Halberstam F02 International Law notes

Halberstam F02 International Law notes - Int'l Law Fall...

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Int’l Law Fall 2002 Wednesday, December 11, 2002 1 I. Application of Int’l Law Article 38 of the ICJ The Court ––and this is not a hierarchy–– applies: (a) Int’l conventions––meaning, treaties and contracts––whether general or particular, expressing rules that are expressly recognized by the contesting states. (b) Int’l custom. Does merely engaging in a practice constitute customary law ? There are two elements: (1) practice, over a period of time, and, (2) the belief that the state is acting out of a sense of obligation . 1 Customary rules influence the interpretation of treaties. The burden of proof is to be met by the party asserting custom and varies with the subject matter; the more local the custom, the higher the burden. A nation might seek to avoid being bound by a rule by asserting that its self-interest in survival trumps int’l custom. There is something known as regional custom (how to draw water, etc.). In Paquete Habana the court noted that jurists and commentators might be more familiar with principals and customs of int’l law than any particular court can be, so it is appropriate to rely on them to state what the law is. An open question: If a state is establishing a new custom, is it in violation of int’l law as it does so [because it is not following existing custom]? (c) General principals of law recognized by civilized nations. Think in terms of process: the right to a process––not necessarily a jury trial––to arrive at a judgment. One idea that every system seems to recognize is that the process should be impartial. Jus cogens : Fundamental principles. E.g., it is a principle of jus cogens not to enter into a treaty to commit genocide. (d) Under Art. 59, judicial decisions and select teachings from various nations. These are “a subsidiary means,” although ICJ opinions are increasingly, in Europe, cited the way U.S. Supreme Court cases are cited here. h Art. 38 does not prejudice the Court’s power to decide a case ex aequo et bono : according to what is equitable and good. h Opinio juris is the idea that a nation must believe that its conduct is required by or consistent with int’l law [rather than moral obligation, etc.]. When we ask if there is such a thing as int’l law, rather than asking, e.g., is there a legislature that makes int’l law, we might instead ask, is there a body that does what a legislature does ? The U.N. General Assembly has no authority to do anything binding ; it is not a law-making body. The ICJ was established at the same time as the U.N. and states have to accept jurisdiction. As far as states that accept its jurisdiction in advance , recently it was about one-third of all states. The U.S.––under Truman––initially accepted its jurisdiction in advance, but withdrew this
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Halberstam F02 International Law notes - Int'l Law Fall...

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