BOR 3343 International Law

Sources of International Law Custom Conventions General Principles Judicial Decisions Teachings of Publicists Statute 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/Elements State Practices Opinio Juris ("an opinion of law“) Law creative Not unilaterla

Custom State Practice Duration Consistency/Repetition Application/Participation Prior Inconsistent rule Conspicuousness

Custom State Practice Activity: wide variety of actions, inaction or silence, oral or written statements By: prominent government officials Found in: Official govt. publications or unofficial private sector publications

Custom Opinio Juris: sense of legal obligation 1.Distinguish non-legal purpose 2.Verification: subjective review, objective review, need for articulation/notice 3. 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 Principles Art. 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: Procedural 1.Limits on tribunal’s jurisdiction 2.Tribunal's power to rule 3.Impartiality of tribunal

General Principles 4. juridical equality of parties 5. Presumption that tribunal knows the law 6. Res Judicata

General Principles Examples: Substantive 1.Responsibility of as a juridical concept 2.Unlawful Act in Int.l Law 3.Imputability in Int.l Law: the state, state representation, rival governments, acts of officials

General Principles Example Evidence 1.Methods of proof 2.Judicial notice 3.Presumptions 4.Admissions & appraisal of evidence 5.Statements/affidavits of claimant

General Principles 6. Testimonial evidence 7. Documentary evidence 8. Best evidence rule 9. Circumstantial evidence 10. Burden of proof

Judicial Decisions Art. 38(1)(d) of ICJ statute 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 International Courts/Tribunals International Arbitration Panels/Tribunals Municipal/Domestic Courts

Teachings of Publicists Role of Publicists beginning in the 16 th through 18 th Centuries Provided structure, organization and formation of international law

Teachings of Publicists Role of Publicists beginning in the 19 th through 20 th Centuries 1. Cumulating & Description 2. Evaluation 3. Aspiration 4. Formulation

Equity Equity: rules which supplement or modify the rules of conventional or customary international law (CIL) 1.Supplementary Role 2.Modification Role: naturalism

Equity Equity: Roles 1.Adapts law 2.Fills gaps-Interstitial 3.Serves as a basis for not applying “unjust” laws 4.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 Order Declaration 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 law A "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 Servanda Unlawful use of force Genocide Torture Piracy Slave 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.

Genocide The 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).

Piracy Domestic Law Criminal 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.

Piracy Piracy 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.