Where do we find int’l law


Art. 38 of the Statute of the ICJ
Treaties




Customary law




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
23.03.2016
1
General issues

Treaty law vs. customary law



The contribution of treaty law to customary law
and vice versa
Is there a clear distinction?
”Hard law” vs. ”soft law”




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
23.03.2016
2
Int’l law vs. domestic law I

Int’l law: Lack of general framework for:




Int’l law: Horizontal



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

Hierarchical and applying in the relationship between public
authorities and private parties and between private parties
Ole Kr. Fauchald
23.03.2016
3
Int’l law vs. domestic law II

Domestic law


Int’l law



In general law the operation of which cannot be dispensed
with by the agreement between the parties
In general law the operation of which can be dispensed with
by the agreement between the parties
But: development from “contractual” towards “law-making”
The parallel between contract law and international
law
Reciprocity
 The reliance on “secondary rules”
The scope of legislation




Int’l law: Treaties: Only binding between those that have become
parties
Domestic law: Legislation: Binding on all
Ole Kr. Fauchald
23.03.2016
4
Int’l law vs. domestic law III

Sources of law and interpretive arguments




Principle of consensus


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

Dualism vs. monism
Ole Kr. Fauchald
23.03.2016
5
Sources of law I

Interpretation of treaties





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
23.03.2016
6
Sources of law II

How do treaty regimes develop?
 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
 Importance
Ole Kr. Fauchald
for interpretive arguments
23.03.2016
7
Sources of law III

Customary int’l law

Practice – objective element
–
–
–
–

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?

Nature of customary law:
– Unclear w/ respect to legal status and content
– Emphasis on practice or opinio juris?
Ole Kr. Fauchald
23.03.2016
8
Customary int’l law

Jus cogens


Fundamental principles of int’l law





Art. 2 of UN Charter
State sovereignty, equality between States
Rules on treaty interpretation
State responsibility for unlawful acts


Illegality of genocide, torture, ethnic cleansing
ILC Draft Articles
Rules on expropriation
The obligation to prevent harmful activities
Ole Kr. Fauchald
23.03.2016
9
Treaty law, the UN Charter
“World Constitution”(?)
 Includes some of the most fundamental
rights and duties of States (Art. 2)
 Defines the composition, function,
powers and procedures of the principal
organs of the UN

 General
assembly, Security Council,
ECOSOC, International Court of Justice,
Secretariat

Establishes its superiority: Art. 103
Ole Kr. Fauchald
23.03.2016
10
Other treaty regimes


Specialised agencies of the UN
Free standing treaty regimes




Regional treaty regimes



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

International investment and taxation, shared
resources, border treaties, extradition
Ole Kr. Fauchald
23.03.2016
11
Methods - how to approach IL


Slaughter 93 AJIL 1999, 291
Positivism


Policy-oriented jurisprudence



How does it work from a social perspective?
Feminist jurisprudence


Constrain decision-making through processes
Critical legal studies


Clarify and implement common interests – actor-oriented
International law and international relations
International legal process


Describing law ”as it is”, consent-oriented
How does it work from a feminist perspective?
Law and economics

How does it work from an economic perspective?
Ole Kr. Fauchald
23.03.2016
12