Mark Weston Janis - Aspen Treatise for International Law

EDITORIAL ADVISORS

Erwin Chemerinsky
Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.
Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky
Stanley Morrison Professor of Law
Stanford Law School
Faculty Co-Director
Stanford Criminal Justice Center

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Library of Congress Cataloging-in-Publication Data

Names: Janis, Mark W., author.

Title: International law / Mark Weston Janis, William F. Starr Professor of Law, University of Connecticut, Visiting Fellow in Law, formerly Reader in Law. University of Oxford.

Description: Seventh edition. | New York : Wolters Kluwer, 2016. | Includes bibliographical references and index.

Identifiers: LCCN 2015043506 | ISBN 9781454869504

Classification: LCC KZ3140.J36 A35 2016 | DDC 341--dc23

LC record available at http://lccn.loc.gov/2015043506

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To Janet and the boys

Summary of Contents

Contents

Preface

This book endeavors to introduce the discipline of international law in such a way as to clarify and order a dauntingly complex and variegated subject. It is written with J. L. Brierlys English classic, The Law of Nations, in mind. It is my aim to provide a book, as Brierly did first in 1928 and last in 1955, not intended as a substitute for the standard text-books on the subject, but as an introduction either for students who are beginning their law courses, or, I hope, for laymen who wish to form some idea of the part that law plays, or that we may reasonably hope that it will play, in the relation of states. Two important distinctions, besides the obvious one of relative modernity, distinguish Brierlys book and mine. First, Brierlys book drew heavily, though far from exclusively, on British practice in international law; mine emphasizes the international practice of the United States. Second, this books ambit is somewhat broader than Brierlys in that I introduce international law not only in its traditional public or interstate sense, but also in its increasingly important private and commercial aspects.

Between this seventh edition and the earlier editions (1988, 1993, 1999, 2003, 2008, 2012) more changes have been made to the substantive international law of the later chapters than to the early conceptual chapters that introduce international legal rules and process. Besides just keeping up-to-date, this new edition captures, I hope, the spirit of our transition to the post-Cold War era, the rise of such recent topics as the specter of international terrorism, the emergence of international organizations, the proliferation of international courts and tribunals, and the problems posed by American exceptionalism, both judicial and political, to international law. Brierlys Law of Nations faced similar transitional tasks: the first two editions of 1928 and 1936 were written amidst all the doubts about the viability of international law in the interwar period, the third edition of 1942 emerged in the carnage of World War II, and the fourth and fifth editions of 1949 and 1955 sought to capture the flavor of the Cold War and the new threat of nuclear annihilation. My book shares Brierlys view, expressed in his fourth edition, that international law is neither a myth on the one hand, nor a panacea on the other, but just one institution among others which we can use for the building of a saner international order.

Three questions more or less structure the text: What are international legal rules? What is international legal process? What role does international law play in international relations? Answering the questions in order yields an unremarkable organization for an international law book except that the law of treaties is discussed alongside the topic of treaties as a source of international law, public international arbitration and the International Court follow immediately after the role of international law in the municipal courts, and, as aforementioned, the private as well as the public part of international law is introduced. The book is meant to reflect international law generally and should prove a useful read either on its own or as a supplement to any of the standard American legal or political casebooks on the subject. Except for a fuller rendering of some sources normally abbreviated, the standard forms of American legal citation have been followed in the footnotes.

Although the book and its faults are mine, I know that its perspectives have been shaped and sharpened by the able scholars who taught me, especially Thomas Kuhn and Joseph Strayer at Princeton, Brian Simpson and Humphrey Waldock at Oxford, and Louis Sohn and Henry Steiner at Harvard; to them I am particularly grateful. Three years in the Navy, three more practicing international law with Sullivan & Cromwell in New York and Paris, and now thirty-five years teaching in the United States, England, and continental Europe have given me certain insights but denied me others. Let me thank friends and colleagues who have helped along the way: Dapo Akende, William Alford, Nicholas Bamforth, David Bederman, Rudolf Bernhardt, Phillip Blumberg, Fernand Boulan, Tony Bradley, John Bridge, Ian Brownlie, Thomas Buergenthal, George Bustin, William Butler, Dan Caldwell, David Caron, Dominique Carreau, Fred Chapman, Frederick Chen, Sarah Cox, Paul Craig, James Crawford, Donald Daniel, Yves Daudet, Ruth Deech, Jozef Deelen, Laura Dickinson, Carolyn Evans, Franois Ewald, Tim Fisher, Francesco Francioni, James Friedberg, Jochen Frowein, Albert Gastmann, Martin Glassner, Edward Gordon, Richard Graving, Christine Gray, Nicholas Grief, Keith Highet, Garfield Horn, James Hyde, Olimpiad Ioffe, Karel Jungwiert, Richard Kay, Benedict Kingsbury, Harold Koh, Hans Christian Krger, Molly Land, Dominik Lasok, Herbert Lazerow, Detlef Leenen, Randall Lesaffer, Michel Lesage, Vaughan Lowe, Houston Lowry, Robert Lutz, Hugh Macgill, Daniel Magraw, Aleth and Phillipe Manin, Geoffrey Marshall, Aileen McColgan, Myres McDougal, Willajeanne McLean, Thomas Morawetz, John Murphy, James Nafziger, Ved Nanda, Nell Newton, John Noyes, Daniel OConnell, Mary Ellen OConnell, William Park, Jeremy Paul, David Perrott, Ellen Peters, Istvan Pogany, David Pugsley, Michael Reisman, Eibe Riedel, Adam Roberts, Horace Robertson, Alfred Rubin, Dan Sarooshi, George Schatzki, Henry Schermers, Stephen Schwebel, David Seymour, Anne-Marie Slaughter, Ted Stein, Dennis Stone, Kurt Strasser, Robert Summers, Stefan Talmon, Nicholas Triffin, Jean Van den Eynde, Willem Van Genugten, Brian Walsh, Wang Tieya, Ruth Wedgwood, Christopher Weeramantry, Carol Weisbrod, Luzius Wildhaber, Richard Wilson, Ineta Ziemele, and Elizabeth Zoller. Thanks are also due to my students at Connecticut, Cornell, UCLA, Oxford, Paris, Strasbourg, Tilburg, Mnster, and Riga; to my research assistants, James Streeto, Peter Morgan, John Fitzpatrick, Ricardo Sousa, Richard Wilde, Jennifer Glaudemans, Dora Ziamou, Woo Lee, Susanne Brose, Bridgett Sandusky, Michael Casey, Brent Houston, John Von Kohorn, Robert Menzel, Rytas Stankunas, Eric Hisey, Blake Ratcliff, Darcy Jones, Scott Schaeffer, Rebecca Ullman, Joanne Cossitt, Derek Ghan, Nancy Livak, Joanna Taatjes; David Woods, Kyle Zelazny, Adam Yagaloff, Lauren Birt, Michael Knortz, and Hilary Polak; to my secretaries and typists, Kathe Kane, Sharon Lizak, Sandra Michalik, Delia Roy, Joan Wood, and Margaret Kent; to Richard Heuser, Carol McGeehan, David Bemelmans, Elizabeth Kenny, Richard Kravitz, Dan Mangan, Jessica Barmack, Anne Sloniker, Eric Holt and John Devins at Little, Brown and Aspen; and, of course, to Janet, Matthew, Robert, Philip, and Edward.