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International Law
St. Thomas University, Florida School of Law
Pati, Roza

International Law – Professor Pati 2012

Law is a continuous process of problem solving

Process of authoritative and controlling decision

Lawyers are the problem solvers

International law is a consent based regime (states make international law)

Jus Cogens

Compelling law, based on natural law, but positive law coating

Peremptory norm

Even if preemptory norm is at stake this alone will not open access to the courts

*jurisdictional consent modifies jus cogens (human rights exception)

Erga Omnes

Obligations of a state towards the int’l community as a whole

“valid to everybody or work against everybody”

Jus cogens norms are erga omnes norms

Ex. Torture (dual citizen of Kuwait/BritianàAl Adsani)

Immunity is preemptory norm on other hand torture is

British courts decide immunity rule (limited application, this is still a questionable circumstance)

Uti Possidetis juris

What you had before you shall continue to have

In conflict with self-determination

Colonial context, think of administrative sub units

Nullum crimen, nulla poena sine lege

The maxim states that there can be no crime committed, and no punishment meted out, without a violation of penal law as it existed at the time.

Terra nullius

Territory belonging to no one

Domaine reserve

Travaux preparatoires

Preparatory work. Often useful in clarifying the intentions of a treaty or other instrument.

Jus ad bellum

Right to wage war

Jus in bello

“treaty applicable in times of war”

Geneva Convention

Hague rules

Human rights treaties covered

mere Librium

law of the seas

res commuinalo

availability for public use

Inadimplen ti non est adimplendum

“a state who is not fulfilling its obligations, then other states do not have a to fulfill its obligations”

VCLTà only material breaches should matter (Art.60)

Clausula rebus ne intantibes

Fundamental change of circumstances

Meant that in every treaty there is an implied clause that every state can get rid of its obligations if fundamental change to circumstances of treaty itself (dangerous provisions)

**goes directly against rule of pacta san servanda

Hungary v. Slovak (p.1357)

legal positivismàobedience to the law

Montevideo Convention on the Rights of States

Qualifications of a state

population

territory

government

capacity to enter into relations with other states

Article 38 (International Court of Justice)

1. Treaties

Legally binding agreement between subjects of public int’l law

Quicker process (generally)

Treaties usually written but can be oral (same

binding only between the two states.

UN

UN General Assembly can be cust. Int’l law

UN membership of a state is affected by general assembly

Resolutions or declarations

Are recommendations, not binding

UN Charter

108à Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

Only amended 2 since 1945

This is different method then VCLT stipulates for amendment

Security Council

Ch 7 enforcement provisions

UN Charter on exceptions to prohibition to use of force

Ind/collective self-defense & UN Security Council authorization

Western Sahara

Court says western sahara was not terra nullius, and that if anything the Sultan had authority

*this case shows the Courts recognition of treaty making power of indigenous people