The document discusses various approaches to resolving the problem of anarchy in the international system by strengthening the relationship between international and domestic law. It examines theories of how international law can be incorporated into municipal legal systems, such as dualism and monism. It also explores puzzles around standing, enforcement, and the roles of international courts and domestic courts in applying international agreements. Key debates evaluated include the practice in international courts, how international law is treated in municipal courts, and the sources and scope of authority for the International Court of Justice.
2. Towards a solution to the anarchy problem:
How to solve the sovereignty problem?
1. This is the key puzzle: Rights vs Obligations
A. Sovereignty and the need for enforcement go in opposite directions:
B. Need a social contract for nation-states,
C. e.g. Hobbes and Locke in the domestic sphere, how to get there in the intl
setting?
2. A possible solution lies in self-executing treaties
1. The enforcement mechanism devolves from the intl system level to the
domestic sphere;
2. The way it would work leads to a focus on the question of standing.
3. Towards a solution to the anarchy problem:
Key Puzzles
I. Standing: who gets to sue whom (e.g., claim damages) in what legal
settings?
A.What’s the history of the evolution of legal theory on standing?
B.In US, for ex, rules regarding standing do not appear in the Constitution.
C. The Supreme Court based them on the authority granted by Article III of the
Constitution and federal statutes.
4. Towards a solution to the anarchy problem:
Key Puzzles
II. Enforcement: which courts, and hence which/whose police powers
get invoked to enforce agreements,
A.Standard view in US setting: there’s a triad: exec, leg, judicial, all
co-equals,
A.The intl law solution analogy would be to use states courts to enforce
federal laws
5. Towards a solution to the anarchy problem: Key Puzzles
A.What is existing legal theory on relationship between state and
federal courts in US?
A. State and local courts must honor both federal law and the laws of the other states.
B. State courts must honor federal law where state laws are in conflict with federal laws
C. Claims arising under federal statutes can often be tried in the state courts, unless
Constitution or Congress explicitly required that only federal courts can hear claim.
D. Third, under the full faith and credit clause, each state court is obligated to respect the
final judgments of courts in other states. Thus a contract dispute resolved by an
Arkansas court cannot be relitigated in North Dakota when the plaintiff wants to collect
on the Arkansas judgment in North Dakota. First court that takes case has final say
E. Fourth, state courts often must consider the laws of other states in deciding cases
involving issues where two states have an interest, such as when drivers from two
different states collide in a third state.
6. Towards a solution to the anarchy problem: Key Puzzles
1. In EU/ECJ setting, relationship between EU/Members states/ECJ?
2. The CJEU does not itself apply EU law to a dispute brought by a referring court,
A. Proceedings against a Member State for failure to fulfill an obligation
B. Proceedings against the EU institutions for annulment and for failure to act
C. Actions of the Treaty on the Functioning of the European Union when they are brought by a
Member State against an act of or failure to act by the European Parliament or the Council
3. ECJ statement of the principle that the Treaties must not be interpreted rigidly but
must be viewed in the light of the state of integration and of the objectives of the
Treaties themselves.
A. This principle has allowed legislation to be adopted in areas where there are no specific Treaty
provisions, such as the fight against pollution
4. Preliminary rulings are binding both on the referring court and on all courts in
Member States.
7. Two types of treaties:
1. self-executing, 2. non-self-executing
1. Treaties designed to deal with rights and duties of private individuals are
generally considered to be self-executing.
• "Self-executing treaty" do not require specific implementing legislation by Congress,
creates rights flowing directly to litigants without implementing legislation.
2. Political issues about states and firms usually/commonly require enabling
legislation
• No consensus, normative or legal about what’s what
• Varies a lot by domestic institutional rules
• More on US treaties later.
9. Incorporation (monism)
1. Treaties
(a)equivalent of new law, treaties are applicable immediately after signing
(b)In UK case, some are incorporated, some must be transformed.
(c)The migratory waterfowl example would not have worked in UK.
(d)No constitution, so differences worked out by rule and precedent.
10. Incorporation (monism)
1. Executive negotiates, sign, and ratify treaties.
(a)British case: Parliamentary action required for treaty to become part of
English law.
(b)BUT! English PM, the executive, is also head of majority party in parliament
(Duverger law – first past the post system leads to two parties).
• A result is that executive has great power in England to make law via
treaty.
• If PR system, would be weaker.
(c)In PR systems, can be harder as PM’s party alone not majority.
11. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
1. Dualism
• The two law systems are separate, both with respect to
procedure and to subject matter.
(a)Procedural matters: municipal courts resolve problems by
reference to municipal law, while international courts
resolve problems by reference to international law.
(b)Substantive matters: only problems affecting the
international relations of nations are within the purview of
international law.
12. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
2. Monism
•Municipal law is a subset of laws within the
field of international law.
13. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
3. Monism-Naturalism
•Natural law is a third and superior form of law,
which determines the respective spheres of both
international and municipal law.
14. THE SCOPE OF INTERNATIONAL LAW (IN THEORY)
Four theories of relation of international and municipal law
4. Coordinationism
•International and municipal law operate
independently in separate but coordinated
spheres.
•Corollary: municipal law is generally supposed to
conform with the norms of international law.
15. SCOPE OF INTL LAW IN PRACTICE
1)The Practice in International Courts
i)Municipal law is regarded as being subservient to
international law.
ii)States have a general obligation to bring their
municipal law into compliance with international
norms.
iii)Procedurally municipal law is treated as "mere fact."
16. SCOPE OF INTL LAW IN PRACTICE
2) The Practice in Municipal Courts
i)International law is generally treated as being
correlative.
(a)Meaning: Once a municipal court determines that
a particular rule of international law is applicable in
a particular case, that law will be treated as law.
(b)This view drives American conservatives crazy.
17. SCOPE OF INTL LAW IN PRACTICE
i) To determine if an international law has been received into the local jurisprudence.
i) Customary law:
i) Doctrine of incorporation:
(a)Customary international law is adopted locally to the extent it is consistent with prior municipal legislation or
judicial decisions of final authority.
(b) Followed in most countries with usual caveat about how important is rule of law in particular country.
ii) Doctrine of transformation:
(a)Customary international law only applies once clearly adopted by legislative action, judicial decision, or
established local usage.
ii)For treaties:
i) Self-executing treaty contains a provision making it apply domestically without a party having to adopt
enabling legislation.
ii) Non-self-executing treaty has no such provision.
(a)Then subject to local rules
18. Intl and municipal law
1. Intl law can only be implemented by state bodies.
a)Majority of intl rules are directed at states: their behaviors, not individuals, although there
are important exceptions, ICC
b)Can only be put into operation by domestic legal systems if states are willing/able to
implement them
i) Extradition treaties
ii) Customary rules on treatment of foreigners
iii)Expropriation of national assets
19. Theories of the relationship
1. Positivism: dualism or pluralism
i) Importance of states
ii)Intl law founded on consent of states
iii)Actual practice: custom and treaty formulates role of intl law
iv)Rules of system and states are separate and cannot effect or overrule one another
20. Monists: one law (two groups)
2. Moral foundation (naturalists)
(1)deep concern for human rights
(2)law is concerned with the well being of individuals
(3)deeply suspicious of an intl system based on sovereignty and independence
(4)faith in capacity of system to build intl order with sense of moral purpose and justice
21. Formal logical grounds for Monists:
(a)law has to start somewhere
(a)Builds on Kant
(b)patterns of behavior that ought to be followed (nice, reciprocity, community)
(c)sanctions to be employed to deter/punish illegal acts
(b)same mechanism internal and external
(a)states owe their legal existence and relationship to one another to intl law,
(b)equality (sovereignty) of states before the law flows form intl law,
(c)IL therefore supersedes domestic law as domestic law is only an issue if sovereign states
exist.
(c)build on logic of predecession, which factor comes first
22. Pragmatic pluralism
1)Two (domestic and IL) are just different in sense that Fr/Br/US law are different.
No Hierarchy.
2)What occurs are conflicts of obligations
(1)remedies lie in sphere in which violation occurs
3) Role of dom/municipal rules in IL
a) General rule: states that breaks IL cannot justify it on basis on domestic law
i) States could evade IL w/ domestic legislation
ii)This is laid out in Vienna convention on the law of treaties, 1969,
reaffirmed 1980.
23. Alabama claims case:
(a)The Confederate warship Alabama, along with other Southern cruisers, was built and armed in Britain
during the Civil War.
(b)Before the Union sank it in 1864, it inflicted great losses on Northern shipping. The Americans claimed
compensation from Britain, whose neutrality in the war they suspected and resented.
(c)Britain claimed in its defense they had passed no legislation authorizing the attacks or sailing of the
ship, even though equipping and allowing the ship to sail violated British claim of neutrality.
(d)Britain as a supposed neutral, received favorable treatment by US during the war (reciprocity) which
US claimed Britain reneged on.
(e)The Americans suggested that cession of some Canadian territory would be acceptable recompense.
This heightened the fear of annexation in Canada. The issue was submitted to arbitration in 1871, and
a Geneva tribunal awarded the United States $15.5 million in gold in 1872.
24. More recently in Lockerbie case
(a)On December 21, 1988, a bomb exploded in the cargo hold of Pan Am Flight 103,
killing all 259 passengers and crew, as well as eleven residents of the town of
Lockerbie where the wreckage of the Boeing 747 crashed 31,000 feet below.
(b)Dispute over extradition, Libya did not have extradition treaty w/ US/UK/Fr, but
had signed Montreal protocol on civil aviation.
(c)Libya initially claimed domestic law and treaty as member of Arab league
prohibited them from turning over individuals.
(d)US goes to Security Council, get sanctions.
(e)In April 1999, Libya surrendered the two Libyan officials accused of the bombing
(Abdelbasset Ali Ahmed Al-Megrahi and Ali Amin Khalifa Fhimah) for trial in the
Netherlands, before a panel of Scottish judges
25. Intl law before municipal courts: US
i) Similar to UK, but constitution affects some factors.
ii)Rules subject to constitution
i) Customary intl law is equivalent to federal law and fed court determinations of such are
binding on state courts.
i) American courts bound by precedent
ii) Must apply statute over customary law
(1)Citizens living in Nicaragua v. Reagan: ‘no enactment of congress can be challenged on the grounds that it
violates customary international law’
(2)US judiciary has the power to ignore intl law pursuant to an existing statute (federal law only however)
(3)Statute also takes precedence over preexisting treaty or customary rule of intl law.
(4)Subsequent treaty would overrule existing statue, however.
iii)Mixed successes on incorporation of intl human rights law
26. UK
i) Public policy courts should give “effect” to establish rules of IL
ii)Various theories of how this should happen
i) Transformation
i) Two systems, operating separately
ii) For intl law to come into effect, it must be transformed via legislation, act of parliament
iii)Came into being with notion that intl law would be agreed to by sovereign, or specifically adopted
to be valid
27. Customary law
(a)main way of incorporation in Britain
(b)tempered by role of precedent in Britain: common law country
1. Anything not specifically legislated, judges make rule, which becomes law.
2. Different than customary law which makes customs law as interpreted by judge. See NOTES
(c)Trendtex trading corporation case
1. The Bank was sued in England on certain commercial letters of credit it had issued in favor of Trendtex, which would effect
payment to Trendtex for cement it had sold to the Nigerian government.
2. The government had instructed the bank not to pay against the letters of credit. When it was sued, the bank claimed to be
representing the Nigerian government and so to be able to claim immunity.
3. The Court of Appeal held that the bank was not an organ of the Nigerian State and so did not share the Nigerian
Governments sovereign immunity.
4. Incorporation v transformation very much in play.
(a)Presumption is that congress will not pass laws to deliberately evade intl law.
(b)US vs. PLO: anti terror act provided for closure of all PLO offices. Attorney general close UN mission, violating UN treaty.
28. Review: The Practice in International Courts
a) Municipal law is typically regarded as being subservient to international law.
b) States have a general obligation to bring their municipal law into compliance with international
norms.
c) Procedurally municipal law is treated as "mere fact" rather than “law.”
29. The Practice in Municipal Courts
a) International law is generally treated as being correlative.
a)Meaning: Once a court determines that a particular rule of international law
is applicable in a particular case, that law will be treated as law and not as a
fact.
b)To determine if an international law has been received into the local
jurisprudence.
a)For customary law:
i) The doctrine of incorporation: customary international laws are adopted locally to the
extent it is not inconsistent with prior municipal legislation or judicial decisions of final
authority.
30. Followed in most countries.
i) The doctrine of transformation: customary international law does not apply until
clearly adopted by legislative action, judicial decision, or established local usage.
ii)For treaties:
i) Self-executing treaty contains a provision making it apply domestically
without a party having to adopt enabling legislation.
ii)Non-self-executing treaty has no such provision.
31. Source and Scope in the ICJ
1)International Court of Justice (ICJ) lists the sources which that court is
permitted to use.
2)Followed by most other courts.
3)The International Court of Justice is the principal judicial organ of the United
Nations in The Hague (Netherlands). It began work in 1946, operating under
a Statute which is an integral part of the Charter of the United Nations.
4)Functions of the Court
i) To settle legal disputes submitted to it by States
ii)To give advisory opinions on legal questions referred to it by duly
authorized international organs and agencies.
32. Source and Scope in the ICJ
1)Composition
i) The Court is composed of 15 judges elected to nine-year terms of
office by the United Nations General Assembly and Security Council
sitting independently of each other. The Members of the Court do
not represent their governments but are independent magistrates.
ii)The composition of the Court has also to reflect the main forms of
civilization and the principal legal systems of the world.
iii)When the Court does not include a judge possessing the nationality
of a State party to a case, that State may appoint a person to sit as a
judge ad hoc for the purpose of the case.
33. Source and Scope in the ICJ
1)The Parties
i)Only States may apply to and appear before the Court.
34. Source and Scope in the ICJ
2) Jurisdiction
i) The Court is competent to entertain a dispute only if the States concerned have accepted its
jurisdiction in one or more of the following ways:
(a)by the conclusion between them of a special agreement to submit the dispute to the
Court;
(b)by virtue of a jurisdictional clause,
(1)typically, when they are parties to a treaty containing a provision whereby, in the
event of a disagreement over its interpretation or application, one of them may
refer the dispute to the Court. Several hundred treaties or conventions contain a
clause to such effect;
ii) through the reciprocal effect whereby each has accepted the jurisdiction of the Court as
compulsory in the event of a dispute with another State having made a similar declaration.
(a)The declarations of 65 States are at present in force, a number of them having been
made subject to the exclusion of certain categories of dispute.
iii)In cases of doubt as to whether the Court has jurisdiction, it is the Court itself which decides.
35. Source and Scope in the ICJ
3) ICJ looks to:
i) International treaties and conventions.
ii)International custom.
iii)General principles of law.
4) In interpreting these, the ICJ may also look to:
i) Judicial decisions.
ii)Teachings of publicists.
5) Guidelines establish an implied hierarchy.
i) In practice, ICJ turns first to conventions, then to custom, then to general
principles.
6) Not all of the sources listed have to be used.
i) Parties by mutual agreement may instruct a court to use only certain sources.
Editor's Notes
Missouri v. Holland, 252 U.S. 416 (1920) is a United States Supreme Court case concerning the extent to which international legal obligations are incorporated into federal law under the U.S. Constitution.[1]
The case centered on the constitutionality of the Migratory Bird Treaty Act of 1918, which prohibited the killing, capturing, and selling of certain migratory birds pursuant to a treaty between the U.S. and the United Kingdom. The state of Missouri challenged the enforcement of the Act within its jurisdiction, arguing that the regulation of game was not expressly delegated to the federal government by the U.S. Constitution and therefore was reserved for the states under the Tenth Amendment; accordingly, the U.S. government had no constitutional right to enter into a treaty concerning game regulation.[2]
In a 7–2 decision, the Court upheld the Act as constitutional, since it was enacted pursuant to the federal government's express power to make treaties and to enact laws pursuant to treaties, which the Supremacy Clause of the Constitution elevates above state law. The Court also reasoned that protecting wildlife was in the national interest and could only be accomplished through federal action.[1]
Missouri is also notable for Justice Oliver Wendell Holmes's articulation of the legal theory of a "living constitution", which purports that the Constitution changes over time and adapts to new circumstances without formal amendments.[3]
With regard to that we may add, that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.[7]
Congress had previously passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. However, several states objected to this theory, and twice successfully sued to have such laws declared unconstitutional, on the premise that the U.S. Constitution gave Congress no enumerated power to regulate migratory bird hunting, thereby leaving the matter to states pursuant to the Tenth Amendment.[4]
Disgruntled with these rulings, Congress then empowered the State Department to negotiate with the United Kingdom—which at the time still largely handled the foreign relations of Canada—a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, requiring the federal government to enact laws regulating the capturing, killing, or selling of protected migratory birds, an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918.[5]
The state of Missouri requested that U.S. Game Warden Ray Holland be enjoined from implementing the Act, arguing that it was "an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and [...] the acts of the defendant [...] invade the sovereign right of the State and contravene its will manifested in statutes."[2] Additionally, Missouri claimed that states had an "absolute" right to regulate game within their borders as recognized by "ancient law, feudal law, and the common law in England" as an "attribute of government and a necessary incident of sovereignty."[6] The state also warned that permitting the federal government to regulate birds could set a dangerous precedent for government to broaden its power over other domains for which it had no enumerated constitutional power.
Missouri v. Holland, 252 U.S. 416 (1920) is a United States Supreme Court case concerning the extent to which international legal obligations are incorporated into federal law under the U.S. Constitution.[1]
The case centered on the constitutionality of the Migratory Bird Treaty Act of 1918, which prohibited the killing, capturing, and selling of certain migratory birds pursuant to a treaty between the U.S. and the United Kingdom. The state of Missouri challenged the enforcement of the Act within its jurisdiction, arguing that the regulation of game was not expressly delegated to the federal government by the U.S. Constitution and therefore was reserved for the states under the Tenth Amendment; accordingly, the U.S. government had no constitutional right to enter into a treaty concerning game regulation.[2]
In a 7–2 decision, the Court upheld the Act as constitutional, since it was enacted pursuant to the federal government's express power to make treaties and to enact laws pursuant to treaties, which the Supremacy Clause of the Constitution elevates above state law. The Court also reasoned that protecting wildlife was in the national interest and could only be accomplished through federal action.[1]
Missouri is also notable for Justice Oliver Wendell Holmes's articulation of the legal theory of a "living constitution", which purports that the Constitution changes over time and adapts to new circumstances without formal amendments.[3]
With regard to that we may add, that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.[7]
Congress had previously passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. However, several states objected to this theory, and twice successfully sued to have such laws declared unconstitutional, on the premise that the U.S. Constitution gave Congress no enumerated power to regulate migratory bird hunting, thereby leaving the matter to states pursuant to the Tenth Amendment.[4]
Disgruntled with these rulings, Congress then empowered the State Department to negotiate with the United Kingdom—which at the time still largely handled the foreign relations of Canada—a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, requiring the federal government to enact laws regulating the capturing, killing, or selling of protected migratory birds, an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918.[5]
The state of Missouri requested that U.S. Game Warden Ray Holland be enjoined from implementing the Act, arguing that it was "an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and [...] the acts of the defendant [...] invade the sovereign right of the State and contravene its will manifested in statutes."[2] Additionally, Missouri claimed that states had an "absolute" right to regulate game within their borders as recognized by "ancient law, feudal law, and the common law in England" as an "attribute of government and a necessary incident of sovereignty."[6] The state also warned that permitting the federal government to regulate birds could set a dangerous precedent for government to broaden its power over other domains for which it had no enumerated constitutional power.
Denning had to avoid cases of precedent and did so by claiming that
“Seeing that the rules of international law have changed …and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law as existing from time to time, do form part of our English law. It follows to that a decision of this court as to what was the ruling of international law 50 or 60 years ago, is not binding on this court today. International law knows no stare decisis (binding by precedent). If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change, and apply the change in our English law, without waiting for the House of Lords to do it.”
