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BOR 3343 International Law
Sources of International Law
• Custom• Conventions• General Principles• Judicial Decisions• Teachings of PublicistsStatute of the International Court of Justice, Art.
38(1)
Custom
Definition: international custom, as evidence of a general practice accepted as law.
Unwritten law consisting of rules approved by usage; …approved by the consent of those who use it.
Certain maxims and customs consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law.
Custom
Criteria/ElementsState PracticesOpinio Juris ("an opinion of law“)Law creativeNot unilaterla
Custom
State PracticeDurationConsistency/Repetition
Application/ParticipationPrior Inconsistent ruleConspicuousness
Custom
State PracticeActivity: wide variety of actions, inaction or
silence, oral or written statementsBy: prominent government officialsFound in: Official govt. publications or unofficial
private sector publications
Custom
Opinio Juris: sense of legal obligation1.Distinguish non-legal purpose2.Verification: subjective review, objective
review, need for articulation/notice3. Change: good faith
Conventions
• A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as: international agreement, protocol, covenant, convention, exchange of letters.
Conventions
International agreements under international law are equally treaties and the rules are the same.
General PrinciplesArt. 38(1)© of ICJ Statute: general principles of law recognized by civilized
nations.Definition: Restatement (third) of Foreign Relations
Law of the United States § 102(4)General principles common to the major legal
systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.
General Principles
1. Rarely used to reverse or modify public international law.
2. Usually as interstitial law to supplement or substantiate international law.
General Principles
Examples:Procedural1.Limits on tribunal’s jurisdiction2.Tribunal's power to rule3.Impartiality of tribunal
General Principles
4. juridical equality of parties5. Presumption that tribunal knows the law6. Res Judicata
General Principles
Examples:Substantive1.Responsibility of as a juridical concept2.Unlawful Act in Int.l Law3.Imputability in Int.l Law: the state, state
representation, rival governments, acts of officials
General Principles
ExampleEvidence1.Methods of proof2.Judicial notice3.Presumptions4.Admissions & appraisal of evidence5.Statements/affidavits of claimant
General Principles
6. Testimonial evidence7. Documentary evidence8. Best evidence rule9. Circumstantial evidence10. Burden of proof
Judicial DecisionsArt. 38(1)(d) of ICJ statutejudicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Judicial Decisions
• International Courts/Tribunals• International Arbitration Panels/Tribunals• Municipal/Domestic Courts
Teachings of Publicists
Role of Publicists beginning in the 16th through 18th Centuries
Provided structure, organization and formation of international law
Teachings of Publicists
Role of Publicists beginning in the 19th through 20th Centuries
1. Cumulating & Description2. Evaluation3. Aspiration4. Formulation
Equity
Equity: rules which supplement or modify the rules of conventional or customary international law (CIL)
1.Supplementary Role2.Modification Role: naturalism
Equity
Equity: Roles1.Adapts law2.Fills gaps-Interstitial3.Serves as a basis for not applying “unjust”
laws4.EX: North Sea Continental Shelf Cases
Equity
1. Procedural equity: the process by which negotiations and decisions occur. Countries vary in their scientific, technical, administrative, and financial capacities; this can affect the degree to which a country can fully participate in the international arena.
Equity
2. EX AEQUO ET BONO"according to the right and good" or "from
equity and conscience"). In the context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand.
Equity
• Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto. Through 2007, ICJ has never decided such a case. It reads as Article 38(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
Equity
Substantive equity: a just balance between diverging and converging interests between developing and developed nations.
Equity
Equity: Distributive Justice New Economic OrderDeclaration for the Establishment of a New
International Economic Order, adopted by the United Nations General Assembly in 1974, and referred to a wide range of trade, financial, commodity, and debt-related issues (1 May 1974, A/RES/S-6/3201).
Equity
Charter of Economic Rights and Duties of States, adopted UN GAOR, 29th Sess., Supp. No. 31 (1974).
Urges all States to examine further the implementation of the Charter of Economic Rights and Duties of States, thereby contributing to the establishment of the new international economic order.
Jus Cogens
Jus Cogens: compelling lawA "higher law" must be followed by all
countries. For example, genocide or slave trade may be considered to go against jus cogens, due to peremptory norms. The 1986 Vienna Convention on the Law of Treaties affirmed jus cogens as an accepted doctrine in international law.
Jus Cogens
Examples:Pata Sunt ServandaUnlawful use of forceGenocideTorturePiracySlave trading
Pata Sunt Servanda
Principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that non-fulfillment of respective obligations is a breach of the pact.
In reference to international agreements, a treaty in force is binding upon the parties to it and must be performed by them in good faith. Pacta sunt servanda is based on good faith.
Unlawful use of force
Obligation of a state to not “breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty.”
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986
Genocide
The deliberate and systematic extermination of a national, racial, political, or cultural group.
Genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
Genocide(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the
group; (c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2.
GenocideThe following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.Convention on the Prevention and Punishment of the
Crime of Genocide, Art. 3.
Torture• ...any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, ….
Torture
or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
UN Convention Against Torture, Art.1.
Piracy
Piracy is a war-like act committed by private parties that engage in acts of robbery and/or criminal violence at sea.
The crime of piracy is considered a breach of jus cogency, a conventional peremptory international norm that states must uphold.
Those committing thefts on the high seas inhibit trade, and endangering maritime communication are considered by sovereign states to be hostis humani generis (enemies of humanity).
PiracyDomestic LawCriminal prosecution of piracy is authorized in the U.S.
Constitution, Art. I Sec. 8 cl. 10:The Congress shall have Power ... To define and punish Piracies
and Felonies committed on the high Seas, and Offences against the Law of Nations;
Title 18 U.S.C. § 1651 states:Whoever, on the high seas, commits the crime of piracy as
defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.
PiracyPiracy is one of the few crimes that is subject to
universal jurisdiction: criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country.
Slave trading(1) Slavery is the status or condition of a person over whom any
or all of the powers attaching to the right of ownership are exercised.
(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in
slaves.International Convention for the Abolition of Slavery and the
Slave Trade, Art. 1.
Peremptory norm A fundamental principle of international law
which is accepted by the international community of states as a norm from which no derogation is ever permitted.
There is generally acceptance that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, and wars of aggression and territorial aggrandizement.