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Public International Law and Legal Systems – Prof. Peter Münch READER Week 1: Introduction – Overview – Basics Contents I. What Is (Public) International Law?................................... 1 II. What History Tells Us About International Law.................. 3 III. Is...

Public International Law and Legal Systems – Prof. Peter Münch READER Week 1: Introduction – Overview – Basics Contents I. What Is (Public) International Law?................................... 1 II. What History Tells Us About International Law.................. 3 III. Is International Law “True” Law?........................................ 7 IV. Sources of International Law.............................................. 9 V. Wrap-up........................................................................... 10 Annex: ICJ Statute Art. 38 / Swiss Civil Code Art. 1 …... 11 I. What Is (Public) International Law? From: MALCOLM N. SHAW, International Law, 6th edition, Cambridge 2008, pp. 1 –2. Every society, whether it be small or large, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all Bewusstsein been spelt out within the consciousness of that community. […] Law is that element which binds the members of the community together in their freizügig adherence to recognised values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation Zwangsweise of contracts, and coercive, as it punishes those who infringe its regulations. Law consists 1 of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and Besorgnisse preoccupations of the society within which it functions. And so it is with what is termed international law, with the important difference that the principal subjects of international law are nation-states, not individual citizens. […] International law itself is divided into conflict of laws (or private international law as it is sometimes called) and public international law (usually just termed international law). The former deals with those cases, within particular legal systems, in which foreign aufdrängen elements obtrude, raising questions as to the application of foreign law orStellvertreter the role of foreign courts. […] By contrast, public international law is not simply an adjunct of a legal order, but a separate system altogether […]. unzählig Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of many international institutions. […] The rules of international law must be distinguished from what is called international comity, or practices such as saluting the flags of foreign warships at sea, which are implemented solely by courtesy and are not regarded as legally binding. Similarly, the mistake of confusing international law with international morality must be avoided. While they may meet at certain points, the former discipline is a legal one […], while the concept of international morality is a branch of ethics. This does not mean, however, that international law can be divorced from its values. From: DAVID J. BEDERMANN, International Law Frameworks, 2nd edition, New York 2006, p. 1. International law are those rules of conduct that are binding on international actors in relations, transactions and problems that transcend national frontiers. A hundred years ago, a student coming to this subject – or a lawyer practicing in this area – would have called it the “law of nations”. And, indeed it was: States were regarded as the only legitimate international actors, the only entities capable of exercising international rights and duties. But in the twentieth century, einzig States ceased to be the sole subjects of international legal rules. This is certainly one of the most significant developments in this area of law, for it makes possible the application of norms of conduct to a wide range of individuals, institutions, and businesses. In short, it has “democratized” law for international relations and opened vast vistas of practice opportunities for legal advisors around the world. From: MARTIN DIXON, Textbook on International Law, 7th edition, Oxford 2013, p. 3. umfassen In simple terms, international law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations, the Arab League and the African Union […]. [T]hat is not to say that international law is unconcerned with the rights and obligations of the individual or non- governmental organisation and, indeed, it may be becoming more concerned with them. Rather, it is that the rules of international law are created primarily by states […]. Rules of international law cover almost every facet of inter-state and international activity. There are laws regulating the use of the sea, outer space and Antarctica. There are rules 2 governing international telecommunications, postal services, the carriage of goods and passengers by air and the transfer of money. International law is concerned with nationality, extradition, the use of armed force, human rights, protection of the environment, the dignity of the individual and the security of nations. In short, there is very little that is done in the international arena that is not regulated by international law […]. From: RICHARD SCHAFFER/ FILIBERTO AGUSTI/BEVER-LEY EARLE, International Business Law and its Environment, 7th edition, Mason 2009, p. xxvii. Public international law provides the basis for government regulation of international business. It affects the environment within which a firm develops its international business strategies […]. Whether one is developing and implementing an international business strategy, or managing an international business transaction, an understanding of the special risks involved will help ensure a projects success. II. What History Tells Us About International Law From: REBECCA WALLACE/ANNE HOLLIDAY, International Law, 2nd edition, London 2010, p. 2. International law is of relatively recent origin. It developed because states nebeneinander" existieren gleichzeitig " need to co-exist and because it was simultaneously necessary to establish the limits of state action. […] Zeitgemäss Contemporary international law has its roots in the sixteenth and seventeenth centuries and its development coincided with the rise of the secular sovereign state in Western Europe. The development of international law mirrors the extent to which states came into contact with each other. This started with laws of warfare and diplomatic relations. However, the so called “Age of Discovery” and the opening of new trade routes, e.g. to the East and West Indies, saw the need for rules relating to validity of title to territory and the articulation of freedom of the high seas. International law by the nineteenth century was a universal system, at least geographically, although it reflected Western European traditions and values. In other words, although international in application it could not be said to be international in content. From: RICHARD SCHAFFER/FILIBERTO AGUSTI/BEVERLEY EARLE, International Business Law and its Environment, 7th edition, Mason 2009, p. 47. (I)t was the rise of the European nation-state, first ruled by monarchs and later by sovereign governments, that led to the development of modern international law. In the sixteenth and seventeenth centuries, legal scholars from Spain, Italy, and Holland developed the first modern European concepts of international law. In 1625, Hugo Grotius wrote an important work, On the Law of War and Peace, which brought together various schools of thought on the nature of law and international obligations. He was a jurist, diplomat, statesman, lawyer of the Dutch East India Company, and respected author on the law of the sea. It was a time of colonialism, trade, and the rise of nations. 3 Grotius wrote that the law of nations was not just divinely given, asKonsens was commonly believed in his day, but also that law arose by common agreement, by consensus, and by the accepted practice of nations. He premised these ideas on the idea of national sovereignty and on the recognition that all states are equal. To this day, it is accepted that international law arises not from the work of some supranational legislature, but because nations have agreed to follow customary and accepted rules or norms and to comply with treaties and conventions that they sign. (…) (W)ithout absolute proof, but (…) upon probability, anything is inferred to accord with the law of nature, because it is received as such among all, or at least the more civilized nations. (…) There is a sentence of Hesiod that has been much praised, that opinions which have prevailed amongst many nations, must have some foundation. Heraclitus, establishing common reason as the best criterion of truth, says, those things are certain which generally appear so. Among other authorities, we may quote Aristotle, who says it is a strong proof in our favour, when all appear to agree with what we say, and Cicero maintains that the consent of all nations in any case is to be admitted for the law of nature. Seneca is of the same opinion, anything, says he, appearing the same to all men is a proof of its truth. Quintilian says, we hold those things to be true, in which all men agree. HUGO GROTIUS (HUGO DE GROOT), On the Law of War and Peace, translated from the original Latin De Jure Belli ac Pacis and slightly abridged by A.C. Campbell, Kitchener (Canada) 2001, p. 12 From: DAVID J. BEDERMANN, International Law Frameworks, 2nd edition, New York 2006, pp. 2 f. The ideal environment for the development of international law have been times of “multi-polar” international relations, where a number of States have competed and cooperated in a particular part of the world. Such conditions existed in various regions of Asia (China and the Indian sub-continent), as well as Africa, over the last three millennia. Zufall" "glücklicher But whether because of historical serendipity, or (more likely) Western ethno- centrism, the date that is commonly given as the birth of international law is one of peculiarly European significance. The year is 1648, the end of what has come to be known as the Thirty Years War (1618–48). This was a period of ferocious and bloody religious conflict in Europe, a war that resulted in the decimation of close to twenty percent of Europe’s population. These events – culminating in the Peace of Westphalia, a comprehensive peace treaty signed by virtually all European nations – led to two significant observations about the development of international law. The first, as already suggested, is that international law needs States in order to grow and develop. But more than that, it needs States with strong internal institutions and a profound self-awareness that we would today call nationalism. And it just so happens that the Thirty Years War saw the rise of modern nation-States like Great Britain, France, 4 Spain, Portugal, Sweden, and Russia. The Thirty Years War also provided the ultimate intellectual and political justification for nation-States: States needed to be sovereign in innere Unruhen order to confront the challenges that war and domestic upheaval brought. So was born the notion of sovereignty in the writings of such political theorists as Jean Bodin, Thomas Hobbes,Angelpunkt Dreh-O and (later) John Locke and Jean-Jacques Rousseau. Sovereignty became the linchpin of the notion that States are independent and autonomous, and accountable only to the whim of their rulers, or (in what was then the exceptional case) to the popular will of their people. States thus owed no allegiance to a higher authority – not to God, nor a moral order or ideological ideal. States answered to nothing but themselves, and to the extent that a rule of law was possible between States, it was only because States had specifically consented to be bound by such rules. There was a second phenomenon heralded by the 1648 Peace of Westphalia. It is that the defining moments for international law of the last three and a half centuries have come only after periods of intense global conflict. One can almost linearly chart the progress of new international organizations, new substantive rules of international conduct, and new procedures of dispute settlement between international actors by the dates that mark the end of cataclysmic wars: the 1763 Definitive Peace (concluding the Seven Years War or Great War for Empire), the 1815 Final Act at Vienna (ending the Wars of the French Revolution and Napoleon, 1791–1815), the 1919 Treaty of Versailles and Covenant of the League of Nations (completing the First World War, 1914–18), and the 1945 Charter of the United Nations (marking the end of World War Two, 1939–45). It thus appeared that international law was the step-child of war and destruction, offering a utopian hope of order and moral renewal. durch... düster gedien nur So far, this historical narrative is pretty grim: international law has only prospered by extolling State power and sovereignty, and as an antidote to national conflict. […] WHO’S WHO in International Law Hugo Grotius (1583–1645) Prison escapee, high-stakes politician, shipwreck survivor, Grotius was a remarkable man who led a remarkable life. Born on April 10, 1583 in Delft, Holland […], Grotius soon proved himself exceptional. When he was eight, he began writing skillful elegies in Latin; by eleven, he was a student in the Faculty of Letters at the University of Leiden. In 1598, at the tender age of fifteen, he accompanied the leading Dutch politician of the day, Johan van Oldenbarnevelt, on an embassy to the royal court of France. There King Henry IV, impressed by his extraordinary learnedness, hailed him as “the miracle of Holland.” And three years later, when the United Provinces decided to reinforce their autonomy from Spain by retaining an official Latin historiographer to chronicle their history, they chose Grotius […] for the position. In the small world of Dutch high society, Grotius had clearly been identified as a young man going places. While in France, he had earned (or possibly just bought) a law degree from the University of Orléans. After returning to The Hague, he established a law practice and within a short time, his clientele included Oldenbarnevelt, the Dutch East India Company (V.O.C.) and Prince Maurice of Nassau. Apparently he impressed Maurice, for when the position of Attorney General of Holland, Zeeland and West 5 Friesland became available in 1607, the Prince chose him over two other older and more experienced candidates. Grotius didn't particularly enjoy the practice of law—in letters he voiced complaints familiar to today's lawyers, bemoaning the tedium of the work and obstreperous clients—so he closed his firm upon being made Attorney General. Perhaps capitalizing on his new position and the healthy salary it paid, he soon married the redoubtable Maria van Reigersbergen, with whom he would eventually have three daughters and four sons. After several years as Attorney General, Grotius was appointed Pensionary (roughly equivalent to Governor of an American state) of Rotterdam in 1613. […] 1613 may have carried some excitement but the end of the decade was one of the true zeniths (or nadirs, depending on one's perspective) of Grotius' life. A dispute between orthodox Calvinists and reformers over arcane theological matters which no longer seem important to us quickly assumed enormous political significance. Grotius, Oldenbarnevelt and other supporters of religious tolerance were aligned on the side with the reformers or “Remonstrants”; Maurice, the Calvinist establishment and other so- called “Contra-Remonstrants” were on the other. On August 29, 1618, Maurice and his allies staged a coup, overthrowing the States General (of which Grotius was a member by virtue of his position as Pensionary of Rotterdam) and imprisoning him along with Oldenbarnevelt and Rombout Hoogerbeets, the Pensionary of Leiden. Consolidating his grip on power, Maurice soon moved to eliminate the Remonstrants and their supporters in government; as part of this putsch, Oldenbarnevelt was executed and Grotius and Hoogerbeets were sentenced to life imprisonment. It would be overly dramatic to say geschmachtet Grotius languished there: he was allowed to correspond with outsiders; moreover, he had books and writing materials, and indeed he composed much important work during this time. But the cold and damp cell was far from pleasant and there was the looming danger that the authorities would revisit his case and impose an even harsher punishment. So in March 1621, Grotius and his wife Maria decided enough was enough. Placing himself in a large trunk that Maria had shipped to him, Grotius escaped prison by having the trunk carried out on the pretence that it contained a number of books. He fled to Antwerp and thence to Paris, where his family eventually joined him. Now began a more stable and productive period. The French authorities welcomed Grotius by awarding him an annual pension which, while not always paid, at least gave the promise of security. He began composition of De iure belli ac pacis (On the law of war and peace), which was published by a Parisian press in 1625. It quickly made Grotius famous: for example, in a letter to Grotius, Vossius says that Descartes told him that he had recently met the Dutchman (in reply, Grotius wrote that he didn't remember meeting Descartes, an indication of their relative stature at the time). Perhaps encouraged by the reception of his work, Grotius tried returning to the Netherlands in 1631. Initially, he may have had reason to be optimistic: after practicing law for a little while in Amsterdam, he was offered the Governor Generalship of the V.O.C. in Asia. Soon enough, however, the authorities moved against 6 him, placing a large price on his head and forcing him in April 1632 to flee his home country. Grotius would never set foot there again. This time, he went to Hamburg, Germany. Nearby Sweden (one of the super- powers of the day) had numerous connections to the city, which made it quite natural for Swedish authorities to notice the presence and availability for hire of such a luminary. Moving to take advantage of the situation, they made him their Ambassador to France in 1634. Grotius began his diplomatic duties in Paris the following year […]. After Queen Christina ascended to the throne in 1644, she systematically began to undermine her rival Oxenstierna and—as part of this infighting—recalled Grotius from his ambassadorship. She didn't fire him; instead, she instructed him to come to Stockholm and assume a different position. At first, Grotius didn't want to go, but bowing to the force Privileg of royal prerogative (not to mention economic necessity), he set sail for Stockholm in Schicksalhaft March 1645. It was a fateful decision: travelling conditions on the Baltic in late winters can be harsh; his ship wrecked and Grotius barely escaped with his life. After spending a few months in Sweden, he decided to return to Germany and so undertook another voyage. Again, conditions were poor; it took eight long days to cross the relatively narrow stretch of water. This time, it was too much: weakened by recent events, Grotius died on August 28, 1645, in Rostock, Germany. While they are probably apocryphal, his supposed Versuch last words—“By attempting many things, I have accomplished nothing”—do evoke the span of his life's work and his personal assessment of the results. From: JON MILLER, Article on Hugo Grotius, in: Stanford Encyclopedia of Philosophia, 2005/2011 (http://plato.stanford.edu/entries/grotius/). III. Is International Law “True” Law? From: MALCOLM N. SHAW, International Law, 6th edition, Cambridge 2008, pp. 2 f. Virtually everybody who starts reading about international law does so having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. Without a legislature, judiciary and executive, it would seem that one cannot talk about a legal order. And international law does not fit this model. International law has no legislature. The General Assembly of the United Nations comprising delegates from all the member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. There is no system of courts. The International Court of Justice does exist at The Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with. Above all there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members (USA; USSR, now the Russian Federation; China; France; and the United Kingdom). Thus, if 7 there is no identifiable institution either to establish rules, or to clarify them or see that those who break them are punished, how can what is called international law be law? It will, of course, be realised that the basis for this line of argument is the Annahme comparison of domestic law with international law, and the assumption of an analogy between the national system and the international order. And this is at the heart of all discussions about the nature of international law. From: MARTIN DIXON, Textbook on International Law, 7th edition, Oxford 2013, pp. 1 and 4. verspottet (A)s long as it has existed, international law has been derided or disregarded by many jurists and legal commentators […]. They have questioned, first, the existence of any set of rules governing inter-state relations; second, its entitlement to be called “law”; and, third, its effectiveness in controlling states and other international actors in “real life” situations. […] The most cogent argument for the existence of international law as a system of law is that members of the international community recognise that there exists a body of rules binding upon them as law. States believe international law exists. When Iraq invaded Kuwait in 1990, or earlier when Tanzania invaded Uganda in 1978/79, the great majority of states regarded the action as “unlawful”, not merely “immoral” or “unacceptable”. The same is true of the war crimes committed in Bosnia and Rwanda, and this is given concrete form when the United Nations Security Council imposes sanctions or takes action against a delinquent state […]. The criticism of the US-led invasion of Iraq in March 2003 and of Israel’s forceful intervention in Lebanon in July 2006 followed a similar pattern, both being cast by a majority of the international community as a violation of law, not merely as unethical, immoral or undesirable. Similarly, those arguing in support of these uses of force do not dismiss international law as irrelevant, but seek instead to justify the invasions as lawful under the legal rules concerning collective security and self-defence. In other words, even the international actors who engage in potentially unlawful activity do not deny the relevance of international law or its prescriptive quality. This acceptance of the reality of international law by the very persons to whom it is addressed exposes the weakness of those who argue that international law does not exist. From: REBECCA WALLACE/ANNE HOLLIDAY, Inter-national Law, 2nd edition, London 2010, pp. 2 f. International law is often criticised as not being law. It is true that international law cannot be understood in the same way as domestic law. The international legal system is decentralised and based on Zustimmung consent unlike any domestic legal system, which is centralised and imposed. The role of consent is best reflected in the way in which international law is made: through treaties, which are agreements between consenting states; and customary international law, which Bestimmung has emerged through the practice of states endorsed by consent. There is also provision Ausstieg within the international legal system for “opting out” from the application of treaty provisions or customary international law. Such flexibility is not available within domestic legal systems. 8  There is no international legislature enacting binding rules nor is there an international executive enforcing international law. There is an International Court of Justice (ICJ) where states can seek a solution to disputes, but acceptance of the ICJ’s jurisdiction is again based on consent and is not mandatory. […] However, once created, international law assumes a mandatory characteristic and should not be disregarded by those subject to it. Gegenseitigkeit Reciprocity plays an important role in the creation and observance of international law; reciprocity helps to guarantee that states more frequently respect each other’s sovereignty. Sanctions are available by way of economic sanctions through the United Nations (UN) and the use of force may be legitimately employed in certain defined unterschätzt circumstances. Also public opinion should not be underestimated as a useful barometer in maintaining respect for international law. Much of the criticism international law attracts stems from the fact that frequently international law breaks down in areas which are politically sensitive and which accordingly attract wide media coverage. However international law operates very effectively and successfully on a regular day-to-day basis in different sectors, e.g. it is the means whereby international travel and international communications, to name but two, take place. As LOUIS HENKIN famously stated: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” IV. Sources of International Law From: DAVID J. BEDERMANN, International Law Frameworks, 2nd edition, New York 2006, pp. 13 f. Essential to understanding the nature of international law as a legal system is comprehending the sources of international legal rules. It would be hard to practice within any legal system without knowing, quite literally, where one finds the law, and international law is no exception. […] Happily, there is a definitive statement of the sources of international law. It can be found in Article 38 of the Statute of the International Court of Justice (ICJ), or World Court, which indicates that, in disputes submitted to it, the Court shall apply: a. international conventions, whether general of particular, establishing rules expressly recognized by contesting states; b. international custom, as evidence of general practice accepted as law; c. the general principles of law recognized by civilized nations; d.... judicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law. […] One thing to realize at the outset is that of the five sources of international law mentioned in Article 38, three are given clear prominence. These are general principles, custom, and treaties. […] The remaining sources are of secondary, or “subsidiary”, nature Unterscheidung […]. This is a significant distinction. Just as an advocate would not cite a law review 9 article as conclusive “precedent” in a case, neither would an international lawyer use a subsidiary piece of evidence in favor of more authoritative sources. But, more than that, general principles, customary international law, and inter- national agreements – the core sources of international law – operate with a peculiar and powerful synergy in making international legal rules binding and enforceable. […] V. Wrap-up Check Your Knowledge and Understanding Key terms Are you familiar with the following terms (and their definitions)? Are you aware of how they are related to each other? - International law - Public international law (international law) vs. private international law (conflicts of law) - International law vs. domestic law - Modern nation-state and sovereignty Discussing the issues Answer the following questions based on the texts provided in this chapter and in the light of what was discussed in class. - In what respects does international law differ from domestic law? In which sense is it, nevertheless, legal in character? - How is the historical development of public international law connected with the rise of modern nation-states? - Compare Article 38 of the Statute of the International Court of Justice with Article 1 of the Swiss Civil Code. Why are they similar in their functions? - What are the differences between international and domestic law as far as the sources of law are concerned? 10 Statute of the International Court of Justice: Swiss Civil Code: Code civil suisse: 11 · Key Terms International law International law, also known as public international law and law of nations, is the set of rules, norms and, standards generally recognized as binding between states. It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights. Public international law (international law) vs. private international law (con icts of law) Private international law => Private International Law addresses legal disputes in private relationships with an international element. It determines which national legal system applies and which court has jurisdiction in cross-border disputes between private parties, such as individuals or companies. Public international law (öffentliches Völkerrecht) => Public International Law governs the relationships between sovereign states, international organizations, and, in certain cases, individuals. It focuses on rules and principles that apply at the international level to maintain order, peace, and cooperation between these entities. International law vs. domestic law International law has no legislature => the General Assembly of the United Nations comprising delegates from all the member states exists but its resolutions are not legally binding there is no system of courts => ICJ exists at The Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with there is no executive or governing entity often criticised as not beeing law (true that it cannot be understood in the same way as domestic law) decentralised legal system and based on consent (Zustimmung) treaties => agreements between consenting states (there is also a provision for „opting-out“ (Ausstieg) from the application of treaty provisions or customary international law) reciprocity (Gegenseitigkeit) plays an important role in the creation and observance of international law rules are created primarily by states (covers almost every fact of inter-state and international activity) Domestic law centralised and imposed existence of a recognised body to legislate or create laws a hierarch of courts with compulsory jurisdiction to settle disputes over such laws an accepted system of enforcing those laws Modern nation-state and sovereignty International law needs States in order to grow and develop. More than that, it needs States with strong internal institutions and a profound self-awareness that we would today call nationalism. The Thirty Years War saw the rise of modern-nation States like the UK, France, Spain, Portugal, Sweden and Russia. The Thirty Years War also provided the ultimate intellectual and political justi cation for nation-States: States needed to be sovereign in order to confront the challenges that war and domestic upheaval (innere Unruhen) brought. Sovereignity => States are independent and antonomous and accountable only to the whim of their rulers or to the popular will of their people. fi Discussing the issues In what respects does international law differ from domestic law? In which sense it it, nevertheless, legal in character? International law has no legislature, no system of courts, no executive or governing entity. It is an decentralised legal sytem which is based on consent (Zustimmung). The role of consent is best re ected in the way in which international law is made: trough treaties, which are agreements between consenting state. However, there is a provision, that the States can „opting- out“ from the application of a treaty they signed. There is also no international legislature enacting binding rules nor is there an international executive enforcing that law. Also the acceptance of ICJ’s jurisdiction is based on consent and is not mandatory. However, once created, international law assumes a mandatory characteristic and should not be diregarded by those subject to it. Domestic law is on the other hand centralised and imposed. There is a recognised body to legislate or create laws and an accepted system to enforce those laws. How is the historical development of public international law connected with the rise of modern nation- states? International law needs States in order to grow and develop. More than that it needs States with strong internal institutions and a profound self-awareness that we would today call nationalism. And it just so happens that the Thirty Years War saw the rise of modern nation-States. The Thirty Years War also provided the ultimate intellectual and political justi cation for nation- states: States needed to be sovereign in order to confront the challenges that war and domestic upheaval brought. Compare Article 38 of the Statute of the International Court of Justice with Article 1 of the Swiss Civil Code. Why are the similar in their functions? Application of the law: Essential to understanding the legal system is comprehending the sources of the legal rules. It would be hard to practice within any legal system without knowing, quite literally, where one nds the law. What are the differences between international and domestic law as far as the sources of law are concerned? International law (Article 38 of the Statute of the International Court of Justice / World Court): a. international conventions, whether general of particular, establishing rules expressly recognized by contesting states; b. international custom, as evidence of general practice accepted as law; c. the general principles of law recognized by civilized nations; d.... judicial decisions and the teachings of the most highly quali ed publicists of the various nations, as a subsidiary means for the determination of rules of law. One thing to realize at the outset is that of the ve sources of international law mentioned in Article 38, three are given clear prominence. These are general principles, custom, and treaties. The remaining sources are of secondary, or “subsidiary”, nature. This is a signi cant distinction (Unterscheidung). fi fi fi fl