Ch. 1: The Nature of International Law
1. Latin glossary: Words from a dead language to make lawyers sound smart!
a. Sub silentio: “under silence.”
i. Often used as a reference to something that is implied but not expressly stated.
b. Modus vivendi: “way of living”
i. An instrument for establishing an international accord of a temporary or provisional nature, intended to be replaced by a more substantial and thorough agreement, such as a treaty.
ii. It is usually fashioned informally, and so never requires legislative ratification. Typically armistices and instruments of surrender are modi vivendi
c. Seriatim: “in series”
i. Used to indicate that a court is addressing multiple issues in a certain order, such as the order that the issues were originally presented to the court
d. Pro bono publico: “for the public good”
e. Hostis humanis generi: “enemy of mankind”
i. For example, pirates, slave traders, torturers, and the Jonas Brothers
f. Jus Gentium: “law of nations”
g. In flagrante delicto: “red handed”, “in the very act of committing the offense”
h. Opinio Juris: “an opinion of law”
i. The belief that an action was carried out because it was a legal obligation
i. De lege ferenda: “what the law ought to be” (as opposed to what the law is)
j. Contra legem: “against the law”
i. Used to describe an equitable decision of a court or tribunal that is contrary to the law governing the controversy
k. Lacuna: a gap in the law.
l. Jus cogens: “compelling law”
m. Animo furandi: piracy
i. The intention to steal property
n. Contra bonos mores: “against good morals”
o. Terra nullius: “land without an owner”
p. Obligations erga omnes
i. The obligations of a state towards the international community as a whole.
1. Ex: international legal proscriptions against interstate aggression, genocide, slavery, and racial discrimination.
q. Equity intra legem: within the rules of international law
r. Contra legem: against the law
s. Praeter legem: extension of the law, application of the law by analogy.
t. De lege ferenda: custom that is being developed
u. De lege lata: custom that is binding
v. Opinio juris sive necessitatis: an opinion of law or necessity
i. A requirement of customary international law.
ii. It is opinio juris if countries do it because they think they have to do it. Out of a sense of obligation.
w. Lex lata: law that is in existence; has already been recognized
x. Pacta sunt servanda: “Agreements must be kept”
i. Provided for in Article 26 of the Vienna Convention on the Law of Treaties
ii. Based on good faith performance of contractual duties between states
iii. Contracts between states are to be approached as law between the two states
iv. Non-fulfillment of those contracts constitutes a breach of the agreement
1. Non-fulfillment cannot be justified by invoking provisions of municipal law
v. Only limited by jus cogens and clausula rebus sic stantibus
y. Clausulum rebus sic stantibus: “things thus standing”
i. Allows for treaties to become inapplicable because of a fundamental change of circumstances.
ii. Provided for in Article 62 of the Vienna Convention on the Law of Treaties under the name of “Fundamental Change of Circumstance”
iii. Justifications for the invocation of rebus sic stantibus:
1. The circumstances existing at the time of the conclusion of the treaty were indeed objectively essential to the obligations of treaty -and-
2. The instance wherein the change of circumstances has had a radical effect on the obligations of the treaty
z. Force majeure (French) or casus fortuitus (Latin)
i. Frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term “act of God” (e.g., flooding, earthquake, volcanic eruption), prevents one or both parties from fulfilling their obligations under the contract.
ii. However, force majeure is not intended to excuse negligence or other malfeasance of a party, as where non-performance is caused by the usual and natural consequences of external forces (e.g., predicted rain stops an outdoor event), or where the intervening circumstances are specifically contemplated
aa. In Haec Verba: “in these words”
i. Refers to incorporating verbatim text into a complaint or pleading as were mentioned in an agreement which is in question or cause of dispute.
ii. It is done instead of attaching a copy of the same with the pleading or complaint.
bb. Jus in bello: Rules concerning the conduct of hostilities
cc. Jus in bellum: Rules about when it is legal to resort to force at all
dd. Nullum crimen sine lege– no crime, no punishment without a previous penal law
ee. De Jure – concerning law
ff. De Facto – “by the fact”
gg. Vel Non – or not
hh. Ordre public – public order/public policy
ii. Communio Incidens – (I don’t think this is latin, but it means joint ownership)
jj. Comity – that reciprocal courtesy which one member of the family of nations owes to the others.
kk. Dismembratio – break up of State into smaller parts
ll. Ex aequo bono– “by what is equal and good”
i. Parties may agree to decide a case ex aequo bono, although this method of dispute resolution has never been used.
a. International Court of Justice– The Hague, Netherlands
i. Established in 1945 by the UN Charter
ii. Primary judicial organ of the UN
iii. Main functions are to
1. Settle legal disputes submitted to it by states
2. Give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly.
1. 15 judges elected to nine-year terms
b. European Court of Human Rights – Strasbourg, France
i. Established by international agreement: 1950 European Conventi
they were not guilty and were acting reasonably.
iv. After this, the IRA families filed suit in the European Commission and lost. They then appealed.
i. Did the UK violate the European Convention on Human Rights by using more force than was necessary in attempting to arrest the IRA guys?
i. The UK defended that they were protecting citizens from unlawful violence (the terrorist attack).
i. The court overruled the Commission’s finding.
ii. The violence was not absolutely necessary. The soldiers were not guilty of violating the treaty.
iii. However, the treaty looked at the background and said the gov’t used more violence than necessary and said the UK gov’t must pay the victims’ families.
e. Aftermath: The UK actually paid.
i. They paid b/c they signed the treaty and felt they must abide by it for long term interests – if they did not abide by it today, another country might pull the same thing in the future.
ii. The public did not want the UK to abide by the ruling, but the UK did anyway b/c of long term interests.
iii. There was nothing to force the UK to comply with the judgment, but they did anyway b/c they signed the treaty.
8. Filartiga v. Pena-Irala, Second Circuit 1980
a. Alien Tort Statute (created in 1789)
i. District courts have original jurisdiction over any civil action by an alien for a tort, committed in violation of the law of nations (int’l law) or a treaty of the US.
ii. Thus, whenever a person alleged to have violated the law of nations or a treaty of the US is found and served with process by an alien within US borders, the ATS provides our district courts jurisdiction, and may create an independent cause of action. (see Sosa v. Alvarez-Machain)
b. Filartiga alleged a violation of customary international law of human rights and the law of nations.
i. The suit was filed for wrongful death of a boy who was tortured and killed by D in Paraguay. The boy was a son of a human rights activist in Paraguay. The boy’s sister (P) moved to US, and D also moved there. P sued D after he was arrested and awaiting deportation proceedings. P sued D under the Alien Tort Statute (28 U.S.C. § 1350).
i. Whether the court has jurisdiction
ii. Whether there has been a violation of int’l law (torture by a gov’t).