International Law

1. International Law Law between nations

2. History of modern international law • Emerged with the Peace of Westphalia of 1648, the series of treaties ending the 30-Years War that had devastated Europe politically, socially and economically (1618-1648). It: • 1. recognized the nation-states as the primary international actors. • 2. established a mechanism for securing long-term peace, although not successful. This was the first of many such efforts, culminating finally in the creation of the UN in 1945.

3. Primary legal actors • Plaintiffs & defendants are nation-states, not individuals • World Court or International Court of Justice, which handles cases involving nation-states. • Newly created International Criminal Court, which has authority to try individuals for war crimes

4. Jurisdiction • A court’s authority to hear and decide a case. In U.S. law, the Constitution and Congress determine the jurisdiction of the federal courts. • In international law, states themselves decide if the World Court has jurisdiction over them. This was an important concession to sovereignty when the court was established in 1945. • The International Criminal Court also only applies to nation-states that have accepted it.

5. Sources of international law • 1. Custom, as evidence of a general practice accepted as law. The oldest source of international legal obligations. • 2. International conventions or treaties. • 3. General principles of law recognized by “civilized nations.” • 4. Judicial decisions and teachings of top legal scholars of the various nations as a subsidiary means of determining rules of law.

6. How do we know if a custom can be considered a binding law? 1. Duration or passage of time. 2. Substantial uniformity or consistency of usage by the affected nations 3. Generality of the practice or degree of abstention 4. International consensus (need not be unanimous) that the custom is binding. International custom evolves slowly through compromise and consistency of application.

7. Concept of Jus Cogens • Norms so important that they have the highest status in international law and they apply even to states have not accepted them (for example, through a treaty). • Very few norms have been considered jus cogens, because it conflicts with notion of sovereignty. • Possibly includes: Prohibitions on the aggressive use of force, fundamental human rights (genocide, slavery, torture, racial discrimination).

8. Sovereign immunity • The leader of a nation-state considered immune from prosecution in the courts of other states. Important attribute of sovereignty. • Note that this is the defense of Saddam Hussein