PIL Flashcards
What is International Law?
Body of rules and principles of action which are binding upon civilized states in their relations
to one another. Today, sovereign states remain as the principal subjects of international law, but they are now joined by international organizations and even by individuals.
Pacta sunt servanda
This literally means promises must be kept. An expression signifying that the agreements and
stipulations of parties to a contract must be observed. In its most common sense, the principle
refers to private contracts, stressing that stipulations clauses are law between the parties and
implies that non-fulfilment of respective obligations is a breach of the pact.
Sources of International Law
Briefly, therefore, the “sources” of international law are
custom, treaties and other international agreements, generally recognized principles of law, judicial decisions and teachings of highly qualified and recognized publicists. We shall discuss these sources one by one.
Treaty, Customs, Judicial decisions, general principles, scholars
What is a jus cogens norm?
A jus cogens or peremptory norm is a norm which States cannot derogate or deviate from in
their agreements. It is therefore a mandatory norm and stands on a higher category that a jus
dispotivum norm which States can set aside or modify by agreement. For the first time in
positive international law, jus cogens norms are recognised in the Vienna Convention on the
Law of Treaties as a ground for invalidity and termination of treaties.
Jus cogens, also known as peremptory norms, are fundamental principles of international law that are universally recognized and accepted by the international community of states as norms from which no derogation is permitted12. These norms are considered so essential that they cannot be overridden by any state through treaties, local customs, or general customary rules2.
Key Characteristics:
Non-Derogable: Jus cogens norms cannot be violated or set aside by any state, even by mutual agreement1.
Universal Acceptance: These norms are accepted and recognized by the international community as a whole1.
Fundamental Principles: They represent the core values of the international legal system, such as prohibitions against genocide, slavery, torture, and wars of aggression12.
Examples of Jus Cogens Norms:
Prohibition of Genocide: The deliberate and systematic destruction of an ethnic, racial, religious, or national group.
Prohibition of Slavery and Slave Trade: The practice of owning, buying, and selling human beings as property.
Prohibition of Torture: The infliction of severe pain or suffering, whether physical or mental, on a person.
Prohibition of Aggressive War: The use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state12.
These norms are crucial in maintaining the integrity and stability of the international legal order.
Right of legation
The right of legation is the right of every state to enter into diplomatic relations
with other states. This right is a sovereign right that can only be exercised legally
by those vested with international personality. The right of legation is governed by
the 1961 Convention on Diplomatic Relations.
The right of legation is both an active and a passive right. Active right of legation
is the act of sending diplomatic representatives to another states. The passive
right of legation is the right of a state to receive diplomatic envoys from other
states.
United States v. Noriega
United States v. Noriega is a landmark case involving General Manuel Antonio Noriega, the former military leader of Panama. Here are some key points about the case:
Charges: Noriega was indicted on February 14, 1988, by a federal grand jury in Miami, Florida. The indictment included twelve counts related to an international conspiracy to import cocaine and materials used in producing cocaine into and out of the United States12.
Jurisdiction and Extradition: One of the significant legal challenges in the case was the question of jurisdiction. Noriega argued that as a foreign leader, U.S. laws could not be applied to his actions outside the United States. However, the court rejected this argument1.
Military Intervention: Noriega was captured during the U.S. invasion of Panama in December 1989, an operation known as “Operation Just Cause.” He surrendered to U.S. military officials on January 3, 19903.
Trial and Conviction: The trial took place in the U.S. District Court for the Southern District of Florida. Noriega was convicted on multiple charges, including racketeering, drug trafficking, and money laundering24.
Significance: The case is notable for its implications on international law, particularly regarding the extraterritorial application of U.S. criminal laws and the use of military force to apprehend a foreign leader12.
In order to assert head of state immunity, a government official must be recognized as a head of state. Noriega has never been recognized as Panama’s Head of State either under the Panamanian Constitution or by the United States. Title VI, Article 170 of the Panamanian Constitution provides for an executive branch composed of the President and Ministers of State, neither of which applies to Noriega. Officially, Noriega is the Commandante of the Panamanian Defense Forces,[12] but he was never elected to head Panama’s government and in fact abrogated the Panamanian presidential elections of May 7, 1989. More importantly, the United States government has never accorded Noriega head of state status, but rather continued to recognize President Eric Arturo Delvalle as the legitimate leader of Panama while Noriega was in power.
The Nottebohm Case
The Nottebohm Case (Liechtenstein v. Guatemala) is a significant case in international law, decided by the International Court of Justice (ICJ) in 1955. Here’s a brief digest of the case:
Facts
Friedrich Nottebohm, originally a German citizen, had lived in Guatemala for 34 years.
In 1939, shortly after the outbreak of World War II, Nottebohm applied for and was granted Liechtenstein citizenship.
Upon his return to Guatemala in 1940, he was denied entry and treated as an enemy alien due to his German origins.
Legal Issues
Nationality and Genuine Link: The central issue was whether Guatemala was obliged to recognize Nottebohm’s Liechtenstein nationality, given that it was acquired under circumstances suggesting it was a mere formality to avoid wartime repercussions.
Court’s Decision
The ICJ ruled that nationality must reflect a genuine connection between the individual and the state. In Nottebohm’s case, there was no substantial link between him and Liechtenstein.
Consequently, the court held that Liechtenstein could not claim protection for Nottebohm against Guatemala, as his naturalization was not based on a genuine bond with Liechtenstein12.
Significance
This case established the principle that for a state to exercise diplomatic protection on behalf of an individual, there must be a genuine connection between the individual and the state.
It highlighted the importance of effective nationality in international law, emphasizing that nationality should not be used as a tool for convenience12.
The case of Eremes Kookooritchkin
The case of Eremes Kookooritchkin is an interesting one in Philippine legal history. Here’s a brief overview:
Facts
Eremes Kookooritchkin, a native-born Russian, applied for Philippine citizenship under Commonwealth Act 473, as amended by Act 535.
He filed his petition for naturalization in August 1941, supported by affidavits from ex-Judge Jaime M. Reyes and Dr. Salvador Mariano12.
Kookooritchkin had a notable history, having served in the Imperial Russian Navy and later in the British Air Force during World War I. He fled Russia after the Bolshevik Revolution and eventually settled in the Philippines in 192312.
Legal Proceedings
The petition was delayed due to the Japanese invasion of the Philippines during World War II. The case was reconstituted in 1947, and evidence was presented in 194712.
The Solicitor General opposed the petition, but the lower court granted Kookooritchkin’s application for naturalization12.
Significance
This case highlights the complexities of naturalization processes, especially during times of political upheaval and war.
It also underscores the importance of procedural adherence and the role of supporting affidavits in naturalization cases.
Opinio juris
Opinio juris is a fundamental concept in customary international law. It refers to the belief that a particular practice is carried out by states because they consider it to be a legal obligation. Here are some key points:
Definition
Opinio juris sive necessitatis: This Latin phrase means “an opinion of law or necessity.” It signifies that states engage in certain practices not merely out of habit or convenience, but because they believe they are legally required to do so12.
Role in Customary International Law
Customary International Law: For a practice to be considered customary international law, it must be accompanied by opinio juris. This means that the practice is followed consistently by states and is done so out of a sense of legal duty12.
Two Elements: Customary international law is established through (1) consistent state practice and (2) opinio juris. Both elements must be present for a practice to be legally binding1.
Examples
Diplomatic Immunity: States grant immunity to foreign diplomats not just out of courtesy, but because they believe international law requires it.
Prohibition of Torture: The widespread prohibition of torture is upheld by states because they recognize it as a legal obligation under international law.
Significance
Legal Obligations: Opinio juris helps distinguish between practices that are legally binding and those that are merely customary or habitual.
International Court of Justice (ICJ): The ICJ often examines opinio juris to determine whether a particular practice has become customary international law1.
What are the elements of international custom?
Article 38(1) (b) of the ICJ Statute, as indicated above, refers to international custom “as evidence of a general practice accepted as law.” This refers to the two elements of custom or customary international norm, namely: (1) general practice, characterized by uniformity and consistency and (2) opinio juris sive necessitates, or recognition of that practice as legally binding.
How is the element of opinio juris understood?
In the formation of international law norms through customs, States create law by what they do in practice or by their conduct. Opinio juris means that in doing so, they must believe that the practice or conduct is obligatory. They do so for the reason that the practice is required by law, and not merely because of courtesy or political expediency.
Such conduct, according to the ICJ in the Asylum case is not only a “constant and uniform usage practiced by States in question,” but in must also be the “expression of right appertaining to the State granting the asylum and duty incumbent on the territorial state.” (ICJ Reports, 1950)
In the North Sea Continental Shelf cases, the ICJ takes note of the conditions in order for opinio juris to exist: The acts which have settled as general practice must be “carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it… The States concerned must therefore feel they are conforming to what amounts to a legal obligation. The frequency or even habitual character of the acts is not enough. There are many international acts, e.g. in the field of ceremonial and protocol, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty. (ICJ Reports, 1969)
As it is with respect to positive acts of States, so it is true with their abstentions. The Permanent Court of International Justice in the Lotus case observes that “only if such absention were based on their being conscious of a duty to abstain would it be possible to speak of an international custom (PCIJ, Section A, No, 10)
In short, opinio juris means that practice embodied in a rule has been recognized as a legal norm.
Is a particular length of time required for the formation of customary norms?
No particular length of time is required. “The time factor as a separate element in the proof of custom now seems irrelevant.” (Baxter, Treaties and Custom, 1970)
The element of time is legally significant in the sense that such length of time is necessary as to make manifest the recognition by States of customary norm in its two elements, in particular, the recognition of the practice as a legal norm. In the North Sea Continental Shelf cases, the ICJ observes thus “although the passage of only a short passage of time in not necessarily, or of itself, a bar to the formation of a new rule of customary international law.. an indispensable requirement would be that within the period in question, short though it may be, State practice, including that of States whose interests are specially affected, should have been extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.
Asylum case (1950) ICJ Rep 266
- Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law(text in brackets added).”
- The Court held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):
The North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) were landmark cases decided by the International Court of Justice (ICJ) in 1969. Here’s a brief overview:
Facts
The cases involved the delimitation of the continental shelf in the North Sea between Germany, Denmark, and the Netherlands12.
Germany argued against the use of the equidistance principle, which would have given it a smaller portion of the continental shelf compared to Denmark and the Netherlands2.
Legal Issues
Equidistance Principle: Denmark and the Netherlands wanted to apply the equidistance principle as outlined in the 1958 Geneva Convention on the Continental Shelf, which Germany had not ratified12.
Equitable Principles: Germany argued for a delimitation based on equitable principles, considering factors like the length of the coastline2.
Court’s Decision
The ICJ ruled that the equidistance principle was not obligatory under customary international law and that delimitation should be based on equitable principles12.
The Court emphasized that the boundary lines should be drawn by agreement between the parties, taking into account the natural prolongation of their land territories under the sea1.
Significance
This case established important precedents for the delimitation of maritime boundaries and the application of equitable principles in international law12.
It highlighted the flexibility required in maritime boundary disputes and the need for agreements that consider the specific circumstances of each case1.
LOTUS case
Facts of the Case:
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?
The Court’s Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?
The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first principle of the Lotus Case. The Court held that:
“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.” (para 45)
The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law.The Court held that:
“It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States …In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.” (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to exercise jurisdiction, the Court argued, then “it would…in many cases result in paralysing the action of the courts, owing to the impossibility of citing a universally accepted rule on which to support the exercise of their [States’] jurisdiction” (para 48).
The Court based this finding on the sovereign will of States. It held that:
“International law governs relations between independent States. The rules of law binding upon States therefor emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed”
[Note: This was one of the more debated aspects of the judgement. Some argued that the Court placed too much emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel has exclusive jurisdiction over offences committed on board the ship in high seas. The Court disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of another State (paras 71 – 84). The Court held that Turkey and France both have jurisdiction in respect of the whole incident: in other words, there was concurrent jurisdiction.
The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory. The Court held that the “… offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.” The Court concluded that Turkey had jurisdiction over this case. It further said:
“If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent.”
The Lotus Case is also significant in that the Court said that a State would have territorial jurisdiction, even if the crime was committed outside its territory, so long as a constitutive element of the crime was committed in that State. Today, we call this subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be established, one must prove that the element of the crime and the actual crime are entirely inseparable: in other words, if the constituent element was absent – the crime would not have happened. The Court said:
“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of negligence or imprudence – having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent… It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.”
Customary International Law
The Lotus case gave an important dictum on creating customary international law. France had alleged that jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend to prosecute only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary law on collisions.The Court disagreed and held that, this:
“…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true.”
In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in omissions when those omissions are made following a belief that the said State is obligated by law to refrain from acting in a particular way. (For more on opinio juris click here)
The Paquete Habana case,
The Paquete Habana case, decided by the U.S. Supreme Court in 1900, is a landmark decision in international law. Here’s a brief overview:
Facts
During the Spanish-American War, two Spanish fishing vessels, The Paquete Habana and The Lola, were captured by the U.S. Navy while fishing off the coast of Cuba12.
The vessels were brought to Key West, Florida, and sold as prizes of war12.
Legal Issues
The main issue was whether customary international law exempted coastal fishing vessels from capture during wartime12.
The owners of the vessels argued that such captures violated international law, which traditionally protected fishing vessels engaged in peaceful activities12.
Court’s Decision
The Supreme Court ruled in favor of the vessel owners, stating that customary international law is part of U.S. law and must be applied by federal courts12.
The Court held that, according to international law, coastal fishing vessels are exempt from capture as prizes of war12.
Significance
This case established that customary international law is an integral part of U.S. law and can be applied by U.S. courts12.
It reinforced the principle that peaceful fishing vessels should be protected during conflicts, reflecting a long-standing tradition in international law12.
In a 6–3 decision authored by Justice Gray, the Supreme Court ruled that coastal fishing vessels are exempt from capture as prizes of war under customary international law, which, barring a “controlling executive or judicial decision,” must be incorporated into the corpus of U.S. law.[3]
