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.