Where do we find intl law n n

Where do we find int’l law n n Art. 38 of the Statute of the ICJ Treaties ä ä ä n Customary law ä ä n n Bilateral, regional, multilateral, global Law-making vs. contractual Interpretation of treaties: Vienna Convention on the Law of Treaties State practice Opinio juris General principles of law Unilateral acts Ole Kr. Fauchald 9/25/2020 1

General issues n Treaty law vs. customary law ä ä n The contribution of treaty law to customary law and vice versa Is there a clear distinction? ”Hard law” vs. ”soft law” ä ä Can we accept legal relativism? Is the ”soft law” development undermining int’l law? The distinction between norms and law The interaction between norms and law The need for ”soft instruments” in international law Ole Kr. Fauchald 9/25/2020 2

Int’l law vs. domestic law I n Int’l law: Lack of general framework for: ä ä ä n Int’l law: Horizontal ä ä n Enacting laws (UNGA, ILC) Courts (ICJ, treaty based courts) Use of force – enforcement (UN Security Council, Security forces) Non-hierarchical and applying between states Exceptions: UN Charter, jus cogens, states and IGOs, states and private parties Domestic law: Vertical ä Hierarchical and applying in the relationship between public authorities and private parties and between private parties Ole Kr. Fauchald 9/25/2020 3

Int’l law vs. domestic law II n Domestic law ä n In general law the operation of which cannot be dispensed with by the agreement between the parties Int’l law ä ä In general law the operation of which can be dispensed with by the agreement between the parties But: development from “contractual” towards “law-making” n The parallel between contract law and international law n Reciprocity ä The reliance on “secondary rules” The scope of legislation ä ä ä Int’l law: Treaties: Only binding between those that have become parties Domestic law: Legislation: Binding on all Ole Kr. Fauchald 9/25/2020 4

Int’l law vs. domestic law III n Sources of law and interpretive arguments ä ä ä n Principle of consensus ä n Customary law is more important in int’l law than in domestic law Availability and use of interpretive arguments The relationship between politics and law More important in int’l law than in domestic law The relationship between int’l law and national law ä Dualism vs. monism Ole Kr. Fauchald 9/25/2020 5

Sources of law I n Interpretation of treaties ä ä ä Vienna Convention on the Law of Treaties (1969), Articles 31 -33: Customary int’l law Wording / intention of the parties / aim and purpose Contextual interpretation Agreement between the parties, practice, case-law, other rules of int’l law “Supplementary means”: preparatory works, circumstances of the conclusion of the treaty, legal doctrine, reasonableness Ole Kr. Fauchald 9/25/2020 6

Sources of law II n How do treaty regimes develop? ä The problem of dynamism – Framework conventions and protocols – Treaties based on obligations of result vs. obligations of conduct – Piecemeal approach – Jurisprudence based approach – Soft law based approach – Scientific or technical approach ä Importance Ole Kr. Fauchald for interpretive arguments 9/25/2020 7

Sources of law III n Customary int’l law ä Practice – objective element – – ä How long-lasting? How wide-spread? How consistent? What constitutes evidence of State practice? Opinio juris – subjective element – Is this any mandatory requirement? – Exclude the relevance of certain kinds of practice? – What constitutes evidence of opinio juris? ä Nature of customary law: – Unclear w/ respect to legal status and content – Emphasis on practice or opinio juris? Ole Kr. Fauchald 9/25/2020 8

Customary int’l law n Jus cogens ä n Fundamental principles of int’l law ä ä n n n Art. 2 of UN Charter State sovereignty, equality between States Rules on treaty interpretation State responsibility for unlawful acts ä n Illegality of genocide, torture, ethnic cleansing ILC Draft Articles Rules on expropriation The obligation to prevent harmful activities Ole Kr. Fauchald 9/25/2020 9

Treaty law, the UN Charter “World Constitution”(? ) n Includes some of the most fundamental rights and duties of States (Art. 2) n Defines the composition, function, powers and procedures of the principal organs of the UN n ä General assembly, Security Council, ECOSOC, International Court of Justice, Secretariat n Establishes its superiority: Art. 103 Ole Kr. Fauchald 9/25/2020 10

Other treaty regimes n n Specialised agencies of the UN Free standing treaty regimes ä ä ä n Regional treaty regimes ä ä n Organisations, WTO and OECD Quasi organisations, UNFCCC and CBD Lack of institutional structure, UNCLOS, Vienna Convention on the Law of Treaties UN economic commissions Other regional treaty regimes – human rights, trade, environment Areas dominated by bilateral treaties ä International investment and taxation, shared resources, border treaties, extradition Ole Kr. Fauchald 9/25/2020 11

Methods - how to approach IL n n Slaughter 93 AJIL 1999, 291 Positivism ä n Policy-oriented jurisprudence ä n n How does it work from a social perspective? Feminist jurisprudence ä n Constrain decision-making through processes Critical legal studies ä n Clarify and implement common interests – actor-oriented International law and international relations International legal process ä n Describing law ”as it is”, consent-oriented How does it work from a feminist perspective? Law and economics ä How does it work from an economic perspective? Ole Kr. Fauchald 9/25/2020 12