MIDTERM INTERNATIONAL LAW

International Law

Rules governing relations between states and other international actors.

Public International Law

Law governing relations between states and international organizations.

Private International Law

Law governing individuals, businesses, and conflicts between legal systems.

Why do states obey international law according to Hurd?

Fear of punishment, self-interest, legitimacy.

Realism

States seek power, security, and survival.

Liberalism

States cooperate through institutions and international organizations.

Constructivism

Ideas, norms, identities, and values shape state behavior.

Positivism

Law comes from state consent.

Natural Law

Law comes from morality, reason, and universal principles.

Article 38 Sources

Treaties, Custom, General Principles of Law, Judicial Decisions and Scholarly Writings.

Customary International Law

State Practice plus Opinio Juris.

State Practice

What states actually do through actions, laws, diplomacy, court decisions, and government conduct.

Opinio Juris

Belief that a practice is legally required by international law.

Five Elements of Custom

State Practice, Opinio Juris, Duration, Uniformity, Generality.

Persistent Objector

State that consistently objects to a developing custom from the beginning and may avoid being bound by it.

Jus Cogens

Peremptory norms that cannot be violated and override treaties.

Examples of Jus Cogens

Genocide, slavery, piracy, aggression.

Pacta Sunt Servanda

Agreements must be kept and performed in good faith.

Ex Aequo et Bono

Decision based on fairness and equity.

Rebus Sic Stantibus

Fundamental change of circumstances that may justify treaty withdrawal.

General Principles of Law

Basic legal principles recognized by major legal systems and used to fill gaps in international law.

Soft Law

Nonbinding rules, declarations, and principles that may influence state behavior.

Treaty Definition

A written agreement between states governed by international law.

Vienna Convention on the Law of Treaties

Primary source of treaty law.

Types of Treaties

Bilateral treaties and multilateral treaties.

Treaty Process

Negotiation, Adoption, Authentication, Consent, Entry into Force.

Methods of Consent to Treaties

Signature, Ratification, Acceptance, Approval, Accession.

Reservation

A state accepts a treaty while excluding or modifying the effect of a provision.

When are reservations prohibited?

When the treaty forbids them, the treaty prohibits that type, or the reservation defeats the object and purpose of the treaty.

Self-Executing Treaty

Treaty that can be applied directly in courts without additional legislation.

Non-Self-Executing Treaty

Treaty that requires legislation before courts can enforce it.

Monism

International law and domestic law are one legal system.

Dualism

International law and domestic law are separate legal systems.

International Legal Personality

The ability to possess international rights, duties, and legal standing.

Reparation for Injuries Case

The UN possesses international legal personality and can hold rights and duties under international law.

Montevideo Convention Requirements

Permanent Population, Defined Territory, Government, Capacity for Foreign Relations.

Permanent Population

Requirement for statehood under Montevideo.

Defined Territory

Requirement for statehood under Montevideo.

Government

Requirement for statehood under Montevideo.

Capacity for Foreign Relations

Ability to interact with other states; requirement for statehood under Montevideo.

Recognition

Acknowledgment of a state by other states.

De Facto Recognition

Recognition in practice but not necessarily complete legal recognition.

De Jure Recognition

Full and formal legal recognition.

Constitutive Theory of Recognition

A state exists because other states recognize it.

Declaratory Theory of Recognition

A state exists if it meets the requirements of statehood regardless of recognition.

State Responsibility

Legal consequences when a state breaches an international obligation.

Attribution

Conduct can be linked to a state.

Internationally Wrongful Act

Breach of an international obligation by a state.

Reparation

Compensation or remedy for injury caused by wrongful conduct.

Territorial Sovereignty

A state's authority and control over its territory.

Occupation

Acquiring territory that belongs to no one.

Cession

Transfer of territory through treaty or agreement.

Prescription

Gaining territory through long and uncontested possession.

Accretion

Gaining territory through natural expansion of land.

Territorial Jurisdiction

Authority based on where an act occurred.

Nationality Jurisdiction

Authority based on citizenship.

Protective Principle

Authority exercised to protect national security and governmental interests.

Passive Personality Principle

Authority based on nationality of the victim.

Universal Jurisdiction

Any state may prosecute certain serious international crimes regardless of where they occurred.

Jurisdiction to Prescribe

Authority to make laws.

Jurisdiction to Enforce

Authority to enforce laws.

Jurisdiction to Adjudicate

Authority of courts to hear disputes and cases.

Sovereign Immunity

States generally cannot be sued in foreign courts.

Diplomatic Immunity

Diplomats are protected from prosecution and interference by host states.

Consular Immunity

Less protection than diplomatic immunity and generally limited to official acts.

Act of State Doctrine

Courts generally avoid judging official acts of foreign governments performed in their own territory.

State Duties

Respect sovereignty, honor treaties, avoid unlawful use of force, and comply with international obligations.

Lotus Case

France argued states need permission from international law to act; Turkey argued states may act unless prohibited. Court sided with Turkey. Rule: states may do anything not prohibited by international law. Also important for understanding custom and opinio juris.

Asylum Case

Colombia argued a regional custom existed regarding diplomatic asylum. Court held that regional custom is possible but Colombia failed to prove sufficient state practice and opinio juris.

North Sea Continental Shelf Case

Question was whether a treaty rule became customary international law. Court held treaties can help create custom, but only with sufficient state practice and opinio juris.

Paquete Habana Case

U.S. Supreme Court held that customary international law is part of U.S. law when there is no controlling statute or treaty.

Anglo-Norwegian Fisheries Case

Recognized the Persistent Objector doctrine. A state that objects from the beginning of a custom's development may avoid being bound by that custom.

Reparation for Injuries Case

The UN has objective international legal personality and can bring international claims.

Missouri v Holland

Treaties can override conflicting state law under the Supremacy Clause.

Island of Palmas Case

Effective control over territory is more important than simple discovery in territorial disputes.

Nottebohm Case

Nationality must reflect a genuine connection between the individual and the state.

Banco Nacional de Cuba v Sabbatino

Leading Act of State Doctrine case; U.S. courts generally avoid judging the validity of official acts of foreign governments within their territory.

Eichmann Case

Example of Universal Jurisdiction where serious international crimes may be prosecuted by states not directly connected to the offense.

Difference between Positivism and Natural Law

Positivism is based on consent and state agreement; Natural Law is based on morality and universal principles.

Difference between Monism and Dualism

Monism treats international and domestic law as one system; Dualism treats them as separate systems.

Difference between Public and Private International Law

Public International Law deals with states; Private International Law deals with individuals and businesses.

Most Important Formula in International Law

Custom = State Practice + Opinio Juris.