Where do we find int’l law

1. Where do we find int’l law • Art. 38 of the Statute of the ICJ • Treaties • Bilateral, regional, multilateral, global • Law-making vs. contractual • Interpretation of treaties: Vienna Convention on the Law of Treaties • Customary law • State practice • Opinio juris • General principles of law • Unilateral acts

2. General issues • Treaty law vs. customary law • The contribution of treaty law to customary law and vice versa • Is there a clear distinction? • ”Hard law” vs. ”soft law” • Can we accept legal relativism? Is the ”soft law” development undermining int’l law? • The distinction between norms and law • The interaction between norms and law • The need for ”soft instruments” in international law

3. Int’l law vs. domestic law I • Int’l law: Lack of general framework for: • Enacting laws (UNGA, ILC) • Courts (ICJ, treaty based courts) • Use of force – enforcement (UN Security Council, Security forces) • Int’l law: Horizontal • Non-hierarchical and applying between states • Exceptions: UN Charter, jus cogens, states and IGOs, states and private parties • Domestic law: Vertical • Hierarchical and applying in the relationship between public authorities and private parties and between private parties

4. Int’l law vs. domestic law II • Domestic law • In general law the operation of which cannot be dispensed with by the agreement between the parties • Int’l law • In general law the operation of which can be dispensed with by the agreement between the parties • But: development from “contractual” towards “law-making” • The parallel between contract law and international law • Reciprocity • The reliance on “secondary rules” • The scope of legislation • Int’l law: Treaties: Only binding between those that have become parties • Domestic law: Legislation: Binding on all

5. Int’l law vs. domestic law III • Sources of law and interpretive arguments • Customary law is more important in int’l law than in domestic law • Availability and use of interpretive arguments • The relationship between politics and law • Principle of consensus • More important in int’l law than in domestic law • The relationship between int’l law and national law • Dualism vs. monism

6. Sources of law I • Interpretation of treaties • Vienna Convention on the Law of Treaties (1969), Articles 31-33: Customary int’l law • Wording / intention of the parties / aim and purpose • Contextual interpretation • Agreement between the parties, practice, case-law, other rules of int’l law • “Supplementary means”: preparatory works, circumstances of the conclusion of the treaty, legal doctrine, reasonableness

7. Sources of law II • How do treaty regimes develop? • The problem of dynamism • Framework conventions and protocols • Treaties based on obligations of result vs. obligations of conduct • Piecemeal approach • Jurisprudence based approach • Soft law based approach • Scientific or technical approach • Importance for interpretive arguments

8. Sources of law III • Customary int’l law • Practice – objective element • How long-lasting? • How wide-spread? • How consistent? • What constitutes evidence of State practice? • Opinio juris – subjective element • Is this any mandatory requirement? • Exclude the relevance of certain kinds of practice? • What constitutes evidence of opinio juris? • Nature of customary law: • Unclear w/ respect to legal status and content • Emphasis on practice or opinio juris?

9. Customary int’l law • Jus cogens • Illegality of genocide, torture, ethnic cleansing • Fundamental principles of int’l law • Art. 2 of UN Charter • State sovereignty, equality between States • Rules on treaty interpretation • State responsibility for unlawful acts • ILC Draft Articles • Rules on expropriation • The obligation to prevent harmful activities

10. Treaty law, the UN Charter • “World Constitution”(?) • Includes some of the most fundamental rights and duties of States (Art. 2) • Defines the composition, function, powers and procedures of the principal organs of the UN • General assembly, Security Council, ECOSOC, International Court of Justice, Secretariat • Establishes its superiority: Art. 103

11. Other treaty regimes • Specialised agencies of the UN • Free standing treaty regimes • Organisations, WTO and OECD • Quasi organisations, UNFCCC and CBD • Lack of institutional structure, UNCLOS, Vienna Convention on the Law of Treaties • Regional treaty regimes • UN economic commissions • Other regional treaty regimes – human rights, trade, environment • Areas dominated by bilateral treaties • International investment and taxation, shared resources, border treaties, extradition

12. Methods - how to approach IL • Slaughter 93 AJIL 1999, 291 • Positivism • Describing law ”as it is”, consent-oriented • Policy-oriented jurisprudence • Clarify and implement common interests – actor-oriented • International law and international relations • International legal process • Constrain decision-making through processes • Critical legal studies • How does it work from a social perspective? • Feminist jurisprudence • How does it work from a feminist perspective? • Law and economics • How does it work from an economic perspective?