International Law Glossary:
a
non liquet = a legal question to which there is no answer
a
titre de souverain: in the name of the sovereign;
assertion of territorial acquisition
The
Blue List: the diplo list maintained by the Department of
State; name on the list doesn’t necessarily mean that the Executive
has endowed you with diplo immunity
Cession:
when one state gives away land
Secession:
when an area breaks away from one state
Charming
Betsy Presumption: akin to the U.S. Avoidance Canon; “an
Act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains”; this is a
tough task since proper interpretation of a treaty is an int’l
question as to which courts of the U.S. have less leeway; the
disposition to construe a treaty to avoid conflict with a state
statute is less clear (pg. 220); sensible approach especially since
most national legal systems follow it - - allows states to reconcile
domestic and international obligations
Comity:
politeness between states; respecting the interests of other states.
Constitutive
Recognition: the act of recognition by other states
confers int’l personality on an entity purporting to be a state; in
effect, the other states by their recognition create the new state
Declaratory
Recognition: existence or disappearance of a state is a
question of fact and whether those facts meet the criteria for
statehood established by int’l law; primary function of recognition
is to acknowledge the fact of the state’s political existence and
to declare the recognizing state’s willingness to treat the entity
as an int’l person, with the full rights and obligations that go
along with that (most authority and practice lies here)
Dualism:
regard international law and municipal law as separate legal systems
which operate on different levels; international law can be applied
by municipal courts only when it has been ‘transformed’ or
‘incorporated’ into municipal law; international law, as
incorporated into municipal law, is subject to constitutional
limitations applicable to all domestic law, and may be repealed or
emphasize the international legal personality of states, rather than
of individuals or other entities. (this is the U.S. approach
for the most part ); con = it may be harder to enforce
international law with this; Preserves localism and democracy. But
your government participated in international norm. Implementing
legislation is needed.
Erga
omnes: a legal obligation toward all; ususally used in
reference to human rights or environmental issues. The term falls
within the International Law Principle of Universality, that is the
idea that certain activities are so reprehensible that the rules of
jurisdiction are waived so that any state may apprehend an alleged
perpetrator and try them under their own jurisdiction. Such crimes
might include: piracy, slave trade, operating a "stateless
vessel", genocide, and war crimes.
The
Estrada Doctrine (p. 297): adopted by Mexico; generally
understood to mean that recognition of gov’ts is unnecessary once
the state has been recognized by another state.
Forum
Prorogatum: takes place if the parties to a dispute, after
the initiation of proceedings consent to the jurisdiction of the ICJ;
without this consent, the Court would not be in the position to
exercise jurisdiction; A state can also invoke by pleading to the
merits of a claim without raising any objections to jurisdiction. In
this case, if the D loses on the merits, the court will exercise
jurisdiction.Exceptional situation in 36(1).
Gentlemen’s
Agreements: treaties that intend to create only political
or moral, as opposed to legal, commitments
Int’l
legal person: Subjects of int’l law include persons and
entities capable of possessing int’l rights and duties under int’l
law and endowed with the capacity to take certain types of action on
the int’l plane
Intertemporal
Law: looking at law in force at the relevant time:
promotes stability and fairness.
jus
ad bellum: are a set of criteria that are consulted before
engaging in war, in order to determine whether entering into war
is justifiable.
jus
cogens: (“compelling law”) a mandatory norm of general
international law from which no two or more national may except
themselves or release on another; the fundamental peremptory norms,
can only be replaced by another norm of the same level; a fundamental
norm that can’t be derogated by treaty
jus
in bello: The laws of war, which define the conduct
and responsibilities of belligerent nations, neutral nations and
individuals while engaged in warfare, in relation to each
other and to protected persons, usually meaning civilians. • Applies
to all parties whether the underlying cause is just or unjust.
les
ferenda: law in formation
lex
lata: existing law
The
Lotus Principle: At the
International Court of Justice (ICJ) hearings in 1996 the UK argued
that in international law, if
something is not actually forbidden, then it is permitted;
so called because in the 1920’s a ship of that name featured in a
decision made by the ICJ's predecessor, the Permanent
Court of International Justice.
Martens
Clause = civilians and combatants remain protected under
intl. law
Monism:
regard international law and municipal law as parts of a single legal
system; traditionally, municipal law is seen as ultimately deriving
its validity from international law, which stands ‘higher’ in a
hierarchy of legal norms; international law cannot be subject to
domestic law, not even to constitutional limitations; find it easier
to maintain that individuals have international legal personality;
(Netherlands is a good example of this); Better chance for enforcing
IL. No implementing legislation if needed to incorporate IL into the
state’s legal system.
Opinio
Juris sive necessitatis:
(“opinion that an acct is necessary by rule of law”)The principle
that for a country’s conduct to rise to the level of int’l
customary law, it must be shown that the conduct stems from the
country’s belief that int’l law (rather than a moral obligation)
mandates the conduct
pacta
sunt servanda: (“agreements must be kept”) Pacta
Sunt Servanda: (“agreements must be kept”) The
rule that agreements and stipulations, esp. those contained in
treaties, must be observed; Principle of good faith compliance with
the real meaning of the law. Attaches legal meaning and obligations.
If one state complies, it believes it can rely on others to do the
same. Every treaty in force is binding and must be performed in good
faith. Purpose and intention should prevail over its literal
application. P. 140 Supp/Article 26
pari
passu: Both proceedings can be pursued equally; without
preferential treatment
peremptory
norm: a norm that is so fundamental that a state cannot
contravene it
Persistent
Objector? A state may escape the effect of customary rules
of law if the State has persistently, promptly and consistently
object to the application of that rule from its inception. If a
custom becomes established as a general rule of intl. law, it binds
all States which did not oppose it even if they themselves had not
been active in its formation
Pinochet
syndrome: general jurisdiction so that the torturers are
not safe wherever they go
Positivism:
emphasizes the obligatory nature of legal norms and the fixed
authoritative character of the formal sources; also in order for it
to be considered “law” the norm must be capable of application by
a judicial body
Prescription
- The process of acquiring title to property by reason of
uninterrupted possession of specified duration. (Continual peaceful
possession/occupation/prescription – also a pre-req of statehood)
proprio
motu self-initiating prosecutor
ratione
materiae is immunity to certain kinds of act on
behalf of the state in his official capacity (like an ambassador
after resignation; official act)
ratione
personae is immunity of all acts, broad immunity, only
during office (like an ambassador during office);
The
Reagan Doctrine – asserting the right of the U.S. (or
any other state) to intervene by force to defend, maintain, restore
or impose democratic gov’t
The
Brezhnev Doctrine – the Reagan doctrine’s counterpart
from the Soviet Union
res
nullius: empty territory
“Schultz
notification” saying that rather than wait for the ICJ
to hear the case in 6 months, the US will pull out now
Self-Defense
•
Anticipatory Self-Defense –
invading another country when armed attack is imminent; highly
controversial; stick to Article 51 with a possible exception for an
immediate definite impending attack; few accept this principle though
(p. 971)
•
Interceptive Self-Defense -
Attack isn’t even imminent but you see it coming. Might pose a
threat. None of this argument is accepted (p. 971)
Soft
law: collectively, rules that are neither strictly binding
nor completely lacking in legal significance; guidelines, policy
declarations, or codes of conduct that set standards of conduct but
are not directly enforceable.
special
rapporteur – human rights shizzle
terra
nullius: territory belonging to no one. Cannot be found
to exist where there is local people with social/political
organization.
Travaux
Preparatoire- every major treaty has this that gives
background of the treaty and the intentions of the drafters. This is
considered supplemental, but it is looked at. United States looks to
this and proposed that it be looked at as a primary source of
interpretation, but this was shot down.
Ultra
Vires Actions: unauthorized/beyond the scope of power
allowed or granted by a the law of the state;
Voluntarism:
intl. legal rules emanate exclusively from the free will of states as
expressed in conventions or usage generally accepted as law
The
White List: lists all employees of diplomatic missions;
also maintained by the Department of State
