ENVIRONMENT - March 9 Lecture Notes

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2 Apr 2011

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Wed. March 9th lecture notes
Topic: Finish discussion of International Law + Environment
Film The Cove
The Four Sources of International Law
- The statue of the international court of justice (ICJ) article 38:
- the court, whose function is to decide in accordance with international law such disputes as
are submitted to it shall apply:
Conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
international custom, as evidence of a general practice accepted as law;
The general principles of law recognized by civilized nations
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
Source II: Custom
- A positivist source
- A need to review and establish a widely accepted practice.
- In establishing what is practiced in the international arena, words count less than acts. We
want to see what countries do, not what they say.
- Other questions we have to ask ourselves: How often (do countries engage in this practice)?
Who adopts the practice (power, relevance)? Who protests? Is it a general practice or does it
contain a specific geographic region (there might be different practices in Europe than South
How would we know when a practice becomes something that is legally binding Just because
its repeated over and over, doesnt mean it becomes legally an international custom. In order
to do that, we need to define another component, and its a subjective component: Opinio
Juris the belief that a behaviour was carried out because the actor saw it as a legal
For something to become customary, we need two components: a practice thats carried
out regularly, and an understanding that were doing that because its the legal thing to do
(opinio juris). Thus, even if were violating it, were still showing that its the law. We know
were dealing with a legal issue.
Practice + Opinio Juris = custom
Jus Cogens
We have certain customs in international relations (either customary or codified) that go
above customary law. We refer to them as Jus Cogens a small group of issues/principles
that are so fundamental that everyone agrees on them. They are universally accepted norms.
When this happens, they fall under universal jurisdiction.
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Universal jurisdiction: violators of Jus Cogens can be arrested and tried by any country
regardless of the location of the `crime` or the identity of the victims; does not require
consent; cannot be contradicted by treaties.
- Examples: Genocide, piracy, slavery, waging aggressive war (?), crimes against humanity,
war crimes (?), torture (?)
Waging aggressive war: someone who starts a war illegally / violates principles of Just War
theory. This is very problematic and highly politicized because what exactly makes
something an aggressive war? Its highly problematic in making sure a war that is waged is
In all other cases that are not part of Jus Cogen, jurisdiction would be constrained by other
customs or treaties or principles.
Source I: International Conventions
- A positivist source
- Any international treaty, convention, agreement is a law
- In the 20th century: an attempt to codify customary law through a series of international
conventions Hague 1889, 1907; the League of Nations; the UN international Law
Commission (ILC) (for example: the Vienna convention 1969; UN Law of the Sea Convention
-Important to differentiate between two types of treaties: Declarative vs. constitutive treaties
- Declarative: declares and codifies a pre-existing custom (theres already a law, it just puts
that law in words on paper). Its codifying an international custom, so even if a country didnt
sign the treaty, theyre still bound to it. Why? Because the law already existed before.
- Constitutive: legislating a law that did not exist before. If a country doesnt sign it theyre
not bound to it because its a new law. However, over time, a constitutive law might become a
declarative law if its practiced regularly by all and then all countries will be obligated to it.
- International vs. domestic law (pirates)
- Some countries automatically incorporated international law into its domestic law. Other
countries need to go through the process of domestication. Some cases have a parallel system
they have an international law dimension and a domestic law dimension and often theres
tension between the two so courts must choose which one they choose.
Example: Geneva Conventions
- Jus in bellum (laws of war during war)
- The Geneva Conventions, four of them, 1949:
- Geneva 1: Sick and wounded soldiers on land (what are the obligations, etc)
- Geneva 2: Sick and wounded soldiers at sea
- Geneva 3: Prisoners of War
- Geneva 4: Occupation (what are the obligation of an occupying party)
- Protocol additional to the Geneva conventions, 1977
- Are all of these conventions declarative?
Prisoners of War: Third Geneva Convention
- The force in which youre operating should have a commander
- We want someone to take responsibility; its you being part of a clear unit.
Otherwise, youre not a prisoner of war.
- A clear and permanent identification on both soldier and vehicle
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