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General international law

One sees this phrase from time to time. It is a rather vague reference to the corpus of international law other than treaty law, and therefore includes those treaty principles or rules that have become accepted as also customary international law.

Obligations erga omnes

In Barcelona Traction (Second Phase), the International Court of Justice pointed out that certain obligations on a state are owed to all states, or erga omnes (for all the world). These include jus cogens and important human rights. Certain treaties have been held to create a status or regime valid erga omnes. Examples include those providing for neutralisation or demilitarisation of a certain territory or area, such as Svalbard or outer space; for freedom of navigation in international waterways, such as the Suez Canal, or for a regime for a special area, such as Antarctica.

Jus cogens

Jus cogens (or a peremptory or absolute rule of general international law) is, in the words of Article of the Vienna Convention on the Law of Treaties 1969:

a norm accepted and recognised 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.

The concept was once controversial. Now it is more its scope and applicability that is unclear.

There is no agreement on the criteria for identifying which principles of general international law have a peremptory character: everything depends on the particular nature of the subject matter.

Perhaps the only generally accepted examples of jus cogens are the prohibitions on the use of force (as laid down in the UN Charter) and on genocide, slavery and torture. This is so even where such acts are prohibited by treaties that parties can withdraw from. It is wrong to assume that all the provisions of human rights treaties, such as due process, are jus cogens or even rules of customary international law.

‘Soft law’

There is no agreement about what is ‘soft law’, or indeed if it really exists. Generally, it is used to describe international instruments that their makers recognise are not treaties, even if they employ imperative language such as ‘shall’, but have as their purpose the promulgation of ‘norms’ (see above) of general or universal application. Such non-treaty instruments are typically called Guidelines, Principles, Declarations, Codes of Practice, Recommendations or Programmes. They are frequently found in the economic, social and environmental fields. The Rio Declaration on Environment and Development 1992 is one. Because the subject matter is usually not yet well developed, or there is a lack of consensus on the content, it cannot be embodied in a treaty. But the soft law Universal Declaration of Human Rights 1948 has been the source for many universal and regional human rights treaties. Many ‘soft law’ instruments can be regarded as MOUs in the sense that there is no intention that they should be legally binding.



Comity

In their international relations states also observe certain rules of comity. These are not legally binding, but rules of politeness, convenience and goodwill, such as the reciprocal provision of free, but limited, on-street parking for diplomats. Later some may become binding rules. Courts may also rely upon comity as a reason for not accepting jurisdiction in a case, but this seems to be due to a misunderstanding. The courts are then really applying either a rule of conflict of laws or acting with restraint in exercising their jurisdiction in accordance with principles of international law.

 

 


Date: 2016-03-03; view: 775


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