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30 Cards in this Set
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Soft Law |
quasi-legal instruments that do not have any legally binding force. In the context of international law, the term "soft law" covers such elements as:
• Most Resolutions and Declarations of the UN General Assembly • statements, principles, codes of conduct
may become more legalized over time |
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Hard law |
refers to actual binding legal instruments and law. Includes:
-self-executing treaties or international agreements |
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Law on the books |
the actual written statute that can be found in the state's (or federal) codified law books |
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Law in action |
Law in action is a legal theory that examines the role of law, not just as it exists in the statutes and cases, but as it is actually applied in society (i.e. how law is interpreted) |
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General Principles of Law |
a source of int'l law--common standards found in many legal systems (e.g. due process)
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jus cogens |
overriding principles of international law, from which no derogation is ever permitted.
Example: law of genocide, slavery |
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Custom as int'l law |
Customary international law refers to international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties.
Examples: scholarly writings, UN resolutions and judicial decisions made at national level can be used to support customary int'l law |
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optional protocol |
an instrument that establishes additional rights and obligations to a treaty
-needs independent ratification -not all parties of the general treaty necessarily have to consent |
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Reservations |
a caveat to a state's acceptance of a treaty that can be unilaterally created--cannot undo the core of the treaties and cannot be made if expressly stated in the treaty
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Paquete Habana Summary |
U.S. navy seized two fishing vessels during S-A war and were sued by the owners for compensation
Judge cited: Pres's proclamation that gov't would conduct the war in accordance w/ principles of int'l law//Henry IV, Japan in beginning of war w/ China |
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Paquete Habana Importance |
Why Important: -it integrated customary international law with American law -reversed an earlier district court decision allowing capture of a fishing vessel under Prize |
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Vienna Convention on the Law of Treaties |
entered into force on 27 January 1980 defines treaties as agreement between states |
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on the merits |
referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome |
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diplomatic immunity |
a form of legal immunity that ensures diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws, although they can still be expelled |
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Extraterritorial jurisdiction example |
Examples: Diplomatic immunity of foreign embassies and consulates in host countries is governed by the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations
US maritime rules as defined in Criminal Code |
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Extraterritorial jurisdiction definition |
the legal ability of a government to exercise authority beyond its normal boundaries
Aside from force--it is effective when legal authority in the external territory agrees or a legal authority which covers both territories |
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International Court of Justice |
primary judicial branch of the United Nations
main functions are to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions submitted to it by duly authorized international branches, agencies, and the UN General Assembly. |
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International Criminal Court |
prosecutes individuals for the int'l crimes of genocide,c rimes against humanity, and war crimes
can only exercise jurisdiction when: -national courts are unwilling or unable to prosecute criminals -when the United Nations Security Council or individual states refer investigations to the Court |
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Filártiga v. Peña-Irala Importance |
Extended the jurisdiction of United States courts. Set the precedent for US fed courts to punish non-American citizens for tortious acts committed outside the US that were in violation of public international law. |
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Filártiga v. Peña-Irala Summary |
-Filartiga family sued Pena-Irala (Inspector general of police) for torturing their son to death
Appellants: Univ. Declaration of Human rights
-Alien tort act was used to grant U.S. jurisdiction over the case |
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Lotus case summary |
French ship crashed into Turkish ship killing 8 Turkish people--the French watchmen was tried in Turkish court and sentenced to criminal charges |
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Lotus case importance |
It made it so that the absence of prohibition under int'l law meant states could make unilateral declarations of sovereignity
extended territorial principle |
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territorial principle |
a principle of public international law under which a sovereign state can prosecute criminal offences that are committed within its borders
jurisdiction extended under Lotus case to crimes committed beyond border but effect state's interests or involve its citizens |
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nationality principle |
permits a country to exercise criminal jurisdiction over any of its nationals accused of criminal offenses in another state (e.g. pay fed taxes to U.S.) |
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passive personality principle |
looks to the nationality of the victim to determine jurisdiction, holding that a state may assert jurisdiction over persons and events outside a state's territory on the basis that its citizen has been harmed |
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protective principle |
one of national security and it holds that a state may have jurisdiction over a defendant accused of acts in pursuance of overthrowing the host state's government. |
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universality principle |
-aligned w/ Jus cogens all states have jurisdiction over crimes that are universally recognized to be a crime against humanity. These have historically included piracy, slave-trading,torture, genocide, and perhaps terrorism. |
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What does it mean that opinio juris is a source of international law? |
XX |
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Explain how custom becomes a source of international law, and may even “ripen” into hard law. |
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What is judge-made law? Explain while providing an example. Do you think it is appropriate for judges to make international law? |
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