Sources of International Law
The law has been derived from a variety of sources:
Formal Agreements
· Agreements can be classified as treaties, conventions, protocols, covenants, or acts
· Agreements contain the rules that all signatories of the agreement will follow for their benefit
· Typically deal with obligations to be imposed on signing nations
· Bilateral: Treaty is bilateral if it is established between two nations
o Pacific Salmon Treaty (1985)
o Agreement on Air Quality (1991)
· Multilateral: If three or more nations have agreed to the follow the treaty
o North American Free Trade Agreement (1994)
o Kyoto Protocol (1994)
· deal with political actions (declarations of war), declarations of peace, or the creation of formal alliances
· Treaties govern trade, commerce, and natural resources; others ban land mines
· Are able to do two things:
o Codify existing laws and practices, laws are organized and assembled in one document
§ i.e. Convention on the Law of the Sea (1994)
o Can introduce new legislation
§ i.e. Outer Space Treaty of 1967
· Negotiated by gov't reps who have the expertise in the required area
· After a treaty is drafted and signed, it is approved (ratified) by each nation
· Canada may revise domestic law in order to meet treaty obligations
· Treaty may specify a termination clause requiring mutual consent
· The Hague can be used to settle matters pertaining to treaty disputes
Treaties in Action: Antarctica
· Subject of disputes among numerous nations, claiming interests in the region
· Groups can be divided into 4 categories:
o Companies with commercial interest in minerals
o Fishing and tourism industries
o Scientists who wish to study landform and its plant and animal life
o Conservationists interested in protecting 'the last frontier'
· In 1950s the question of ownership became an international issue
o In 1959 Antarctic Treaty was signed (Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, Soviet Union, Great Britain, and the US)
o Treaty provides peaceful means barring nuclear waste, radioactive waste, and promoting scientific investigations
o Treaty now encompasses more than 40 countries
· In 1961, further agreements signed to protect plant life, animals and mineral resources
o Madrid Protocol of 1991: importance of preserving the ecosystem
§ Combines existing international agreements (Agreed Measures for Conservation of Flora and Fauna)
§ Established Antarctica as natural reserve dedicated to peace and science
· In 1996, US Congress passed legislation known as Antarctic Science, Tourism and Conservation Act of 1996
o Dictates environmental regulations American tour operators must follow
Treaties in Action: The Seas
· By 1400 CE, distinction made between high seas; open seas at a distance from shorelines, and coastal waters
o i.e. ports, harbours, and closed-in bays
· As defence and trade became pertinent issues, interest in dominating the high seas increased
o By end of 15th century countries began claiming sovereignty of high seas
· In 1609, Hugo Grotius (Dutch lawyer and scholar) wrote seas should be free of sovereignty
o His views gained approval, due to impracticality of patrolling territorial waters
· By 19th Century, international law regulations raised two points regarding sovereignty of seas:
o A nation could claim that "a belt of land" fell under its jurisdiction (i.e. Great Britain)
o No state could claim jurisdiction over high seas
· By 20th century, more nations began claiming jurisdiction over their coastal waters
o In 1958, UN Conference on Law of Sea was convened, followed by second conference
o In 1994, 20 nations ratified Convention on the Law of the Sea
o In 2003, 138 nations, including entire EU had become signatories
· Territorial waters now limited to 22.2 km (12 nautical miles)
· Nations have rights to oil and gas offshore within 200 nautical miles (370.4 km)
Treaties in Action: The Stars
· No country can claim sovereignty over high seas, no country can claim ownership over space
· Space Law: Defined as body of law applying to outer space and governing related activities
· Law addresses matters including military activities, preservation of spaces and earth environment, liability for damages caused by space objects, settlement of disputes, protection of national interests, rescue of astronauts, sharing of information, use of space tech., and international co-operation
· Outer Space Treaty of 1967 addresses laugh of satellites
· Urgent concern was need for cooperation to ensure peaceful use of space
· Treaty spaced nations could not make claims over outer space, moon, or other celestial bodies
· Stipulation of treaty was to bear responsibility for actions taking place within its' borders
· By 2003, space law encompassed:
o Five international treaties, five sets of principles, national laws, rules, and regulations; executive and administrative orders; and judicial decisions
Customary Practices
· Countries may choose to engage in practices they feel ethically bound to follow
· Diplomatic Immunity: The right to be shielded from being charged with a crime or sued, to the members of embassy staff long before Vienna Convention
· Nations may engage with other nations in practices they feel bound to follow
General Principles of Law
· Article 38 of Statute of International Court of Justice lists "general principles of law" as third source of international law
· It is very difficult to achieve international consensus on either the interpretation of the term "civilized" or scope of general principles
Judical Decisions and Teachings
· Decisions made by Int'l court of Justice and domestic courts are considered to be of persuasive value
o Persuasive Value: While decisions can be consulted, they have no binding force
· Decisions are not used to influence or determine outcomes in the same way that precedent is used in common law
· While decisions may help shape international custom and practice, they are not legally binding
· The teachings and writings of legal scholars are also sources of int'l law
o Analysis and interpretation by learned legal experts contribute to current practices
o Can also pinpoint or highlight new approaches to, or principles of, international law