The Fundamentals

Question 1

Why do we have int’l law?

Answer 1

International Law exists to lower transaction barriers that cannot be dealt with within national boarders.
Since WWII — rapid expansion of legal systems to resolve legal problems, both domestically and internationally.
After WWII — losers seen as war criminals and conflict is judiciaries ⇨ norms from legal system.
Marshall Plan/Nuremberg Trials: Individual responsibility for some, forgiveness for everyone else.
UN is established: Charter establish the ICJ to deal with disputes b/w states.

Question 2

Dualist

Answer 2

Int’l law has to go through a process of national ratification to become binding. The national legislature has to pass it. Higher rate of compliance.

Question 3

Monist:

Answer 3

A national Constitutional order that makes law made int’l is automatically binding

Question 4

Non-Binding Soft Law:

Answer 4

1. Non-binding int’l law: legal documents produced on an int’l level that the country either won’t or can’t bind itself to.
2. National domestic law of other countries.

Question 5

Basis of Jurisdiction for Int’l Law

Answer 5

(1) nationality of individual;
(2) territoriality; most common b/c evidence it there, may lack physical presence of the defendant: ask for extradition (a mechanism to get accused to territory by requesting transfer from requested state).
(3) physical presence of the individual;
(4) passive personality, nationality of the victim;
(5) protective principle, offenses directed against the security of state or state interest;
(6) universality of the crime.

Question 6

Primary Sources of Int’l Law

Answer 6

1. Treaties: binding contract obligations style: breach and remedy are easy to spot and ascertain.
2. Customary Int’l Law: implied contractual theory. Time and multiple reception mesas etiquette, politeness, or tradition into custom which becomes law ⇨ a legal norm rather than a social norm.
3. Jus Cogens Norms: peremptory norm are at the very core of customary law that no state can persistently object to (e.g., genocide, crimes against humanity, apartheid etc.).

Question 7

Customary Int’l Law

Answer 7

Customary Int’l Law is binding on ALL states UNLESS the state in question is a persistent objector (this is the only non-bind exception).
Evidence of norms becoming customs:
- Number of states
- Length of behavior
- Language used (imperative vs conditional)
- Acts of states (are non-compliant state trying to hide their acts: secrecy, euphemisms, justification “special circumstances”)
Sometimes customs can be created instantaneously.

Question 8

Secondary Sources of Int’l Law

Answer 8

1. Legal Judgments from int’l tribunals

2. Work of eminent publicists—individual experts