11. International law & domestic law (II) (2016)Apunte Inglés
Vista previa del texto
11. International law and domestic law (II)
Sources of Law
Article 38 of the Statute of the International Court of Justice
• International conventions and treaties that establish rules that States expressly recognize
• International custom as evidence of general practice(s) accepted by States as law
• Judicial decisions and the teachings of highly qualified publicists of various nations
INTERNATIONAL CONVENTIONS AND TREATIES
Treaties and conventions are bilateral or multilateral, regional or global, written legal documents agreed between States.
They establish rules expressly and voluntarily recognized and accepted by the States.
• The term ‘convention’ describes usually multilateral agreements.
• The term ‘treaty’ can be substituted by ‘protocol’ or ‘agreement’ Basic principle of treaty law • Pacta sunt servanda (‘agreements are to be kept’).
• Every treaty in force is binding upon the parties to it • Every treaty must be performed by the parties in ‘good faith’.
• A State can not use inconsistency with domestic law as an excuse for failing to comply with the obligations of a treaty Steps in the process for concluding a treaty • Adoption: When the negotiators of a treaty finalize the text, the text is adopted. This text will usually indicate how States are to consent the terms of the treaty (signature, ratification, accession, or other agreed means) • Signature: It indicates an intention to become a party of the treaty. It does not usually establish consent to be bound by the terms of the treaty, unless the treaty provides for the signature having that effect.
• Ratification: It is the formal act by which a State indicates that it consents to be bound by the treaty. It is the confirmation of the signature of the treaty. It is usually carried out by the head of State. Before the ratification, a State has to carry out any necessary steps to enable it to comply (internal legislation and approval).
• Accession: A State which has not signed a treaty can formally indicate its intention to be bounded by the treaty before or after a treaty has come into force • Entry into force: The terms of a treaty will usually specify how and when it comes into force (e.g. entering into force when a specified number of States have consented to be bound before the treaty -number of ratifications-).
• Reservations: to treatiesUpon signing a treaty, a State may lodge a formal reservation to it which may exclude or modify the legal effect of certain provisions of the treaty in their application to that State. Only when the treaty does not exclude reservations.
The reality of a treaty negotiation: assuming the principles of equality between States and sovereignty, however, the common consequence is a restrain of ambition within a treaty.
Negotiating and concluding a treaty The process is guided by ‘unanimous consent’: for an element to be included in a treaty, no State can object. Unanimous consent does not however require full agreement; it requires a lack of objection (all parties have consented a particular element’s inclusion within a treaty) The main point is searching and finding the lowest common denominator.
If a single State objects to a specific element, their interest must be accommodated or the element will not be included in the treaty (demanding concessions as the price of securing unanimous consent).
INTERNATIONAL CUSTOMARY LAW Practices accepted as law by States through a constant uniform usage over a period of time. It is the result of an ongoing process. Sometimes it is codified in a treaty (e.g. Vienna Convention on the Law of Treaties) but it needs not to be written down in the form of a treaty to be binding on States. International customary law applies to every State. Identifying and describing customary international law implies taking into account: • The consistency and uniformity of a practice • The interests of specially affected States • The degree to which the States who adopt the practice, do so out of a sense that the practice is required by law (‘opinio iuris’) Proving the existence of a rule of customary law: The burden of proving its existence remains on the State alleging its existence Some examples: • Giving foreign diplomats criminal immunity.
• Protecting non-combatants as civilians and sick or wounded soldiers during international armed conflicts.
• Recognizing the exclusive jurisdiction of the flag State on the high seas.
GENERAL PRINCIPLES OF LAW Apply in all major legal systems. They are usually used when no treaty provision or clear rule of customary law exists.
Examples: “a breach of an engagement involves an obligation to make reparation”. “If somebody intentionally harms others, he/she should have to pay compensation ro make reparation”.
Jus cogens: When general principles of law are peremptory norms. Some principles of international law have become so widely accepted that they are considered to be fundamental rules that may not be alerted or broken. They cannot be waived by treaties or custom.
Examples: prohibition agains slavery, torture and genocide; prohibition against the use of armed force; prohibitions against piracy on the high seas; principle of racial non-discrimination; right to self-determination.
JUDICIAL DECISIONS AND THE WRITINGS OF QUALIFIED PUBLICISTS They are not sources of law but rather subsidiary means or evidence that can be used to prove the existence of a rule of custom or general principle of law.
International Court of Justice (even if there is no formal and consistent system of binding precedent). Regarding previous decisions to ensure procedural consistency. Other judicial bodies such as the European Court of Justice and the European Court of Human Rights. Domestic courts, when interpreting rules of international law.
No hierarchy among treaties, custom and general principles, according to the art.38 of the Statue of the International Court of Justice. In practice, international lawyers usually look first to any applicable treaty rules, then to custom and finally to general principles.