International Law

1
International Law

• Law between nations

2
History of modern international law

• Emerged with the Peace of Westphalia of 1648, the
  series of treaties ending the 30-Years War that
  had devastated Europe politically, socially and
  economically (1618-1648). It
• 1. recognized the nation-states as the primary
  international actors.
• 2. established a mechanism for securing long-term
  peace, although not successful. This was the
  first of many such efforts, culminating finally
  in the creation of the UN in 1945.

3
Primary legal actors

• Plaintiffs defendants are nation-states, not
  individuals
• World Court or International Court of Justice,
  which handles cases involving nation-states.
• Newly created International Criminal Court, which
  has authority to try individuals for war crimes

4
Jurisdiction

• A courts authority to hear and decide a case.
  In U.S. law, the Constitution and Congress
  determine the jurisdiction of the federal courts.
  
• In international law, states themselves decide if
  the World Court has jurisdiction over them. This
  was an important concession to sovereignty when
  the court was established in 1945.
• The International Criminal Court also only
  applies to nation-states that have accepted it.

5
Sources of international law

• 1. Custom, as evidence of a general practice
  accepted as law. The oldest source of
  international legal obligations.
• 2. International conventions or treaties.
• 3. General principles of law recognized by
  civilized nations.
• 4. Judicial decisions and teachings of top legal
  scholars of the various nations as a subsidiary
  means of determining rules of law.

6
How do we know if a custom can be considered a
binding law?

• 1. Duration or passage of time.
• 2. Substantial uniformity or consistency of
  usage by the affected nations
• 3. Generality of the practice or degree of
  abstention
• 4. International consensus (need not be
  unanimous) that the custom is binding.
• International custom evolves slowly through
  compromise and consistency of application.

7
Concept of Jus Cogens

• Norms so important that they have the highest
  status in international law and they apply even
  to states have not accepted them (for example,
  through a treaty).
• Very few norms have been considered jus cogens,
  because it conflicts with notion of sovereignty.
  
• Possibly includes Prohibitions on the aggressive
  use of force, fundamental human rights (genocide,
  slavery, torture, racial discrimination).

8
Sovereign immunity

• The leader of a nation-state considered immune
  from prosecution in the courts of other states.
  Important attribute of sovereignty.
• Note that this is the defense of Saddam Hussein