
What about recognition? The Declaratory Theory of recognition states that once the above
conditions are met, an entity becomes a state regardless of what other states do or say. Thomas
Buergenthal and Sean D. Murphy, Public International Law In a Nutshell 42 (5th ed.
2013). While the Constitutive Theory of recognition states that only when other states decide the
above conditions are met and acknowledges the legal capacity of the entity, does it in fact
become a state. Id. As you analyze this concept, consider which theory you agree with more this
week. Is recognition a necessary component to be assessed when determining statehood? Is it
time to redefine statehood or the definition created by the Montevideo Convention adequate?
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Montevideo Convention:
The Montevideo Convention on the Rights and Duties of States treaty was signed at the
International Conference of American States in Montevideo, Uruguay on December 26,
1933. The treaty became effective on December 26, 1934. The treaty discusses the definition
and rights of statehood.
Procedural Background
Advice and consent to ratification, with a reservation, was completed by the United States Senate
on June 15, 1934.
The treaty was ratified by the President of the United States, with a reservation, on June 29,
1934.
The treaty was entered into force on December 26, 1934, and it was proclaimed by the President
of the United States on January 18, 1935.
Read through the treaty and note the definition of statehood in Article 1 and the rights of
statehood in Articles 2 – 16.
————– Beginning of Treaty —————-
Article 1
The state as a person of international law should possess the following qualifications: (1) a
permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into
relations with the other states.
Article 2
The federal state shall constitute a sole person in the eyes of international law.
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Article 3
The political existence of the state is independent of recognition by the other states. Even before
recognition the state has the right to defend its integrity and independence, to provide for its
conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its
interests, administer its services, and to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the exercise of the rights of other states
according to international law.
Article 4
States are equal, enjoy the same rights, and have equal capacity in their exercise. The rights of
each one do not depend upon the power which it possesses to assure its exercise, but upon the
simple fact of its existence as a person under international law.
Article 5
The fundamental rights of states are not susceptible of being affected in any manner whatsoever.
Article 6
The recognition of a state merely signifies that the state which recognizes it accepts the
personality of the other with all the rights and duties determined by international law.
Recognition is unconditional and irrevocable.
Article 7
The recognition of a state may be express or tacit. The latter results from any act which implies
the intention of recognizing the new state.
Article 8
No state has the right to intervene in the internal or external affairs of another.
Article 9
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The jurisdiction of states within the limits of national territory applies to all the inhabitants.
Nationals and foreigners are under the same protection of the law and the national authorities and
the foreigners may not claim rights other or more extensive than those of the nationals.
Article 10
The primary interest of states is the conservation of peace. Differences of any nature which arise
between them should be settled by recognized pacific methods.
Article 11
The contracting states definitely establish as the rule of their conduct the precise obligation not to
recognize territorial acquisitions or special advantages which have been obtained by force
whether this consists in the employment of arms, in threatening diplomatic representations, or in
any other effective coercive measure. The territory of a state is inviolable and may not be the
object of military occupation nor of other measures of force imposed by another state directly or
indirectly or for any motive whatever even temporarily.
Article 12
The present Convention shall not affect obligations previously entered into by the High
Contracting Parties by virtue of international agreements.
Article 13
The present Convention shall be ratified by the High Contracting Parties in conformity with their
respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay
shall transmit authentic certified copies to the governments for the aforementioned purpose of
ratification. The instrument of ratification shall be deposited in the archives of the Pan American
Union in Washington, which shall notify the signatory governments of said deposit. Such
notification shall be considered as an exchange of ratifications.
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Article 14
The present Convention will enter into force between the High Contracting Parties in the order in
which they deposit their respective ratifications.
Article 15
The present Convention shall remain in force indefinitely but may be denounced by means of
one year’s notice given to the Pan American Union, which shall transmit it to the other signatory
governments. After the expiration of this period the Convention shall cease in its effects as
regards the party which denounces but shall remain in effect for the remaining High Contracting
Parties.
Article 16
The present Convention shall be open for the adherence and accession of the States which are not
signatories. The corresponding instruments shall be deposited in the archives of the Pan
American Union which shall communicate them to the other High Contracting Parties.
In witness whereof, the following Plenipotentiaries have signed this Convention in Spanish,
English, Portuguese and French and hereunto affix their respective seals in the city of
Montevideo, Republic of Uruguay, this 26th day of December, 1933.
Reservations Expressed by the United States:
The Delegation of the United States of America, in signing the Convention on the Rights and
Duties of States, does so with the express reservation presented to the Plenary Session of the
Conference on December 22, 1933, which reservation reads as follows:
The Delegation of the United States, in voting “yes” on the final vote on this committee
recommendation and proposal, makes the same reservation to the eleven Articles of the project
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or proposal that the United States Delegation made to the first ten Articles during the final vote
in the full Commission, which reservation is in words as follows:
“The policy and attitude of the United States Government toward every important phase of
international relationships in this hemisphere could scarcely be made more clear and definite
than they have been made by both word and action especially since March 4. I [Secretary of
State Cordell Hull, chairman of U.S. delegation] have no disposition therefore to indulge in any
repetition or rehearsal of these acts and utterances and shall not do so. Every observing person
must by this time thoroughly understand that under the Roosevelt Administration the United
States Government is as much opposed as any other government to interference with the
freedom, the sovereignty, or other internal affairs or processes of the governments of other
nations.
“In addition to numerous acts and utterances in connection with the carrying out of these
doctrines and policies, President Roosevelt, during recent weeks, gave out a public statement
expressing his disposition to open negotiations with the Cuban Government for the purpose of
dealing with the treaty which has existed since 1903. I feel safe in undertaking to say that under
our support of the general principle of non-intervention as has been suggested, no government
need fear any intervention on the part of the United States under the Roosevelt Administration. I
think it unfortunate that during the brief period of this Conference there is apparently not time
within which to prepare interpretations and definitions of these fundamental terms that are
embraced in the report. Such definitions and interpretations would enable every government to
proceed in a uniform way without any difference of opinion or of interpretations. I hope that at
the earliest possible date such very important work will be done. In the meantime in case of
differences of interpretations and also until they (the proposed doctrines and principles) can be
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worked out and codified for the common use of every government, I desire to say that the United
States Government in all of its international associations and relationships and conduct will
follow scrupulously the doctrines and policies which it has pursued since March 4 which are
embodied in the different addresses of President Roosevelt since that time and in the recent peace
address of myself on the 15th day of December before this Conference and in the law of nations
as generally recognized and accepted.”
——————– End of Treaty ——————–
United Nations Statehood:
Membership in the Organization, in accordance with the Charter of the United Nations, “is open
to all peace-loving States that accept the obligations contained in the United Nations Charter and,
in the judgment of the Organization, are able to carry out these obligations”. States are admitted
to membership in the United Nations by a decision of the General Assembly upon
the recommendation of the Security Council. About UN
Membership: https://www.un.org/en/about-us/about-un-membership
Recognition:
“The recognition of a new State or Government is an act that only other States and Governments
may grant or withhold. It generally implies readiness to assume diplomatic relations. The United
Nations is neither a State nor a Government, and therefore does not possess any authority to
recognize either a State or a Government. As an organization of independent States, it may admit
a new State to its membership or accept the credentials of the representatives of a new
Government.
The procedure is briefly as follows:
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•
The State submits an application to the Secretary-General and a letter formally stating
that it accepts the obligations under the Charter.
•
The Security Council considers the application. Any recommendation for admission must
receive the affirmative votes of 9 of the 15 members of the Council, provided that none of
its five permanent members — China, France, the Russian Federation, the United
Kingdom of Great Britain and Northern Ireland and the United States of America — have
voted against the application.
•
If the Council recommends admission, the recommendation is presented to the General
Assembly for consideration. A two-thirds majority vote is necessary in the Assembly for
admission of a new State.
•
Membership becomes effective the date the resolution for admission is adopted.
At each session, the General Assembly considers the credentials of all representatives of Member
States participating in that session. During such consideration, which routinely takes place first
in the nine-member Credentials Committee but can also arise at other times, the issue can be
raised whether a particular representative has been accredited by the Government actually in
power. This issue is ultimately decided by a majority vote in the Assembly. It should be noted
that the normal change of Governments, as through a democratic election, does not raise any
issues concerning the credentials of the representative of the State concerned.” About UN
Membership: https://www.un.org/en/about-us/about-un-membership
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WK3
Use of Force
Use of Force:
The term ‘use of force’ “reflects a desire to prohibit the resort to armed conflict, not just conflicts
arising from a formal state of war.” Thomas Buergenthal and Sean D. Murphy, Public
International Law In a Nutshell 392 (5th ed. 2013). The right to use force is called jus ad
bellum. Law governing the manner of conducting armed operations is called jus in bello (law of
armed conflict/international humanitarian law), which we will examine next week in greater
detail. It is generally prohibited under Article 2(4) of the U.N. Charter. Additionally, a state that
uses force in violation of the Article “is responsible for the loss, damage, or injury that results
from its violation.” Id. at 395. The effect of Article 2(4) is to abolish the legal significance of
the word “war.” Instead, the neutral term “armed conflict” is used, thereby creating the ‘law of
armed conflict’ (otherwise known as the abbreviation: LOAC).
Please watch the following video which further explains the concepts of use of force under
international law:
In addition to the U.N. Charter Article 2, we look to other sources of international law when
analyzing use of force such as:
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Customary international law
•
General principles of law common to nations, e.g. necessity, proportionality, reasonableness,
humanity.
•
“Just war theory”: Elements of this include: legitimate authority; just cause; right intention;
and proportionality.
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•
Powers of the Security Council to deal with breaches of the peace or threats to peace (Articles
39-42)
•
Reservation of the right of individual and collective self-defense until Security Council can
act effectively
Self Defense:
The use of force in self-defense has always been accepted and is customary international law
(CIL). In fact, we see it throughout common national and individual laws, as well. It is codified
in Article 51 of the U.N. Charter, which states that “[n]othing in the present Charter shall impair
the inherent right of individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security….”
“Recent state practice suggests that the initial “armed attack” need not be made by a
government.” Thomas Buergenthal and Sean D. Murphy, Public International Law In a
Nutshell 397 (5th ed. 2013). It does not need to be conventional in that it is merely one state’s
forcing invading to seize territory from a foreign state. The terrorist attack on the United States
on September 11, 2001, best demonstrates this principle.
Anticipatory self defense is also permitted and observes that states may act where a devastating,
imminent foreign attack is anticipated. However, this type of self defense is debated, as it may
be difficult to determine the future. Beyond the concept of singular self defense, collective self
defense is also permitted. Several re
