PUBLIC INT’L LAW SOURCES OF LAW Prof David K. Linnan USC LAW # 783 Unit Three.

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Presentation transcript:

PUBLIC INT’L LAW SOURCES OF LAW Prof David K. Linnan USC LAW # 783 Unit Three

SOURCES SOURCES DOCTRINE AS 19 TH CENTURY RESPONSE TO HOW TO KNOW THE LAW IF…. [What do you think of the modernist critique, does it help?]What do you think of the modernist critique, does it help? HOW DO YOU KNOW THE LAW IN MUNICIPAL SYSTEM? ICJ STATUTE ARTICLE 38

SOURCES CLASSIC INT'L LAW SOURCES 1.TREATIES (AGREEMENTS WITH VS. WITHOUT LEGAL FORCE) 2.CUSTOMARY LAW (CONSISTENT BEHAVIOR UNDER LEGAL COMPULSION & OPINIO JURIS) 3.GENERAL PRINCIPLES OF LAW 4.BEST (ACADEMIC) WRITINGS

SOURCES INT’L LAW IS SUPPOSED TO BE CONSENSUAL AT STATE LEVEL WHY? HOW IS CONSENT MANIFESTED FOR A STATE? HOW TO DISTINGUISH LAW FROM POLITE TRADITION OR CUSTOM? [Who do you think advises the US on these legal issues?]Who do you think advises the US on these legal issues?

TREATIES WHAT IS A TREATY, AND WHEN CAN YOU TELL THAT IT CREATES LEGAL AS OPPOSED TO POLITICAL OBLIGATIONS? E.G., HELSINKI ACCORDS WHAT ISSUES ARISE IN BILATERAL VERSUS MULTILATERAL TREATY SETTINGS? WHO ARE THE PARTIES AND ARE OBLIGATIONS THE SAME FOR ALL GIVEN, FOR EXAMPLE, RESERVATION PRACTICE? [re formal treaty interpretation principles, see ]

CUSTOMARY LAW Customary Law (opinion juris & state practice) How long to form, how specific in its dictates? (Paquete Habana as example, 175 US 677 (1900))Paquete Habana What is the difference between declaration, for example in UN General Assembly and destroyer acting on it un Atlantic Ocean? [Effect of UN General Assembly Resolution?]Effect of UN General Assembly Resolution? [What underlies the instant custom problem, and do you agree here?]What underlies the instant custom problem, and do you agree here?

CUSTOMARY LAW TYPES & EXAMPLES: GENERAL (ASSUMPTIONS BEHIND FORMATION, WITHHOLDING CONSENT?) REGIONAL (WHO PROVES?) LOCAL

GENERAL PRINCIPLES General Principles of Law Substantive vs. procedure problems, argument whether a very broad or rather only a narrow category Problem of hidden preference over customary law, but problem rather with customary law formation (inconsistent practice, etc.)

SOURCES WHAT IS THE BASIS FOR THE NON LIQUET DISCUSSION, WHY SAY IF NO SPECIFIC RULE CANNOT MAKE ONE? [How does a non-liquet approach look in practice?]How does a non-liquet approach look in practice?

SOURCES WHY ALL THE EXCITEMENT IN WALLACE AND DISCUSSION OF UN GENERAL ASSEMBLY AND RESOLUTIONS? [How do the Israelis view the recent UN GA resolution re security fence? Why?]How do the Israelis view the recent UN GA resolution re security fence? Why?

SOURCES HUMAN RIGHTS LAW AS EXAMPLE Claims about existence under each of : Treaty (surest, but legal versus political obligation?), Customary law (consistency & opinio jurisproblem as with torture?), General principles (eliminates theoretical consistency problem, but query universal vs. cultural relativism’s effect?) Academic opinion? Concept of soft law or law in making, not only by states Human rights law from where? [What about the general idea of rights-based analysis in the international & development setting, what does it mean, see HRbasedAprchDevPresStefanPresentation.ppt HRbasedAprchDevPresStefanPresentation.ppt & ]

SOURCES DOES THE SOFTLAW MATERIAL MAKE SENSE, AND WHY OR WHY NOT? [Does the diplomat view soft law like the lawyer, see ]

SOURCES WHY IS IT A CIEL PERSON WHO DEPARTS FROM TRADITIONAL CATEGORIES/CIEL [CIEL text at]CIEL text at WHAT AREAS OF LAW LEND THEMSELVES TO THIS KIND OF STRETCHING WHY?

SOURCES CATEGORIES OF NATURAL LAW & POSITIVISM STATIST APPROACH CHALLENGES RE MAGGIO, NOTE SHIFT TO RIGHTS ANALYSIS TIED TO INDIVIDUALS

SOURCES DOES RIGHTS ANALYSIS MAKE SENSE HERE, WHY OR WHY NOT? WHY DOES THE AUTHOR SHIFT TO OVERLAP BETWEEN HUMAN RIGHTS, ECONOMIC DEVELOPMENT AND ENVIRONMENTAL PROTECTION? WHAT KIND OF ‘RIGHTS’, CIVIL OR ECONOMIC AND SOCIAL AND WHY? [Why rights-based analysis & why now?]Why rights-based analysis & why now? [What are some hidden problems in rights-based analysis, or whose rights?]What are some hidden problems in rights-based analysis, or whose rights?

SOURCES HOW MANY PEOPLE BELIEVE THAT THE LAW DESIGNATED AS EMERGING LEGAL PRINCIPLES DOES OR SHOULD STATE THE LAW? WHY?