- Customs, rules, and agreements that govern relations between sovereign states. More recently also includes handling such matters as human rights within the borders of sovereign nations.
- Is international law real law?
Domestic Law Vs. International law
- No international legislature passing laws – UN closest to such a forum
- No comprehensive judicial system – International Court of Justice, International Criminal Court (limited application)
- Enforcement methods only sometimes available.
- Nations are persuaded to obey international law not by legal sanction but participation in world activities is in their best interest.
- Treaty based
Sources of International Law
- No set of centralized and codified rules created or adopted to regulate international affairs
- Article 38(1) of the Statute of the International Court of Justice specifies four sources:
- Int’l conventions, establishing rules expressly recognized by the contesting states
- Int’l custom, as evidence of a general practice accepted as law
- Generalized principles of law recognized by civilized nations
- Judicial decisions and the teachings of the most highly qualified publicists (int’l lawyers, professors) of various nations to determine rules.
Treaties
- Treaty – an agreement between or among nations, usually concluded in written form and governed by international law.
- Rules found in The Vienna Convention on the Law of Treaties
Formulation of a Treaty
- Identification of a need for a treaty;
- Development of mutual interest and concern – gaining enough political support
- Negotiations leading to the selection of specific int’l obligations and mechanisms to monitor compliance with these obligations; and
- Bringing the treaty into effect – ratifying a treaty; signing it leads to binding obligations
- Domestic law may need to be modified to bring it in line with the treaty obligations
- Most registered with the United Nations
- Disputes can be resolved by the International Court in the Hague – judgments do not carry the same weight of enforcement as those under domestic law
Concepts in International Law
Sovereignty
The lawful control by a state over its territory, right to govern in that territory, and authority to apply law there to the exclusion of other states.
- Internal Sovereignty – right to make laws within territory
- External Sovereignty – relations with other nations
- No state has the authority to tell another state how to control its internal affairs
- Globalization is changing this view of sovereignty
- Agreements with other nations, international Human Rights and ‘Global’ interests have started to erode sovereignty
Diplomatic Relations
- The protection of diplomatic representatives sent to foreign nations was one of the first customs recognized as essential to the success of negotiations
- 1961 Vienna Convention on Diplomatic Relations
- Article 31 provides diplomatic immunity
- This means diplomats are:
- entitled to protection from physical harm
- not subject to arrest or detention without recourse to the protocol laid down in the convention
Article 22: premises of the mission shall be inviolable
- entry of host nationals must be authorized by sending state
- no interference with mail, bags, files, documents.
- U.S. V. Iran [1980] ICJ
- US diplomatic hostages in Iran
- Iran found in violation of obligations it owed to the diplomats as required under the Vienna Convention.
- Diplomats that break the laws of the host nation are immune from prosecution in the host nation but face prosecution in their home country for an offence committed in the host nation.
- Diplomatic Asylum – protection sought in embassies of other countries by individuals fearing for their safety.
- Manuel Noriega sought refuge in the Vatican Embassy in Panama when the U.S. invaded Panama. Eventually he gave up the protection.
- North Korean asylum seekers at Canadian Embassy in China – sought passage to South Korea.
- Persona non grata – a country may declare a diplomat as undesirable and call for expulsion. Can jeopardize relations between two countries.
Extraditing Criminals
- Surrender by one state, at the request of another, of a person either accused or convicted of an act violating the requesting state’s criminal laws.
Principles and Rules – contained in most extradition treaties;
- Double-criminality Rule – a crime must be a crime in both states
- Reciprocity – if country A extradites to Country B then Country B will reciprocate in the future.
- Proof of guilt must be presented; request not enough.
- Specialty – accused will only be charged with the crime that is specified in the extradition request. This prevents subterfuge (deception)
