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International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It serves as a framework for the practice of stable and organized international relations. WHAT ARE THE BASES OF INTERNATIONAL LAW? WHAT IS MEANT BY “JUS COGENS”? Jus Cogens or peremptory norm (also called jus cogens or ius cogens, Latin for "compelling law") is a fundamental principle ofinternational law that is accepted by the international community of states as a norm from which no derogation is permitted. There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general. WHAT IS MEANT BY “ERGA OMNES”? Erga omnes is a Latin phrase which literally means "towards all" or "towards everyone". In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination. WHAT IS MEANT BY “OPINIO JURIS”? Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris ("an opinion of law") is the belief that an action was carried out because it was a legal obligation. This is in contrast to an action being the result of different cognitive reaction, or behaviors that were habitual to the individual. This term is frequently used in legal proceedings such as a defense for a case. Opinio juris is the subjective element of custom as a source of law, both domestic and international, as it refers to beliefs. The other element is state practice, which is more objective as it is readily discernible. To qualify as state practice, the acts must be consistent and general international practice WHAT ARE THE SOURCES OF INTERNATIONAL LAW? International Court of Justice (ICJ), Article 38, which specifies that the Court, in deciding disputes, shall apply: o international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; o international custom, as evidence of a general practice accepted as law; o the general principles of law recognized by civilized nations; o subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The first three of these--treaties, custom, and principles of law--are sometimes referred to by lawyers and librarians with a common law background as "primary sources" of international law. The last two--judicial decisions and the teachings of publicists--are sometimes referred to as "secondary sources" or evidence of international law rules. Treaties. Treaties are similar to contracts between countries; promises between States are exchanged, finalized in writing, and signed. States may debate the interpretation or implementation of a treaty, but the written provisions of a treaty are binding. Treaties can address any number of fields, such as trade relations, such as the North American Free Trade Agreement, or control of nuclear weapons, such as the Nuclear Non-Proliferation Treaty. They can be either bilateral (between two countries) or multilateral (between many countries). They can have their own rules for enforcement, such as arbitration, or refer enforcement concerns to another agency, such as the International Court of Justice. The rules concerning how to decide disputes relating to treaties are even found in a treaty themselves—the Vienna Convention on the Law of Treaties (United Nations, 1969). Custom. Customary international law (CIL) is more difficult to ascertain than the provisions of a written treaty. CIL is created by the actual actions of states (called “state practice”) when they demonstrate that those states believe that acting otherwise woul d be illegal. Even if the rule of CIL is not written down, it still binds states, requiring them to follow it (Dinstein, 2004). For example, for thousands of years, countries have given protection to ambassadors. As far back as ancient Greece and Rome, ambassadors from another country were not harmed while on their diplomatic missions, even if they represented a country at war with the country they were located in. Throughout history, many countries have publicly stated that they believe that ambassadors should be given this protection. Therefore, today, if a country harmed an ambassador it would be violating customary international law. Similarly, throughout modern history, states have acknowledged through their actions and their statements that intentionally killing civilians during wartime is illegal in international law. Determining CIL is difficult, however, because, unlike a treaty, it is not written down. Some rules are so widely practiced and acknowledged by many states to be law, that there is little doubt that CIL exists regarding them; but other rules are not as universally recognized and disputes exists about whether they are truly CIL or not. General Principles of Law. The third source of international law is based on the theory of “natural law,” which argues that laws are a reflection of the instinctual belief that some acts ar e right while other acts are wrong. “The general principles of law recognized by civilized nations” are certain legal beliefs and practices that are common to all developed legal systems (United Nations, 19 45).
For instance.e. Thus. the concept that everyone intends to comply with agreements they make. soft law instruments do carry some authority. Realise that soft law can evolve into hard law. Whereas. as well as customary laws. In international law. and take this issue into consideration when deciding a matter. this may signal a developing acceptance of that principle on a wide basis such that it may be considered part of international law. The very fact that many different countries take good faith into consideration in their domestic judicial systems indicates that “good faith” may be considered a standard of international law. speaking individuals and their dealings are the sole concerns of private international law. is considered an authoritative expounder of law. The public international law is concerned solely with rules concerning the rights and obligation of the states (i. The last two sources of international law are considered “subsidiary means for the determination of rules of law. Courts in many countries will examine whether the parties to a case acted in good faith. instrument or decision must be authoritative and prescriptive. When analysing international law soft law instruments. sustainable development and human rights. IS THERE COLLECTIVE RESPOSIBILITY FOR A BREACH OF INTERNATIONAL LAW? WHAT IS THE EXTENT OF A STATE‟S FREEDOM OF ACTION? DISTINGUISH MONIST AND DUALIST THEORIES OF INTERNATIONAL LAW . countries) interest. Especially influential are judicial decisions. It is important to note that soft law statements often contain aspirational language that inspires reliance on them to improve policy-making in areas such as the environment. standards Action plans WHAT IS “HARD LAW”? Hard law means binding laws. Judicial Decisions and Legal Scholarship. whe n coupled with evidence of international custom or general principles of law. keep in mind how this useful and innovative aspect of soft law can be a bridge between no commitments and legally binding commitments. declarations of principles Guidelines. Examples: Most UN General Assembly Resolutions and Declarations Statements. and when the national courts of many countries begin accepting a certain principle as legal justification. Private international law (or the conflict of laws) may be defined as the rules voluntarily chosen by a given state for the decision of cases which have a „foreign‟ element or complexion. as the principal legal body of the United Nations. articles and books by law professors can be consulted to find out what international law is. Legal scholarship.” While these sources are not by themselves international law. These instruments result in legally enforceable commitments for countries (states) and other international subjects. An important role of soft law instruments is their ability to influence the future development of hard law commitments. both of the International Court of Justice (ICJ) and of national courts. objectives. To constitute law. DISTINGUISH PRIVATE INTERNATIONAL LAW FROM PUBLIC INTERNATIONAL LAW Public international law (or the law of nations) is a body of customary or conventional rules which are considered as legal binding by civilized states in their intercourse with each other and is concerned solely with the rights and obligations of sovereign states. but may describe rules of law that are widely followed around the world. most legal systems value “good faith. a rule. generally.” that is. Soft law instruments are negotiated in good faith by the negotiating parties who hold some expectation that the non-binding commitments will be met as much as reasonably possible. is not really authoritative in itself. General principles are most useful as sources of law when no treaty or CIL has conclusively addressed an issue. on the other hand. hard law includes self-executing treaties or international agreements. Examples: Treaties (also known as conventions or international agreements) Security Council Resolutions Customary international rules Be aware that while soft law is not binding in a legal sense. they may help to prove the existence of a particular rule of international law. principles. The ICJ. WHAT IS “SOFT LAW”? Soft law means commitments made by negotiating parties that are not legally binding.
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