1.2 International Law
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27 Terms
What are two important PCIJ cases that explain the interplay of Sovereignty, Consent and International Law? What was their ruling?
SS Lotus case [French and Turkish ship collide]; RULING: states can act freely as long as they do not violate an obligation they have consented to
SS Wimbledon case [Kiel Canal, British & Germany]; RULING: state sovereignty and legal obligations are made compatible with each other by the way of state consent
What is the International Court of Justice also known as?
World Court
What are the 4 principal sources of international law?
Treaties and conventions
Customary international law
General principles recognized by civilized nations
Judicial decisions and legal scholars’ publications
What two requirements must a customary practice have to be raised to “customary international law”?
USUS & OPINION JURIS
What does USUS mean?
The practice must have been practiced consistently, by many states, for a sufficient amount of time (CGT)
That does OPINIO JURIS mean?
States must have practiced a custom under a sense of legal obligation
What defines general principles of law recognized by civilized nations?
They are present in domestic legal systems of almost all countries with advanced legal systems
What may general principles of law be used for?
To fill the vacuum of treaties and customary laws AND/OR resolve an uncertainty/dispute
What does “non liquet” mean?
“It is not clear”
Courts want to solve this problem in the law
What are some shared general principles of domestic law?
right to a neutral judge
no one should be a judge at their own trial
right to compensation for damages suffered
good faith in fulfilling commitments
right to a fair trial
nullum crimen sine lege: no crime without a law that says that
Res judicata: a court should not allow a party to relitigate a claim already decided by a court of competent jurisdiction
What is the “stare decisis” principle under the common law system?
Judges set precedents to be followed in future, similar cases
Court decisions “are the law”
What are civil law, or code-based systems?
Judges apply codes (very detailed laws contained in large volumes)
Does not apply stare decisis
What legal systems apply stare decisis?
Common law domestic legal systems and the World Court (only as a subsidiary means of interpretation)
What case is an example of courts using USUS and thus reviewing the history of a practice?
“Paquete Habana”
What are 5 key observations about what constitutes a general practice for USUS?
Practice of specially affected states counts more
Those with heavier footprints (more powerful) counts more
A rule that would impose more burdensome obligations needs more proof of CGT
“Instant custom” may be possible
Local customary law may be possible
How is OPINIO JURIS established?
Look at state’s behavior and governmental/representative statements
What is the “Persistent Objector” rule?
A state could consistently object to the formation of a customary rule…
1) If objected during formation, then that state may be exempted from compliance with that rule of customary law
2) If that state is a newly-independent state and did not exist during the rule’s formation, then it has to accept the international system as is
What happens when overlapping treaties and customary laws do not clearly clash?
They are assumed to be complementary
What happens when treaties and customary laws clash?
Treaty prevails
Even if the custom was formed earlier than the treaty
What happens when a customary law clashes with an older treaty?
The later custom may or may not trump older treaty
Courts will try to make the two complementary
What are 3 actions that treaties can take in relation to customary laws?
Codify: add clarity; binding
Crystalize: further develop; add more detail
Contribute to the progressive development of customary law: treaties “create” custom; even countries that do not sign follow the custom
What are other sources of international law?
Unilateral acts and statements, IGO decisions and resolutions, Soft law
What is JUS COGENS?
An obligation ERGA OMNES and a peremptory norm
What does ERGA OMNES mean?
Applies to all
What is a peremptory norm?
It trumps all other norms; superior in the hierarchy
Where does it state the principal source of international law?
Article 38 of the Statute of the International Court of Justice
Where is JUS COGENS codified?
The 1969 Vienna Convention on the Law of Treaties