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Lecture 19

POL208Y1 Lecture Notes - Lecture 19: Legal Personality, Jus Ad Bellum, United Nations General Assembly

Political Science
Course Code
Lilach Gilady

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International Law
Domestic 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”?
Are the distinctions between domestic/international that sharp?
Private international law vs. Public international law (legal personality)
oWho has the right to stand/ to make a case?
oPrivate: individuals carry the legal personality  issues with a
oPublic: States carry the legal personality  individuals cannot make
cases in public international law  reserved for states
Pacta Sunt Servanda
- Main enforcement mechanism in international law
- Pacts must be respected and carried out
- If you sign a contract you must abide by it
- “Every treaty in force is binding upon the parties to it and must be performed
by them in good faith” (The Vienna convention on the law of treaties, 1969)
Legal Positivism vs. Natural Law
- Roman Law: Jus Civile vs. Jus Gentium
- Civil law: regulated the civilians of Rome
- Natural Law: the law of nature; a law that exists independently of the legal
system of 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)
oNew shipment of slaves  no longer allowed to bring slaves from
Africa to US
oAmerican Privateer takes over Spanish ship going to Caribbean to get
new slaves
oPrivateer brings slaves to America
- John Marshall: “Whatever might be the answer of a moralist… a jurist must
search for its legal solution, in those principles of action which are
sanctioned by the usage, the national acts, and the general assent, of that
portion of the world of which he considers himself a part, and to whose law
the appeal is made. We must resort to this standard as a test to international
- There is some resurrection of the notion of natural law in the 20th century.
The Sources of International Law
- Source II: Custom
oIs it a widely accepted practice?
oCustomary law
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International Law
oWords count less than action
oA subjective component: OPINO JURIS –the belief that a behaviour
was carried out because the actor believed it to be a legal obligation
oPractice + opino juris = custom
- a fundamental principle accepted as a universal norm
- Universal jurisdiction: violators of JUS COGENS can be arrested and tries by
any country regardless of the location of the ‘crime’ or the identity of the
- Genocide, piracy, slavery, waging aggressive war (?), crimes against
humanity, war crimes (?), torture (?)
Night Café  Van Goh painting estimated worth of 200 million
- Used to belong to Russian aristocrat
- Was taken by the Soviet Union because they believed it was “capitalist” art
- Soviets needed money and sold them
- Night Café was purchased by Yale in the 30s when the Soviets were selling
the art
- Descendant of the Russian aristocrat started to sue the institutions who
bought the artworks from the Soviets
- Does he have a case in international law?
oStatute of limitations
oSoviet Union is the culpable party in this case
oWho succeeds the country before it?  Is Russia culpable for the
Soviet Union?
oUS does not have jurisdiction/ no capability to regulate behaviour in
other countries
Sources of International Law
Source 1: International Conventions
- Agreements must respected
- A positivist force  don’t need to guess what might be the rules
- Sign convention  becomes part of international law
- Collection of written documents
- Similar understanding of domestic law
- Any international treaty, convention, agreement is a law
- In the 20th century: a concentrated 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 of 1969; UN Law of the Sea Convention 1982)
- Declarative vs. constitute treaties
oLike Sea Convention  declares a law that pre-exists  custom is
written down
oConstitutive  nothing before  creates new law
Example: Geneva Convention
Geneva 1: sick and wounded soldiers on land
Geneva 2: Sick and wounded soldiers at sea
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