international law midterm

General and consistent state practice followed out of a sense of legal obligation

What is customary international law?

Binds all states universally regardless of specific treaty ratification, forming the primary foundational rule set of the international legal order

Why is customary international law important?

ICJ Statute Article 38(1)(b). establishes custom as a formal source of law, defining it as "international custom, as evidence of a general practice accepted as law"

What source connects to customary international law?

The subjective belief or conviction by a state that its practice is required as a matter of legal obligation rather than performed out of political expediency, habit, or courtesy

What is opinio juris?

It is the crucial psychological element that transforms repetitive state practice into binding customary international law

Why is opinio juris important?

Flores v. Southern Peru Copper Corp states mere aspirational practice without legal conviction cannot generate customary international law

What source connects to opinio juris?

Written international agreements concluded between states (or other subjects of international law) that are governed by international law

What are treaties?

Function as a primary source of international law that establishes explicit, consent-based contractual obligations between ratifying state parties

Why is treaties important?

Core legal concepts and rules common to major domestic legal systems or derived from the nature of the international community

What are general principles?

Serves as a supplementary source of international law used by tribunals as "gap-fillers" to resolve disputes when treaty provisions and custom are silent

Why are general principles important?

Peremptory norms of general international law accepted by the international community as a whole from which no derogation is permitted

What is jus cogens?

Overrides and invalidates any conflicting treaty or customary rule, establishing absolute legal boundaries

why is jus cogens important?

every treaty in force is binding upon the parties to it and must be performed in good faith

what is pacta sunt servanda?

forms the indispensable pillar of international legal stability, ensuring states cannot invoke domestic law to justify non-performance

why is pacta sunt servanda important?

Non-binding instruments, declarations, guidelines, or resolutions that articulate aspirational goals or political consensus without creating immediate legal obligations

what is the definition of soft law?

Offers flexible frameworks for international cooperation and frequently serves as a precursor that hardens into binding custom or treaty law

why is soft law important?

cross-examines international law’s assumed neutrality in light of its historical and ongoing ties to European imperialism and colonialism

what is third world approaches to international law?

Exposes global structural asymmetries, challenges Eurocentric legal narratives, and seeks emancipatory reforms to protect the sovereignty and material resources of the Global South

why is twail important?

The legal capacity of an entity to hold rights, duties, and powers directly under international law, including the standing to bring international legal claims

what is International Legal Personality

Determines which actors—including sovereign states, intergovernmental organizations, and individuals—can operate as subjects of the international legal order

what is the importance of International Legal Personality

A unilateral statement made by a state upon signing, ratifying, or acceding to a treaty to exclude or modify the legal effect of certain provisions

what is reservations?

Promotes maximum multilateral treaty participation by accommodating state diversity, provided the reservation remains compatible with the treaty's object and purpose

what is the importance of reservations

A doctrine of international law holding that a sovereign state and its public property/warships are exempt from the judicial jurisdiction of foreign domestic courts

what is sovereign immunity

Preserves sovereign equality, independence, and comity by preventing one nation's judiciary from adjudicating the public acts of another state

what is the importance of sovereign immunity

Statehood refers to an entity meeting criteria of international personality, while state succession concerns the replacement of one state by another in territorial responsibility

what is statehood and state succession

establishes when a sovereign entity comes into existence and whether underlying treaty obligations, debts, and public contracts persist across political transitions

what is the importance of statehood and state succession

The fundamental right of all peoples to freely determine their political status and pursue their economic, social, and cultural development

what is self-determination

Serves as a foundational legal principle governing decolonization, human rights, and state sovereignty

what is the importance of self-determination

The principle that natural persons can be directly held criminally liable under international law for grave international crimes, irrespective of official state rank or superior orders

what is individual criminal responsibility

Marks a major shift in international law from exclusive state responsibility to holding human individuals accountable for atrocities

what is the importance of individual Criminal Responsibility

The Nuremberg Charter because it states The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment

What source connects to Individual Criminal Responsibility?

International Covenant on Civil and Political Rights (ICCPR 1966) establishes that all people have the right to self-determination and freely determine their economic, social, politics, and culture

What source connects to Self-Determination?

The Montevideo Convention sets the declarative criteria for statehood independently of political recognition while the Tinoco Arbitration confirms that internal regime changes do not sever state legal continuity

What source connects to Statehood and State Succession?

Flores v. Southern Peru Copper Corp.: "The Court explained that non-binding United Nations documents such as the Universal Declaration ‘create[ ] an expectation of adherence,’ but they evidence customary international law only ‘insofar as the expectation is gradually justified by State practice.’

What source connects to Soft Law?

The Schooner Exchange, foreign sovereigns and their public warships enjoy an implied exemption from local domestic court jurisdiction based on mutual independence and comity

What source connects to Sovereign Immunity?

Vienna Convention Article 19 replaces strict unanimity with the flexible "object and purpose" test to encourage broad multilateral treaty participation

What source connects to Reservations?

Reparation for Injuries, the ICJ recognized that intergovernmental organizations possess objective international legal personality to bring international claims for harms to their agents

What source connects to International Legal Personality?

UNGA Res 2625: "subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

What source connects to TWAIL?

VCLT Article 26 articulates the fundamental cornerstone of treaty law—that agreements must be observed in good faith

What source connects to Pacta Sunt Servanda?

VCLT Article 53 sets jus cogens above ordinary treaty and customary law. Any treaty provision conflicting with a peremptory norm—such as prohibitions on genocide or torture—is rendered entirely null and void

What source connects to Jus Cogens?

ICJ statute Article 38(1)(c) provides international tribunals with supplementary "gap-fillers" derived from shared domestic legal systems (such as res judicata or good faith) when treaty rules and custom are silent

What source connects to General Principles?

ICJ Statute Article 38(1)(a) places written conventions first among the primary sources of international law

What source connects to Treaties?

• During the Spanish-American War

• US naval forces seized two small coastal fishing vessels as prizes of war

• the vessel owners sued, and the US Supreme Court ruled the seizure unlawful under customary international law

what are the key facts for the paquete habana?

• Coastal fishing vessels pursuing innocent catch are exempt from prize capture during wartime under customary international law

• Customary rules are established through long-standing

• uniform state practice followed out of a sense of legal obligation (opinio juris) rather than mere courtesy or comity

what are the key holdings for the paquete habana?

Customary international law is an integral part of domestic US law, and judicial tribunals may consult the works of legal scholars as evidence of what custom actually is

what does paquete habana stand for?

The first landmark prosecution before the International Criminal Court, establishing jurisprudence on child soldiers and victim reparations

what does Prosecutor v. Thomas Lubanga Dyilo stand for

• Convicted Lubanga under Articles 8(2)(e)(vii) and 25(3)(a) for conscripting, enlisting, and using child soldiers under age 15 in active hostilities as a co-perpetrator

• Established key standards for joint control of the crime and collective victim reparation

what are the key holdings of Prosecutor v. Thomas Lubanga Dyilo

• homas Lubanga was a rebel leader in the Democratic Republic of the Congo's Ituri conflict

• he was surrendered to the ICC in 2006 and sentenced to 14 years imprisonment

what are the key facts of Prosecutor v. Thomas Lubanga Dyilo

The permanent statutory framework for global international criminal justice, operating under the principle of complementarity

what does Rome Statute of the International Criminal Court stand for

• Article 1 establishes the ICC as a permanent court complementary to national jurisdictions

• . Article 5 limits subject-matter jurisdiction to genocide, crimes against humanity, war crimes, and aggression

• Article 25 codifies individual criminal liability^[49]

what are the key holdings of Rome Statute of the International Criminal Court

• Adopted in 1998 at the Rome Conference (entered into force in 2002)

• creating the first permanent international tribunal for grave atrocities

what are the key facts of Rome Statute of the International Criminal Court

The revolutionary principle of direct individual criminal responsibility under international law for grave international crimes

what does the Nuremberg Charter stand for?

• article 6 defined crimes against peace, war crimes, and crimes against humanity

• Articles 7 and 8 abolished official position (head of state immunity) and superior orders as absolute defenses

what are the key holdings of Nuremberg Charter?

Concluded in London in 1945 by the Allied powers to establish the International Military Tribunal at Nuremberg to prosecute major European Axis war criminals

what are the key facts of Nuremberg Charter?

A legally binding multilateral treaty codifying fundamental civil and political human rights

what does International Covenant on Civil and Political Rights stand for

• Creates binding legal obligations protecting self-determination (Art. 1)

• the right to life (Art. 6)

• fair trial (Art. 14)

• and prohibiting torture (Art. 7)

• Article 4(2) designates core rights as non-derogable even during public emergencies

what are the key holdings of International Covenant on Civil and Political Rights

• Adopted by the UN in 1966 (entered into force in 1976)

• its First Optional Protocol allows individuals to submit complaints directly to the UN Human Rights Committee

what are the key facts of International Covenant on Civil and Political Rights

The foundational document of the modern international human rights system, setting a common standard of achievement for all nations

what does the Universal Declaration of Human Rights stand for

• Proclaims fundamental civil, political, economic, and social rights (such as rights to life, liberty, fair trial, and prohibitions on torture and slavery)

• Though adopted as a non-binding resolution, its core provisions have ripened into customary international law

what are the key holdings of Universal Declaration of Human Rights

Drafted under Eleanor Roosevelt's leadership and adopted by UN General Assembly Resolution 217A in 1948 without dissenting votes

what are the key facts of Universal Declaration of Human Rights

The classical, declarative criteria for statehood under customary international law

what does Montevideo Convention on Rights and Duties of States stand for

• Article 1 codifies the four essential elements of statehood: permanent population, defined territory, government, and capacity to enter into relations with other states

• Article 3 affirms that statehood is independent of political recognition by other states

what are the key holders of Montevideo Convention on Rights and Duties of States

Concluded as a regional treaty among American states in 1933, it became the universal standard for determining international legal personality

what are the key facts of Montevideo Convention on Rights and Duties of States

The scope of territorial integrity under general international law as applying strictly to inter-state relations rather than sub-national declarations

what does Kosovo Independence Advisory Opinion stand for

The ICJ held that general international law contains no prohibition against declarations of independence, and the principle of territorial integrity strictly binds sovereign states rather than non-state actors

what are the key holdings of Kosovo Independence Advisory Opinion

Following Kosovo's 2008 unilateral declaration of independence from Serbia, the UN General Assembly requested an ICJ advisory opinion on whether the declaration accorded with international law

what are the key facts of Kosovo Independence Advisory Opinion

The principle of state legal continuity across internal regime changes and the declarative nature of political recognition

what does the Tinoco Arbitration stand for?

Arbitrator Taft held that a de facto government in effective, peaceful control binds the state internationally regardless of domestic constitutional legitimacy or non-recognition by foreign powers

what are the key holdings of Tinoco Arbitration

• Following the overthrow of Federico Tinoco's regime in Costa Rica, the restored government passed the Law of Nullities to void Tinoco-era contracts

• Great Britain brought arbitral claims on behalf of British corporate interests

what are the key facts of Tinoco Arbitration

The doctrine of foreign sovereign immunity and the absolute nature of territorial sovereignty subject to implied sovereign consent

what does the Schooner Exchange v. McFaddon stand for?

Chief Justice Marshall held that foreign public armed vessels entering a friendly port under open reception enjoy implied exemption from local domestic court jurisdiction based on sovereign equality and comity

what are the key holdings of the Schooner Exchange v. McFaddon

• American citizens sought to attach an armed French warship (Balaou) in Philadelphia, claiming it was their stolen merchant vessel

• the Supreme Court dismissed the suit on sovereign immunity grounds

what are the key facts of the Schooner Exchange v. McFaddon

• the US claimed sovereignty over the Island of Palmas as successor to Spain via the 1898 Treaty of Paris

• the Netherlands proved continuous administrative presence dating back to Dutch East India Company contracts

what are the key facts of Island of Palmas Arbitration

Arbitrator Huber ruled that an inchoate title based on discovery cannot prevail over another state's actual, continuous, and peaceful display of state functions

what does the Island of Palmas Arbitration stand for?

The principles of effective occupation, continuous and peaceful display of state authority, and the doctrine of intertemporal law

what are the key holdings of Island of Palmas Arbitration

Submitted to the UN General Assembly in 1951 by the Civil Rights Congress, led by Paul Robeson, William Patterson, and W.E.B. Du Bois, drawing global attention to US racial injustice

what are the key holdings of We Charge Genocide

Argued that lynching, police brutality, disenfranchisement, and economic oppression against Black Americans constituted genocide under Article II of the 1948 Genocide Convention

what are the key facts of We Charge Genocide

The historical petition utilizing international human rights frameworks and the Genocide Convention to challenge systemic domestic racial violence and oppression

what does We Charge Genocide stand for?

he shift from the traditional strict unanimity rule for treaty reservations to the modern, flexible "object and purpose" test

what does the Reservations to the Genocide Convention stand for?

the ICJ held that a state making a reservation objected to by some parties can still be considered a party to the treaty, provided the reservation is compatible with the treaty's object and purpose

what are the key holdings of Reservations to the Genocide Convention

The UN General Assembly requested an advisory opinion after several states entered reservations to Article IX (ICJ compulsory jurisdiction) upon acceding to the Genocide Convention

what are the key facts of Reservations to the Genocide Convention

The foundational multilateral treaty defining genocide and imposing binding international legal duties on states to prevent, punish, and prosecute genocidal acts

what does the Genocide Convention stand for?

• defines genocide under Article II as specific acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such

• Article IV eliminates head-of-state and public official immunities for perpetrators

what are the key holdings of Genocide Convention

Adopted unanimously by the UN General Assembly in 1948 in response to the Holocaust, it established compulsory ICJ jurisdiction under Article IX over state disputes

what are the key facts of Genocide Convention

The historical phenomenon of "unequal treaties" extracted through military coercion, used by TWAIL scholars to critique Eurocentric international law.

what does the Treaty of Tianjin stand for?

Imposed extraterritorial jurisdiction, commercial trade access, Most-Favored-Nation (MFN) status, and consular privileges on China in favor of Western powers.

what are the key holdings of the treaty of tianjin

Concluded between Qing Dynasty China and foreign powers (including the US, UK, France, and Russia) following military defeat in the Second Opium War.

what are the key facts of treaty of tianjin

The US Supreme Court held that since the US-Mexico Extradition Treaty contained no explicit clause banning forcible abductions, the abduction did not violate the treaty or strip the court of jurisdiction

what are the key holdings of United States v. Alvarez-Machain

The Ker-Frisbie doctrine in US law, holding that forcible extraterritorial abduction does not divest a domestic court of criminal jurisdiction unless prohibited by express treaty text

what does United States v. Alvarez-Machain stand for

Dr. Humberto Alvarez-Machain, a Mexican citizen accused of assisting in the torture and murder of DEA Agent Enrique Camarena, was forcibly kidnapped from his office in Mexico by DEA operatives and brought to Texas for trial

what are the key facts of United States v. Alvarez-Machain

The distinction between customary state of necessity under ILC Article 25 and treaty-based emergency clauses (lex specialis) in investor-state dispute settlement

what does the CMS Gas Transmission Co. v. Argentina stand for

the legal panel made a clear mistake by mixing up general international law with the specific rules written into the U.S.-Argentina treaty.

what are the key holdings of CMS Gas Transmission Co. v. Argentina

Following Argentina's severe 2001–2002 financial collapse, Argentina froze gas tariffs and unpegged the peso from the US dollar; US investor CMS sued for breach of fair and equitable treatment under the BIT

what are the key facts of CMS Gas Transmission Co. v. Argentina

The limits of the persistent objector doctrine when evaluating human rights norms that evolve into non-derogable customary law or jus cogens.

what does the Michael Domingues Case stand for

The Inter-American Commission determined that executing juvenile offenders violates an emerging norm of customary international law that is approaching jus cogens status, binding states despite domestic reservations or persistent dissent.

what are the key holdings of Michael Domingues Case

Michael Domingues was sentenced to death in Nevada for crimes committed when he was 16 years old; his petition to the Inter-American Commission challenged the US practice of executing juvenile offenders.

what are the key facts of Michael Domingues Case

The absolute, non-derogable jus cogens status of the prohibition against torture and the principle of universal jurisdiction.

what does prosecutor v. Furundžija stand for

The tribunal held that the prohibition of torture is a peremptory norm (jus cogens) that invalidates conflicting domestic legislation and allows any state to exercise universal jurisdiction over perpetrators.

what are the key holdings of prosecutor v. Furundžija

A paramilitary commander in the Bosnian conflict was prosecuted before the ICTY for torture and sexual violence committed during interrogations of civilians

what are the key facts of prosecutor v. Furundžija