POLC38H3 Lecture Notes - Lecture 2: Peremptory Norm, Legal Realism, Opinio Juris Sive Necessitatis
POLC38 – lecture 2
The nature and sources of international law
Most important sources of international law
• Constitution is the highest in hierarchy of law.
• Statues and laws are second
• Regulation
Nature of international law theories
• Naturalism → states must conform to a higher natural law
o Regulates humans and states, morality and religion
• Positivism → scientific, objective, not religious, man made laws
o Derived through customs issued by sovereign
o Imperativism (command or sovereign), normativism, legal realism
• Grotianism → middle ground/ mixture of both naturalism and positivism
Basis of international law
• No law making institution
• Consent thru
o Treaties (explicitly, by signing it)
o Customary practices (implicitly, not signing it but behaviour that is done over
and over again so becomes customary)
• Consent vs peremptory norm (genocide, slavery)
• New states presumption of acceptance (consent irrelevant)
Functions of international law
• Maintenance of international peace and security is the core function
o Peace and security vs justice
• Settlement of disputes – consensual basis
• Encouraging friendly relations among states
• Outlawing wars
• Enforcement against powerful states?
o USA, UK, Russia, France and China
Sources of international law
• Sources for domestic law: national bodies
• Formal sources of law – where the law derives its force from
• Material sources of law – evolution of laws, morality and reason
• Functional sources of law – places where laws can be found (libraries, journals, etc.)
• Sources of international law – article 38 (1) of the international court justice statue →
its there to legitimise the court. For solid legal foundation for the sources
Treaties (first source of law)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Most important sources of international law: constitution is the highest in hierarchy of law, statues and laws are second, regulation. Nature of international law theories: naturalism states must conform to a higher natural law, regulates humans and states, morality and religion, positivism scientific, objective, not religious, man made laws, derived through customs issued by sovereign. Imperativism (command or sovereign), normativism, legal realism: grotianism middle ground/ mixture of both naturalism and positivism. Treaties (first source of law: the most popular, certain, significant, written, can be amended (protocols) The psychological element underscoring states beliefs that they are under legal obligation to do, or remain from doing an ant: regional customary law standard or proof higher. Majority of participating states accept the rule as opinio juris: persistent objector states that don"t accept opinio juris. Objections must come from the start, be credible: states must not object peremptory laws.
