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International Law
St. Johns University School of Law
Flaherty, Martin S.

Fall 2010 Int’l Law – Flaherty
I. Terms & Names
A – International Principles
Naturalists – a single universally applicable law governed naturally constituted society of nations
Natural law – divine or secular in basis – how nations show behave
Older principle of int’l law
Positivists – law is created by humans for conditions & purposes – difference btw civilized and uncivilized nations
Positivism – the law is no more nor less than the rules states have consented to
Remains lingua franca of most int’l lawyers
Law is posited [selected] through decision
Behavior of states – usually do not invade à evidence of a basis for a rule
Humanitarian intervention – exception under int’l law [originally basis for justness of war since war was not prohibited. Often abused
Institutionalists – nations obey laws when in their interest to do so BUT states have both conflicting and mutual interests
Constructivists – anarchic int’l order, states have no preexisting interest or ID, interests and ID are created by and through interactions with other states
Reciprocity – thought that int’l law works based on reciprocity, states comply with laws when it is in their interests to do so – if they act in one way then hopefully others will return the same acts
Ex. Humane treatment of other’s soldiers
B – Latin Terms
Pacta sunt servanda – “treaty shall be served” “agreements must be kept”
Duty of states to carry out their treaty obligations in good faith
VC Art 26
Jus Cogens –[aka peremptory norm]compelling law – followed by countries, so fundamental to int’l legal order that states cannot derogate from them even by agreement [[genocide]] Passive consent through behavior
Uti Possidetis Juris – int’l principle that newly formed states should have the same boards as before their independence,
C – International Organizations
ICJ – International Court Justice
UN Judicial Organ – sits in the Hague
15 judges permanent of different nationalities elected by GA
UN Charter appended the statute of ICJ –
Must be signatory of UN Charter AND must affirmatively submit to their jurisdiction
Two year withdraw process [US 85’] Resolves Treaty disputes btw sovereign nation states
National voluntarily submit to their jurisdiction
States must have consented in advance through another instrument [affirmatively] to its jurisdiction
Two types of cases
1) advisory – provides nonbinding but authoritative answers to specific legal questions posed to it by UN organ or agency
2) Contentious – btw states that are parties where it rules on disputes btw them
Statute of ICJ
Art 36
Art 38 – sources of int’l law that the ct will apply [[suggestive hierarchy]] 1) Int’l conventions [treaties] – rules expressly recognized by contesting states
2) int’l custom – general practice accepted as law
3) general principles of law recognized by civilized nations
practices recognized by two great western civilized legal regimes [common law and civil law] – used as gap fillers
4) judicial decisions and teachings of highly qualified publicists of nations – subsidiary means for determination of rules of law
gap filler
highly qualified publicists – Grotius, Humanitarian Intervention – systematic HR violations [[Kosovo – inconsistent with UN Charter]] permits ICJ to render advisory opinions at the request of the SC or GA
advisory opinions are NOT legally binding, but sub’tl persuasive value
GA may authorize other UN organs to request advisory opinions on legal questions arising within scope of their activities
United Nations
History. Est 1945
US pushed – Wilsonian Tradition, wanted US to raise above European fights
League of Nations – sovereignty equality allow states to come together to work out problems. Versailles Treaty Established – US did not ratify [FDR continues tradition] US pushed for WWII end to revamp League
UN GA – embraces sovereign equality
All nations have seat at UN GA, voting = one per country
No binding power technically – nations are powerful entities that respond to force, realism tradition posits – ideas do not modify behavior
Idea of Collective Security
Agree to stamp out small conflicts when they arise in the world
Not binding but strong recommendations and can direct polices and rule within the organization
UN Security Council
15 members – 5 permanent w/veto power – US, UK, F, Russia, China [PRC] can veto resolutions whether binding or not
why – want the big powers not to ignore resolutions or to leave UN
Chapter 7 – binding power; breach or threat of international peace
Not most powerful anymore – but UN Charter almost impossible to amend
10 members – rotate on 2yr terms w/due regard for equitable geographic distribution
Power to Punish
Authorize Military or Economic Sanctions against non-member states or member states
Personality [Bernadotte Case – Swedish mediator btw Israel and Arab States, car bombed in Jerusalem blamed Jewish Extremists] Organization recognized by others as separate entity of law above the members
ICJ – UN Has required personality

Purpose of Int’l Law: anything that changes the behavior of a state
If typical domestic law standard – then not law
Evolution of Int’l law
Began – end of Holy Roman Empire
Needed better ways to co-exist with each other
Divine law invaded other principalities for believing the wrong religion
1648 Peace of Westphalia – system of rules btw sovereigns w/core principles
1) sovereign does in their realm is not the business of outsiders
2) sovereignty = territorial integrity – recognized boarders where a ruler has power
Henkin: sovereignty is bundle of rights [US – people = sovereign] 3) equality btw sovereigns
still exists – UN GA, equal voting power
After 19th Century, increased use of treaties
WWI – change in int’l order/principles
Kellogg-Briand Pact – 1928, renunciation of war as instrument of national policy
war = counter-productive to national interests, should be regulated
National Self-Determinism – protect ethnic minority groups in new and larger states
League of Nations – institution to address questions of war, peace, human rights and develop legal norms
Eventually UN –
Reliance on other int’l organizations
WWII – change in substantive law/principles
1945’ Use of force – UN Charter banned use of force UNLESS
State responding in self-defense – Art 51
UN authorized force against a state
Chapter VII – Security Council authorization – in transnational threats
Humanitarian intervention survived UN Charter –arguably possible transnational effects
Human Rights – idea that nations can do as they wish w/their people dies
Colonial possessions weakened – change in legal landscape
End of imperialism disputing boarders no created by BUT enforced by treaties forced onto the countries
UN GA 1948 – Universal Declaration of Human Rights UDHR
Civil and Political rights – also economic, social, and cultural rights
Not legally binding
Nuremberg Tribunal – punishing individuals who commit crimes to enforce int’l law
General Erosion of Westphalian Int’l Law