Nature and Sources of IL Flashcards
What created sovereign states and the modern state system?
Europe was divided into a number of territorial units, and that each of units would decide which religion to adopt. No outside interreference was permitted thus the result created sovereign states and thereby the modern state system
Why is Hugo Grotius significant in IL
He is considered to be the father of IL
Created freedom of the seas and free trade in the high seas
Significant because
1. Bridged the ideas of laws are created by nature and laws are created by people
2. Developed a specific set of binding rules internationally
Also created diplomacy and war crimes
Why is Vattel significant in IL
Was arguably the first to have written a comprehensive manual on IL to be used by the chancelleries of the world (the first positivist)
States had sovereignty before the law
All states have rights in common
Describe Lagash & Umma War
Romans left autonomy to conquered states
Significance:
What is positivism and how does it relate to IL?
Positivism states that law is man-made/created by states. This relates to IL because states are sovereign they can create the laws they want to follow
Westphalian system
Created after the Peace of the Westphalian. It is a system of international relations.
Establishes basics principles of international relations
Why do states follow IL?
- IL is based on habits and routines
(states will continue to do what they are used
to doing) - Reciprocity (if you do this to me I will do it
back) - Sanctions (incentive to not to break the law through forced contact)
- Legitmacy (a rule seems legit so people follow it)
- Bureaucratic inertia (a person who makes a norm is less likely to break it)
- Desire for order
- Enlightened self interest
- Compliance Pull- states follow to law because they have to for status/benefits in the long run
Naturalists vs Positivist system
Naturalists (common good of man)
Positivist (common good of state)`
Article 38 Statue of the ICJ
- Customs*
- Treaties*
- General Principles of Law
- Judicial decisions ( no obligation to conform to previous decisions)
- Teachings of scholars
Lotus Case
Turkey vs France
Conflict of Turkey held criminal court for the French citizen that crashed into Turkey. France did not want tehri member to be prosecuted by tukey
Conclusion: Tukey won because if there is no law against it so it’s legal
Wimbledon case
Germany violated Versailles Peace Treaty by blocking an international waterway. Germany argued that the treaty infringed on their sovereignty
Conclusion: Germany lost but it established the principle: the right to entering international engagements is an attribute of state sovereignty
Case study: Paquete Habana 1898
Cuba vs United States
Conflict: US has seized Cuba fishing ships during wartime and sold them.
Conclusion: US lost and had to pay them back, establishes the practice of opinio juris and general practice through scholarly teachings
What are the requirements of a custom?
- Must have general practice
- Opinion Juris
Case Study: Scotia
Britain vs America
American Ship (Scotia) sailed into British ship after the British ship did not have colored lights-which was customary in the sea
Conclusion: Scotia won because even though there was no treaty requiring colored lights it was customary practice for ships to have colored lights
Custom Law is Law
Case Study: 1951 Fisheries Case
Norway vs UK
Conflict:
The customary rule was that No UK fisherman or agency or organization was allowed to enter the coast line of Norway which was set to be 10 mile from the coast of Norway. UK fisherman entered and the UK objected to this arrest. Claimed reduction of the coastline.
Conclusion: UK has followed this customary rule for years since the 17th century and it shows implied consent. Norway won
Importance: Establishes persistent objection can block the formation of rights in relation to others
