Presentation 3.pdf

Source of International Law Presentation 3 Custom • The ICJ’s statute refers to “international custom, as evidence of a general practice accepted as law,” as a second source of international law. Custom, whose importance reflects the decentralized nature of the international system, involves two f...

Source of International Law Presentation 3 Custom • The ICJ’s statute refers to “international custom, as evidence of a general practice accepted as law,” as a second source of international law. Custom, whose importance reflects the decentralized nature of the international system, involves two fundamental elements: the actual practice of states and the acceptance by states of that practice as law. The actual practice of states (termed the “material fact”) covers various elements, including the duration, consistency, repetition, and generality of a particular kind of behavior by states. All such elements are relevant in determining whether a practice may form the basis of a binding international custom OR NOT 2 In international law, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. Continued: These customs can also change based on the acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of IMPERATIVE NORMS, which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide and slavery. 3 4 • Customary international law can be distinguished from treaty law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify preexisting customary law. Elements of Custom • Customary rules are constantly changing. • Establishing the structure of a customary law: Must show two elements — one behavioral and one psychological: 1. the consistent and frequent action (or lack of action if the custom is one of noninvolvement) by states. 2. The custom must be regarded by states observing it as one that they must obligatorily follow. • The result in a customary rule not applied to a state. • General principles of law that are common to main legal systems recognized in the world and both (or all) the state parties to a dispute. General Principles of Law 5 Bases for Legal Systems The bases for the majority of the legal systems of the world include: (1) Common law, derived from English law and found in England, the United States, Canada, and other countries once under English influence (2) Civil or code law, derived from Roman law and found in Germany, Japan, France, and in non-Islamic and non-Marxist countries (3) Islamic law, derived from the interpretation of the Koran and found in Pakistan, Iran, Saudi Arabia, and other Islamic states (4) A commercial legal system in the Marxist-socialist economies of Russia and the republics of the former Soviet Union, Eastern Europe, China, whose legal system is based on the economic, political, and social policies of the state THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE The Practice in International Tribunals: Local law is regarded as being part of international law. States have a general obligation to bring their local law into compliance with international norms. Procedurally local law is treated as “mere fact.” 7 8 • The Practice in domestic Courts: • International law is generally treated as correlative. Once a court determines that a particular rule of international law is applicable in a particular case, that law will be treated as law. Continued • The court must determine whether or not the international law has been received into the local jurisprudence: A. As for customary law: In most countries, customary international law is received in accordance with the doctrine of incorporation. A belief or decision established through history. B. As for treaties: Reception rules depend upon A formal agreement between two countries two factors: (i) The nature of the treaty; and (ii) The constitutional structure of the ratifying state. A set of principles govern by a state