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Norms of International Law
International laws are rules generally accepted by states or nations to serve as a framework for harmonious international relations. Laws that apply to states are called international public laws, while those that govern conflict between individuals are called private international laws. Norms of international, federal law are based on consistent state practice, opinion Juris, peremptory norms (also referred to as jus cogens), and codifications or treaties.
Peremptory norms (Jus cogens) are widely accepted principles of international law from which no exemption is allowed. True, there is no universal agreement on precisely what constitutes jus cogens. However, it is generally accepted that jus cogens include a prohibition on all acts of genocide, prohibition on slavery, torture, maritime piracy, and wars of aggression or territorial invasion (Bederman 105).
Opinio Juris sive necessitates simply means an opinion of law or necessity and is the second element in customary international law. Opinio Juris is used alongside state practice (which is more objective) to establish a legal obligation. Opinio Juris is basically a subjective element of belief that state action is carried out of a legal obligation. It means that the effects of a state must not be merely out of political gimmick but rather out of a sense of legal liability. True, it is difficult to prove why a state acted in a certain way. It is even more challenging to determine why it did not work in the first place. Thus, developing a legally binding international law based on the prohibition of practice is impossible (David 57).
A variety of sources are used to provide evidence of the existence of opinion Juris. Such evidence includes government policy, official press releases, official government manuals, international judicial decisions, state ratified treaties, United Nations resolutions, among others. However, these sources only build a logical framework and only apply for customary laws that already have existing norms. It becomes a challenge if a new usual rule emerges.
Sources of International Law
General principles, common law, international customs, and treaties have been listed under Article 38.1 of the Statute of the International Court of Justice (ICJ) as the primary source of international law. Other causes that have been designated as subsidiary are “judicial decisions and scholarly writings” (Slomanson 80).
National laws can also become international laws by a delegation of federal jurisdiction. A good example is the International Criminal Court (ICC), in which member states have signed a treaty that delegates national sovereignty to supranational tribunals. Therefore sources of international law are diverse and have been influenced by political theories and legal practices (Yun 23).
Most international laws are consent-based, and issues of state sovereignty always come as a priority. Although states can limit such independence by consent when signing treaties or when joining international conventions, they can also easily revoke such consent with no legal repercussions. This is because there is almost no effective mechanism to compel states to comply with treaties they have signed. As a result, international laws and declarations such as the Declaration of Human Rights only remain as idealistic documents. Likewise, more countries continue to flout their obligation with the International Criminal Court. Thus, the reason nations observe international law is not necessarily because they feel obliged under law but instead because of the benefits they get from such acts.
Enforcement of International Law
On the international scene, there is no peremptory enforcer of international agreements. International laws are rarely legally binding and can be recanted by states. However, various enforcement mechanisms can be applied by countries either explicitly or implicitly, which guarantee some level of effectiveness (Anthony 58). These enforcement mechanisms are in no way associated with authority, force, or violence. They are instead basic methods that the negotiators apply to encourage compliance. Enforcement methods can be categorized as either positive or negative enforcement mechanisms. Positive enforcement mechanisms involve rewards or incentives which are meant to entice states so they can comply. The incentives can be monetary rewards or can come in the form of socio or federal benefits. On the other hand, harmful enforcement methods are punitive in nature and encourage compliance by threatening or by issuing disincentives.
Negative enforcement tactics include reciprocity, collective action, reparations, and shaming. Reciprocity is a type of enforcement in which one state is certain that if they take measures that offend another state, the other state will retaliate with the same or similar demeanor. Fear of retaliation in equal measure makes countries to think twice about their actions about other states (Frenk 21). If, for example, a country imposes high tariffs on imports from another state, the other state could respond by imposing similar restrictions on the other country’s exports.
Collective action is a measure that several states impose on one country for non-compliance. Economic, social, and political sanctions are the most common forms of punitive collective action. Economic sanctions can be imposed by the United Nations to limit or completely ban importation or exportation of goods by a non-compliant state. Political or social penalties include expulsion or withdrawal of foreign consulates or severing of diplomatic links.
Reparation is an enforcement mechanism based on restorative justice and is common, especially in environmental agreements. Reparations involve some sort of compensation and are usually applied hand in hand with shaming (also known as name and shame). The choice of enforcement mechanism will depend on the situation. Still, most effective agreements apply both positive and negative methods simultaneously in what can be described as a carrot-and-stick manner.
Anthony, Pagden. Application of International Law and Political Thought. New York: Pagden &Thompson Publishers, 2014. Print.
Bederman, David. International Law Frameworks. New York: Foundation Press Publishers, 2015. Print.
David, Harris. Cases and Materials on International Law. California: Sweet & Maxwell Publishers, 2013. Print.
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Frenk, Hoffman. The Economics of New International Health Laws. Washington: Rottingen & Wright Publishers, 2011. Print.
Slomanson, William. Fundamental Perspectives of International Law. Boston: Wadsworth Publishers, 2012. Print.
Yun, Michael. The Case of the Optional Protocol to the Convention on Human Rights. Cambridge: Case Law Publishers, 2011. Print.