Norms of international law

As long as international law – a collection and a system of norms, it is necessary to establish what exactly do the terms “rule of law” in general and the rule of international law in particular.

The rule of law, according to the national general theory of law is a legally binding rule of conduct under its recipients whose behavior it regulates, and which are referred to as subjects of law. Legally binding rules of law is that prescribed in its conduct of an entity is provided, if necessary, coercion. Domestic law norms of behavior of entities established or authorized by the state and they also meet the need for coercion to enforce them.

Norms of international law, respectively, are legally binding rules of conduct prescribed by these rules subjects of international relations that are protected in case of need for forced compliance.

In accordance with the method of international legal norms of international law established by mutual consent and agreement among the subjects of international relations, and they themselves are protected through the use of coercion, where necessary, to comply with them.

According to the general theory of law, rule of law (national and international) include three elements that have a three-term structure: a hypothesis that indicates the condition of the established rules of conduct, disposition, sets forth this rule, and sanctions, pointing to the adverse legal consequences, which occur for an entity violating this rule.

Rights and / or obligations arising for an entity of the established rules of conduct, it is his subjective rights and duties. In theory, international law and international legal instruments to replace the term “duty”, the term “obligation”, again in accordance with the method of international legal regulation.

The collection of the same system and the rule of law referred to the right in an objective sense or objective right and what is international law in general.

The above tripartite structure of the law shall not be interpreted literally. In international law, taken separately, its norm is contained, as a rule, only the disposition of setting out this rule of conduct and legal fact, giving effect to this rule (the hypothesis), is contained in another norm of the system (subsystem) standards.

We illustrate this with an example of the Vienna Convention on Diplomatic Relations of 1961 which regulates the appropriate relationships between states. Legal fact (hypothesis), giving effect to the rules of this Convention sets out in her art. 2, which states: “The establishment of diplomatic relations between states and the establishment of permanent diplomatic missions, takes place by mutual consent.” Namely the establishment of permanent diplomatic missions, represents the condition of the Convention’s rules of conduct of the States.

As for the sanctions of international law, they provided a special system (subsystem) of the rules on international responsibility of subjects of international relations, more specifically – on the International Responsibility of States for their internationally wrongful acts.

Norms of international law differ on the recipients – the subjects, the relationship between which they regulate. Therefore, they are structurally divided into general international law, established by the international community of States and addressed to all entities or all of the main subjects of international law – the state and local standards, addressed to two or more of its subjects, by agreement between which they are installed. More specifically – is the norm of bilateral or multilateral treaties.

Among the local norms can be distinguished as individual rules that govern the behavior of subjects in particular, an isolated case. This, for example, decisions of international courts or arbitration binding on the parties to the dispute only in the case.

Relation between the norms of general international law and norms of local is that the latter should not contradict the essence of general international law, ie must comply with them basically. Thus, according to Art. 103 UN Charter (the main instrument of general international law), when the obligations of members of the Organization for the present Charter and their obligations under any other international agreement, their obligations under the present Charter.

The core of general international law are its basic rules – guidelines. This subsystem is the source and associated norms of general international law, establishing the basic rights and obligations of States, thereby defining the essential content of modern international law and its focus.

Now the basic principles of international law and its normative content contained in the unanimously adopted UN General Assembly in 1970, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (hereinafter the Declaration on Principles of International Law in 1970 ).

Essential in this regard has also declaration of principles that States Parties will be guided in their relationship contained in the Final Act of the Conference on Security and Cooperation in Europe in 1975 (now the Organization for Security and Cooperation in Europe). *

Peremptory norm

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A peremptory norm (also called jus cogens or ius cogens, /ˌdʒʌs ˈkoʊdʒɛnz/ or /ˌjʌs/;^[1] Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.

There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, and wars of aggression and territorial aggrandizement.^[2]

[edit] Status of peremptory norms under international law

Unlike ordinary customary law, which has traditionally required consent and allows the alteration of its obligations between states through treaties, peremptory norms cannot be violated by any state "through international treaties or local or special customs or even general customary rules not endowed with the same normative force".^[3]

Discussions of the necessity of such norms could be traced as far as 1758 (Emmerich de Vattel, Droit des gens) and 1764 (Christian Wolff, Jus Gentium), clearly rooting from principles of Natural Law.^[4]

But it was the judgments of the Permanent Court of International Justice show the earliest application of the peremptory norms as a non derogable norm. The earliest case was in its judgment of the matters between the United Kingdom v. Germany in 1923, stating that sovereignty can not be an excuse to derogate the peremptory norms.^[5]

Under Article 53 of the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void.^[6] The treaty allows for the emergence of new peremptory norms,^[7] but does not specify any peremptory norms. It does mention the prohibition on the threat of use of force and on the use of coercion to conclude an agreement:

"A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized 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."^[8]

The number of peremptory norms is considered limited but not exclusively catalogued. They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, torture, state sponsored terrorism, arbitrary prolonged detention, summary execution, and disappearance of individuals. As an example, the world court has regarded the principle that it is impermissible for a State to acquire territory through war as a peremptory norm^[9][10]

Despite the seemingly clear weight of condemnation of such practices, some critics disagree with the division of international legal norms into a hierarchy. There is also disagreement over how such norms are recognized or established. The relatively new concept of peremptory norms seems to be at odds with the traditionally consensual nature of international law considered necessary to state sovereignty.

Some peremptory norms define criminal offences considered to be enforceable against not only states but also individuals. That has been increasingly accepted since the Nuremberg Trials (the first enforcement in world history of international norms upon individuals) and now might be considered uncontroversial. However, the language of peremptory norms was not used in connection with these trials, rather the basis of criminalisation and punishment of Nazi atrocities, was that civilisation could not tolerate their being ignored because it could not survive their being repeated.

There are often disagreements over whether a particular case violates a peremptory norm. As in other areas of law, states generally reserve the right to interpret the concept for themselves.

One positive right considered to be a peremptory norm is the right to use self defense. Though qualified, this right is shared by states and individuals.

Many large states have accepted this concept. Some of them have ratified the Vienna Convention, while others have stated in their official statements that they accept the Vienna Convention as "codificatory". Some have applied the concept in their dealings with international organizations and other States.

[edit] Examples

[edit] Execution of juvenile offenders

The case of Michael Domingues v. United States provides an example of an international body's opinion that a particular norm is of a jus cogens nature. Michael Domingues had been convicted and sentenced to death in Nevada, United States for two murders committed when he was 16 years old. Domingues brought the case in front of the Inter-American Commission of Human Rights which delivered a non-legally binding report.^[11] The United States argued that there was no jus cogens norm that "establishes eighteen years as the minimum age at which an offender can receive a sentence of death".^[11] The Commission concluded that there was a "jus cogens norm not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age."^[12] The United States has subsequently banned the execution of juvenile offenders. Although not necessarily in response to the above non-binding report, the Supreme Court cited evolving international norms as one of the reasons for the ban. (Roper v. Simmons).

[edit] Torture

The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.^[10] It also stated that every State is entitled "to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction."^[10] Therefore, there is universal jurisdiction over torture. The rationale for this is that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."^[13] Further to this, there is no allowance for states to make reservations to the Convention for the Prevention and Punishment of Torture, and the Convention is considered to bind all states, not just those party to it.

Soft law

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The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law, often contrasted with soft law by being referred to as "hard law". Traditionally, the term "soft law" is associated with international law, although more recently it has been transferred to other branches of domestic law as well.

[edit] International law

[edit] Definition of soft law

In the context of international law, the term "soft law" covers such elements as:

• Most Resolutions and Declarations of the UN General Assembly, for example, the Universal Declaration of Human Rights;
• Elements such as statements, principles, codes of conduct, codes of practice etc.; often found as part of framework treaties;
• Action plans (for example, Agenda 21);
• Other non-treaty obligations

[edit] European community

The term "soft law" is also often used to describe various kinds of quasi-legal instruments of the European Communities: "codes of conduct", "guidelines", "communications" etc. In the area of law of the European Communities, soft law instruments are often used to indicate how the European Commission intends to use its powers and perform its tasks within its area of competence.

[edit] Status of soft law

In international law, the terminology of "soft law" remains relatively controversial because there are some international practitioners who do not accept its existence and for others, there is quite some confusion as to its status in the realm of law. However, for most international practitioners, development of soft law instruments is an accepted part of the compromises required when undertaking daily work within the international legal system, where states are often reluctant to sign up to too many commitments that might result in national resentment at over-committing to an international goal.

[edit] Utility of soft law

Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "hard law" in the future. This "hardening" of soft law may happen in two different ways. One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law. Soft law is a convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments at a certain point in time for political and/or economic reasons but still wish to negotiate something in good faith in the meantime.

Soft law is also viewed as a flexible option - it avoids the immediate and uncompromising commitment made under treaties and it also is considered to be potentially a faster route to legal commitments than the slow pace of customary international law. With the passage of time, in today's globalized society it is easy to use the media and the internet to spread the knowledge of the content of declarations and commitments made at international conferences. In doing so, these aspirational non-commitments often capture the imagination of citizens who begin to believe in these soft law instruments as if they were legal instruments. In turn, it is felt that this ultimately impacts governments who are forced to take into account the wishes of citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft law instruments so frequently and with such import that they begin to evidence legal norms.

Another useful aspect of the nature of soft law is that it often can be used to evidence opinio juris on applying or interpreting a treaty.

Soft law has been very important in the field of international environmental law where states have been reluctant to commit to many environmental initiatives when trying to balance the environment against economic and social goals. It is also important in the field of international economics law and international sustainable development law.

[edit] Using care with reliance on soft law

Soft law is attractive because it often contains aspirational goals that aim for the best of possible scenarios. However, the language in many soft law documents can be contradictory, uncoordinated with existing legal commitments and potentially duplicative of existing legal or policy processes. Another key point is that negotiating parties are not blind to the potential lying in stealth in soft law. If a negotiating party feels that soft law has a potential to turn into something binding down the track, this will negatively influence the negotiation process, and soft law instruments will be watered down and hemmed in by so many restrictions that there is little point in creating them.a

Nevertheless, the reliance on soft law continues and it is unlikely that its use will fade; it is far more likely to be relied on in greater amounts as it also serves as a "testing ground" for new, innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change.

Date: 2015-12-11; view: 2335