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Lecture 2

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Political Science
POLS 3652
Awalou O

Lecture Two International Society  It has special entities involved: states  The characteristics of the society is that o They lack a legislature regularly making rules which bind every state o It does not have any forceful binding mechanism of the judicial process o The ICJ is not a truly centralized concept o The system is absolutely based on a different approach – is it a proper system?  If we agree that we have international society, then there is law because there is no society without law o What kind of law do we have? o Treaties, conventions, customs o There is a connection between how society began at the municipal level and then at the international level (ex: interaction) o There is a clash between civilized nations and barbarous civilizations (ex: civilized vs. barbarous)  Law is not common? o It is said that our municipal laws are backed with sanction o However  There are numerous laws within society that are not backed by sanction  Laws are followed because of normativity and not because of sanction  Consciousness of normativity  It is not a problem of sanction  There is a difference between existence of law and the effectiveness of it  The problem is not to see the difference above  We have international society and international law o International law is law  Most of the laws are respected  Every single state has given its consent o Fons  Fundo or Fontanus (Fountain but not source = idea of law)  There are two origins of law  Law-creating processes represents the source of the water  Legislature represents the tap of the fountain  Article 38 of the Statute of the ICJ o The Court has to apply international conventions or customs or general principle of law o International convention, custom, principle of law are formal sources o A complete statement of the sources of international law o The court may be expected to observe the order in which they appear as importance o Is there a hierarchy?  It is not a matter of hierarchy, they have equal authority  Formal sources and material sources  Formal sources are the means whereby international law norms are created o Legal procedures and methods for the creation of rules which are binding o Municipally, it refers to the constitutional machinery of law making and statute  Material sources (substratum or backbone) refer to the sociological and political foundation of the norms of international law and is linked to validity  No Hierarchy o The sequence in the list of sources in Article 38 of the Statute follows a logical principle  It proceeds from more special to the more general rules or principles  From bilateral agreements between two States to the general principles of law o Art. 38 of the Statute of ICJ 2  There can be conflict between norms from different sources via rules of interpretation  ICJ, Nicaragua case o US stated that they did not violate any international law and that the ICJ did not have jurisdiction over their actions and denied their competence to entertain the matter o The US stated that between US and any kind of nation, the ICJ cannot intervene in any case where an international convention is involved (ex: treaty) and because of this statement, they stated that the court had no competence o The ICJ responded that the legal argument was welcome but did not welcome the UN charter  The UN charter is an international convention  The ICJ was using customary rule of law and under it, no state can use force against another state  Article 2 paragraph 4 is a conventional rule in the charter and is also a customary law which states no use of force  Custom and conventions are the most important formal sources of international law  It can be in both conventional and customary law  There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence  Problem of Jus cogens (Peremptory norm) o No hierarchy in terms of source of law but there is one in terms of norms o There is obviously a hierarchy of norms because of the ones that have more value than others o A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character  Is the list of Art 38 exhaustive? o This list has some gaps:  Unilateral legal acts → source of international rights and/or obligations  Resolutions of international organizations → resolutions of UN security council  International custom o Custom “as evidence of a general practice accepted as law” o Custom to be distinguished from usage o 2 elements of customary law:  Consistent and general practice  The belief that such practice is in accordance with a legal obligation→ opnio juris sive necesitatis  Whose practice counts? o Does the conduct of all of the organs of the State count as State practice? o And what about the practice of intergovernmental organizations? o Only count the practice of the organs which had the capacity to bind it to international obligations → the head of State or Government, the minister of foreign relations and his staff, including members of the diplomatic service. Also the legislature and the practice of national courts o It is not just the practice of States which contributes to the development of customary rules, the practice of international organizations can do so too and the indirect contribution by non-governmental bodies to the customary law process o It depends on the content of the rule  It does not necessarily need the strongest player  It depends on the state, topic, aspect, etc.  Evidence or Forms of Practice o What forms the practice takes?  Diplomatic correspondence, including protests ; declarations of government policy (including statements to the legislature) ; the advice of government legal
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