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International law is an assumption, a foundation, a framework of all relations between nations. Concepts of statehood, national territory, nationality of individuals and associations, ownership of property, rights and duties between nations, responsibility for wrong done and damage inflicted, the fact and the terms of international transactions – all reflect legal principles generally accepted and generally observed. The law provides institutions, machinery, and procedures for maintaining relations, for carrying on trade and other intercourse, for resolving disputes, and for promoting common enterprise. All international relations and all foreign policies depend in particular on a legal instrument – the international agreement – and on a legal principle – that agreements must be carried out. Through peace treaties and their political settlements, that principle has also helped to establish and legitimize existing political order as well as its modifications – the identity, territory, security, and independence of states, the creation or termination of dependent relationships. Military alliances and organizations for collective defense also owe their efficacy to the expectation that the undertakings will be carried out. International law supports the numerous contemporary arrangements for cooperation in the promotion of welfare, their institutions and constitutions. Finally, there is the crux of international order in law prohibiting war and other uses of force between nations. The law works. Although there is no one to determine and adjudge the law with authoritative infallibility, there is wide agreement on the content and meaning of law and agreements, even in a world variously divided. Although there is little that is comparable to executive law enforcement in a domestic society, there are effective forces, internal and external, to induce general compliance. Nations recognize that the observance of law is in their interest and that every violation may also bring particular undesirable consequences. It is the unusual case in which policy-makers believe that the advantages of violation outweigh those of law observance, or where domestic pressures compel a government to violation even against the perceived national interest. The important violations are of political law and agreements, where basic interests of national security or independence are involved, engaging passions, prides, and prejudices, and where rational calculation of cost and advantage is less likely to occur and difficult to make. Yet, as we have seen, the most important principle of law today is commonly observed: nations have not been going to war, unilateral uses of force have been only occasional, brief, limited. Even the uncertain law against intervention, seriously breached in several instances, has undoubtedly deterred intervention in many other instances. Where political law has not deterred action it has often postponed or limited action or determined a choice among alternative actions.

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Some have suggested – albeit more implicitly than explicitly – that is different from the rest of international law, either because they wanted to protect international law against detractors claiming to have an obvious prima facie case proving its inexistence, or because they wanted to protect from the basic political, conceptual or ideological controversies inevitably arising between States and between human beings holding diverging opinions on the basic notions of international law and its ever changing rules. This suggestion, however, cannot be accepted, as it fails to recognize the inherent inter-relation between and other branches of international law. , distinct from humanitarian morality or the simple dictates of public conscience, cannot exist except as a branch of international law, and international law must contain rules concerning armed conflict, as an unfortunately traditional form of inter-State relations. Indeed, law has to provide answers to reality, it has to rule over reality; it cannot limit itself to reflecting reality. The latter, the necessarily normative character of law, the inevitable distance between law, on the one hand, and politics and history, on the other, is even more evident for , given the bleak reality of armed conflicts, which cannot possibly be called humanitarian.

Oxford Public International Law: Humanitarian Intervention

Other factors must therefore also be considered when assessing whether a rule is part of customary law: whether qualified as practice lato sensu or as evidence for opinio juris, statements of belligerents, including accusations against the enemy of violations of and justifications for their own behaviour, should also be taken into account.

the ICTY Panel stated that a plain reading of Rule 15 of the ICTY Rules of Procedure and Evidence, ..
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Extraordinary Chambers of the Courts of Cambodia | …

In fact, the debate seems at first glance to have been boxed into a corner, to have reached stalemate. The advocates of universalism and those of relativism have managed to pinpoint the weaknesses of the positions held by the opposite camp. Certainly the Western nature of the major texts of international humanitarian law and human rights law is evident, as is the danger of protection for the victims diminishing as a result of upholding any kind of tradition. Positivist legal experts and specialists in the social sciences also evidently have difficulty in finding a common set of terms.

17/11/2006 · Extraordinary Chambers of the Courts of Cambodia

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21/05/2003 · Full-text (PDF) | Essays on international criminal law and procedure

Staff profile, La Trobe Law School, La Trobe University