international law

international law

the body of rules that bind states in their relations with one another, determining their mutual rights and obligations; created by states through consent and agreement

private international law

also known as “conflict of laws”, domestic law determining which country’s rules apply to cross-border private disputes

public international law

governs relations between states

natural law

the philosophy that legal rules can be deduced from reason, morality, or nature, independent of what states agree to

legal positivism

the view that law is manmade and exists only if states have consented to it through practice or explicit agreement

horizontal legal system

law-making, determination, and enforcement are all decentralized with no superior authority overseeing it

consent

foundational organizing principle of international law

reciprocity

foundational compliance mechanism where obligations run both ways

retorsion

a lawful but unfriendly act in response to another state’s wrong (cutting off foreign aid)

reprisal / countermeasure

a proportional, normally illegal act rendered legal by a prior illegal act of another state

Lotus Case (PCIJ)

found that restrictions on state independence must be shown to rest on state consent

Wimbledon Case (PCIJ)

found that entering a treaty is an exercise of sovereignty, not an abandonment of it

Pacta sunt servanda

the principle that agreements must be kept and that treaties/contracts are binding upon the parties involved and must be performed in good faith

Treaty of Westphalia (1648)

ended European religious wars and created a system of sovereign states considered legally equal

Vienna Congress (1815)

restored old European order after Napoleon, created a Holy Alliance, and established the Congress System of great-power management

Berlin West Africa Conference (1884/5)

divided Africa among European powers without provoking a European war

Scramble for Africa (1880s)

European conquest and appropriation of Africa justified by racial theories of European superiority

slave trade abolition

first treaty condemning it signed by France and Britain in 1814 and endorsed at the 1815 Vienna Congress

Stimson Doctrine (1932)

US Secretary of State announced the US would not recognize situations brought about by aggression, later embedded in international law

Paris Peace Treaties (1919)

finalized five treaties ending WWI, rearranging global borders, and creating the League of Nations

League of Nations

revolutionary attempt to organize states and ban aggressive war

PCIJ

permanent court of international justice, forerunner of ICJ

mandates system

LON mechanism placing former colonies of defeated powers under international tutelage with sovereignty pending independence

UN Charter (1945)

document signed by 51 states that declared a comprehensive ban on the use of force

article 2(4)

prohibits the threat or use of force against territorial integrity / political independence of any state

article 51

preserves inherent right of individual or collective self-defense against armed attack

security council veto

permanent members can block any Security Council decision

Nuremberg and Tokyo Trials

affirmed individual criminal responsibility for crimes against peace, war crimes, and crimes against humanity

decolonization

process of restoring sovereignty, essentially complete by 1960s

Friendly Relations Declaration (1970)

established seven core principles based on interpretation of UN charter and acts as evidence of customary law, adopted by consensus

FRD principle #1

prohibition of force

FRD principle #2

peaceful settlement of disputes

FRD principle #3

non-intervention in domestic affairs

FRD principle #4

duty to cooperate to maintain international peace and security

FRD principle #5

equal rights and self-determination of peoples

FRD principle #6

sovereign equality of states

FRD principle #7

good faith fulfillment of obligations

US National Security Strategy (2002)

doctrine challenging UN charter framework by asserting US right to use force against threats it identified

Article 38(1) ICJ Statute

authoritative list of sources of international law

source A outlined in Article 38 of ICJ Statute

treaties

source B outlined in Article 38 of ICJ Statute

custom

source C outlined in Article 38 of ICJ Statute

general principles of law

source D outlined in Article 38 of ICJ Statute

judicial decisions and publicists as subsidiary means

subsidiary means

tools for finding and interpreting law that already exists (do not create law)

objective element of customary law

general practice of states (do most states do this, most of the time?)

subjective element of customary law

opinio juris (is the practice accepted widely as legally obligatory?)

state practice

what states do and say (statements, legislation, judicial decisions, diplomatic correspondence, omissions)

consistency of practice

while perfect consistency isn’t required to uphold state practice, it’s important to be widely consistent, and violations must be treated as breaches of the rule instead of evidence of competing rules

generality of practice

while universality isn’t required to uphold state practice, it’s important that most states (including those whose interests are specially affected) follow a customary rule

instant customary law

custom can form quickly, but practice requirement must be more extensive and uniform if time period is reduced

Nicaragua case

evidence of perfect consistency not being required

Asylum case

evidence of inconsistencies leading to lack of rule identification

North Sea Continental Shelf case

evidence of instant customary law requiring extensive and uniform practice to supplement time

persistent objector rule

a state that consistently and expressly objects to an emerging rule from its earliest formation is not bound by it

Ango-Norweigan Fisheries case

evidence of persistent objector rule

opinio juris

the belief that a practice is legally required or permitted and not merely customary; the subjective/psychological element of international custom

Nuclear Weapons Advisory Opinion

evidence that opinio juris cannot crystallize against strong contrary practice

regional custom

customs may not be uniform geographically or culturally, but the burden of proof increases

comity

diplomatic courtesy or tradition that is not legally binding

general principles of law

principles common to major domestic legal systems worldwide that have been adopted by international law without requiring specifically international state practice (good faith, res judicata, estoppel)

difference between custom and general principles

custom is internationally derived from state practice, while general principles are domestically derived from comparative law across legal tradition

judicial decisions

technically binding only on parties in specific case, but in practice, treated as strong authority/precedent

publicists / learned writers

subsidiary means only and more historically significant when judicial decisions were scarce or case lacked precedent

jus cogens

norms of international law from with no derogation is permitted (genocide, slavery, torture)

soft law

non-binding instruments that don’t directly create obligations but can evidence emerging opinio juris, contribute to custom, or mediate treaty interpretation

lex lata

the law as it is or as it currently exists

lex ferenda

law as it ought to be or as it is becoming

equity

operates within the law (infra legem) to fill gaps, adapt rules to circumstances, and achieve fairness (without overriding clear rules)

municipal law

internal domestic law of a state

dualism

theory that international and domestic law are two separate systems and that international rules must be transformed into domestic law before they can be applied in courts

monism

international and domestic law form one legal order where domestic systems can use international law without transformation and is inferior when they conflict

Article 27 VCLT

states that domestic law can never excuse a breach in international law

Act of State doctrine

domestic courts will not sit in judgment on the sovereign acts of foreign governments within their own territory

justiciability

some disputes are treated as “too political” to be resolved in courts

Montevideo Convention (1933) necessary criteria to be recognized as a state

permanent population, defined territory, effective government, and capacity to enter relations with other states

entities that cannot validly claim statehood

entities created through aggression/illegal use of force, racial discrimination/violation of self-determination, or other jus cogens violations

Manchukuo

entity created by Japan through aggression in Manchuria that triggered Stimson Doctrine

protectorate

an entity that retains control over its internal affairs but lets a “protecting” state manage its foreign relations (with separate legal personality)

Uti possidetis juris “as you possess under law”

upon independence or dissolution, former colonial boundaries automatically become international frontiers

Primacy of Entitlement

for decolonization/self-determination, legal entitlement (stemming from right to self-determination) to statehood precedes achievement

declaratory theory of recognition

a state exists as soon as it meets legal criteria, recognition only acknowledges an existing fact

constitutive theory of recognition

recognition by other states is what legally creates a state

duty not to recognise

FRD: territorial acquisition by force shall not be recognized as legal

international legal personality

having rights and obligations directly under international law

subject of international law

have rights and obligations, can act on international plane

objects of international law

things that international law protects or regulates without giving them direct standing

Reparation for Injuries Advisory Opinion (ICJ, 1949)

UN has international legal personality sufficient to bring claims for injuries of its personnel

implied powers doctrine

IOs have expressly granted powers and powers necessary to perform their functions

ultra vires acts

acts beyond an IO’s constitutent legal personality that are legally void

supranationality

EU institutions can enact legislation binding directly on member states and their citizens and override national courts

NGOs

limited international legal personality (if any) and inability to bring claims before international courts due to being created under domestic law

insurgents

an armed group that has risen against a government with NO special international legal status

belligerents

an armed group with control over defined territory, organized armed forces, and who conducts hostilities according to laws of war; full laws of war apply to them

National Liberation Movements

partial personality derived from representing a people with a right to self-determination who can participate in UN proceedings and receive recognition (entitlement based)

role of companies in international law

purely entities of domestic law who can bring claims under investment treaties (BITs) only because States have granted access in the treaty