International Law and Jus Cogens

The 1986 Vienna Convention contains provisions concerning jus cogens.

In 1969, the ICJ did not embrace jus cogens in its legal analysis, but by 1986, it thoroughly embraced it and characterized the prohibition on the aggressive use of force as a 'conspicuous example of a rule in international law having the character of jus cogens'.

There is a polarity between jus cogens and State sovereignty, as jus cogens implies that certain norms exist that no State may deviate from, while State sovereignty implies that States have the authority to do as they wish.

<p>The concept of jus cogens originates from Natural Law, implying that certain norms exist independently of State consent and bind States regardless of their agreement.</p> Signup and view all the answers

<p>In such a scenario, the approval of torture by the community of nations would potentially override any Natural Law or divinity-based norm against torture, highlighting the tension between jus cogens and State sovereignty.</p> Signup and view all the answers

<p>The tension between jus cogens and State sovereignty has impaired the hope of achieving widespread agreement on what norms constitute jus cogens.</p> Signup and view all the answers

<p>Consent</p> Signup and view all the answers

<p>From Natural Law to Positivism</p> Signup and view all the answers

<p>It would produce an enforceable obligation to wage aggressive wars</p> Signup and view all the answers

<p>A long-lasting and generally maligning effect</p> Signup and view all the answers

<p>A middle ground</p> Signup and view all the answers

<p>A serviceable blend of both naturalist's morality and positivist's common assent of sovereign nations</p> Signup and view all the answers

<p>Where a decision maker or researcher may look to ascertain the substantive content or applicable law</p> Signup and view all the answers

<p>To decide in accordance with international law such disputes as are submitted to it</p> Signup and view all the answers

<p>International conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and teachings</p> Signup and view all the answers

<p>It provides a list of sources for ascertaining the content of International Law</p> Signup and view all the answers

<p>It failed to acknowledge their ever-changing nature.</p> Signup and view all the answers

<p>They perceived these sources as reflecting the external policy of the ruling classes.</p> Signup and view all the answers

<p>Treaties, customs, and general principles as primary sources, and judicial decisions and scholarly writings as subsidiary sources.</p> Signup and view all the answers

<p>The provision that the listed sources were to be considered en ordre successif - in successive order.</p> Signup and view all the answers

<p>Customary rules at the top, followed by treaties and then sources provided by agreements.</p> Signup and view all the answers

<p>Pacta sunt servanda (good faith performance).</p> Signup and view all the answers

<p>The Article's list of sources was incomplete and did not accurately reflect the complexities of international law.</p> Signup and view all the answers

<p>They saw the sources as reflecting the external policy of the ruling classes and having Eurocentric roots.</p> Signup and view all the answers

<p>The treaty between Hitler and Stalin to divide Europe, conflicting with the customary rule against aggression.</p> Signup and view all the answers

<p>As the most fundamental source of International Law.</p> Signup and view all the answers

<p>Treaties can supersede customary law, and states are free to conclude treaties that depart from customary law.</p> Signup and view all the answers

<p>Duration or passage of time, substantial uniformity or consistency of usage, generality of the practice, and opinio juris et necessitatis.</p> Signup and view all the answers

<p>The case authoritatively analyzed the requisite international consensus for opinio juris to render a custom binding.</p> Signup and view all the answers

<p>Treaties impose additional and different obligations, limit existing freedom and sovereign rights, and change the applicable norms.</p> Signup and view all the answers

<p>Custom is a primary source for determining the content of International Law when there are no treaties.</p> Signup and view all the answers

<p>It is necessary to research the actual practice of states to determine whether enough of them expect the practice to be applied.</p> Signup and view all the answers

<p>The fourth element, opinio juris et necessitatis, is the most important and difficult to authenticate.</p> Signup and view all the answers

<p>States must feel that they are conforming to what amounts to a legal obligation.</p> Signup and view all the answers

<p>Treaties can depart from customary law, and can change the legal relations between participating states.</p> Signup and view all the answers

<p>Customary International Law provides a rich and diverse source of international obligations.</p> Signup and view all the answers

<p>The complexity arises from the dual process of determining both where to find evidence of the custom's existence and when it becomes obligatory.</p> Signup and view all the answers

<p>To determine the lawfulness of military seizures of foreign vessels</p> Signup and view all the answers

<p>It indicates the vessel's regular engagement in fishing on the coast of Cuba.</p> Signup and view all the answers

<p>The seizure of the coastal fishing vessels was upheld.</p> Signup and view all the answers

<p>An ancient usage among civilized nations, ripening into a rule of international law, recognizes coastal fishing vessels as exempt from capture.</p> Signup and view all the answers

<p>The Court traced the history of the rule exempting coastal fishers from capture to establish its final establishment in the United States and globally.</p> Signup and view all the answers

<p>The cargo consisted of fresh fish, caught by the crew from the sea, put on board as they were caught, and kept and sold alive.</p> Signup and view all the answers

<p>The blockading squadron stopped the vessel, leading to its capture and seizure.</p> Signup and view all the answers

<p>They had no interest in the vessel but were entitled to shares, amounting to two-thirds, of the catch.</p> Signup and view all the answers

<p>It sought the condemnation of each vessel and her cargo as prize of war.</p> Signup and view all the answers

<p>The court was not satisfied that, as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from seizure.</p> Signup and view all the answers

<p>It establishes the rule's final establishment in the United States and globally.</p> Signup and view all the answers

<p>To declare and adjudge that the capture was unlawful and without probable cause.</p> Signup and view all the answers

<p>The binding nature of the custom of exempting coastal fishers on the US and the degree of international recognition accorded to it.</p> Signup and view all the answers

<p>It suggests that the US is not bound by international rules of war and can act unilaterally.</p> Signup and view all the answers

<p>The law of nations is used to determine the legality of the capture, and the highest prize court of the United States has the duty to administer this law.</p> Signup and view all the answers

<p>The proceeds of the sale of the vessel and its cargo will be restored to the claimant with damages and costs.</p> Signup and view all the answers

<p>They illustrate the tension between the international law of war and the power of the President to decide on its application.</p> Signup and view all the answers

<p>considerations of courtesy, convenience, or tradition</p> Signup and view all the answers

<p>Regional customs are used by a few nations, while universal customs are practiced by many nations, and both can be binding.</p> Signup and view all the answers

<p>That the custom is established in such a manner that it has become binding on the other party, and that it is in accordance with a constant and uniform usage.</p> Signup and view all the answers

<p>Universality is rarely achieved in an international system composed of many diverse nations.</p> Signup and view all the answers

<p>Practice is substantive evidence of a general consensus or acceptable expectation, and it gradually evolves through compromise and consistency of application.</p> Signup and view all the answers

<p>Dissent or change of consensus can indicate that a certain norm is not supported by universal consensus, and may bring about a new norm or revision.</p> Signup and view all the answers

<p>It illustrates how a group of decision makers determined whether a particular custom actually existed and was sufficiently acknowledged by the international community to be binding International Law.</p> Signup and view all the answers

<p>Custom is a source of International Law, and it evolves through compromise and consistency of application.</p> Signup and view all the answers

<p>Consistency of application is necessary to establish a custom as International Law, as it indicates a general consensus or acceptable expectation.</p> Signup and view all the answers

<p>The concept of custom reflects the dynamic and evolving nature of International Law, which is shaped by the practice of States.</p> Signup and view all the answers

<p>Considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states</p> Signup and view all the answers

<p>They favored fishing vessels employed in catching and bringing to market fresh fish, setting a precedent for future exemptions</p> Signup and view all the answers

<p>It established prize courts and exempted 'boats engaged in coast fisheries' from detention, along with other vessels</p> Signup and view all the answers

<p>Their works provide trustworthy evidence of what the law really is, rather than speculations about what it ought to be</p> Signup and view all the answers

<p>It manifested the general policy of the government to conduct the war in accordance with the principles of international law sanctioned by recent practice</p> Signup and view all the answers

<p>The two vessels and their cargoes were condemned by the district court as prize of war, and the vessels were sold under its decrees</p> Signup and view all the answers

<p>The general custom against the capture of such vessels, as established by the practice of civilized nations</p> Signup and view all the answers

<p>It reflects a consideration of humanity to a poor and industrious order of men, ensuring their peaceful activities are protected</p> Signup and view all the answers

<p>As an established rule, founded on considerations of humanity and mutual convenience, and sanctioned by the recent practice of civilized nations</p> Signup and view all the answers

<p>It abundantly demonstrates the established rule of international law, based on the general consent of civilized nations</p> Signup and view all the answers

<p>The list of sources was extracted from Article 38 of the prior Statute, unanimously adopted by the First Assembly of the League of Nations in 1920 for the original world court, the Permanent Court of International Justice (PCIJ).</p> Signup and view all the answers

<p>The UN Secretary-General commented that the sources of International Law 'has been repeatedly treated as authoritative by international arbitral tribunals'.</p> Signup and view all the answers

<p>The American Law Institute has published a number of restatements of various fields of law, which is a blend of what is, and what should be, the law in a particular field.</p> Signup and view all the answers

<p>The sources of International Law under $102 of the Foreign Relations Law of the United States are customary law, international agreement, and general principles 'common to the major legal systems of the world'.</p> Signup and view all the answers

<p>General Assembly resolutions are 'secondary' evidence, analogous to the ICJ Article 38 term 'subsidiary' sources, and are not considered a direct indicator of the content of International Law.</p> Signup and view all the answers

<p>The purpose is to see whether the particular rule, which some participant is advocating, has been consented to by States.</p> Signup and view all the answers

<p>The wording of Article 38 is open to certain criticisms, but it has worked well in practice and its retention is recommended.</p> Signup and view all the answers

<p>The London Court of Appeal's pronouncement emphasizes the importance of taking judicial notice of international treaties and conventions, authoritative textbooks, practice and judicial decisions of other courts in other countries to determine International Law.</p> Signup and view all the answers

<p>International organizations have no authority to make law, and their determinations of what is law ordinarily have no special weight.</p> Signup and view all the answers

<p>The American Law Institute's Restatement provides guidance on the sources of International Law, including customary law, international agreement, and general principles 'common to the major legal systems of the world'.</p> Signup and view all the answers