Public International Law
Erga omnes
"Obligations to the world" norms that articulate the basic interests and needs/fundamental values of the international community as a whole. Can you have standing to complain to the ICJ when the pact doesn't involve you? A phrase which means "towards all" or "towards everyone". In legal terminology, erga omnes rights or obligations are owed toward all. For instance a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, unenforceable except against the contracting party. In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy and genocide.
Pacta sunt servanda
"The pact cannot be severed" - international agreements are binding (unless under extreme circumstances, but very VERY rare) Article 26 VCOLT
Res communis
"belonging to community or all human kind" - opposite of terra nullius - such as outer space, high seas, deep sea bed floors a certain distance from countries, etc.
Animus occupandi
"the will or intent to act as a sovereign" - requirement for acquiring territory by occupation
Sources of International Law (in descending order)
1. Jus Cogens a. Erga Omnes 2. Treaties 3. International custom 4. General principles of law (requiring judicial or doctrinal initiative and research) 5. Equitable solutions
Jure Imperii
Acting in sovereign capacity (immunity)
Pacta tertiis nec nocent nec prosunt
Agreements between two parties are not binding on a third party Article 34 VCOLT
Opinio Juris
Customary international law is based on a consistent state practice, plus opinio juris: the belief that states act in a certain way because required to do so by law or necessity.
Equity
Equity is a step below a general principle of law, and used in international law if there is no jus cogens/erga omnes, treaty, customary law, general principles of law (multi-municipal law).
The Permanent Court of International Justice (PCIJ)
Established under Article XIV of the Covenant of the League of Nations, which called on the League of Nations Council to formulate plans for an international court designed to contribute to the peaceful settlement of international disputes. Sought to teach a broader lesson in jurisdiction from the Lotus case (naval crash at sea, not in this outline) because it argued that the rules of law binding upon states emanate from their own free will as expressed by their uses and existing principles of law on customary international law. E.g. there is a particular flavoring of every country based on their existing laws in how they interpret international law that is not under treaty.
International Law Commission (ILC)
ILC is part of the United Nations Part of a distinguished group of international law specialists that meet to progress international law . The International Law Commission was established by the General Assembly, in 1947, to undertake the mandate of the Assembly, under article 13 (1) (a) of the Charter of the United Nations to "initiate studies and make recommendations for the purpose of ... encouraging the progressive development of international law and its codification".
Jurisdiction in Customary International Law
In international law, jurisdiction refers to the authority of states to determine or affect legal relationships of private parties. i. Enforcement jurisdiction - the authority of a state to investigate, collect evidence, or arrest ii. Legislative jurisdiction - the authority of the state to apply its laws. The most traditional basis of such is territoriality.
Jus Cogens
Jus Cogens refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted. In practice, jurists' attempt to classify certain rules, rights and duties as jus cogens or peremptory norms have not met with success: while there is near-universal agreement for the existence of the category of jus cogens norms, there is far less agreement regarding the actual content of this category. Examples of jus cogens norms include: prohibition on the use of force; the law of genocide; principle of racial non-discrimination; crimes against humanity; and the rules prohibiting trade in slaves or human trafficking. There is no universal agreement regarding precisely which norms are jus cogens nor how a norm reaches that status.
Lacunas
Lacunas, or rather gaps in international law, can be stop-gapped using municipal and general principles of law in lieu of "custom." The basic theory behind general principles of law is that some legal principles are so general or fundamental that they are found in nearly all legal systems. (United States v. Smith) Rule: If someone commits a crime that is not defined by US law but is defined by the Law of Nations, then such an offender/s shall be brought into and found in the United States to be guilty under the circumstances of the law.
Jus Gentium
Law of nations (law of all mankind)
State (treatable)
Montevideo Convention defines state as a recognized territory, government, people, with the capacity to enter into international relations between states.
Travux preparatoires
Prepatory work - if we're note picking up the meaning from the text, but rather search for definitions in the documents/discussions/preparations to the treaty
Uti possidetis
Respect for colonial boundaries
Customary International Law
Rule: For a custom to become binding as international law, it must amount to a settled practice and must be rendered obligatory by a rule requiring it. (North Sea Continental Shelf Cases)
Lex specialis
Special international law (lex specialis) governs particular topics, such as the treaties that deal singularly with fishing, etc.
Terra nullius
Territory belonging to no one (open for claims OR "land which owns itself")
Nationalization
The process of transforming private assets into public assets by bringing them under the public ownership of a national government or state. Industries that are usually subject to nationalization include transport, communications, energy, banking and natural resources.
Bilateral Investment Treaties (BITs)
There are a variety of laws abroad (such as 2 jx laws, and international law). BIT is a standardized agreement with fair and equitable treatment to the parties involved.
Treaties
Treaties show legal rule clearly in written form and are subject to the explicit acceptance of states and therefore can often be clearer in their terms and acceptance more than other sorts of international law. Treaties are the most frequent sort of international law in practice. However treaties may be trumped by other forms of international law, especially natural law, or jus cogens.
International Arbitration Contracts
Whenever reference is been made to general principles of law in the international arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract. (Texaco/Libya Arbitration)
Reservations to Treaties
a reservation to a treaty is a unilateral statement purporting to exclude or modify the legal effect of a particular treaty article for the reserving country. E.g. "I'll only sign this if..." When a party "accepts" a reservation, that does not mean that they share the reservation, only that they agree to be reciprocally bound by it with the other party = a bilateral treaty
Contra legem
means "against the law." The maxim is used to describe an equitable decision of a court or tribunal that is contrary to the law governing the controversy. Contra Legem is the opposite of intra legem, a term used to describe an equitable decision of a court or tribunal that is consistent with the rules of law governing the controversy.
De lex ferenda
means "future law" used in the sense of "what the law should be" (as opposed to lex lata - "the current law"). The derivative expression de lege ferenda means "with a view to the future law". The expressions are generally used in the context of proposals for legislative improvements, especially in the academic literature, both in the Anglo-American and in the continental legal systems.
FILARTIGA V. PENA-IRALA, 2d Cir. 1980
Facts. A suit claiming that Pena-Irala (D) had tortured Filartiga's (P) decedent to death while he was a police Inspector General, was brought by Filartiga (P). All parties were Paraguayan citizens. Jurisdiction was based on the Allen Tort Statute, 28 U.S.C. S 1350, which provided jurisdiction for tort committed in violation of "the law of nations." The case was dismissed by the district court for lack of jurisdiction to which Filartiga (P) appealed. Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may be considered to violate law of nations. Held. Yes. For purpose of the Allen Tort Statute, torture may be considered to violate law of nations. The prohibition against torture has become part of customary international law. Various United Nations declarations such as the Universal Declaration of Human Rights and the 1975 Declaration on the Protection of All Persons from Torture further portrays the fact that prohibition against torture has become part of customary international law. Torture has been officially renounced in the vast majority of nations and this is the reason why this court concluded that torture violates the law of nations. It is not new for many members of the United Nations to make pronouncements and not be pronouncements into action. It is no secret that torture is still widely practiced if not by a majority of countries then in a significant manner. Actual practice, and not U.N. declarations have been argued by commentators as what constitute international law. Filartiga involves international human rights, as an individual as a subject of international law. When the US government fails to take foreign opinion into account, it can lose some ability to influence world politics. It was considered a landmark legal precedent, and triggered a sea of change in human rights litigation to try to make the Filartiga principle unassailable.
MCCANN V UK, 1995, EU Court of Human Rights
Facts: Families of deceased suspected terrorists of IRA (British citizens) are seeking compensation for their wrongful deaths. Police shot them in Gibralter (Spanish colony) when they thought suspects were planning on detonating a bomb. Local remedy procedure was exhausted through UK national court, jury trial. Jury returned verdict of lawful killing. McCann appealed to high court of justice in N. Ireland, but dismissed. Then to EU Human Right Commission, and held unlawful killing as a breach of European Court of Human Rights Convention Article 2, as lethal force was unnecessary. Analysis: A case of transnational law, as the treaty addresses interactions between individuals from different states, or a state with foreign individuals. Must exhaust local remedies, and appeal as "last resort." This is a typical requirement before a claim can be brought before an international tribunal. Shows respect for the sovereignty of the nations. Also serves efficiency purpose. There is a difference of law under UK and EU human rights law "reasonably justified" versus "absolutely necessary." Facts can be held to different standards. Ruling: Ct finds that UK fell short in the control and organization of the operation. It was a 10-9 decision, and the Euro Ct didn't even here first-hand testimony or evidence. UK Complies With Judgment: Likely did so to uphold principles of the Convention, as well as to show a willingness to comply w/treaties and institutional judgments. European Court of Human Rights - court established by a treaty - 47 European countries as of 2013. UK was subject to its jurisdiction because it had signed and formally ratified the international convention explicitly accepting the jurisdiction of the court. The ordinary theory explaining the legally binding effect of an international agreement is that a sovereign state may exercise its sovereignty not only by domestic law, but by making international law.
Comity
Following law out of respect, but not enough opinio juris to be binding (no subjective intent)
Rebus sic stantibus
Fundamental change of circumstance. Gabçíkovo-Nagymaros Project - in which the dissolution of the Soviet Union did not "fundamentally change" the circumstance of a bilateral investment treaty between Hungary and Czechoslovakia. Article 62 VCOLT
The Vienna Convention on the Law of Treaties (VCLT)
The Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 114 states as of April 2014. Some countries that have not ratified the Convention, such as the United States, recognize parts of it as a restatement of customary law and binding upon them as such. a. The Convention codifies several bedrocks of contemporary international law. It defines a treaty as "an international agreement concluded between states in written form and governed by international law," as well as affirming that "every state possesses the capacity to conclude treaties." The most important point in the Convention is that Article 1 restricts the application of the Convention to written treaties between States, excluding treaties concluded between the states and international organizations or international organizations themselves. i. The Convention has been referred to as the "treaty on treaties"; it is widely recognized as the authoritative guide regarding the formation and effects of treaties. ii. The scope of the Convention is limited. It applies only to treaties concluded between states, so it does not cover agreements between states and international organizations or between international organizations themselves, though if any of its rules are independently binding on such organizations, they remain so. It does apply, however, to treaties between states within an intergovernmental organization.
