Class 5
Class 5 Whatever is covered for reception of INTL in domestic law is on the midterm. Midterm exam instructions -
Closed book
-
Arrive by 9:45 (latest… can come in earlier to have questions answered at regular time), exam starts at 10.
-
30 matching multiple choice (30 marks) and two short essay questions. (40 marks for short essay qs) o Part A = 30mins, b = 60
Customary international law -
Founded on idea that law comes from behaviour and belief of states.
-
It is possible to have an oral treaty, but it is not covered by the Vienna convention on law of treaties.
-
Article 38(1) has sources of international law (hierarchy), and A and B are treaties (conventions, pacts, protocols) and customs. They are the twins. o In order to prove a custom is a rule, you need to prove general practice and that it is accepted.
-
Positivist theory of consent o States consistently engaging in certain conduct (objective) which they believe is required (subjective), it is considered they consent to rules of customary international law that results. o State sovereignty (states are primary authors and subjects of international law) need consent to bind a state legally.
Consent is found in consistent behaviour (objective) and believe in mutual obligation (subjective).
o Law is created in positivism, not found. -
Natural law theory o Think law is out there and to be discovered.
o State practice and belief are law-evidencing, not creating. Practice are examples of divine law. Still consent, but get there by belief that you are bound. -
Important characteristics o Binding on all states (rare exceptions) o Foundation of all legal rights and obligations (has a lot of weight) but is also slippery – depends on state practice and belief in mutual legal consent – it is continually evolving. Can be binding on a state that didn’t even exist at the time the rule was formed.
-
Elements “general practice, accepted as law” o State practice – objective
Generality – how extensive does this state practice need to be (not the same as universal, generality means widespread but not unanimous)
Uniformity – does everything have to be the same for everyone? No. Means mostly the same with a little bit of variation. Refers to consistency of practice among practicing states but need not be perfectly consistent at all times. It is like this because one bad actor would break the rule and unmake it.
Duration – minimum time for the duration of a customary international rule… there is no minimum time. Depends on circumstances.
These 3 things are not considered in isolation… one affects the other.
o Opinio juris – subjective or psychological element
-
States belief that a rule exists and that it is binding on them.
We look to state practice and show how it is different from its peers.
Generality, duration, uniformity o Look at CUlearn slides.
-
Exceptions o Persistent objectors (Norway in the fisheries case) – someone who has objected from the beginning, before formation, can’t make any exceptions, and must be express (explicit)
o When there is formation of a regional customary rule… -
Inaction doesn’t equal consent… not a general rule.
Reservation = trying to modify parts of the treaty… trying to get out of being bound. o E.g., Malaysia cedaw reservation on discrimination on women o Can formulate objections to a country trying to make a reservation… can say something isn’t a declaration but a reservation because treaty obligations aren’t clear and mutual o There are clauses in some conventions where they say there are no reservations allowed. o Reciprocity… relationship in symmetrical. o Article 19 (on exam maybe… just know all of Vienna convention law of treaties) says a state may formulate a reservation on a treaty unless the reservation is prohibited by the treaty, e.g., landmines treaty.
(For exam) know rules for reservations… use, etc. How to apply rules.
For CEDAW, reservations go to the pith and substance of the treaty.
o Article 27 on Vienna convention law of treaties
Can’t use domestic law in order to avoid your international obligations
o Consider political aspects when formulating objection to Malaysia’s reservation… you want smoothness in international law so might not be best to take an extreme.
Is it against international law to execute someone who was underage at the time of the crime? -
Article 37 of the Convention on the Rights of the Child
-
In reality, only three countries have not ratified the Convention: the United States, Somalia and South Soudan
States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
Reception of International Law in Domestic Law -
Monism and dualism are theories of reception of international law into domestic sphere
-
Dualism – distinction between intl and domestic law… two isolated spheres. o Govern distinct international legal subjects/subject matter… one regards relations between stats and the other regards relations between subnational entities. o Neither domestic or international law is considered superior… though still acknowledges there still may be a conflict or dispute. o Intl law may be transformed (or import it) into a domestic legal rule.
-
Monism makes no distinction… law is an organic whole. o If there ever rises a conflict, intl law should take precedence even if the forum considering conflict is domestic legal court.
-
Dualism currently more prevalent but states are becoming more integrated now… states are having more dualist and monist tendencies o Intl law now addresses environment, economics, human rights, etc… these things previously were considered to be solely within domestic jurisdiction of each individual state. States are slowly allowing little bits of erosion in their sovereignty. o International criminal law no puts sanctions directly on some individuals for international crimes. No longer solely within domestic jurisdiction of states.
-
Two models of bringing international law into domestic sphere: o Transformationalist model – basically dualist.
Immigration and Refuge Act is a federal law in Canada that transformed definition from an international convention into domestic law.
o Adoptionist model – monist theory
Canada is dualist but treats treaty law differently from customary law. We take a dualist approach to treaty law, but we take adoptionist approach with respect to customary international law.
Closed book
-
Arrive by 9:45 (latest… can come in earlier to have questions answered at regular time), exam starts at 10.
-
30 matching multiple choice (30 marks) and two short essay questions. (40 marks for short essay qs) o Part A = 30mins, b = 60
Customary international law -
Founded on idea that law comes from behaviour and belief of states.
-
It is possible to have an oral treaty, but it is not covered by the Vienna convention on law of treaties.
-
Article 38(1) has sources of international law (hierarchy), and A and B are treaties (conventions, pacts, protocols) and customs. They are the twins. o In order to prove a custom is a rule, you need to prove general practice and that it is accepted.
-
Positivist theory of consent o States consistently engaging in certain conduct (objective) which they believe is required (subjective), it is considered they consent to rules of customary international law that results. o State sovereignty (states are primary authors and subjects of international law) need consent to bind a state legally.
Consent is found in consistent behaviour (objective) and believe in mutual obligation (subjective).
o Law is created in positivism, not found. -
Natural law theory o Think law is out there and to be discovered.
o State practice and belief are law-evidencing, not creating. Practice are examples of divine law. Still consent, but get there by belief that you are bound. -
Important characteristics o Binding on all states (rare exceptions) o Foundation of all legal rights and obligations (has a lot of weight) but is also slippery – depends on state practice and belief in mutual legal consent – it is continually evolving. Can be binding on a state that didn’t even exist at the time the rule was formed.
-
Elements “general practice, accepted as law” o State practice – objective
Generality – how extensive does this state practice need to be (not the same as universal, generality means widespread but not unanimous)
Uniformity – does everything have to be the same for everyone? No. Means mostly the same with a little bit of variation. Refers to consistency of practice among practicing states but need not be perfectly consistent at all times. It is like this because one bad actor would break the rule and unmake it.
Duration – minimum time for the duration of a customary international rule… there is no minimum time. Depends on circumstances.
These 3 things are not considered in isolation… one affects the other.
o Opinio juris – subjective or psychological element
-
States belief that a rule exists and that it is binding on them.
We look to state practice and show how it is different from its peers.
Generality, duration, uniformity o Look at CUlearn slides.
-
Exceptions o Persistent objectors (Norway in the fisheries case) – someone who has objected from the beginning, before formation, can’t make any exceptions, and must be express (explicit)
o When there is formation of a regional customary rule… -
Inaction doesn’t equal consent… not a general rule.
Reservation = trying to modify parts of the treaty… trying to get out of being bound. o E.g., Malaysia cedaw reservation on discrimination on women o Can formulate objections to a country trying to make a reservation… can say something isn’t a declaration but a reservation because treaty obligations aren’t clear and mutual o There are clauses in some conventions where they say there are no reservations allowed. o Reciprocity… relationship in symmetrical. o Article 19 (on exam maybe… just know all of Vienna convention law of treaties) says a state may formulate a reservation on a treaty unless the reservation is prohibited by the treaty, e.g., landmines treaty.
(For exam) know rules for reservations… use, etc. How to apply rules.
For CEDAW, reservations go to the pith and substance of the treaty.
o Article 27 on Vienna convention law of treaties
Can’t use domestic law in order to avoid your international obligations
o Consider political aspects when formulating objection to Malaysia’s reservation… you want smoothness in international law so might not be best to take an extreme.
Is it against international law to execute someone who was underage at the time of the crime? -
Article 37 of the Convention on the Rights of the Child
-
In reality, only three countries have not ratified the Convention: the United States, Somalia and South Soudan
States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
Reception of International Law in Domestic Law -
Monism and dualism are theories of reception of international law into domestic sphere
-
Dualism – distinction between intl and domestic law… two isolated spheres. o Govern distinct international legal subjects/subject matter… one regards relations between stats and the other regards relations between subnational entities. o Neither domestic or international law is considered superior… though still acknowledges there still may be a conflict or dispute. o Intl law may be transformed (or import it) into a domestic legal rule.
-
Monism makes no distinction… law is an organic whole. o If there ever rises a conflict, intl law should take precedence even if the forum considering conflict is domestic legal court.
-
Dualism currently more prevalent but states are becoming more integrated now… states are having more dualist and monist tendencies o Intl law now addresses environment, economics, human rights, etc… these things previously were considered to be solely within domestic jurisdiction of each individual state. States are slowly allowing little bits of erosion in their sovereignty. o International criminal law no puts sanctions directly on some individuals for international crimes. No longer solely within domestic jurisdiction of states.
-
Two models of bringing international law into domestic sphere: o Transformationalist model – basically dualist.
Immigration and Refuge Act is a federal law in Canada that transformed definition from an international convention into domestic law.
o Adoptionist model – monist theory
Canada is dualist but treats treaty law differently from customary law. We take a dualist approach to treaty law, but we take adoptionist approach with respect to customary international law.
