Sources of International Law

The Issue of Sovereignty State sovereignty is the concept that states are in complete and exclusive control of all the people and property within their territory. State sovereignty also includes the idea that all states are equal as states.

Sovereignty Since all states are equal in this sense, one State does not have the right to interfere with the internal affairs of another state Sovereignty both grants and limits power: it gives states complete control over their own territory while restricting the influence that states have on one another

Sovereignty Similarly, states no longer view the treatment of citizens of one state as only the exclusive concern of that state. International human rights law is based on the idea that the whole world community is responsible for the rights of every individual. International treaties, therefore, bind states to give their own citizens rights that are agreed on at a global level.

What Is International Law? A rule that has been accepted as such by the International community

Customary Practices Countries may follow, in the absence of any formal written agreements, to engage in practices they feel ethically bound to follow Eg. Diplomatic immunity principle was followed long before it was codified

Formal Agreements Most common means of establishing rule internationally is through formal agreements Treaties Conventions Protocols Covenants Acts

Formal Agreement Treaties typically deal with obligations that will be imposed on signing countries Treaties might deal with political actions (eg. declaration of war and peace or creation of formal alliances) Treaties may also govern areas such as trade, commerce and natural resources

Signing, Ratification and Reservations Treaties are not followed once they are signed, they must be ratified first by the government of the signee Ratification in Canada is done through the cabinet

Extradition Treaty When a criminal flees to another country, the main remedy is extradition Extradition-- The legal surrender or delivery of a fugitive to the jurisdiction of another state, country or government to face trial

Extradition Extradition treaties contain principles and rules Double criminality rule- a crime must be a crime in both nations Reciprocity- country A will return the favour in the future to country B Specialty- accused will only be charged with the crime that is specified in the request for extradition

ICJ Treaty relationship is an ongoing one- usually some form of management mechanisms If there is no amendment mechanism or if there is just too much confusion a treaty dispute can be sent to the ICJ

General Principle Article 38 of the Statute of the International Court of Justice list general principles of law recognized by “civilized nations” These principles provide a mechanism for addressing international issues

Article 38 The Statute of the International Court of Justice, part of the Charter of the United Nations, defines the sources of international law in the following language: Article 38. (1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial 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 and Teachings Decisions made by the International Court of Justice and domestic courts are considered to be of persuasive value Means these decisions can be consulted but they have no binding force

Diplomatic Relations State practice- protection of diplomatic representatives Emissaries, ambassadors and diplomats Communication is essential and therefore there must be protection for the diplomats

Diplomatic Immunity Vienna Convention- “the person of a diplomatic agent shall be inviolable” Similarly the premises of the embassy is also inviolable Diplomatic Asylum

Consular Relations Protecting nationals of the sending state in the territory of a receiving state “Go-Betweens” Access to Prisoners The biggest issue is when there is a difference in legal systems