Murphy — 2 major ways of creating law without legislatures
– treaties – silence is refusal
– customs – silence is consent
– but — treatiest and customs can intersect
“use cogens” is a rule of law that lawfully supercedes any other rule
– but no agreement on list of “use cogens”, or agreement on definitions
distinction between International Law and International legitimacy
– “be careful when using legitimate and legitimacy”
– legitimacy is what is considered “appropriate” or “reasonable” (like stealing food and water after a hurricane)
– this sounds like “cognition,” and law is “social cognition” — but then what is behavioralism?
– murky law as part of underdeveloped institution of weak systems?
Executive Agreements are treaties in the international sense, but not in the domestic sense
“Hard Law” and “Soft Law” can be thought of as fuzzy categories
similarly, in fuzy logic,
cold: [0 .. 60]
warm: [50 .. 100]
Law = Social Cognition = Moral Warfare ??
Pragmatism = Behavioralism = Physical Warfare ??
Legitimacy = Cognition = Mental Warfare ??
Implications for 3GW/4GW/5GW ?
Visualize as 3D box?
Self-Executing Treaties are automatically domestic law; not so with non-self-executing treaties
RUDs = reservations, understandings, and declarations
Missouri v Holland: treaties can trump states rights
Monisms v Dualisms: is international law the same as national law (America is dualistis, so not here)
“Stand-off Capacity” = counterveiling power (?)
International Court of Justice (ICJ)
– power is advisory (moral / social cognitive / internationally lawful)
– cases get to it when certain states request it, may be listed in a treaty
– of the UNSC5, only UK has given general compulsary declarative (GCD) power to ICJ – -meaning of the UNSC5, ICJ rulings are domestic law only in UK
– previously, had qualified GCD in USA, but lost after Nicaragua v. USA
– states can have foreign policies in areas that are not prempted by federal government
Filartiga (sp?) (1980) and Alien Tort Claims Act (1970)
– US upheld tort against Paraguay for torture of Paraguayan in Paraguay
– used customary international law
– “ended” or “ending” now?
– Carter admin encouraged the Court to rule as it did