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
Case Study: Australian Mining and Smelting vs E.C Commission
EC wanted to get docs from AMS to see if it violated regional competition laws, AMS claimed attorney client privilege.
Conclusion: AMS won
Significance: because it shows general principles of law because European states follow it in their respected countries.
(if we are all doing this so it might as well be a law)
Case study: Finland 1917
Russia vs Finland
Conflict:
Finland achieved independence from Russia and wanted more land.
Conclusion: Finland lost, you have to govern the territory w/o foreign troops
Importance: Shows that if you do not have effective control over territory it does not count that you have all of the four elements need to exist at an international legal level.
What are the rights of international legal persons (states?)
- Rights to exist
- Domestic independence
- External independence
- Equality before law
- Right of self defense
- Gov property abroad is immune from seizure
What is the difference between self determination, succession, and secession?
Succession: 1 or more states follows or replaces another pre existing state or states
Ex. Germany becoming East and West Germany during WW2
Secession: when a state breaks away back into its creator
Ex. Somaliland
Self determination: people exercising to become own country or remain part of a country
Ex: Puerto Rico can become a 51 state or become its own separate country
Where do states come from?
What is the Peace of Westphalia?
The Peace of Westphalia, signed in 1648, ended the Thirty and Eighty Years Wars and created the framework for modem international relations.
The concepts of state sovereignty, mediation between nations, and diplomacy all find their origins in the text of this treaty written more than three hundred and fifty years ago.
3 principles of order
- Security
- Contracts
- Property
No society can exist without it the basis of order
