Спеціальності «міжнародне право» 


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Спеціальності «міжнародне право»



ПОСІБНИК З МОВИ ФАХУ

ДЛЯ СТУДЕНТІВ І КУРСУ

СПЕЦІАЛЬНОСТІ «МІЖНАРОДНЕ ПРАВО»

 

 

Київ – 2013


КИЇВСЬКИЙ НАЦІОНАЛЬНИЙ УНІВЕРСИТЕТ

ІМЕНІ ТАРАСА ШЕВЧЕНКА

ІНСТИТУТ МІЖНАРОДНИХ ВІДНОСИН

Кафедра іноземних мов

Викл. Барикіна А.О.

Владика С.А.

Михайленко Т.В.

Полєєва Ю.С.

ПОСІБНИК З МОВИ ФАХУ

ДЛЯ СТУДЕНТІВ І КУРСУ

СПЕЦІАЛЬНОСТІ «МІЖНАРОДНЕ ПРАВО»

Затверджено на засіданні

Кафедри іноземних мов

Протокол № ___ від ___________ 2013 р.

Зав. кафедри _____________ Дайнеко В.В.

Київ – 2013


CONTENTS

 

UNIT I

THE DEFINITION OF INTERNATIONAL LAW……….………………………….4

 

UNIT II

SOURCES OF INTERNATIONAL LAW ………………………………….………18

 

UNIT III

SYSTEM OF INTERNATIONAL LAW ………………………………………...…67

 

UNIT IV

MAIN PRINCIPLES OF INTERNATIONAL LAW……………………….………83

 

UNIT V

SUBJECTS OF INTERNATIONAL LAW…………………………………..…..…99

 

UNIT VI

INTERNATIONAL LAW AND NATIONAL LAW(S)…………………..………120


UNIT I

THE DEFINITION OF INTERNATIONAL LAW

LEAD-IN

I. Answer the questions

1. How can the term “law” be defined?

2. What are the main features of law?

3. What makes rules of law binding?

4. How can the law be enforced?

5. What is the difference between law and morality, law and religion?

II. Comment on the following

1. Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. (Martin Luther King Jr. (1929-1968) - American clergyman, activist, and leader in the African-American Civil Rights Movement).

2. The laws of each are convertible into the laws of any other. (Ralph Waldo Emerson (1803-1882) U.S. poet, essayist and lecturer).

3. If you have ten thousand regulations you destroy all respect for the law. (Winston Churchill (1874 – 1965) a British politician, Prime Minister of the United Kingdom (1940 – 1945, 1951 - 1955)).

4. Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced. (Albert Einstein (1879 –1955) - a German-born theoretical physicist).

5. The best way to get a bad law repealed is to enforce it strictly. (Abraham Lincoln (1809 – 1865) - the 16th President of the United States (March 1861 - April 1865)).

 

READING

I. Read the text.

 

THE NATURE OF INTERNATIONAL LAW [1]

International Law or the Law of Nations is the name of a body of rules which — according to the usual definition — regulate the conduct of the states in their intercourse with one another. These rules are designated as law. If we speak of law in daily life, we think of national or municipal law, the law which prevails within the state. But is so-called international law, the rules prevailing in the relations among the states, law in the same sense as national or municipal law? The answer to this question depends on the definition of the concept of law.

Any attempt to define a concept must proceed from a certain usage of language, from the usual meaning of the word by which we intend to designate the concept. One must see whether the social phenomena called “law” present a characteristic in common, distinguishing them from other social phenomena of a similar kind — a characteristic which is sufficiently significant to constitute a general concept for the rational understanding of social life. Such a characteristic can be found. […]

II. Answer the questions.

1. How can the term “International Law” be defined?

2. What is general or common international law?

3. What does particular international law comprise?

4. In what case can conduct of a state be considered a delict?

5. When shall international law be considered true law?

6. How can the tern “customary law” be defined?

7. Does international law have the same sense as national law?

8. Who is bound by the norms of international treaties?

V. Read the text.

THE NATURE AND FUNCTION OF INTERNATIONAL LAW [2]

International law is not rules. It is a normative system. All organized groups and structures require a system of normative conduct — that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price. Normative systems make possible that degree of order if society is to maximize the common good — and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that that society embraces. Without law at the domestic level, cars cannot safely travel on the roads, purchases cannot be made, personal safety cannot be secured. Without international law, safe aviation could not be agreed, resources could not be allocated, people could not safely choose to dwell in foreign lands. Two points are immediately apparent. The first is that this is humdrum stuff. The role of law is to provide an operational system for securing values that we all desire — security, freedom, the provision of sufficient material goods. It is not. As is commonly supposed, only about resolving disputes. If a legal system works well, then disputes are in large part avoided. The identification of required norms of behaviour, and techniques to secure routine compliance with them, play an important part. An efficacious legal system can also contain competing interests, allowing those who hold them not to insist upon immediate and unqualified vindication. Of course, sometimes dispute-resolution will be needed; or even norms to limit the parameters of conduct when normal friendly relations have broken down and dispute resolution failed. But these last elements are only a small part of the overall picture.

The second point is that, in these essentials, international law is no different from domestic law. It is not, as some suppose, an arcane and obscure body of rules whose origin and purpose are shrouded in mystery. But, if the social purpose of international law and domestic law is broadly similar, there are important differences arising from the fact that domestic law operates in a vertical legal order, and international law in a horizontal legal order. Consent and sovereignty are constraining factors against which the prescribing, invoking, and applying of international law norms must operate.

[…] I will endeavour to show international law as a normative system, harnessed to the achievement of common values — values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialized or developing.

What is International Law

[…] There is a widely held perception of international law as rules — rules that are meant to be impartially applied but are frequently ignored. It is further suggested that these rules are ignored because of the absence of effective centralized sanctions — and, in turn, that all of this evidences that international law is not ‘real law’ at all.

The view that international law is a body of rules that fails to restrain states falls short on several counts. In the first place, it assumes that law is indeed ‘rules’. But the specialized social processes to which the word ‘Law’ refers include many things beside rules. Rules play a part in law, but not the only part. I remain committed to the analysis of international law as process rather than rules and to the view I expressed many years ago, when I said:

When … decisions are made by authorized persons or organs, in appropriate forums, within the framework of certain established practices and norms, then what occurs is legal decision-making. In other words, international law is a continuing process of authoritative decisions. This view rejects the notion of law merely as the impartial application of rules. International law is the entire decision-making process, and not just the reference to the trend of past decisions which are termed rules’. There inevitably flows from this definition a concern, especially where the trend of past decision is not overwhelmingly clear, with policy alternatives for the future.

Thus ‘rules’ are just accumulated past decisions. And. if international law was just ‘rules’, then international law would indeed be unable to contribute to, and cope with, a changing political world. To rely merely on accumulated past decisions (rules) when the context in which they were articulated has changed — and indeed when their content is often unclear — is to ensure that international law will not be able to contribute to today’s problems and, further, that it will be disobeyed for that reason.

The rejection of the perception of law as ‘rules’ entails a necessary consequence. It means that those who have to make decisions on the basis of international law — judges, but also legal advisers and others — are not really simply ‘finding the rule’ and then applying it. That is because the determination of what is the relevant rule is part of the decision-makers’ function; and because the accumulated trend of past decisions should never be applied oblivious of context. Although this reality has been regarded as anathema by many traditionalists, it was well understood by Sir Hersch Lautcrpacht[3]. He rejected the notion that the judicial function meant finding the appropriate ‘rule’ in an impartial manner. The judge, he argued, does not ‘find rules’ but he ‘makes choices’ — and choices ‘not between claims which are fully justified and claims which have no foundation at all but between claims which have varying degrees of legal merit’.

The reasons why some insist that international law is ‘rules’, and that all international lawyers have to do is to identify them and apply them, are not hard to find. They are an unconscious reflection of two beliefs, deeply held by many international lawyers. The first reason is that, if international law is regarded as more than rules, and the role of the authorized decision-maker as other than the automatic applier of such rules, international law becomes confused with other phenomena, such as power or social or humanitarian factors. The second reason is that it is felt by many that only by insisting on international law as rules to be impartially applied will it be possible to avoid the manifestation of international legal argument for political ends.

I want to deal with each of these reasons in turn, and tell you why I do not agree with them. To seek to contrast law with power (in which task the perception of law as ‘rules’ plays an essential task) is fundamentally flawed. It assumes that law is concerned only with the concept of authority and not with power, or control. International law is indeed concerned with authority — and ‘authority’ not just in the sense of binding decisions, but in the broader sense of jurisdictional competence, and more. Myres McDougal[4] has explained:

By authority is meant expectations of appropriateness in regard to the phases of effective decision processes. These expectations specifically relate to personnel appropriately endowed with decision-making power; the objectives they should pursue; the physical, temporal and institutional features of the situations in which lawful decisions are made; the values which may be used to sustain decision, and so forth.

So far, so good. But it is not the case, as is frequently supposed, that international law is concerned with authority alone, and that ‘power’ stands somehow counterpoised to authority, and is nothing to do with law, and is indeed inimical to it. This view — which banishes power to the outer darkness (that is to say, to the province of international relations) — assumes that authority can exist in the total absence of supporting control, or power. But this is a fantasy. The authority which characterizes law exists not in a vacuum, but exactly where it intersects with power. Law, far from being authority battling against power, is the interlocking of authority with power. Authority cannot exist in the total absence of control. Of course, there will be particular circumstances when power overrides authority. On such occasions we will not have decision-making that we can term lawful. But that is not to say that law is about authority only, and not about power too; or that power is definitionally to be regarded as hostile to law. It is an integral element of it.

What then of the other argument — that a perception of international law as other than neutral rules inevitably leads to bias and partiality? A classical statement of this view was made by Judges Fitzmaurice[5] and Spender[6] in the South West Africa Cases in 1962 when they wrote:

We are not unmindful of, nor are we insensible to, the various considerations of a non-judicial character, social, humanitarian and other... but these are matters for the political rather than for the legal arena. They cannot be allowed to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.

This formulation reflects certain assumptions: that ‘the correct legal view’ is to be discerned by applying ‘rules’ — the accumulated trend of past decisions, regardless of context or circumstance — and that ‘the correct legal view' has nothing to do with applying past decisions to current contexts by reference to objectives (values) that the law is designed to promote.

 

VI. Answer the questions.

1. What is international law?

2. How can the term “system of normative conduct” be defined?

3. Can we deal without national and/or international law?

4. Is the role of national and international law common?

5. What are the differences between national and international law?

6. Is international law ‘real law’?

7. Does the author consider law to be rules or process?

8. How did Sir Hersch Lautcrpacht define the role of a judge?

LANGUAGE FOCUS

Authority [ɔθɒ̱rɪti] 1) the power or right to give orders, make decisions, and enforce obedience: he had absolute authority over his subordinates a rebellion against those in authority; 2) the right to act in a specified way, delegated from one person or organization to another: military forces have the legal authority to arrest drug traffickers; 3) official permission; sanction: the money was spent without parliamentary authority; 4) a person or organization having political or administrative power and control: health authorities issued a worldwide alert; 5) the power to influence others, especially because of one’s commanding manner or one’s recognized knowledge about something: … he has the natural authority of one who is used to being obeyed.

International [ɪntə'næʃənl] 1) existing, occurring, or carried on between nations: international trade; 2) agreed on by all or many nations: a violation of international law; 3) used by people of many nations: large international hotels.

Municipal [mjʊnɪsɪp(ə)l] relating to a town or district or its governing body national and municipal elections municipal offices.

Law 1)(often the law) the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties: shooting the birds is against the lawthey were taken to court for breaking the law … law enforcement 2) an individual rule as part of a system of law: … a new law was passed to make divorce easier and simple; 3) systems of law as a subject of study or as the basis of the legal profession he was still practising law: a law firm law students.

Rule 1) one of a set of explicit or understood regulations or principles governing conduct or procedure within a particular area of activity: the rules of cricket … those who did break the rules would be dealt with swiftly; 2) a law or principle that operates within a particular sphere of knowledge, describing or prescribing what is possible or allowable: the rules of grammar; 3) a code of practice and discipline for a religious order or community: the Rule of St Benedict.

Delict [dɪ’lɪkt] a violation of the law; a tort.

Conduct [kɒndʌkt] 1) the manner in which a person behaves, especially in a particular place or situation: they were arrested for disorderly conduct … a code of conduct for directors of listed companies; 2) the manner in which an organization or activity is managed or directed: the conduct of the elections; 3) organize and carry out: in the second trial he conducted his own defence … surveys conducted among students.

Sanction [sæ̱ŋkʃ(ə)n] 1) a threatened penalty for disobeying a law or rule: a range of sanctions aimed at deterring insider abuse; 2) measures taken by a state to coerce another to conform to an international agreement or norms of conduct, typically in the form of restrictions on trade or official sporting participation; 3) give official permission or approval for (an action): the scheme was sanctioned by the court.

Legal [lig(ə)l] relating to the law: the European legal system; 2) appointed or required by the law: a legal requirement.

Order [ɔ(r)də(r)] 1) the arrangement or disposition of people or things in relation to each other according to a particular sequence, pattern, or method: I filed the cards in alphabetical order; 2) a state in which everything is in its correct or appropriate place: … she tried to put her shattered thoughts into some semblance of order; 3) a state in which the laws and rules regulating public behaviour are observed and authority is obeyed: the army was deployed to keep order; 4) the prescribed or established procedure followed by a meeting, legislative assembly, debate, or court of law: the meeting was called to order.

Manifestation [mæ̱nɪfesteɪʃ(ə)n] 1) an event, action, or object that clearly shows or embodies something abstract or theoretical; the first obvious manifestations of global warming; 2) the action or fact of showing something: the manifestation of anxiety over disease.

PROJECT

Поняття міжнародного права

З давніх часів до сьогодення наукою запропоновано понад тисячу різних визначень міжнародного права. […]

Сьогодні погляд на міжнародне право лише як на систему норм явно недостатній і застарілий. Право не обмежується системою норм і не завершується на створенні норми. Право – це і правові аксіоми, правові ідеї, правові гіпотези і версії, концепції правового акту, юридична техніка, правові поняття і визначення, правові стандарти, правові презумпції, юридичні конструкції, правові поправки, правові примітки, правові класифікації, правові символи, правові фікції, правові застереження, правила застосування норм права тощо. Поряд з цим не слід визначати МП лише як процес прийняття рішень, відривати процесуальні компоненти МП від матеріальних (насамперед, системи норм), ототожнювати МП з програмою його розвитку.

Таким чином, для навчальних цілей можна сформулювати таке визначення МП: Міжнародне право – це система юридичних норм, які регулюють міжнародні відносини з метою забезпечення миру, прав людини і співробітництва, це рішення і правові засоби їх застосування, прийняті повноважними суб’єктами задля реалізації спільних інтересів.

 

WRITING

LISTENING

I. Listen to the Lecture “What is General International Law?”

II. Answer the questions.

1. How can the term “general international law” be defined?

2. What is the relation between national and international law?

3. How can Ratione Materiae be defined?

4. What is the difference between general and customary international law?

5. Can international law be applied directly?

III. Further listening.

UNIT II

LEAD-IN

READING

II. Answer the questions.

1. What is the major reason for the debates on meanings of some legal terms?

2. What difficulty in understanding the term “source” does H.Briggs see?

3. What was the opinion of Georg Schwarzenberger as to some legal terms?

4. Where can written rules on the sources of International law be found?

5. Mention all legal instruments where these rules are embodied.

6. What is the hierarchy of sources of International law according to Article 38 of the Statute of the Permanent Court of International Justice of 1920?

7. What is the importance of paragraph 1 of Article 38?

8. What does Article 53 of the 1969 Vienna Convention on the Law of Treaties assert?

9. What is autonomous source of International law and what organizations give rise to this kind of source of International law?

I. Vocabulary notes

Adherence – [əd'hɪ(ə)rəns] 1) прихильність, вірність 2) строге дотримання (правил); Adherence is the fact of adhering to a particular rule, agreement, or belief.

Applicable – [ə'plɪkəb(ə)l] застосовний, придатний; відповідний, підходящий; Applicable is relevant or appropriate the same considerations are equally applicable to accident claims.

Contracting party – сторона угоди, контрагент; сторона, що домовляється; сторона, що укладає контракт (угоду); Contracting party isentity who enters into a binding agreement with one or more other contracting parties and thus accepts the benefits and obligations specified therein. For a contract to be valid, every contracting party to a contract must be a competent party.

Conventional law – договірне право; звичайне (традиційне) право; Conventional law isthe body of international legal principles contained in treaties versus customary international law or other sources of international law.

Customary law – звичаєве право; Customary law is those aspects of international law that derive from custom.

Derogation – [derə'geɪʃ(ə)n] 1) часткове скасування (закону); 2) применшення, ослаблення; обмеження; підрив (влади, авторитету); 3) приниження; Derogation – 1) an exemption from or relaxation of a rule or law countries assuming a derogation from EC law; 2) the perception or treatment of someone or something as being of little worth the derogation of women.

Equity – ['ekwiti] 1) справедливість; неупередженість; 2) право справедливості; часто (чиє-небудь) право, визнане судом справедливості; 3) маржа; 4) звичайна акція, акція без фіксованого дивіденду (equity share); 5) (Equity) “Еквіті” (профспілка акторів в Англії); Equity isthe quality of being fair and impartial equity of treatment; a branch of law that developed alongside common law and is concerned with fairness and justice, formerly administered in special courts.

Flexibility – [fleksə'biliti] 1) гнучкість; 2) еластичність, пружність; ковкість; 3) піддатливість, поступливість; 4) маневреність, рухливість; пристосовність; Flexibility is willingness to change or compromise the government has shown flexibility in applying its policy in its application and enforcement.

Good faith – 1) добросовісність; 2) добросовісний; Good faith is honesty or sincerity of intention.

Higher priority to – те, що має першочергове значення; Higher priority to is the fact or condition of being regarded or treated as more important than others the safety of the country takes priority over any other matter; a thing that is regarded as more important than others.

Human rights – права людини; Human rights arebasic rights which many societies believe that all people should have.

International Court of Justice – Міжнародний суд ООН; International Court of Justice is a judicial court of the United Nations which replaced the Court Permanente de Justice in 1945 and meets at The Hague.

International dispute – міжнародний спір, конфлікт; International dispute is a disagreement or argument a territorial dispute between the two countries.

International issue – міжнародне питання; International issue is an important topic or problem for debate or discussion existing, occurring, or carried on between nations international trade.

International law – міжнародне прaво; International law is a body of rules established by custom or treaty and recognized by nations as binding in their relations with one another.

Municipal law – внутрішньодержавне право, національне право, внутрішнє право (країни); муніципальне право; Municipal law is the national, or internal, law of a state, as opposed to international law.

Pacta sunt servanda – угоди повинні виконуватися; Pacta sunt servanda - agreements are to be kept; treaties should be observed. Pacta sunt servanda is the bedrock of the customary international law of treaties and, according to some authorities, the very foundation of international law. Without such an acceptance, treaties would become worthless.

Peremptory – [pə'rempt(ə)ri] 1) безапеляційний, який не допускає заперечень, категоричний; 2) доктринерський, догматичний; 3) наказовий, владний; 4) імперативний, остаточний; абсолютний; Peremptory - insisting on immediate attention or obedience, especially in a brusquely imperious way “Just do it!” came the peremptory reply; not open to appeal or challenge; final a peremptory order of the court.

Source of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.

Space law – космічне право; Space law is an area of the law that encompasses national and international law governing activities in outer space. International lawyers have been unable to agree on a uniform definition of the term “outer space”, although most lawyers agree that outer space generally begins at the lowest altitude above sea level at which objects can orbit the Earth, approximately 100 km (60 mi).

The Statute of the International Court of Justice – an integral part of the United Nations Charter, as specified by Chapter XIV of the United Nations Charter. The statute’s chapters are: Chapter I: Organization of the Court (Articles 2 - 33); Chapter II: Competence of the Court (Articles 34 - 38); Chapter III: Procedure (Articles 39 - 64); Chapter IV: Advisory Opinions (Articles 65 - 68); Chapter V: Amendment (Articles 69, 70). Under Article 38.2, the court is allowed to decide a case ex aequo et bono if the parties agree thereto.

Subsidiary sources of international law – sources of international law which are less important than but related or supplementary to.

The Charter of the United Nations – the foundational treaty of the international organization called the United Nations.

The Vienna Convention on the Law of Treaties – a treaty concerning the international law on treaties between states.

To assign – [ə'saɪn] правонаступник; цесіонарій; 1) призначати (строк); визначати, встановлювати (границю, межу); призначати, відводити (що-небудь, кому-небудь); 2) (за) давати, доручати (завдання, роботу); зобов’язувати; 3) призначати на посаду, особл. штатну; 4) асигнувати; 5) приписувати; 6) передавати, переуступати (права); церувати; 7) повідомляти (швидкість, рух); призначати (допуски); 8) присвоювати; To assign -1) allocate (a job or duty); 2) designate or set (something) aside for a specific purpose managers happily assign large sums of money to travel budgets; 3) transfer (legal rights or liabilities).

To be inappropriate for – [inə'praʊpriit] той, що не відповідає певним вимогам; To be inappropriate for means not suitable or proper in the circumstances; there are penalties for inappropriate behaviour it would be inappropriate for me to comment.

To invoke – [in'vəʊk] 1) закликати; молити, благати; звертатися до; посилатися на; 2) закликати до застосування (чого-небудь); вдаватися до (чого-небудь); 3) застосовувати (статтю, застереження); 4) викликати (що-небудь), призвести до (чого-небудь); 5) викликати духів; To invoke - 1) call on (a deity or spirit) in prayer, as a witness, or for inspiration; 2) cite or appeal to (someone or something) as an authority for an action or in support of an argument the antiquated defence of insanity is rarely invoked in England.

Treaty provision – ['tri:ti prə'viʒ(ə)n] умови міжнародної угоди; Treaty provision isa condition or requirement in a legal document which is formally concluded and ratified agreement between states.

 

F) Contracts, formal letters and other legal documents frequently contain “reference” words that are not often used in other areas of English. These words refer to time, place, result, etc, in connection with the documents they appear in.

Complete sentences 1 – 14 with appropriate words from the box. To help you, each sentence is followed by an explanation in italics of the function of the missing word.

aforementioned hereafter hereby herein hereinafter hereof hereto (x2) heretofore hereunder herewith thereafter therein thereinafter thereinbefore

 

1. We are somewhat confused, as the contract we received named the company as The Sophos Partnership in the first paragraph, but __________ as Sophos Ltd. (listed or mentioned afterwards in the document)

2. Could you explain why the interest rate is quoted as 17% on the final page of the agreement you sent us, but as 15% __________. (listed or mentioned earlier in a document)

3. He was present when the exchange took place, and has been summoned as witness __________. (of this event / fact)

4. For more information, see the documents listed __________. (below this heading or phrase)

5. All parties are expected to comply with the conditions stated __________, unless a formal application is made to do otherwise. (in this document)

6. Final delivery of the merchandise is to be made no later than the dates listed __________. (relating or belonging to this document)

7. The copyright for this book will __________ be in the name of the author, Archibald Thrupp. (from this time on)

8. According to the schedule of payments attached __________, invoices must be submitted at the end of each month. (to this document)

9. You are advised to refer to the previous contract, and the terms and conditions cited __________. (in that document)

10. The accused is to report to his probationer twice a week for the first month, and __________ once a week for the next five months. (after that)

11. The parties __________ acting as trustees are to be consulted regularly. (previously, earlier or before now)

12. Thank you for the prompt despatch of our goods. Please find a cheque enclosed __________. (together with this letter or document)

13. This agreement is made on 1 April 2007 between Blueberry Press (__________ called the PUBLISHER), and Michael Halmsworth (__________ called the AUTHOR). (stated later in this document: the same word should be used to complete both gaps)

14. Mr Harrison has failed to comply with the terms set out in his contract, and we __________ revoke the contract. (as a result or in this way)

15. The __________ company was awarded the contract under certain conditions. (mentioned earlier)

PROJECT

WRITING

I. Write an essay on sources of international law. First, refer to Article 38 of the Statute of the International Court of Justice (also known as the World Court) to investigate what it has to say about the sources of international law. Afterwards, follow with describing other possible sources of legalization. In conclusion, express your opinion on the sources of international law and their role in solving international disputes.

 

SELF-CONTROL:

I. Choose the words that correspond to the following definitions:

1. … the fact of adhering to a particular rule, agreement, or belief.

2. … entity that enters into a binding agreement with one or more other contracting parties and thus accepts the benefits and obligations specified therein. For a contract to be valid, every contracting party to a contract must be a competent party.

3. … the body of international legal principles contained in treaties versus customary international law or other sources of international law.

4. … those aspects of international law which derive from custom.

5. … the quality of being fair and impartial equity of treatment; a branch of law that developed alongside common law and is concerned with fairness and justice, formerly administered in special courts.

6. … honesty or sincerity of intention.

7. … the principles which form the norms of international law that cannot be set aside.

8. … agreements are to be kept; treaties should be observed. It is the bedrock of the customary international law of treaties and, according to some authorities, the very foundation of international law. Without such an acceptance, treaties would become worthless.

9. … insisting on immediate attention or obedience, especially in a brusquely imperious way “Just do it!” came the peremptory reply; not open to appeal or challenge; final a peremptory order of the court.

10. … are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.

11. … an integral part of the United Nations Charter, as specified by Chapter XIV of the United Nations Charter. The statute’s chapters are: Chapter I: Organization of the Court (Articles 2 - 33); Chapter II: Competence of the Court (Articles 34 - 38); Chapter III: Procedure (Articles 39 - 64); Chapter IV: Advisory Opinions (Articles 65 - 68); Chapter V: Amendment (Articles 69, 70). Under Article 38.2, the court is allowed to decide a case ex aequo et bono if the parties agree thereto.

12. … sources of international law which are less important than but related or supplementary to.

13. … the foundational treaty of the international organization called the United Nations.

14. … a condition or requirement in a legal document which is formally concluded and ratified agreement between states.

 

II. Word formation. Complete the following tables:

a)

NOUN ADJECTIVE
decision Decisive
Law  
agreement  
conduct  
provision  
guideline  
Result  
obligation  
writing  

b)

VERB NOUN
to agree agreement
to create  
to lead  
to resolve  
to arrange  
to found  
to intend  
to succeed  
to act  
to suggest  
to cite  
to govern  

LISTENING

I. Listen to the Lecture “The Sources of International Law”

II. Answer the questions.

1. How can the term “customary international law” be defined?

2. What are the two elements of custom?

3. What names can treaties have?

4. Is treaty a source of law or a source of obligation?

5. Is treaty an evidence of custom?

III. Further listening.

Lecture “The Sources of International Law”

UNIT II

LEAD-IN

I. Read the following quotation and comment on it:

“We look to a number of sources to ascertain principles of international law, including international conventions, international customs, treatises, and judicial decisions rendered in all the countries” (The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900)).

READING

Treaties

Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. Some agreements are governed by municipal law (e.g., commercial accords between states and international enterprises), in which case international law is inapplicable. Informal, nonbinding political statements or declarations are excluded from the category of treaties.

Treaties may be bilateral or multilateral. Treaties with a number of parties are more likely to have international significance, though many of the most important treaties (e.g., those emanating from Strategic Arms Limitation Talks) have been bilateral. A number of contemporary treaties, such as the Geneva Conventions (1949) and the Law of the Sea treaty (1982; formally the United Nations Convention on the Law of the Sea), have more than 150 parties to them, reflecting both their importance and the evolution of the treaty as a method of general legislation in international law. Other significant treaties include the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Vienna Convention on Diplomatic Relations (1961), the Antarctic Treaty (1959), and the Rome Statute establishing the International Criminal Court (1998). Whereas some treaties create international organizations and provide their constitutions (e.g., the UN Charter of 1945), others deal with more mundane issues (e.g., visa regulations, travel arrangements, and bilateral economic assistance).

Countries that do not sign and ratify a treaty are not bound by its provisions. Nevertheless, treaty provisions may form the basis of an international custom in certain circumstances, provided that the provision in question is capable of such generalization or is “of a fundamentally norm-creating character,” as the ICJ termed the process in the North Sea Continental Shelf cases (1969). A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith. The concept known by the Latin formula pacta sunt servanda (“agreements must be kept”) is arguably the oldest principle of international law. Without such a rule, no international agreement would be binding or enforceable. Pacta sunt servanda is directly referred to in many international agreements governing treaties, including the Vienna Convention on the Law of Treaties (1969), which concerns treaties between states, and the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (1986).

There is no prescribed form or procedure for making or concluding treaties. They may be drafted between heads of state or between government departments. The most crucial element in the conclusion of a treaty is the signaling of the state’s consent, which may be done by signature, an exchange of instruments, ratification, or accession. Ratification is the usual method of declaring consent—unless the agreement is a low-level one, in which case a signature is usually sufficient. Ratification procedures vary, depending on the country’s constitutional structure.

Treaties may allow signatories to opt out of a particular provision, a tactic that enables countries that accept the basic principles of a treaty to become a party to it even though they may have concerns about peripheral issues. These concerns are referred to as “reservations,” which are distinguished from interpretative declarations, which have no binding effect. States may make reservations to a treaty where the treaty does not prevent doing so and provided that the reservation is not incompatible with the treaty’s object and purpose. Other states may accept or object to such reservations. In the former case, the treaty as modified by the terms of the reservations comes into force between the states concerned. In the latter case, the treaty comes into force between the states concerned except for the provisions to which the reservations relate and to the extent of the reservations. An obvious defect of this system is that each government determines whether the reservations are permissible, and there can be disagreement regarding the legal consequences if a reservation is deemed impermissible.

A set of rules to interpret treaties has evolved. A treaty is expected to be interpreted in good faith and in accordance with the ordinary meanings of its terms, given the context, object, and purpose of the treaty. Supplementary means of interpretation, including the use of travaux pr?paratoires (French: “preparatory works”) and consideration of the circumstances surrounding the conclusion of the treaty, may be used when the treaty’s text is ambiguous. In certain cases, a more flexible method of treaty interpretation, based on the principle of effectiveness (i.e., an interpretation that would not allow the provision in question to be rendered useless) coupled with a broader-purposes approach (i.e., taking into account the basic purposes of the treaty in interpreting a particular provision), has been adopted. Where the treaty is also the constitutional document of an international organization, a more programmatic or purpose-oriented approach is used in order to assist the organization in coping with change. A purpose-oriented approach also has been deemed appropriate for what have been described as “living instruments,” such as human rights treaties that establish an implementation system; in the case of the European Convention on Human Rights of 1950, this approach has allowed the criminalization of homosexuality to be regarded as a violation of human rights in the contemporary period despite the fact that it was the norm when the treaty itself was signed.

A treaty may be terminated or suspended in accordance with one of its provisions (if any exist) or by the consent of the parties. If neither is the case, other provisions may become relevant. If a material breach of a bilateral treaty occurs, the innocent party may invoke that breach as a ground for terminating the treaty or suspending its operation. The termination of multilateral treaties is more complex. By unanimous agreement, all the parties may terminate or suspend the treaty in whole or in part, and a party specially affected by a breach may suspend the agreement between itself and the defaulting state. Any other party may suspend either the entire agreement or part of it in cases where the treaty is such that a material breach will radically change the position of every party with regard to its obligations under the treaty. The ICJ, for example, issued an advisory opinion in 1971 that regarded as legitimate the General Assembly’s termination of the mandate for South West Africa. A breach of a treaty is generally regarded as material if there is an impermissible repudiation of the treaty or if there is a violation of a provision essential to the treaty’s object or purpose.

The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates that, where there has been a fundamental change of circumstances, a party may withdraw from or terminate the treaty in question. An obvious example would be one in which a relevant island has become submerged. A fundamental change of circumstances, however, is not sufficient for termination or withdrawal unless the existence of the original circumstances was an essential basis of the consent of the parties to be bound by the treaty and the change radically transforms the extent of obligations still to be performed. This exception does not apply if the treaty establishes a boundary or if the fundamental change is the result of a breach by the party invoking it of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

Custom

The ICJ’s statute refers to “international custom, as evidence of a general practice accepted as law,” as a second source of international law. Custom, whose importance reflects the decentralized nature of the international system, involves two fundamental elements: the actual practice of states and the acceptance by states of that practice as law. The actual practice of states (termed the “material fact”) covers various elements, including the duration, consistency, repetition, and generality of a particular kind of behaviour by states. All such elements are relevant in determining whether a practice may form the basis of a binding international custom. The ICJ has required that practices amount to a “constant and uniform usage” or be “extensive and virtually uniform” to be considered binding. Although all states may contribute to the development of a new or modified custom, they are not all equal in the process. The major states generally possess a greater significance in the establishment of customs. For example, during the 1960s the United States and the Soviet Union played a far more crucial role in the development of customs relating to space law than did the states that had little or no practice in this area. After a practice has been established, a second element converts a mere usage into a binding custom—the practice must be accepted as opinio juris sive necessitatis (Latin: “opinion that an act is necessary by rule of law”). In the North Sea Continental Shelf cases, the ICJ stated that the practice in question must have “occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”

Once a practice becomes a custom, all states in the international community are bound by it whether or not individual states have expressly consented—except in cases where a state has objected from the start of the custom, a stringent test to demonstrate. A particular practice may be restricted to a specified group of states (e.g., the Latin American states) or even to two states, in which cases the standard for acceptance as a custom is generally high. Customs can develop from a generalizable treaty provision, and a binding customary rule and a multilateral treaty provision on the same subject matter (e.g., the right to self-defense) may exist at the same time.

General principles of law

A third source of international law identified by the ICJ’s statute is “the general principles of law recognized by civilized nations.” These principles essentially provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules. Such general principles may arise either through municipal law or through international law, and many are in fact procedural or evidential principles or those that deal with the machinery of the judicial process—e.g., the principle, established in Chorzow Factory (1927–28), that the breach of an engagement involves an obligation to make reparation. Accordingly, in the Chorzow Factory case, Poland was obliged to pay compensation to Germany for the illegal expropriation of a factory.

Perhaps the most important principle of international law is that of good faith. It governs the creation and performance of legal obligations and is the foundation of treaty law. Another important general principle is that of equity, which permits international law to have a degree of flexibility in its application and enforcement. The Law of the Sea treaty, for example, called for the delimitation on the basis of equity of exclusive economic zones and continental shelves between states with opposing or adjacent coasts.

Other sources

Article 38 (1) of the ICJ’s statute also recognizes judicial decisions and scholarly writings as subsidiary means for the determination of the law. Both municipal and international judicial decisions can serve to establish new principles and rules. In municipal cases, international legal rules can become clear through their consistent application by the courts of a number of states. A clearer method of law determination, however, is constituted by the international judicial decisions of bodies such as the ICJ at The Hague, the UN International Tribunal for the Law of the Sea at Hamburg (Germany), and international arbitral tribunals.

International law can arise indirectly through other mechanisms. UN General Assembly resolutions, for example, are not binding—except with respect to certain organizational procedures—but they can be extremely influential. Resolutions may assist in the creation of new customary rules, both in terms of state practice and in the process of establishing a custom by demonstrating the acceptance by states of the practice “as law” (the opinio juris). For this to occur, a resolution must contain generalizable provisions and attract substantial support from countries with diverse ideological, cultural, and political perspectives. Examples of such resolutions include the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), the Declaration on the Legal Principles Governing Activities of States in the Exploration and Use of Outer Space (1963), and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States (1970).

Unilateral actions by a state may give rise to legal obligations when it is clear that the state intends to be bound by the obligation and when its intention is publicly announced. An example of such a case was France’s decision to stop atmospheric nuclear testing during litigation at the ICJ between it and Australia and New Zealand (1974) concerning the legality of such testing. Unilateral statements also may constitute evidence of a state’s views on a particular issue. Even when an instrument or document does not entail a legal obligation, it may be influential within the international community. The Helsinki Accords (1975), which attempted to reduce tensions between the Soviet Union and the United States during the Cold War, was expressly not binding but had immense political effects. In certain areas, such as environmental law and economic law, a range of recommendations, guidelines, codes of practice, and standards may produce what is termed “soft law”—that is, an instrument that has no strict legal value but constitutes an important statement.

 

Sources of International Law:   Treaties (Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms.)   Custom (The ICJ’s statute refers to “international custom, as evidence of a general practice accepted as law,” as a second source of international law.)   General Principles of Law (A third source of international law identified by the ICJ’s statute is “the general principles of law recognized by civilized nations.” These principles essentially provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules.)   Judicial Decisions and Legal Scholarship (Article 38 (1) of the ICJ’s statute also recognizes judicial decisions and scholarly writings as subsidiary means for the determination of the law. Both municipal and international judicial decisions can serve to establish new principles and rules.)   *ICJ – International Court of Justice  

Appendix

Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

 

Article 59

The decision of the Court has no binding force except between the parties and in respect of that particular case.

 

III. Use the information in the excerpt that follows and match each Latin term (1-10) with its English equivalent (a-j):

Lawyers use Latin words and expressions when writing legal texts of every kind, from statutes to emails. The following excerpt is from the legal document known as an “answer” It was submitted to the court by the defendant. Underline the common Latin words and phrases in the text. Do you know what they mean?

“The claim for breach of contract fails inter alia to state facts sufficient to constitute a cause of action, is uncertain as to what contract plaintiffs are suing on, and is uncertain in that it cannot be determined whether the contract sued on is written, oral or implied by conduct.

The complaint alleges breach of contract as follows: “At all times herein mentioned. Plaintiffs were a part (sic) to the Construction Contract, as well as intended beneficiaries to each sub-contract for the construction of the house. In light of the facts set out above, defendants, and each of them have breached the Construction Contract.”

On its face, the claim alleges only that defendants “breached the Construction Contract”. But LongCo is not a party to the Construction Contract. Therefore LongCo cannot be liable for its breach.”

1. de facto 2. ipso facto 3. inter alia   4. per annum 5. pro forma   6. pro rata 7. quorum 8. sui juris 9. ultra vires 10. videlicet (viz.) a. among other things; b. per year; c. number of shareholders or directors who have to be present at a board meeting so that it can be validly conducted; d. in fact; e. of one’s own right, able to exercise one’s own legal rights; f. proportionally; g. by that very fact itself; h. as a matter of form; i. as follows; j. beyond the legal powers of a person or a body.

PROJECT

WRITING

Write an essay on sources and main principles of international law. First, refer to Article 38 of the Statute of the International Court of Justice (also known as the World Court) to investigate what it has to say about the sources of international law. Afterwards, follow with describing other possible sources of legalization. In conclusion, express your opinion on the sources of international law and their role in solving international disputes.

ЛІТЕРАТУРА:

1. Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1295 (11th Cir. 1999).

2. http://www.britannica.com/EBchecked/topic/291011/international-law/233500/Custom

3. "Beck's Law Dictionary": A Compendium of International Law Terms and Phrases

4. Malcolm N. Shaw “International law”, 6th edition, Cambridge, 2008

5. http://en.wikipedia.org/wiki/List_of_legal_Latin_terms

6. И.И. Лукашук, Международное право Особенная часть, Москва, Волтерс Клувер 2005

7. А.І.Дмитрієв, В.І.Муравйов, Міжнародне публічне право, Київ, Юрінком Інтер 2000

8. http://www.google.ru/url?sa=t&rct=j&q=джерела%20міжнародного%20права&source=web&cd=5&ved=0CEsQFjAE&url=http%3A%2F%2Fwww.lnu.edu.ua%2Ffaculty%2Fpravo%2Fmpp%2Fs1%2FT_2.doc&ei=PlIjUtXiCsXWtAaE3oGAAg&usg=AFQjCNE3xJYdpA-P7MJAqGqgv9-qAAst0g&bvm=bv.51495398,d.Yms&cad=rjt

UNIT III

SYSTEM OF INTERNATIONAL LAW

LEAD-IN

I. Answer the questions:

1. How can the term “system” be defined?

2. What are the elements of the system of national law? Give definition of the latter.

3. What is the difference between institution and branch of national law?

4. What are the branches of national law?

II. Comment on the following:

1. We may define a system as a mechanical or theoretical organization of components, distinct from its environment, that adds something new, and often unexpected, to our understanding of the ensemble of components out of which it was constructed (International Law as a Unitary System by A. D’Amato).

2. Law is a system of legal relations which condition social action to serve the common interest (The concept of international law by P. Allot).

 

READING



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