The International community has become a vast assortment of treaties and agreements and institutions after WWII. The topic of this paper is on the new international customs developed in response to terrorism focusing on the actions from the US after September 11th 2001.
Part One: What is Customary Law?
The international community was built on centuries of traditions, actions and lessons learned. These actions of history were recorded and eventually created into law. This beginning of human action is beginning of custom and customary law that have been codified through acceptance into national and state behavior. Customary law has been usually agreed to as a “general practice, accepted by law.” Treaties that have dated back to around 3000 B.C.E., created customs still used today. One, a realist approach states that States are sovereign and must consent to treaties, and even with treaties can act independently from it. And the custom of pacta sunt servanda, states that countries that have agreed to the treaties are bound to carry out, in good faith the responsibilities in which they have agreed to (Scott 2010, 5). People create customs in history; therefore they are a form of positivism, in which people make the law. Since customs are made by human actions, they are laws made by people that require a longer time to codify (Scott 2010, 78).
Every nation and group of people have created a set of norms which their governments have enforced or superseded by advanced mechanisms such as legislatures. The mechanism for the international system is a form of the custom itself, built into 3 levels. The first is the underlying philosophy, idea, or concept, created by natural law, or more basic, norms developed over time. The second level; are the rules and principles, which are related to the operation of the institutions created. And the third level; are the rules and concepts that operate the whole system of world politics.
...PUBLIC INTERNATIONAL LAW
Name of the Case: SADC Asylum Case (Asante/Gopenia)
Year of the decision: 2014
Court: SADC Tribunal
Legal Issues before the Tribunal:
1. Is Asante competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?
2. Was Gopenia, as the territorial State, bound to give a guarantee of safe passage?
The Tribunal’s Decision:
As a point of departure, Article 38(1) UN Charter provides the sources of international law. The statute provides:
“The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply, international conventions, international custom and general principles of international law that are recognised by civilised nations.”
In order to enable the world court to apply any asserted rule of international law, it must be shown that it is the product of one, or more, of the three law creating processes; treaties, international customarylaw or the general principles of law recognised by civilised nations as enunciated by the provision above. The significance of this enumeration lies in its exclusiveness. In the Lotus Case (France V Turkey), the court stated that, the rules of law binding upon states emanate from...
...The term "soft law" refers to legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law. These are generally, instruments that are not treaties that oblige the stakeholders to follow them, but they have within them ‘norms’ that are believed to b good and therefore need universal application.
The Universal Declaration of Human Rights is also officially termed as a softlaw since it was passed by the UN General Assembly as a Declaration and within itself has not given any means where the stakeholders are legally bound to abide by the articles or to enforce them. The preamble of the declaration says that the UDHR is “a common standard of achievement for all peoples and all nations” and the nations must themselves strive to achieve this standard.
While not a treaty itself, the Declaration was openly adopted for the purpose of defining the meaning of the words "fundamental freedoms" and "human rights" appearing in the United Nations Charter. For this reason, the Universal Declaration can be termed as a fundamental constitutive document of the United Nations. Since the UN charter is binding on all member states (according to Section 1, Article 4 in Chapter 2 of the UN charter), most people argue that the Universal Declaration of Human Rights although a soft law, by proxy has a legal binding effect on the nations....
...International Law Book Notes
I. Chapter I
A. History of International Law
i. “Nations ought to do to one another in peace, the most good, and in war, the least evil possible” –Montesquieu to Napoleon
ii. Int. law predates several countries
iii. Sovereignty: must provide incentives to get other countries to sign onto treaties
iv. Shoot for customs to become law; litigate issues when there is no treaty or if the treaty falls short
v. Two Main Themes
1. Relationship of one country to others
2. Relationships of individuals to the State
vi. Two Sections
1. Public: interactions of states
2. Private: transactional or corporate law
3. International Law Sampler
vii. A2, paragraph 2: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
1. In defense of any person from unlawful violence;
2. In order to effect a lawful arrest or to prevent the escape of a...
...2012 Fall Public International Law
International law legalty- Basic rules based on an international law which are the norms of Jus Cogen and obligations erga omnes, there are a number of instruments which set out the rules of international legal order. These instruments include: Art 2 (1) UN Charter that sets out the principle of the sovereign equality of states; Art 38 (1) Statute of the International Court of Justice which contains a list of different categories of rules of international law, including customarylaw and treaty law; and Art 26 Vienna Convention on the Law of Treaties which declares that every treaty in force is binding on the parties to it and must be performed in good faith.
UN Charter, Preamble and art. 103
The UN, the major organization set up under 1945 UN Charter, has a unique and complex structure and specific powers. The general statements in reviewing the UN Charter, the general statements concerning self-determination, sovereign equality, peace and security, and human rights certainly seem broader than the establishment of an international organization. By signing this treaty, these values are binding on all Member States.
The structure of the UN as set out in UN charter, there are seven major organs: the Security Council, General Assembly, Secretariat, Trusteeship Council, and Social Council, and the ICJ. With respect to the...
“Sources of Human Rights Law: Custom, Jus Cogens and General Principles” by Brunno Simma and Philip Alston.
The issue of establishment, authentication and protection of human rights and freedoms is of significant prominence nowadays. The adoption of the Universal Declaration of Human Rights and of subsequent Covenants in 1948 and 1966 respectively, the establishment of the European Court of Human Rights, Inter American Court of Human Rights and African Court of Human and People’s Rights is an example of a growing States’ involvement in the subject-matter. The world community as a hole is undoubtedly concerned with the human rights violations arising in different parts of the globe and is trying to resolve the problem. But to do so one needs to have defined judicial instruments which can be used to reach the peaceful solution. That’s why having a settled and agreed algorithm of the identification and application of the sources of international law on human rights is so crucial.
The scope of the present article comprises the problem of the relevance of different sources of international law stated in the Article 38 of the Statute of the International Court of Justice (Statute) in their ability to appear as a solid base for regulation of the issues connected with human rights and freedoms. Therefore, authors claim that although in “many situations treaty law...
... Orang Asli is a Malay term for natives. Traditionally, natives make decisions and settle disputes by achieving consensus through processes like negotiation and consultation. These customary practices had become adat (customs) that governed indigenous communities in Sabah and Sarawak for generations, existed only in oral form.
In Sabah, efforts were made to codify adat but all these attempts fell short of having these customs codified and made legally binding. Instead, they remained merely as guides to native chiefs and court officials. Among all, only the efforts of George Cathcart Woolley (Commissioner of Lands, North Borneo Company) have successfully printed the compiled customs as codes. These codes were published by government printing office in 1953 and reprinted in 1962 as Native Affairs Bulletins No.1 to 7.
The 7 Natives Affairs Bulletins published by the North Borneo Company, 1936 –1939
The Timoguns: A Murut Tribe of the Interior, North Borneo Native Affairs Bulletin
No. 1, Sandakan: Government Printing Office, 1936 (Reprinted by the North
Borneo Government Printing Office, 1962. 32 p).
Tuaran Adat: Some Customs of the Dusun, North Borneo, Native Affairs Bulletin
No. 2, Sandakan: Government Printing Office, 1937. (Reprinted by the North
Borneo Government Printing Office, 1953).
Murut Adat: Customs Regulating Inheritance amongst the Nabai Tribe of
Keningau and the Timogun Tribe of...
实 验 报 告
实验课程名称 Introduction to Law
专 业 班 级 管双联1202
学 生 姓 号 31205737
学 生 姓 名 陈炅堃
Difference between Common Law and Civil Law
In today’s world, common law legal systems are in use in England where it originated, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, India, Canada, Ireland, South Africa, Hong Kong, Australia and etc. But there are also some countries use civil law such as China、French and Japan. So what is the difference between common law system and civil law system? Here are some comparison with them.
In Common Law systems, the law continually evolves in addition to being amended by laws passed by the legislature. If a higher court has previously interpreted a statute in a particular law this cannot be overridden by a lower court-the decision of the higher court is a binding precedent. And common law is based on precedent and has been used since before the time when laws were first written down. This system of justice was...
...settlement of disputes. They also need rules for the organization of their governments. Law is the set of rules that the government enforces through its police, its courts, and its other agencies. In To Kill a Mockingbird, Harper Lee demonstrates the importance of law in our communities, especially criminal law.
Law makes it possible for men to live together peaceably in a community. If there were no law, every man could do just as he pleased, with law, the people in a community know that the government will enforce rules that will make it possible for them to live together without conflict. The philosophy or science of law is called jurisprudence.
There are two main kinds of laws. Civil or public law helps settle disputes between people or companies. Criminal law deals with crimes, or actions that cause serious harm to an individual or group.
Public law is the body of rules in which the government is directly involved. Public law regulates the relationships between individuals and the government. One group of rules in public law defines and limits the powers of the government. The part of public law most familiar to many persons is criminal law, which is the body of rules that we are commanded to obey. The government may fine those who do not obey, send...