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International Law
Wayne State University Law School
Dubinsky, Paul Richard

I. Sources of Int’l Law
 
 
Overview
ˆ   Hierarchy of international law:
— Preemptory Norms / Jus Cogens
— Treaties
— Customary Int’l Law
— General Principle Of Law (like proportionality, waiver)
— Soft Law
 
ˆ   The United Nations: Established in 1945 by its Charter as of 2005 membership consisted of 191 states virtually all the state of the world
— UN Security Counsel: Article 24 of the UN Charter states the counsels primary responsibility is for maintenance of Int’l peace and security.
¡ Power to impose legally binding measures on all UN members
— General Assembly: A large body operating on the principal one state one vote. Very few powers of enforcement or legislation. Instrumental in developing Int’l law:
¡ Established the Int’l Law Commission ILC
¡ Adopts multilateral treaties (conventions) drafted by the ILC
¡ Convening diplomatic conferences to negotiate conventions
— International Court of Justice — Adjudicates disputes between UN member states
— Sectary General ­— Provide Humanitarian Aid. Has little individual power. No budget.
 
 
Customary International Law
 
ˆ   Customary Int’l Law Elements:
— (1) Some persistent identifiable practice
— (2) Practice carried out over a period of time w/ no deviation
— (3) Carried out by states out of a sense of legal obligations.
¡ Like the way ambassadors are treated in other countries when they misbehave, they are not prosecuted bc the countries believe that they don’t have the authority to prosecute an ambassador, instead they sends him home. This used to be custom but in the sixties it was codified as diplomatic immunity.
 
ˆ   Look to Customary Int’l Law When There is No:
— treaty
— controlling executive or legislative act
— judicial decision,
¡ then resort to the customs and usages of civilized nations,
ˆ   Where to find evidence of the customs and usages, look to the
— Scholarly works who are objective and based on what the state custom actually is not what they think it should be
— Judicial Opinions: The higher the level the court the more prestigious and the more it counts.
— Arbitrational Tribunal Opinions: is a fair data point evidence of what customary law would be. The problem with these is that they are never published. So those that are published are a very selected group.
— Acts of Big Corporations that have been Ratified by the State: The acts of corps by themselves do not count as the development of customary law unless it is adopted of ratified by a state. How does this happen? In treaty negotiations the head of the US delegation arranges for a presentation from an industry group and puts that forward as the US’s opinion.
 
ˆ   The Development of  customary law requires
— State practice of that rule
¡ No min amount of time in which this has to take place. In the modern period of time it is possible for a rule of customary rule of law to take a decade or 2 to develop.
ˆ   Newly Independent States
— are bound by customary law even if they were created after the customary law was created. This is true even if the country splits in 2.
ˆ   Persistent Objector Rule:
— a state that is in existence at the time a rule is developing is not bound by that rule if that state persistently and cle

see Authors’ Website under “chapter 2”
ILS William Dodge, Chapter 6, pp. 175-204 (re: the Paquete Habana)
DRW pp.74-87 (foreign direct investment)
 
ˆ   Examples Of State Practice Regarding Customary Int’l Law
— Assertions Of Extraterritorial Jurisdiction
¡ Under what circumstances does country A assert that it is entitled to make a statute or regulation that forces its law outside of its own country. This bloomed as an issue at the beginning of the 19 hundreds.
— Jurisdiction Based On Nationality
¡  This is much closer to a custom in that country A can apply its law to a citizen of country A outside of its territory when it is clear that A’s law doesn’t conflict with country B.
— Jurisdiction Based On Effects
¡ where behavior takes place outside the US but they produce a harmful effect felt in the US, the US is of the opinion that it is permissible to apply US law
ˆ   EX) if you go to the shore and throw a rock into the ocean. How far can it go and still be US water? Water territory was originally developed by custom.
ˆ   Ex) the law of neutrality: Conflict between country A and Country B, Country C could decide to be neutral. So what does it mean for country C…can the other countries still trade with them. To this day – this has been developed through custom not a treaty.