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as incorporated into municipal law, is subject to constitutional limitations applicable to all domestic law, and may be repealed or emphasize the international legal personality of states, rather than of individuals or other entities.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,
committments
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 motuself-initiating prosecutor
ratione materiaeis 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
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