Customary international law and GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS

1. Customary international law and GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS Lecture 12 February 9

2. ASSIGNMENT - Wednesday, Feb. 11 General Principles of Law Recognized by civilized nations Finish AM&S Case Meuse Case The Relation of Intl Law to Municipal Law Foster & Elam v. Neilson Quiz-2 Feb.18 Midterm, March 2 – EKLCE 1B20 Wednesday, March 4 – Guest Speaker – Adjunct Professor David Akerson TODAY Jus Cogens (hand out) Prosecutor v. Furundzija Michael Domigues Case AM & S Case

3. Jus CogensPart of Customary International Law • (Hand-out) • Peremptory norms of general international law • Vienna Conv. on the Law of Treaties Art.53 – no derogation permitted • - prohibition of slavery, piracy, genocide • - sovereign equality of states • - principle of self-determination

4. Prosecutor v. Furundzija Torture – prohibition against torture • Customary international law (CIL) • Evolved into peremptory norm - Jus cogens – higher norm than “ordinary” CIL – cannot be derogated from by States through treaties or CIL that are not jus cogens • Perpetrators of torture – held criminally responsible for torture – even though they followed national law allowing torture • Nurember trials – “individuals have international duties which transcend the national obligations of obedience imposed by the individual State • Erga omnes – obligation owed to all other members of the international community – each having a correlative right – claim for compliance or at least call for the breach to be discontinued

5. Michael Domigues Case(2002) Inter-American Commission on human rights • Execution of juveniles older that 15 years and younger than 18 years was prohibited - Considered not only CIL, but also jus cogens US argued that it was not CIL, and if it was, that US was a persistent objector Update: In 2005 the US Supreme Court ruled in the Simmons Case that it was unconstitutional to execute such juveniles - Natl. consensus had developed against it - Overwhelming weight of international opinion against the juvenile death penalty

6. Roper v. Simmons U.S. Supreme Ct. Decided March 1, 2005. Established that the U.S. Constitution prohibits the execution of a juvenile who was under 18 when he/she committed the crime. National consensus has developed against the execution of those offenders since Stanford v. Kentucky (1989). Using 8th Amendment of the U.S. Constitution – prohibition against cruel and unusual punishment. The case mentioned how the United States was the only country in the world that continued to give official sanction to the juvenile death penalty (plus Iran).

7. General principles of [national] law recognized by civilized nations • common legal maxims applied in all municipal legal systems, particularly rules of procedure, evidence, and jurisdiction • Gap-filler

8. General principles of [national] law recognized by civilized nations • - res judicata • - estoppel and clean-hands doctrine • - equity