Natural Law and Jus Cogens Flashcards
Jus Cogens and natural law are what type of norms?
Non-consensual
erga omnes
Articulate basic interests and needs as well as fundamental values of the international community as a whole
obligations owed towards all other other members of the international community, each of which then has a correlative right. . If you violate one of these each then has the right to insist on fulfillment of the obligations or in any case to call for the breach to be discontinued. (pertains to international enforcement)
Prosecutor v. Furundzija says says what about torture?
it is erga omnes and jus cogens. EVery state is entitled to investigate, prosecute, and punish or extradite individuals accused of torture!!!!
Michael Domingues: US argument?
US says it is a persistent objector to not having underage capital punishment. and that there is no jus cogens prohibition against it because it doesnt amount to genocide or piracy.
Michael Domingues: UN argument?
US stands alone so international customary law has emerged. US has recognized norm by ratifiying fourth geneva convention and setting federal standard at 18.
what are the facts of Michael Domingues?
US is going to kill a 16 year old convicted of murder.
What are the facts of Smith?
Smith is arrested and charged with acts of piracy–>he argues that Congress has never explicitly defined the term so therefore the court cannot define it on its own
The court says Congress doesn’t really have to do this
How does the court in Smith define piracy?
They look to US common law first, then they look to law of nations, works of jurists, scholars, treaties and the like and that piracy is an offense against the law of nations which is part of US common law
A piracy is an offense against the universal law of society, a pirate being deemed an enemy of the human race.
What is important to remember about Smith?
The court looks to the law of nations AND it stands for the holding that an individual could be found guilty of violating the law of nations.
