Sources of International Law

Report
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Derives not from the actions of a legislative
branch or other central authority, but from
tradition and agreements signed by states.
Differs in
 Difficulty of enforcement, which depends on
reciprocity, collective action, and international norms
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Treaties and other written conventions signed by states
are the most important source.
 Are binding on successor governments regardless of that
government’s circumstances
 Pacta sunt servanda
 UN Charter; The Convention on the Prevention and Punishment
of Genocide (1948)
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Custom is the second major source of international law.
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Great Principles of Law
 Law of the Sea
 Vienna Convention on Diplomatic Relations (1961)
 Jus gentium (the law of peoples)
 “general principles of law recognized by civilized nations”
(definition by ICJ)
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Legal scholarship is a fourth source.
 Judicial Decisions and Scholarly Writings
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International Representatives Assemblies are
considered a newly emerging source of international
law, though controversial. Example: UN General
Assembly
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International law is much more difficult to enforce.
 Depends heavily on the reciprocity principle.
 States also follow international law because of the general
or long-term costs that could come from disregarding
international law.
 If a state breaks an international law, it may face a
collective response by a group of states, such as sanctions.
 One great weakness: depends entirely on national power;
does the aggrieved state have the capability to punish
violator?
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Rudiments of a general world legal framework
found here
 Also called the International Court of Justice
 Jurisdiction limited and caseload light
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Only states can sue or be sued in the World
Court.
Is a panel of 15 judges elected to 9-year terms by
a majority of both the Security Council and the
General Assembly.
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Meets in The Hague, the Netherlands
Great weakness
 States have not agreed in a comprehensive way to subject
themselves to its jurisdiction or obey its decisions.
 Only a third have signed the optional clause in the treaty
agreeing to give the Court jurisdiction in certain cases.
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Main use of the World Court now is to arbitrate
issues of secondary importance between countries
with friendly relations overall.
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publishing as Longman © 2010
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A party with a dispute that crosses national borders
gains several advantages by pursuing the matter
through the national courts of one of the relevant
states.
 Judgments are enforceable.
 Individuals and companies can pursue legal complaints
through national courts, whereas in most areas of
international law, states must themselves bring suits on
behalf of their citizens.
 There is often a choice of more than one state within which
a case could legally be heard; one can pick the legal system
most favorable to one’s case.
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U.S. is a favorite jurisdiction within which to
bring cases for two reasons:
 U.S. juries have a reputation for awarding bigger
settlements.
 Because many people and governments do business in
the U.S., it is often possible to collect damages
awarded by a U.S. Court.
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Extradition
Immigration law
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Bedrock of international law is respect for the
rights of diplomats.
Diplomatic recognition
 Credentials
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Diplomats have the right to occupy an embassy
in the host country as though it were their own
state’s territory.
Diplomatic immunity
 Espionage
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Diplomatic pouches
Breaking diplomatic relations
Interests section
 When two countries lack diplomatic relations, they often do business
through a third country willing to represent a country’s interests
formally through its own embassy.
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Recalling their ambassadors
 Consultation and formal complaints
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Terrorism – in this context the law of diplomacy is repeatedly
violated
 Tempting targets for terrorists
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International law distinguishes just wars (wars that are legal)
from wars of aggression (which are illegal).
Today, legality of war is defined by the UN Charter, which
outlaws aggression but allows “international police actions.”
 Strong international norm
 States have a right to respond to aggression.
 This is the only allowable use of military force according to just-war
doctrine.
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Just-war approach explicitly rules out war as an instrument to
change another state’s government or policies, or for ethnic
and religious conflicts.
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The idea of human rights flies in the face of
sovereignty and territorial integrity.
Consensus on the most important human rights
also lacking.
 Rights are universal versus relative
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Concept of human rights comes from at least
three sources
 Religion
 Political and legal philosophy
 Theory of natural law and natural rights (political
revolutions brought theory to practice)
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No globally agreed-upon definitions of the
essential human rights exist.
Often divided into two broad categories:
 civil-political “negative rights” – free speech, freedom
of religion, equal protection under the law, freedom
from arbitrary imprisonment
 economic-social “positive rights” – rights to good
living conditions, food, health care, social security, and
education
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Universal Declaration of Human Rights (UDHR)
 Does not have the force of international law
 Does set forth international norms
 Since its adoption, the UN has opened 7 treaties for state
signature to further define protections of human rights.
 Two important treaties: International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social, and
Cultural Rights
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Convention Against Torture (CAT), 1987
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Convention on Rights of the Child (CRC),1990
 Every country except Somalia and the U.S. has approved it
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Role of IOs in protecting human rights
Today, NGOs play a key role in efforts to win basic
political rights in authoritarian countries
 Amnesty International
 Publicity and pressure
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