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GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS AND THE RELATIONSHIP BETWEEN INTL LAW AND MUNICIPAL LAW

GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS AND THE RELATIONSHIP BETWEEN INTL LAW AND MUNICIPAL LAW . Lecture 13 February 11. Assignments. Feb. 13 Foster & Elam v. Neilson Missouri v. Holland Whitney v. Robertson p.187 Quiz-2 Feb.18 Midterm, March 2 – EKLCE 1B20

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GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS AND THE RELATIONSHIP BETWEEN INTL LAW AND MUNICIPAL LAW

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  1. GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS AND THE RELATIONSHIP BETWEEN INTL LAW AND MUNICIPAL LAW Lecture 13 February 11

  2. Assignments Feb. 13 Foster & Elam v. Neilson Missouri v. Holland Whitney v. Robertson p.187 Quiz-2 Feb.18 Midterm, March 2 – EKLCE 1B20 Wednesday, March 4 – Guest Speaker – Adjunct Professor David Akerson TODAY: Review AM & S Case The Meuse Case Other sources of international law

  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 How to decide the rule is jus cogens Quantitative – qualitative criteria (see hand-out)

  4. 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). Juveniles can be tried as adults, but not receive a death penalty

  5. 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 • Principles “intrinsic to the idea of law and basic to all legal systems

  6. General principles of [national] law recognized by civilized nations • - res judicata • - estoppel • - clean-hands doctrine • - equity • - good faith • - fair hearing

  7. Case: The AM& S Case • 1. Court: • 2. Sources: • 3. Facts: • 4. Issue: • 5. Holding and Decision: • 6. Reasoning: • 7. Significance of case:

  8. The AM& S Case • Issue: Is there a general principle providing for lawyer-client confidentiality in EU law?

  9. The Meuse Case • 1. Court: • 2. Sources: • 3. Facts: • 4. Issue: • 5. Holding and Decision: • 6. Reasoning: • 7. Significance of case:

  10. The Meuse Case • Are principles of equity included in international law? • Art.38(1)(c) – in more than one nation principles of equity have an established place in the legal system. • Maxims of equity • The one that seeks equity must do equity. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter of the litigation has been improper. One party engaged in a continuing non-performance of its obligation, should not be permitted to take advantage of a similar non-performance of a reciprocal obligation by the other party.

  11. ICJ Statute art. 38Sources: • 1. International conventions - Treaties – Example: the European Convention for the Protection of Human Rights • 2. International custom - Customary intl law (General intl law) • A. State practice • B. Opinio juris – states consider it binding law – not just doing out of courtesy. • JUS COGENS • 3. General principles of law recognized by civilized nations – common legal maxims applied in all municipal legal systems • - res judicata • - EQUITY

  12. More Sources of Intl law: 4. Subsidiary sources • 1. Judicial decisions – (no stare decisis/ doctrine of precedent – a court has to follow earlier judicial decisions when the same points arise again in litigation)- See Art.59. Cases usually are taken into consideration. • 2. Teachings by the most highly qualified publicists of the various nations 5. Additional sources (not mentioned in ICJ Stat. Art38): • 1. Soft law – UN General Assembly (UNGA) Resolutions • (2. Intl administrative law – governing the IGOs – constitutional law of IGOs)

  13. SOFT LAW • U.N. General Assembly resolutions and declarations • Political “obligations” • UN Security Council resolutions – compulsory powers when acting under Chapter VII of UN Charter. • resolutions made by international conferences and many different international commissions and organizations • Example:Resolutions by the United Nations Environment Programme (UNEP)

  14. Relation Intl law – municipal law • Monist or dualist • - Monism- intl law and the municipal law are considered to be one and the same legal system where international law is superior to municipal law. • - Dualism – one considers international law to be a separate legal system, you have to incorporate the international law into the municipal law.

  15. US Hierarchy • 1. US Const. – • 2.Treaties (self-executing) – Federal laws - latter in time prevails • 3. Executive agreements – Executive agreements do not prevail over previously enacted federal statutes. • 4. State laws

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