Biedrins I Law

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regarded as a set of

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objectively valid norms that regulate the mutual behavior of states

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norms are created by

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custom: constituted by the actual behavior of the "states," that is, of those individuals who act as governments according to national legal orders

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norms:

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interpreted as legal norms binding the states

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basic norms:

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states, that is, the governments of the states – in their mutual relations out to behave in such a way (see p20)

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one of the norms created by custom authorizes

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the states to regulate their mutual relations by treaty

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IL has been developed by various

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U.N. bodies, principally the General Assembly and the Economic and Social Council and its suborgans, committees and commissions

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Still in NATURE OF IL:
Charter of the UN (10):

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San Francisco, June 26, 1945, established the UN Organization

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The UN and Law enforcement (27):

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prohibition of the use or threat of force between states, Art. 2(4)

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Sovereignty

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(p4-7): whole body of rights and attributes which a State possesses in its territory, to the exclusion of all other States, and also in its relations with other States. Confers rights upon States and imposes obligations on them. (note that some have argued for the abolishment of the term)

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Globalization

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(9): includes the expanding reaches, economic power, and influence of multinational companies, wealthier and more powerful and influential than many of the states in which they invest and conduct operations, been enhanced by privatization, by expanding world market, accelerated by cyperspace and the internet.

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Points to consider

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• Consider international law before and during the Cold War (p11-13)

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Cases: the nature of IL

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• Corfu Channel Case (United Kingdom v. Albania) (p4); defines sovereignty

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Positivism

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focus upon describing the law as it is, backed up by effective sanctions, with reference to formal criteria, independently of moral or ethical considerations, int’l law is no more or less than the rules to which states have agreed through treaties, custom and perhaps other forms of consent.

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New Have School (policy-oriented) jurisprudence

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a policy-oriented perspective, viewing int’l law as a process of decision making by which various actors in the world community clarify and implement their common interests in accordance with their expectations or appropriate processes and of effectiveness in controlling behavior.

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International legal process (method still)

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the role of law in constraining decision makes and affecting the course of international affairs

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critical legal studies (still in method)

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emphasized the importance of culture to legal development and offered a critical view of the progress of the law in its confrontations with state sovereignty.

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• International Law and International Relations

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interdisciplinary approach that seeks to incorporate into int’l law the insights of int’l relations theory regarding the behavior of int’l actors

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• Feminist Jurisprudence

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examine how both legal norms and processes reflect the domination of men and to reexamine and reform these norms and processes so as to take account of women

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• Law and Economics: (last method)

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address commercial and economic issues, includes game theory and public choice theory

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Sources of IL: From R. 3rd Section 102, "a rules of international law is one...

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that has been accepted as such by the international community of states:

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“a rule of international law is one that has been accepted as such by the international community of states:” (list 1)

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(1) in the form of customary law: results from a general and consistent practice of states followed by them from a sense of legal obligation

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“a rule of international law is one that has been accepted as such by the international community of states:” (list 2)

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(2) by international law; create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted

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“a rule of international law is one that has been accepted as such by the international community of states:” (list 3)

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(3) by deprivation from general principles common to the major legal systems of the world: even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate

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• “customary international law indeed has

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important similarities to the common law but there are essential differences between them”

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• Fundamental Issues of International Legal Theory (p83) (also see p83-86)

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• Whether international law embodies a residual principle of state freedom
• Whether rules of international law derive in principle from the free will of states
• If so, how acceptance of prohibitory rule is to be proved or inferred as well as with the problem of states claiming to be specifically affected by an allegedly emergent new rule

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• Non Liquet (p86):

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what the international judge should do when the evidence at hand does not clearly resolve whether a rule of customary international law governs the conduct at issue

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• Statute of the International Court of Justice (p56-7

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the function of the court

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• Voluntarism (p58):

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classic doctrine of state sovereignty applied to the formation of international law, holds that international legal rules emanate exclusively from the free will of states as expressed in conventions or by usages generally accepted as law

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• Positivism (p58):

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emphasizes the obligatory nature of legal norms and the fixed authoritative character of the formal sources

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• Positivist Voluntarism

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see p58

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Two Distinct Elements of Custom

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(1) General Practice
(2) Its acceptance as law

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Custom ‘Questions’ To Consider (see p59-62 for ‘answers’):

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(1) What constitutes state practice?
(2) How much practice is required?
(3) How much consistency is required?
(4) Are dissenting and non-participating States bound by custom?
(5) Do regional and special customs involve different requirements? May a special custom (i.e. one which conflicts with general custom) bind a state which has not supported the special custom?
(6) What evidence is required for opinion juris, the requirement that practice be accepted as law?
(7) May treaties be invoked as evidence of customary law? May they create customary law?
(8) Is there a normative hierarchy in customary law?
(9) Would declarations of law adopted without dissent by the U.N. General Assembly constitute presumptive evidence of accepted international law, irrespective of actual state practice?

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Regional customary law

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): i.e. “American international law,” the idea that states of a region adopt customary law rules that derogate from general international law with respect to conduct and events within the region, objections to this notion point to the difficulty of dividing the world into regions and to potential conflicts between regional and international norms

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'Custom' Points: The Lotus case has been strongly criticized for its...

As the Lotus case indicates

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"extreme positivism" and especially for asserting that restrictions on the freedom of states cannot be presumed.

protests and acquiescence are critical factors in the formation of law

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Still in custom, what does Article 38 of Statuteof the Court (ICJ) say:

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refers to international custom “as evidence of a general practice accepted as law”
(1) Is there a regional or local custom?
(2) In sum, the general practice of States should be recognized as prima facie evidence that it is accepted law. Such evidence may, of course, be controverted – even on the test of practice itself, it is shows ‘much uncertainty and contradiction’

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What is OPINIO JURIS....

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statements that legal rule has now been recognized.

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2 Opinio Juris conditions (page 94)

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(1) Acts concerned amount to a settled practice
(2) Must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it

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Opinio Juris Sive Necessitatis (pg 94):

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the existence of a subjective element (belief) is implicit in this notion, states concerned must therefore feel that they are conforming to what amounts to a legal obligation.

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Opinio Juris "Points"

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• Can only be supported by the statements of states as to legal right or obligation? (some argue for this interpretation)
• In practice commonly inferred from the constancy and uniformity of state conduct
• Subjective element: various instances of their having expressed recognition of the validity thereof as customary international law in other ways…(p97)
• There seems to be an opinion of using non-force and non-intervention (i.e. this is opinio juris)

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Concepts/Terms to look into if mentioned on test: Position of non-consenting States (p100-02):

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“in principle a dissenting state which indicates its dissent from a practice while the law is still in a state of development is not bound by that rule of law even after it matures” (Restatement 3rd)

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More concepts/terms to look into if on test: States have rarely claimed or been granted...

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an exemption on the basis of the dissenting state principle

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More concepts/terms to look into if mentioned on test:
IUS COGENS (p 105-06):

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where derogation from international law is prohibited, defined in Article 53 of the Vienna Convention on the Law of Treaties 1969 (see p106).

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The ICJ has reffered to "fundamental principles" as a category...

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differentiated from ordinary customs or treaty norms

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Cases: O J
1) The Paquete Habanaa (p 62-66) (U.S. Supreme Court, 1900)
Issue:
Ruling:

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whether upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the U.S. during the recent war with Spain.

• Ruling: this rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter

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OJ case 2
The Case of the SS Lotus (France v. Turkey) (p68-74: Perm Ct of IJ
Fact:
Issue:
Ruling

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• Fact: there was a collision on the high seas between a French steamer and a Turkish steamer, 8 Turkish nationals died, when the French steamer got to Turkey, the French officer was arrested, charged, sentenced
• Issue: the court therefore must, in any event, ascertain whether or not there exists a rule of international law limiting the freedom of States to extend the criminal jurisdiction of their courts to a situation uniting the circumstances of the present case
• Ruling: it is therefore a case of concurrent jurisdiction. Turkey by instituting criminal proceedings has not acted in conflict with the principles of international law, contrary to Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of residence and business and jurisdiction

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Case 3 of OJ
(3) Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (p77-83), International Court of Justice, 1996
Fact, Issue, Ruling

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• Fact: the U.N. General Assembly asked the ICJ for an advisory opinion pursuant to Art. 96(1) of the U.N. Charter
• Issue: is the threat or use of nuclear weapons in any circumstances permitted under international law?
• Ruling: in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality of illegality of use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake.

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OJ 4, Asylum Case (Columbia v. Peru) (p87-88), International Court of Justice, 1950; custom

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• Fact: the institution of diplomatic asylum in Latin America, a Peruvian political leader was given asylum in the Columbian Embassy in Peru, Columbia asked Peru to allow him to leave, Peru declined
• Issue: the Columbian government must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.
• Ruling: court cannot therefore find that the Columbian government has proved the existence of such a custom, furthermore the custom in question could not be invoked against Peru, which far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offense in matters of diplomatic asylum.

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(5) Case Concerning Right of Passage Over Indian Territory (Merits) (Portugal v. India) (p89-91), International Court of Justice, 1960; special custom

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• Fact: Portuguese government charged that India was unlawfully obstructing the right of passage claimed by Portugal through the Indian territory that surrounded certain Portuguese enclaves in the Indian peninsula
• Issue: for the purpose of determining whether Portugal has established the right of passage claimed by it, the court must have regard to what happened during the British and post-British periods
• Ruling: court concluded that India had lawfully exercised its power of regulation and control of the Portuguese rights when it “suspended” all passage in July 1954 because of “tension” created by the overthrow of Portugal’s rule in the enclaves

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(6) North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark) (Federal Republic of Germany v. Netherlands) (p92-95): International Court of Justice, 1969; opinion juris

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• Fact: a dispute over the delimitation of the Continental Shelf shared by Denmark, the Netherlands and Germany.
• Issue: should Art. 6 of the 1958 of the Geneva Convention on the Continental Shelf apply where Germany is not a party because it is part of the corpus of general international law?
• Ruling: no, the court rejected the contention, requires a “very widespread and representative participation”

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(7) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States (Merits)) (p96-99), International Court of Justice (1986)

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• Fact: Nicaragua instated proceedings against the U.S. alleging unlawful military and paramilitary acts by the United States in Nicaragua, the U.S. contested jurisdiction
• Issue: does jurisdiction apply and also is customary international law present?
• Ruling: the court should exercise the jurisdiction conferred upon it by the U.S. declaration of acceptance under Article 36, paragraph 2 of the state, basis the Nicaragua claims on customary international law

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See...which gives priority of position to treaties

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Article 38 of the Statute of the International Court

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A treaty provision does not necessarily...

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prevail over a customary law (p109)

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Lex specialis derogate generali:

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the specific prevails over the general, is an accepted guide; it may give priority either to treaty or custom

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Intentions of th eparties are

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are paramount

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Three categories of treaties (110)

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(1) General multilateral treaty: open to all states of the world or to all members of a large regional group (p110)
(2) Collaborative mechanism for States to regulate or manage a particular area of activity: may be designed for universal adherence, or for regional or functional groups (p110)
(3) Bilateral agreements and, for some purposes, agreements by three of four states: drafted in contractual terms of mutual exchange of rights and obligations

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When Treaties are not Binding on States NOT parties to the Treaty in question (from the ICJ) (page 115)

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(1) Where the treaty is declaratory of pre-existing custom
(2) Where the treaty rule is found to have crystallized customary law in process of formation
(3) Where the treaty rule is found to have generalized new customary law subsequent to its adoption

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Five categories of General principles have been invoked and applied in international law discourse and cases.

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(1) The principles of municipal law recognized by civilized nations (p118-119)
(2) General principles of law derived from the specific nature of the international community (p121)
(3) Principles intrinsic to the idea of law and basic to all legal systems (p121-122)
(4) Principles valid through all kinds of societies in relationships of hierarchy and co-ordination (p122)
(5) Principles of justice founded on the very nature of man as a rational and social being (p122-123)

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JUS Rationale (still in gen principles of law and equity)

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valid through all kinds of human societies is associated with traditional national law doctrine

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• Exceptions to Rules on Equitable Grounds (p129):

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(1) Infra legem: within the law, typically occurs when a rule leaves a margin of discretion to a state or law-applying organ
(2) Praeter legem: outside the law, would not normally be justifiable on grounds of equity unless the tribunal had been authorized to act ex aequoe et bono.
(3) Non liquet: law is not clear enough for a decision
(4) Contra legem: against the law
(5) Equity and equitable doctrine are also invoked in cases of international claims for breach of contract or taking of property by a government
(6) “it is precisely a rule of law that calls for an application of equitable principles” (North Sea Continental Shelf Cases) (p131)

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Proportionality

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has often been referred to as an “equitable criterion,” has been called the “touchstone of equitableness.” In delimitation cases proportionality has been generally construed to refer to the ratio between the lengths of the coasts of each state that border the marine area to be delimited.

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Elementary Considerations of Humanity:

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(1) Provisions of the United Nations Charter on Human Rights
(2) The Universal Declaration of Human Rights
(3) Various Human Rights Conventions
(4) ICJ’s invocation (see p134)

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Cases:General Principles of Law and Equity (Case 1)

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(1) The Diversion of Water From the Meuse (Netherlands v. Belgium) (p128-9), Permanent Court of International Justice, 1937
• Fact: complaint that construction of certain canals by Belgium was in violation of a 1863 agreement
• Issue: can the case be heard under equity?
• Ruling: it must be concluded, therefore, that under Article 38 of the Statute, if not independently of that Article, the Court has some freedom to consider principles of equity as part of the international law which it must apply

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Cases: General principals of Law and Equity case 2:

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(2) Corfu Channel Case (United Kingdom v. Albania), (p133), International Court of Justice, 1949; equity
• Fact: explosion of mines in Albanian waters which damaged British warships
• Issue: is Albanian required to pay damages?
• Ruling: Albanian had the obligation to notify other states about the existence of the law because of to name, one “elementary considerations of humanity”

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Evidence of INTERNATIONAL LAW AND SUBSIDIARY MEANS FOR DETERMINATION OF RULES OF LAW
Judicial Decisions
ICJ:
Article 38, paragraph 1d:

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directs the Court to apply judicial decisions as “subsidiary means for the determination of rules of law”

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Article 59 (related to 39):

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“the decision of the Court has no binding force except between the parties and in respect of that particular case”

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Stare decisis does not apply (however...)

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this does not mean that the ICJ ignores precedent)

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15 judges are elected for...

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9-year terms by majority votes of political bodies, namely the Security Council and the General Assembly of the United Nations (arts. 3-18) (see p136)

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Decisions of International Arbitral Tribunals and Other International Courts (p137)

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(1) The decisions of such tribunals are published by the United Nations in Reports of International Arbitral Awards (U.N.R.I.A.A.)
(2) Two European Courts: (1) the European Court of Justice and (2) the European Court of Human Rights (p137)
(3) The Inter-American Court of Human Rights
(4) The decisions of these regional courts are relevant not only to their specialized subject matter (e.g. economic integration or human rights) but also to more general problems of international law, such as the law of treaties or of state responsibility