The Principles, Role and Nature of International Law Flashcards
What is Opinio Juris?
a key concept in international law. It refers to the belief or recognition by states that a particular practice or custom is carried out because it is legally obligatory, not merely out of convenience, habit, or courtesy.
What are the key elements of Opinio Juris?
Belief in Legal Obligation:
For a practice to be considered part of customary international law, states must not only consistently follow the practice (state practice) but also do so with the belief that they are legally bound to do so.
This distinguishes legally binding customs from acts done for political, moral, or practical reasons.
Role in Customary International Law:
Customary international law is formed by the combination of:
State Practice: General and consistent behavior by states.
Opinio Juris: The belief that such behavior is required by law.
Without opinio juris, a repeated practice cannot be considered legally binding under customary international law.
What are examples of Opinio Juris?
Diplomatic Immunity: States consistently grant immunity to foreign diplomats not just out of habit but because they recognize it as a legal obligation under international law.
Prohibition of Torture: Many states abstain from torture because they believe it is prohibited under international law, reinforced by treaties and customary norms.
What is evidence of Opinio Juris?
Official statements or declarations by states.
Diplomatic correspondence.
National legislation or court decisions.
Votes and positions taken in international organizations.
State adherence to treaties reflecting customary norms.
What is Universal Jurisdiction?
Universal jurisdiction is a principle in international law that allows a state to claim criminal jurisdiction over an individual accused of certain serious crimes, regardless of where the crime was committed, the nationality of the accused, or the nationality of the victims. This principle is typically applied to crimes considered so egregious that they are offenses against the international community as a whole.
What crimes are covered by Universal Jurisdiction?
-Genocide
-War crimes
-Crimes against humanity
-Torture
-Piracy (historically the first crime under universal jurisdiction)
-Enforced disappearances
What is Universal Jurisdiction’s applicability across borders?
Unlike other jurisdictional principles (territorial, nationality, or protective jurisdiction), universal jurisdiction does not depend on a direct link between the crime and the prosecuting state.
What is the rationale for Universal Jurisdiction?
These crimes are considered so heinous that they harm humanity as a whole, and no safe haven should exist for perpetrators.
Universal jurisdiction helps ensure accountability when other states fail to act due to lack of capacity, political constraints, or other reasons.
What is the Legal Basis of Universal Jurisdiction?
Universal jurisdiction is rooted in treaties, customary international law, and domestic legislation in many countries.
What are examples of Universal Jurisdiction?
The Geneva Conventions (grave breaches provisions).
The Convention Against Torture, which requires states to prosecute or extradite individuals accused of torture.
National laws that incorporate international crimes, such as Spain’s Ley de Enjuiciamiento Criminal and Belgium’s Universal Jurisdiction Law.
What are some Challenges to Universal Jurisdiction?
Political Misuse: Some argue that universal jurisdiction may be used for political purposes or to target specific states or individuals unfairly.
Sovereignty Concerns: States may see the exercise of universal jurisdiction by foreign courts as an infringement on their sovereignty.
Practical Limitations: Prosecuting crimes under universal jurisdiction can be resource-intensive and face evidentiary and logistical challenges.
Immunity Issues: Questions of whether heads of state or other officials are immune from prosecution under universal jurisdiction remain contentious.
What is International Law?
International Law is a system of Rules, Principles, and concepts governing relations among states and increasingly, intergovermental and nongovernmental organizations, individuals and other actors in world politics.
Sovereignty and consent
International Law operates on the sovereignty of States, meaning all states regardless of size and power, have equal standing and the capability to contribute to the creation of IL. Consent is essential: States must actively agree to any restrictions on their freedom of action, typically through treaties, customary practices, or agreements. States are the key actor of international law. In recognition of this, the principle that all states are equally sovereign under international law was established as a cornerstone of the UN Charter (article 2.1) .Modern interpretation (R2P)
Prohibition on the Use of Force
Enshrined in Article 2(4) of the UN Charter, states must refrain from the threat or use of force against another’s territorial integrity or political independence. Non-intervention stemming from article 2(7), the UN and other states are prohibited from intervening in matters considered within the domestic jurisdiction of the state, except under Chapter VII measures.
