POL 208 LECTURE NOTES
Universal jurisdiction: violators of Jus Cogens can be arrested and tried by any country
regardless of the location of the `crime` or the identity of the victims; does not require
consent; cannot be contradicted by treaties.
- Examples: Genocide, piracy, slavery, waging aggressive war (?), crimes against humanity,
war crimes (?), torture (?)
Waging aggressive war: someone who starts a war illegally / violates principles of Just War
theory. This is very problematic and highly politicized because what exactly makes
something an aggressive war? It’s highly problematic in making sure a war that is waged is
In all other cases that are not part of Jus Cogen, jurisdiction would be constrained by other
customs or treaties or principles.
Source I: International Conventions
- A positivist source
- Any international treaty, convention, agreement is a law
- In the 20th century: an attempt to codify customary law through a series of international
conventions – Hague 1889, 1907; the League of Nations; the UN international Law
Commission (ILC) (for example: the Vienna convention 1969; UN Law of the Sea Convention
-Important to differentiate between two types of treaties: Declarative vs. constitutive treaties
- Declarative: declares and codifies a pre-existing custom (there’s already a law, it just puts
that law in words on paper). It’s codifying an international custom, so even if a country didn’t
sign the treaty, they’re still bound to it. Why? Because the law already existed before.
- Constitutive: legislating a law that did not exist before. If a country doesn’t sign it they’re
not bound to it because it’s a new law. However, over time, a constitutive law might become a
declarative law if it’s practiced regularly by all and then all countries will be obligated to it.
- International vs. domestic law (pirates)
- Some countries automatically incorporated international law into its domestic law. Other
countries need to go through the process of domestication. Some cases have a parallel system
– they have an international law dimension and a domestic law dimension and often there’s
tension between the two so courts must choose which one they choose.
Example: Geneva Conventions
- Jus in bellum (laws of war during war)
- The Geneva Conventions, four of them, 1949:
- Geneva 1: Sick and wounded soldiers on land (what are the obligations, etc)
- Geneva 2: Sick and wounded soldiers at sea
- Geneva 3: Prisoners of War
- Geneva 4: Occupation (what are the obligation of an occupying party)
- Protocol additional to the Geneva conventions, 1977
- Are all of these conventions declarative?
Prisoners of War: Third Geneva Convention
- The force in which you’re operating should have a commander
- We want someone to take responsibility; it’s you being part of a clear unit.
Otherwise, you’re not a prisoner of war.
- A clear and permanent identification on both soldier and vehicle