Public International Law in a Nutshell
Authors:
Buergenthal, Thomas / Murphy, Sean D.
Edition:
6th
Copyright Date:
2019
21 chapters
have results for public international law
Preface to the Sixth Edition iii 3 results
- This sixth edition of the Public International Law in a Nutshell is designed to introduce the lawyer and the law student to the basic doctrines, institutions, and methodology of modern public international law. It is also intended as a text capable of supplementing and helping with the conceptual integration of the teaching materials on international law in use in the United States.
- As was noted in prior editions, what to cover and what to omit ultimately is a matter of personal judgment and preference, as well as of available space. Our decision regarding content and coverage was guided in part by what we deem to be important for understanding the basic elements of contemporary international law, recognizing full well that much more remains to be said about the topics we have covered and that a great deal of material has not been considered at all. We hope that this book will stimulate the reader to pursue the further study of international law. Given the world we live in, public international law is a subject whose basic institutions and concepts need to be understood by the legal profession as a whole.
- In a short volume of this type, the risk is great that, in the effort to consolidate and to be brief, material will be distorted or oversimplified. We have sought to reduce that risk by providing references to cases, secondary sources, and other materials where the reader can find more detailed information and nuances on the points covered. The first half of the volume focuses on broad aspects of the field of international law, as well as its interaction with U.S. law, while the second half addresses certain specialized areas of international law, such as human rights, international environmental law, and the law of the sea. In the final chapter, we provide extensive information on techniques for researching international law, with particular attention to the resources now available on the Internet.
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Chapter 1. Application and Relevance of International Law 45 results (showing 5 best matches)
- This chapter introduces the reader to the basic principles of modern public international law. It provides an overview of the historical and theoretical context within which that law has developed and discusses the functions international law performs. Examples of the application of international law on the national and international plane are also provided.
- On the national plane, international law is not a legal system. When we say in the United States, for example, that international law is “the law of the land,” we are in fact saying that it is a part or branch of our legal system, in very much the same way that the law of torts or contracts is part of our legal system. We refer to the law of torts in a case or situation involving issues that can be characterized as being governed by principles of tort law. In much the same way, we refer to international law when the facts of the case or situation demand it. Here international law is invoked in national litigation and other contexts by individuals, private and public entities, and government agencies whenever resort to it appears to be relevant in this context.
- International law used to be defined as the law that governs relations between states. Under the traditional definition, only states were subjects of international law; that is, only states were deemed to have rights and obligations that international law recognized. Whatever benefits or burdens international law conferred or imposed on other entities or individuals were considered to be purely derivative, flowing to those so-called “objects” of international law by virtue of their relations to or dependence upon a state.
- The question of whether the individual invoking international law in a U.S. court, for example, has rights or obligations under international law on the international plane (that is, whether he/she is a subject of international law) is for the most part irrelevant. The relevant question is whether this or that rule of international law is, as a matter of U.S. law, appropriate to the resolution of the controversy before the court. Viewed from this national perspective, the individual is the subject of rights and obligations which have their source in international law to the same extent that the individual is the subject of any national legal rights and obligations.
- International law is routinely applied by international tribunals as well as by national courts. But international law is not relevant solely in judicial proceedings. States rely on it in their diplomatic relations, in their negotiations, and in their policymaking. States defend their actions and policies (both to other states and to their national constituents) by reference to international law and challenge the conduct of other states in reliance on it. To the extent that international law is perceived as “law” by the international community, it imposes restraints on the behavior of states and affects their decision-making process. Although there may be considerable disagreement in a particular case about the nature, scope or applicability of a given rule of international law, states rarely admit to violating international law and hardly ever assert the right to do so.
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Chapter 13. International Legal Research 118 results (showing 5 best matches)
- Published by the American Law Institute (ALI), the is a highly valued international law research tool. U.S. courts generally view it as the most authoritative U.S. scholarly statement of contemporary international law. The deals with public international law and the relevant U.S. law bearing on the application of international law in and by the United States (including where U.S. law differs from international law). Each section consists of a statement of the “black letter law,” followed by comments and reporters’ notes. The latter are particularly useful because of their careful analysis of and citations to the relevant international law authorities. Unlike the comments, the reporters’ notes state the views of the reporters only and their substance is not endorsed as such by the ALI.
- In addition to international law casebooks of a general type, more and more specialized casebooks are now also being published. These deal with a variety of subjects, including international organizations, human rights, national security law, law of the sea, international civil litigation, international criminal law, international environmental law, international business transactions, trade law, and European Union law.
- Such periodical literature may be accessed through a litany of subscription-based online databases such as HEIN Online, LegalTrac, LEXIS, and WESTLAW. Articles published in U.S., U.K. and some Commonwealth law journals are indexed in the
- >. The Electronic Information System for International Law (E.I.S.I.L.), created by the American Society of International Law, operates as an open database of primary and other authenticated international law materials. E.I.S.I.L. has links to international organizations, international courts, treaty collections, and other international law materials.
- Some of the leading law journals in the field of public international law are:
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Chapter 5. International Law of Treaties 43 results (showing 5 best matches)
- The usual grounds which may be invoked under national law to invalidate contracts, that is, error of fact, fraud, corruption and duress, are also available under international law to invalidate treaties. VCLT, arts. 48–52. Although national law contains many provisions of law and public policy that are obligatory in the sense that individuals may not by contract enter into arrangements in conflict with such law and policy, the basic assumption in international law is almost absolute freedom of contract. In general, states are free to enter into treaties that change, as between them, otherwise applicable rules of customary international law.
- Treaties, whether bilateral or multilateral, are defined somewhat circuitously as agreements governed by international law. Treaties are the agreements formed between and among the subjects of international law (states and intergovernmental organizations). Since it is international law which applies to relations between and among the subjects of international law, it follows that agreements which they conclude with one another are, as a general rule, treaties.
- International agreements involving international organizations are addressed by the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Mar. 21, 1986, 25 I.L.M. 543. This instrument, however, has not yet entered into force.
- Treaties perform a variety of functions on the international plane that in national law are performed by many different types of legal acts and instruments, including constitutions, laws of general applicability, contracts, deeds, trust agreements, or corporate charters. Treaties serve as the constitutions of international organizations, ch. 3, they can be a source of customary international law,
- The term “treaty”, as used on the international plane, describes international agreements in general, whether they be denominated conventions, pacts, covenants, charters, protocols, or some other name. These different names have no legal significance; the same legal rules apply to one as to the other. The choice of this or that name may at times be prompted by the belief that a given designation implies greater or lesser solemnity or importance. But as a matter of international law, a treaty by whatever name is still a treaty. In U.S. national law, by contrast, the term “treaty” has a special meaning. It describes an international agreement that, unlike other international agreements the United States might conclude, requires the advice and consent of the Senate before the United States may become a party to it.
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Chapter 11. International Environmental Law 41 results (showing 5 best matches)
- There are numerous international non-governmental organizations that play an important role in the development of international environmental law. These organizations help galvanize public support for environmental initiatives and channel that support to the governments of states and to negotiations of international instruments. Indeed, such organizations often participate in multilateral negotiating conferences as observers, which allow them to speak on issues under negotiation.
- Yet most contemporary international environmental law arose after the 1960’s, when governments and the public at large became aware of the significant threats to the environment posed by rapid growth of population, industrial pollution, and human consumption of natural resources.
- International environmental law is a relatively recent branch of international law concerned with the preservation and enhancement of the global environment. To address transnational environmental problems, such as ozone depletion, climate change, and loss of biological diversity, states have developed a network of agreements and institutions, as well as certain legal principles and techniques, that are unique to this field of international law.
- Whenever international environmental agreements interfere with free trade, the values underlying both fields of international law can come into conflict. Further, there are often concerns stated that international trade obligations may be used to strike down national laws designed to protect the environment. The principal forum for adjudicating these conflicts has been the dispute settlement process before the World Trade Organization (WTO), which looks to trade agreements such as the , as amended, for its governing law.
- Further, after the Rio Conference, other fields of international law—such as those of trade, human rights, and armed conflict—became increasingly responsive to international environmental concerns. In an advisory opinion sought from the International Court of Justice on the legality of the threat or use of nuclear weapons, the Court declined to answer the question solely by reference to environmental agreements. The Court, however, declared that it:
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Chapter 6. Rights of Individuals 77 results (showing 5 best matches)
- Customary international humanitarian law also exists under the influence of such treaties and the widespread practice of states. Such law helps to fill the gaps left in the treaty law, both with respect to international and non-international armed conflicts. For an important study of such law, see International Committee of the Red Cross,
- This chapter deals with the international law that applies to the protection of the rights of individuals. The law on this subject evolved from two different branches of international law: the international law of human rights and the law on the international responsibility of states for injuries to aliens. Although the substantive rights that each of these branches protects can be said to have converged in recent decades, significant procedural distinctions exist between them, depending upon the particular branch in which the rights are sought to be enforced. This chapter will therefore deal separately with the law of human rights and the law of state responsibility.
- Whereas the international law of human rights has a very recent history, the basic principles of the law of state responsibility for injuries to aliens can be traced to the early days of international law. These principles were amplified and refined by international arbitral tribunals in the 19th and early 20th centuries and to a lesser extent by the Permanent Court of International Justice.
- During that same period, the International Labor Organization began the process of promoting international standards for the protection of workers. International efforts making some basic humanitarian norms applicable to the conduct of war gained formal multilateral recognition as early as 1864. The law applicable to the responsibility of states for the injuries to aliens, which can be traced back to the early days of modern international law, is yet another precursor of international human rights law. Although it protects only foreign nationals, it produced a body of human rights law binding on all states and universal in character.
- International humanitarian law can be said to be a branch of the international law of human rights that applies to situations of international armed conflict and, to a more limited extent, to internal armed conflict.
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Chapter 7. Foreign Relations Law in the United States 60 results (showing 5 best matches)
- Chapter 1 emphasized the importance of keeping the difference between the national and international applications of international law constantly in mind. In a very real sense, it is not the international legal that operates in United States courts. Rather, rules of international law are applied by a U.S. court in certain situations because they are deemed to be a part of U.S. law just like other sources of U.S. law.
- Whether customary international law supersedes a pre-existing treaty or a pre-existing statute under U.S. law is not settled by the Supreme Court. On the one hand, if customary international law is a form of federal common law, it would appear to be inferior to law duly enacted by the legislative branches, even if the customary international law arises later-in-time. On the other hand, customary international law is a special form of federal common law in the sense that it is not simply “judge-made”; it is made by the practice of states worldwide through a process in which the U.S. political branches play a role. As such, arguably customary international law should have a status akin to treaty law, and thus supersede treaties or statutes that precede the emergence of a new customary norm. (asserting that customary international law is not inferior to treaties or statutes),
- In fact, international law has been a part of U.S. law since the founding of the nation.
- A few scholars writing about customary international law have questioned whether locating law-making authority outside U.S. institutions (i.e., in the practice of states globally) fits within the U.S. political tradition.
- Other writers, however, emphasize the second sentence in the quotation, pointing out that international legal rules were relevant in because the President had incorporated the limitations of customary international law into his orders to the commander. Acts in violation of those rules were therefore under the President’s own orders and, consequently, void; they were not void simply because they transgressed customary international law.
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Chapter 2. Sources of International Law 63 results (showing 5 best matches)
- How then do we know whether a given rule is international law? This question can be answered only by reference to the sources of international law and by analyzing the manner in which international law is made or how it becomes law binding on the international plane. This chapter deals with this question as well as with issues relating to the manner in which the existence or non-existence of a rule of international law may be proved. For further reading on these issues,
- Under I.C.J. Statute Article 38(1)(b), “a general practice accepted as law” is an international custom. The International Law Commission completed a set of conclusions in 2018 that provides a more meaningful and functionally sounder definition: “To determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law ( ).” I.L.C. Conclusions on the Identification of Customary International Law, Conclusion 2, U.N. Doc. A/73/10, ch. V (2018) (“I.L.C. Conclusions”). Hence, a rule reflected in the practice or conduct of states, must be accepted by them, expressly or tacitly, as being legally binding on the international plane in order to be considered a rule of customary international law.
- Because of the consensual character of customary and conventional international law, and because of the absence of a centralized legislative or judicial system, states play a dual role in the law-making process: they act both as legislators and as advocates or lobbyists.
- The situation is more complicated with regard to international law. Viewed in terms of law-making, international law is a primitive legal system. The international community lacks a constitution that can be viewed as a fundamental source of binding law. There exists no institution comparable to a national legislature with power to promulgate laws of general applicability, nor administrative agencies to produce regulations. Moreover, the International Court of Justice (I.C.J.) (discussed ch. 4) lacks plenary jurisdiction over disputes arising under international law, and the decisions of the Court are legally binding only on the parties to the dispute. They have no precedential value in a formal sense is not a rule of international law. I.C.J. Statute, art. 59. The Court’s judgments and advisory opinions, however, are the most authoritative evidence of what international law is.
- Modern international law relies less on general principles of law as a source of law. This is so in part because of the extraordinary growth of treaties and international institutions as a means of regulating interstate relations, and in part because many of the norms that were originally derived from general principles over time have become customary international law.
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Chapter 4. International Dispute Settlement 63 results (showing 5 best matches)
- Arbitral tribunals apply international law unless the parties specify that some other law should be applied. Up until the early 20th century, international case law consisted principally of decisions of arbitral tribunals and judgments of national courts applying international law.
- As international courts have proliferated, concerns have arisen about the lack of a judicial hierarchy, which can lead to different courts reaching difference conclusions about the law, even though applying essentially the same facts to the law. One concern involves the possibility of forum shopping, whereby one State in a dispute who seeks a trade-favorable outcome might pursue dispute settlement at the World Trade Organization, while the other State who seeks an environment-friendly outcome might pursue the exact same dispute at a law of the sea tribunal. On the consequences for the development of international law of the proliferation of international courts, see Y. Shany,
- Narrowly defined, international arbitration is a method for the adjudication on the international plane of disputes between states. Nevertheless, the facts giving rise to such disputes often involve claims by nationals of one state against another state. Here, if states bring such claims to an arbitral tribunal, the states are said to be “espousing” the claims of their nationals. Over the years, international arbitral tribunals have developed a whole body of international law, both procedural and substantive, bearing on the various legal issues that arise in the ch. 6, pt. III. Much of that law, particularly its procedural and jurisdictional components, has found its way into the constitutions and rules of procedures of existing international courts.
- This chapter deals with the principal non-judicial, quasi-judicial and judicial institutions and methods that are used by the international community to resolve disputes between states. The rules and procedures established under the U.N. Charter to address resolution of disputes through the use of force are discussed in Chapter 12. Here we describe the methods international law has developed for the peaceful resolution of international disputes.
- It is a basic principle of international law that states cannot be required to arbitrate a dispute unless they have given their consent thereto, either before or after the dispute has arisen. In practice, consent occurs through three types of international arbitral agreements.
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Chapter 3. States and International Organizations 53 results (showing 5 best matches)
- The General Assembly has also adopted and opened for signature many major international treaties, such as the two international covenants on human rights. Much of the existing international legislation relating to the law of the sea, the international environment, and space law originated within the General Assembly or in diplomatic conferences that were convened by it. These codification efforts by the General Assembly have contributed significantly to the growth and modernization of international law.
- In addition to states and international organizations, there is a third type of organization relevant to international law known as private or non-governmental organizations (NGOs) that operate transnationally. , U.N. Charter, art. 71. Well-known NGOs include Amnesty International, Greenpeace International, and the International Committee of the Red Cross. These institutions are created under and governed by national, rather than international, law, but they can play important roles in the promotion of international law and in its observance.
- While they can appear in a variety of forms, public international organizations—also known as intergovernmental organizations—typically are: (1) institutions established by a treaty—sometimes denominated as a “charter”—which serves as the “constitution” of the organization; (2) composed of members that are states or international organizations; (3) regulated by international law; and (4) endowed with a legal personality, and thus generally can engage in contracts, and can sue and be sued in national courts subject to certain immunities.
- This chapter considers the principal “actors” in international law: states and international organizations created by states. First, this chapter discusses the law and practice associated with “recognizing” the creation of a new state or formation of a new government that has come to power through non-constitutional means. Second, this chapter introduces the core legal issues that arise with respect to international organizations, paying particular attention to the United Nations and the European Union. Finally, this chapter briefly notes the role of non-governmental organizations in the formation and implementation of international law.
- The breadth of EU law, combined with its direct and independent applicability on national law, distinguishes it from the law of traditional international organizations. The legislative process of the European Union is also substantially more independent of the will of the member states than is the legislative process of international organizations, which is under the exclusive control of governments. Viewed from this perspective, supranational organizations, as exemplified by the European Union, represent a more advanced and more effective form of international cooperation than do traditional international organizations.
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Chapter 8. Exercise of National Jurisdiction 59 results (showing 5 best matches)
- In short, do not confuse the existence of the five jurisdictional bases present in international law as establishing jurisdiction by a particular state over persons, property, or conduct abroad; you must also look to national law to determine whether the state has actually exercised the discretion permitted to it under international law.
- At this point, it must be emphasized that even if international law permits the exercise by a state of jurisdiction, it is wholly within the discretion of the state whether actually to do so. For instance, international law permits a state to enact legislation prohibiting its nationals from committing crimes abroad (based on nationality jurisdiction) and many states have enacted such laws. However, under U.S. law, criminal law is principally regulated by the laws of the several states (not federal law), which in most instances are not interpreted by state courts as applying outside the territory of the state, let alone outside the United States. Consequently, when a U.S. national commits a serious crime abroad, such as murder, normally there are no means for prosecuting that person in the United States, even though international law permits the United States to do so.
- International law requires that a state only exercise jurisdiction to adjudicate in situations where it is reasonable to do so. The standard of reasonableness is not the same as the standard applied for jurisdiction to prescribe. It is entirely possible that international law would regard as reasonable the exercise by a state of prescriptive jurisdiction over a person, but not regard as reasonable the exercise of personal jurisdiction over that person (and vice versa).
- violation of international law, the Supreme Court stated that the adjudication of this claim risked serious embarrassment to the executive branch because the international law concerning the compensation for expropriation was unclear. Justice Harlan summarized the holding as follows:
- [International law] aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own. . . . [I]n dealing with international commerce we cannot be unmindful of the necessity for mutual forbearance if retaliations are to be avoided; nor should we forget that any contact which we hold sufficient to warrant application of our law to a foreign transaction will logically be as strong a warrant for a foreign country to apply its law to an American transaction.
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Chapter 12. Use of Force and Arms Control 37 results (showing 5 best matches)
- The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law.
- The maintenance of international peace and security is a primary role of the United Nations under the U.N. Charter. Article 2(3) requires all members to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Article 33(1) lists several peaceful dispute settlement mechanisms to serve as the first resort in lieu of force of arms (these processes are discussed in Chapter 4). Nevertheless, at times states resort to the use of military force against other states to resolve disputes, which implicates further Charter provisions and customary rules. This chapter addresses international norms regulating the use of force, as well as instruments in the field of arms control.
- . For an assessment of international law in this area completed under the auspices of NATO, providing black-letter rules and associated commentary, see the
- The use of force in self-defense has always been recognized as legitimate in international law. Article 51 of the Charter makes this explicit by stating:
- An important rule of customary international law associated with the right of self-defense is that the defensive force must be necessary and proportionate to the armed attack that gave rise to the right. Reference in support of this proposition is typically made to the , that was being used to support the insurgents. Britain claimed that the act was in self-defense, but U.S. Secretary of State Daniel Webster asserted that the action was neither necessary nor proportionate, as required under international law.
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Chapter 10. Law of the Sea 47 results (showing 5 best matches)
- The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
- A strait is a narrow stretch of water connecting two larger bodies of water. The International Court of Justice has recognized a customary rule of international law that innocent passage could not be suspended by a coastal state in straits used for international navigation between one part of the high seas and another.
- Under the LOSC, and associated customary rules, the law of the sea is largely organized based on certain major maritime zones (part II below), as well as on certain functional uses of the sea (part III). For further background on the history and development of the law of the sea, see Y. Tanaka,
- § 10-2) through waters enclosed by a straight baseline that previously had not been considered internal waters (art. 8(2)). There is no right generally under international law for foreign vessels to enter a state’s internal waters. , 1986 I.C.J. 14, para. 213 (June 27). At the same time, the international ports of a state are presumed to be open to international non-military vessels, subject to whatever conditions for entry that may be set by the state. Further, customary international law and various treaties (such as treaties of friendship, commerce, and navigation) contemplate a right of entry to a port when a vessel is in distress.
- Until the 1950’s, the basic principles of the law of the sea had their source in customary international law. In 1958, the United Nations convened the first U.N. Conference on the Law of the Sea (UNCLOS I), which succeeded in adopting four conventions on: (1) the territorial sea and contiguous zone; (2) the high seas; (3) the continental shelf; and (4) fishing and conservation of living resources of the high seas. While the first three conventions were ratified by numerous states (including the United States) and have come to be regarded as reflecting customary international law, the fourth convention (as well as an optional protocol on dispute settlement) obtained fewer adherences.
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Chapter 9. Immunities from Jurisdiction 45 results (showing 5 best matches)
- International law also requires that states accord immunity from their national jurisdiction for certain high-level foreign government officials, for both their official and private acts, but only while they are in office. This immunity
- There is no global convention governing the privileges and immunities of all international organizations and of their officials. There is a Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character, Mar. 14, 1975, U.N. Doc. A/CONF.67/16 (1975), but that convention is still not in force. The convention may reflect customary international law since it is based upon the widely-adhered-to VCDR, but the unwillingness of states to ratify the convention suggests that its rules are not uniformly accepted.
- As in the case of immunities for foreign state officials, immunities for foreign states (or governments) reflect the proposition that where one sovereign might exercise jurisdiction over the acts of another, the interests of international harmony dictate restraint by national courts and other authorities. The doctrine of sovereign immunity emerged as one of the earliest principles of international law.
- An authoritative statement of the international law on diplomatic immunity can be found in repeatedly that Iran had clearly breached its obligations to the United States, under both international treaties and general international law.
- , a Belgian judge issued an international arrest warrant for “serious violations of international humanitarian law” allegedly committed by the Democratic Republic of the Congo (D.R.C.)’s Foreign Minister. The International Court found that a sitting Foreign Minister enjoys full immunity from criminal jurisdiction abroad, even if the Minister is accused of war crimes or crimes against humanity.
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Table of Abbreviations xxix 46 results (showing 5 best matches)
Subject Index 461 55 results (showing 5 best matches)
Outline 57 results (showing 5 best matches)
Table of Cases xxi 3 results
- International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discrimination, Application of the (Ukr. v. Russ.), 83
- International Convention on the Elimination of All Forms of Racial Discrimination, Application of the (Geor. v. Russ.), 85
- International Shoe Co. v. Washington, 275
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WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: October 17th, 2018
- ISBN: 9781683282396
- Subject: International-Public
- Series: Nutshells
- Type: Overviews
- Description: This Sixth Edition of Public International Law in a Nutshell is a concise yet accurate summary of the field of public international law, covering its basic sources, actors, and procedures, and key subject matter areas, such as human rights, the law of the sea, international environmental law, the law of war, and U.S. foreign relations law. This edition is fully updated to include recent treaties, institutions, and Supreme Court decisions. The book is intended to be helpful for students, scholars, and practitioners alike.
