Lecture 2 Flashcards
Rule of International law
A party claiming the existence of a rule from more than one primary source, which are outlined in the international court of justice
ICJ
parties to the UN charter are part of. Clarifies law, disputes of a non-criminal nature
4 Sources of International Law
- Conventions
- Custom
- General principles of law
- scholarly papers held in high regard
International customs
- not written down
- material facts come from observing general practices, a consistent practice
Opinion of law
believing the action is right, believing this is the right thing to do, or the right way to go about this. Psychological element. Opnio juris
Opinio Juris
the psychological aspect of customary law. The view by the state of its own actions
Jus Cogens
a very important type of law that cannot be degraded. Principles so basic and fundamental that they cannot be degraded, even if the states fail to live up to the rule, the rule does not change. Ex: torture, even when major countries like the US or Canada participate in this, the custom still stands, no practice can reframe it.
The persistent objector
non jus cogens princples, does not apply to jus cogens norms. States have the right to remove themselves from customary law, based on behaviour excluding themselves from that custom.
Pacta sunt servanda
states become bound to fulfill the commitments they undertake when they become a party of a treaty
General Principles of Law
court decisions, as well as in the scholarship of highly regarded legal scholars. Principles that plug the holes left by treaties etc. Common law, operates just like English common law. See text, “good faith”**
Dualist Approach
two bodies of law, independent from one another, different sources, different subjects. Separate legal orders, acts of parliament versus international treaties.
- the key in the dualist approach is if the treaty is taken into the domestic law system it is only by an act of parliament. Exercising state sovereignty, remaining independent
Monist Approach
they are one in the same, part of a singular system.
Monist Naturalist
all one system, privilege international law due to moral principles, domestic laws are secondary. Concerned with questions of “do we want states to say its legal in our country to do horrible things.” A theory of international law that privileges international law and the overall humanity of it. Dissolves the defences of domestic independence. Not completely cosmopolitan
Monist Formalist
like Kelsen, does not care about the ethical portion, instead international law is the basis of domestic laws, as international law forms states and creates the idea of domestic law.
Monist Dualist
No commonality between international and municipal law. See each form of law as dominant in their own sphere. One is not better, they simply alter in jurisdiction. On system but two different realms.
