Myriad sources of international law
Usually, legal practitioners argue that international law has different interpretations sources and applicability than the domestic territorial laws (Born, 2007). International law either in itself general and particular is identical from relations in the international arena between countries and its myriad sources are actually questionable. Born, (2007) defines International treaties as components of international laws where it enforces countries into binding legal international relations. The myriad origins of international laws are indicated as basis from which customs and rules can be analyzed and evaluated. Ideally, sources refer to all the materials, procedures and processes from which the international law can be dug out. Article 38 of international court of justice is generally inferred as to elaborate on the sources of international law. Generally, the article recognize courts to apply all technical, and standards covering convections, custom, and generally applied principles to determine the content of international from which the court extract its jurisdiction towards judicial rulings and decisions. In addition, other international organizations such as the United Nations and the general states are recognized by the article to be the sources of international laws. In nutshell, sources of international laws include the treaties, international custom and the general principles applied in the international court.
Custom refer to a social setting where specific behaviors are generally accepted and where these codes are considered as opinio juris by the law enforcements (Dodge, 2005). In addition, legal practices are generally recognized and observed. International laws recognize the common practices applicability to international jurist courts jurisdictions. Within the contemporary legal systems, especially in the developed world, international customs are based on the diplomacy, exchange of nation’s relations or the laws of different countries and the customary relations between countries. Custom as a source of international law is supported in action by two schools of thoughts and in particular the positivism school of thought.
School of positivism resulted from the philosophical movement in German and Austria in the 19th century. This school attempted to logically evaluate and analyze statements about religion and ethics as part of international laws. Since positivism recognized natural custom to define how people ought to live and behave, international law was practically considered as identical with natural morality and custom (Born, 2007).
The Paquette Habana
This case is observed and recognized as precedent case that support international law as part of a country laws. In this regard from the ruling of Justice Gray, Paquette Habana became classical declaration to integrate custom under international laws in legal systems and acted as pillar in international relations judicial decision (Dodge, 2005).
The S.S. Lotus
The international court of justice recognized S.S Lotus principle as jurisprudence to accommodate the actions and the laws of countries to protect sovereignty and its people (Docket XI. 1927). The principle applies where a country cannot precede its jurisdiction to criminal liabilities to foreigners. In such circumstances, the special agreement between states permits extension of jurisdiction to foreigners. International law virtually precludes discretions of individual sovereign state in matters concerning criminal liability if no treaty exists between countries.
The Asylum Case
The case issue focused on the establishment of custom under the international law. Actually, the case held that Columbian government could not grant an asylum on political base attaching Peruvian citizens. For custom to be established in the international relation, it must be under a treaty or proved to exist constantly and carried out by the parties in consideration consistently.
Nicaragua vs. US
In this case, the Nicaragua military forces supported the El Salvador and United States funded for rivals. This contributed an economic blow to Nicaragua and the troops invaded and infringed Nicaragua air space. Nicaragua’ filed a suit in the international court for Justice against the United States. Article 36 of international statutes where ICJ bases its jurisdiction examined the customer relationship and capacity between both parties. Customary relationship was therefore important in the case. Some of the facts in the case included violation of treaty, violation of the international laws, cross border militia attack and support or self-defense by United States and Nicaragua’s. The court held that for customary law to apply all parties involved in the suit including El Salvador had to have a common treaty and charged together. All treaties have customary law elements, are treated independently, on separate subject matters.
What is a treaty?
A treaty can be defined as an agreement between states in writing, governed and written under international laws requirement and can be a single or more instruments (Gehr, 2009). A treaty is referred by others countries as territorial conventions, protocols and states written agreements. Under international law, treaties must be enforced and complied. There must be consent between the parties to a treaty and consequences related to breach and withdrawal is diverse.
What limitations are there to treaties with respect to the separation of powers under US law?
Limitation regarding separation of powers under the US laws and the treaties is well supported by Nicaragua vs. US case. The court could not incorporate the U.S facts in the case ruling. Customary laws are enacted in the international laws as enacted under the national constitution. Limitation prevails where customary laws are incorporated in treaties. This makes customary laws applicability and enforcement is different from the treaty itself. In fact, the customary laws and treaty agreements should be of the same content, executed by both parties uniformly and consistently otherwise limitation will exist in enforcement and in judicial rulings (Gehr, 2009). Treaties can be termed as declaratory, crystallized and developed norms, and generate effects of codifying treaties.
Treaties are agreements between countries. Agreements exist due to one territory engaging into contractual mandate and declaring it as part of law (Gehr, 2009). Thus, treaties are declarations of a country. For example of a treaty that can also be declaratory in its applicability and enforcement, generating norms and being declared p[art of law is the Kyoto protocol.
Crystallizing refers to making different norms, convections and values developing one convectional rule. Treaties condense customary norms of countries into one rule and can result into integrated norms, standards and principles.
The generating effects of codifying treaties
Treaties are contractual obligation between states that starts from developing, executing, interpretation, applying and terminating under the general governing criteria of international customary law. In order for international law to regulate and enforce laws, it requires a unified legal mechanism and framework. This unifying framework is generally a function of international relation provide by international customary norms (Gehr, 2009). Generating effects of codifying treaties arise from transforming international community laws and customary norms conflicts. Codification provisions, which are generated effect from treaty codification, arise due to the integration of customary norms into international laws.
Under international Law, what are the grounds for interpretation and termination of Treaties?
According to Gehr, (2009) like other interpretations in literatures, treaties are interpreted in good faith and in accordance of ordinary meaning of words and phrases on the covered framework, to shed more light to the purpose and the subject matters. Unlike the domestic laws and legal systems, international laws do not have legislators house of chambers or independent commissions top formulate and enhance its enforcement. Usually, international law makers are the subjects on the legal system. These laws are laws created through cooperation, essentially depend on the agreement, and consent between the members. International law is composed by the generally accepted principles of law and the international ethics, norms and values under the customary law. Interpretation and termination of the law conversely depend on the understanding, applicability and enforcement of the parties involved. In this respect, no a single party can impose on interpretation and termination grounds of the other parties.
Contemporary legal professionals are argued as mediators and arbitrators of international relations disputes (Gehr, 2009). In this regard, they turn to be the interpreters and providers of termination of treaties grounds. Legal scholars similarly facilitate the negotiation and the signing of agreement in a protocol. Provision of breach and termination are usually included in the codification provisions. Treaties are made through agreement and termination can follow the same procedure of accord by giving notice with adequate time (Born, 2007). In other cases, interpretation can be through national legislators such as the congress. The congress can in fact develop and enforce retaliatory laws against treaties to make them invalid or to terminate them.
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