Class Notes (1,100,000)
CA (650,000)
UTSG (50,000)
POL208Y1 (500)
Lecture

International Law.docx


Department
Political Science
Course Code
POL208Y1
Professor
Lilach Gilady

This preview shows pages 1-2. to view the full 8 pages of the document.
International Law 01/03/2014
DOMESTIC LAW
Law: A rule of conduct or procedure established by custom, agreement, or authority; the body of rules
and principles governing the affairs of a community and enforced by a political authority; a legal system
International Law: No legislator, no enforcement, very basic and limited court system – is international
law a ‘law’?
In a domestic setting, not everyone always follows the law. The idea of an international system
where no one follows the law, and domestic systems people follow the law, is flawed – this idea
is overly simplistic
Are the distinctions between domestic/international law that sharp?
Private international law vs. Public international law (legal personality)
Legal personality: Who has the right to stand/make a case
In private international law, individuals have the power to make a case (e.g. passport issues)
In public international law, states carry the legal personality. We are only discussing
public international law; sphere of the law reserved for states
PACTA SUNT SERVANDA
Pacta Sunt Servanda: Pacts must be respected/carried out – if you sign a contract you have to abide by it
What kind of enforcement mechanism is just SAYING ‘pacta sunt servanda’?
“Every treaty in forces is binding upon the parties toit and ust be performed by them in good faith” (The
Vienna Convention on the Law of Treaties, 1969, Article 26)
It is in states’ best interests to follow their obligations because if they don’t, their reputation will be ruined
and no one will want to make agreements with them in the future
LEGAL POSITIVISM VS. NATURAL LAW
Roman Law: Jus Civile (Civil Law) vs. Jus Gentium (Law of the People)
Natural Law: The Law of nature; a law that exists independently of the legal system of a given political
order; universality
Legal positivism: Laws are rules made by human beings and thus are embedded in the social and political
contexts in which they were created; there is no inherent or necessary connection between law and
morality
HUGO GROTIUS (1583-1645) – Revives the jus gentium. The fact that so many nations follow a certain
practice is a proof for the existence of natural law.
The Antelope (1825) – Carried enslaved people from Africa to the Americas; in 1825 the trade of slaves
was made illegal in the U.S (if you were born enslaved, you were still enslaved)
En route to South America, a U.S pirate takes over their ship and takes it to Georgia; it was taken into
custody and there becomes a saga of who owns the enslaved people

Only pages 1-2 are available for preview. Some parts have been intentionally blurred.

John Marshall concludes that despite his moral standing, he needs to accept the fact that the trade of
slaves should be legal because everyone else does it (legal positivism)
There is some resurrection of the notion of natural law in the 20th century (‘Human rights’ takes us back to
this idea of natural law)
THE SOURCES OF INTERNATIONAL LAW
THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE ARTICLE 38
“The court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply
A. International conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
B. International custom, as evidence of a general practive accepted as law;
Custom: Probably still the most followed form of international law
A custom is a practice; something we do over and over and over again until it becomes a habit
To determine whether something a country does is a custom, we have to ask ourselves ‘is this a widely
accepted practice’?
Words count less than act; do countries actually do something, or do they only just talk about it?
How often is it practiced? Who adopts the practice (Power, relevance)? Who protests? Is it a general
practice?
A subjective component: Opinio Juris: The belief that a behaviour was carried out because the actor
believed it to be a legal obligation
Practice + opinion juris = custom
JUS COGENS: A FUNDAMENTAL PRINCIPLE ACCEPTED AS A UNIVERSAL NORM
Universal jurisdiction: Violators of jus cogens can be arrested and tried by any country regardless of the
ocation of the ‘crime’ or the identity of the victims;
Does not require consent; cannot be contradicted by treaties
Genocide; piracy; slavery; waging aggressive war (?); crimes against humanity; war crimes (?); torture (?)
C. The general principles of law recognized by civilized nations
D. Subject to the provisions
You're Reading a Preview

Unlock to view full version

Only pages 1-2 are available for preview. Some parts have been intentionally blurred.

01/03/2014
You're Reading a Preview

Unlock to view full version