Presentation Transcript

1. What We’ve Seen So Far…

   Sources of International Law

2. Important Reminder: “The range of subjects directly concerned with international law has widened considerably, moving beyond the questions of war, peace, and diplomacy to include human rights, trade issues, space law, and international organizations.” http://internationallaw.uslegal.com/sources-of-international-law/general-principles-of-international-law-jus-cogens/
3. Natural Law vs. Positive Law Natural Law – (Latin: lexnaturalis) “1. standards of conduct derived from traditional moral principles (first mentioned by Roman jurists in the first century A.D.) and/or God's law and will… 2. the body of laws derived from nature and reason” (http://dictionary.law.com/Default.aspx?selected=1307) SEP: “moral doctrines--including the belief in a universal, objective morality grounded in human nature.” As a result of these characteristics, NL is universally valid. Through the use of reason, NL suggests that one can also deduce binding rules of moral behavior. (http://plato.stanford.edu/entries/legal-positivism/) Positive Law “Positive laws may be promulgated, passed, adopted, or otherwise ‘posited’ by an official or entity vested with authority by the government to prescribe the rules and regulations for a particular community.” (http://legal-dictionary.thefreedictionary.com/Positive+Law) Wiki def.: “generally used to describe man-made laws [posited laws] which bestow or remove specific privileges upon an individual or group… conferred by an act of legislation. Positive law in dictatorships often actually represents strong injustice.” (http://en.wikipedia.org/wiki/Positive_law) SEP: “the existence and content of law depends on social facts and not on its merits.” “What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs…. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.);” (http://plato.stanford.edu/entries/legal-positivism/)
4. Categories of Sources of IL As outlined in Article 38 of the ICJ: Conventions / treaties International custom in general practice General principles of law recognized by civilized nations Judicial decisions and writings of jurists Often used as a guide to find customary int’l law Text source: J/N (p 21)
5. Categories of Sources of IL Some Other Sources: Equity Jus cogens – aperemptory norm – Latin for higher law or compelling (cogens =“binding”) law – body of peremptory principles or norms from which no derogation is permitted; those norms recognized by the international community as a whole as being fundamental to the maintenance of an international legal order. The 1986 Vienna Convention on the Law of Treaties affirmed jus cogensas an accepted doctrine in international law. Resolutions of international organizations Text source: J/N (p 21)
6. Conventions/Treaties Top of list for ICJ Statute, Article 38 Preeminence, then? (It is “hard law” after all) Positive Law generally, which often merely codifies customary practice. But T/C’s may be grounded in Natural Law. What it is/what it means: Bilateral or multilateral agreements which set specific rules and conditions for each participant in the treaty/convention It is noted that some types of treaties are more effective than others. Violations of T/C may lead to punitive actions Examples seen online: http://internationalstudies.edublogs.org/texts/
7. Most Effective Treaties Treaties with specific concrete issues Exchange of territory Creation of new states Peace-making treaties may only be effective in the short term; loses effectiveness in the long term because of the uncertain nature of the future. Daunting problem that force must be used to stop violence. Clearly defined treaties and bilateral treaties E.g.: Cession of Alaska NOT the Peace of Westphalia Mutually beneficial treaties Those which garner broad commitment to respect it’s terms and conditions Review information and treaties in Chapter 2 to get a better handle on the information above
8. International Customs Listed in ICJ Statute, Art. 38 (1)(b) Opinions differ regarding what is included in customary int’l law, but nearly all countries accept it’s existence as a source of IL One such opinion suggests that customary actions must be done out of a sense of obligation (opiniojuris– a belief that the law required them to act in a certain way. opiniojuris is the second element (along with state practice) necessary to establish a legally binding custom) (http://en.wikipedia.org/wiki/Customary_international_law) What it is/what it means: Can be Natural or Positive Law Common practices consistently adhered to between states over long periods of time, involving multiple states to demonstrate wide acceptance “Ripening” aspect to it. Need not be consensual to be compulsory Examples seen in cases?
9. General Principles of Law Listed in ICJ Statute, Art. 38 (1)(b) What it is/what it means: “unclear and controversial but may include such legal principles that are common to a large number of systems of municipal law” (wiki) Fills gaps in IL where there is no established treaty or custom Use of GP has decreased due to increased usage of treaties and IGOs Often categorized as jus cogens: jus cogens (jeskoh-jens) Latin for “cogent law.” A principle or norm of international law that is based on values taken to be fundamental to the international community that cannot be disregarded. Concepts of equity and good faith in IL is based in GP Examples seen in cases?
10. Judicial Decisions and Writings of Jurists Both are listed in ICJ Statute, Art. 38 (1)(b) Judicial Decions: No IL rule of stare decisis, (Latin for “let the decision stand,” a doctrine requiring that judges apply the same reasoning to lawsuits as has been used in prior similar cases.) but may consider previous rulings on similar cases/grounds Decisions are binding only to the parties involved in each case Provides guidance towards customary norms Juristic Writings “The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilized by the US Supreme Court” (http://en.wikipedia.org/wiki/Sources_of_international_law) Examples in Cases?
11. Equity Despite ICJ Statute Art. 38 (1)(b), courts may still decide cases based on ex aequo et bono (“what is equal and good”) (J/N p 21) “permits international law to have a degree of flexibility in its application and enforcement” (http://internationallaw.uslegal.com/sources-of-international-law/general-principles-of-international-law-jus-cogens/ ) Emerged from General Principles of Law On a case-by-case basis (where the judicial decision is based in part on equity), it is important to “consider what authority there is for the use of equity, the content of the equitable principles that are found, and the relationship between equity and other sources of international law.” (J/N, p 148) Case examples?
12. Jus Cogens Latin: “compelling law;” also stated as “higher law,” “strong law,” or peremptory norm Source of General Principles of Law What it is/what it means: Jus Cogens is a term specifically reserved for the highest status that norms can possibly reach. Note: NOT ALL NORMS ARE JUS COGENS, but all jus cogens are norms “a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the UN” (http://en.wikipedia.org/wiki/Sources_of_international_law) Placed in the Vienna Convention on the Law of Treaties (Art. 53) (http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf) No violation of Jus Cogens/ peremptory norms is ever permitted Prohibited by jus cogensare: piracy, slavery, genocide, torture, wars of aggression Allows for reforming existing IL in several important aspects: Extradition, statue of limitations, diplomatic immunities, obedience to superior orders, universal jurisdiction (http://definitions.uslegal.com/j/jus-cogens/)
13. Resolutions of Int’l Org’s Similar to how treaties are developed and accepted. (review ch. 2) Examples of Resolutions: Kellogg-Briand Pact Kyoto Protocol Kimberly Protocol Vienna Convention on the Law of Treaties Geneva Conventions (any) Broad commitment and acquiescence (over time) may lead to the establishment of an international norm Control / Monitoring / Enforcement issues
14. How/Why IL Works to the Degree that it Does Combination of: Threats/Enforcement actions Voluntary compliance When does IL work and/or not work? (And why) Run but can’t hide (forever) aspect? Better to have it than not?
15. Citations Janis and Noyes: IL: Cases and Commentary, 2nd Ed. 2001 General Principles of Law: http://internationallaw.uslegal.com/sources-of-international-law/general-principles-of-international-law-jus-cogens/ http://definitions.uslegal.com/j/jus-cogens/ Stanford Encyclopedia of Philosophy: http://en.wikipedia.org/wiki/Positive_law