MARITIME INTERNATIONAL LAW PART 3

SOURCES OF MARITIME INTERNATIONAL LAW

 The Western World is basically divided into states having civil legal systems or common law systems. Under the civil code systems the law is defined by formal codes. Judges are bound by the letter of the code and basic principles of equity.  In civil code states judges try for consistency in decisions through a principle referred to in some jurisdictions as "jurisprudence constance." Under this system, a judge is not bound by previous decisions of other  justices including appellate justices although he will take such decisions into consideration. A judge always may be guided by the letter of the code and basic principles of equity.

 Under the common law system, found inmost English speaking nations, the law is found in statutes passed by legislative bodies and the decisions of the judges are recorded under a principle known as Stare Decisis. The principle of stare decisis lends much more strength of precedent to decisions of judges, especially those at the final appellate level. Thus the rules for transactions not addressed by statute, and to some degree, defined "principles of equity" , appear in the recorded decisions of magistrates; "the common law".

 Louisiana is the only civil law state in the American union. However because it is in the American union its system is sort of hybrid. There exists a very formal and concise civil code and a system of "jurisprudence constance". However, many maritime matters are heard in the Federal courts of the region where the common law and stare decisis prevails. Yet the Federal courts decide many maritime cases based on Louisiana law, custom, and practice.

 Non-Western nations, such as some Islamic states, may have theocratic legal systems. In these nations religious leaders play a major judicial role. What would be cannon law in the West actually forms part of the civil and criminal law of the state. Such theocratic states have both formally codified and unwritten or "judge made" law. There are numerous other examples of non-Western systems but the idea of civil codes and common law illustrates the basic problem of all legal systems. Legal systems comprehensively must embrace the sum total of rules that apply to activity governed, but it is usually impossible to contain them all in writing. The chief difference between civil law and common law jurisdictions is the formality and weight given to the non-legislated law.

 International law, whether public, private, or "utility", shares this problem with other legal systems. Being a world system it appears to be a blend of common law and civil code processes. However, like both of the more common systems of national law, International Law is largely codified. This means that the law can be found, identified, and quoted. There are instruments  of international law.

 The sources or instruments of International Law are:

Custom
Publicists
Court Decisions
International Instruments

International Instruments can be further subdivided into:

Conventions
Executive Agreements
Treaties
Diplomatic Correspondence

 Custom as a source of International Law , where not clearly observable in practice, can usually be found in the work of publicists.  Publicists are authors of written works on International Law who have been recognized by reference in court decisions. The sources of court decisions in International law are national and international. Standing international judicial bodies such as the International Court of Justice in the Hague, publish decisions that are highly valued as precedent. Ad hoc internationally sponsored arbitration courts and boards also publish decisions on an irregular basis. These decisions also are highly valued as precedent.

 Unfortunately, the world seems divided over how forceful these decisions are. All responsible states agree the published decisions of these tribunals are important. Yet, virtually no nation views the decisions as controlling in all cases.

 Also viewed as significant but not controlling are the decisions of national courts when these courts deal with international subjects. Yet, these decisions take on added weight when there is broad agreement on an issue among a majority of national courts.

 International instruments include conventions, executive agreements, treaties, and diplomatic correspondence. Conventions are agreements between at least several states in the form of a multilateral treaty regulating some matter of common interest. In the maritime sector the submarine cable conventions serves as a typical example.

 Agreements between heads of government , that are not ratified by the legislative branch, are called "executive agreements".

 Treaties are formal instruments in the nature of a contract between sovereign states and are generally ratified by their legislative branches.

 The "state departments" of various nations publish position papers on unsettled issues of international concern. When a fair number of states publish their opinions and a majority reflect consensus, that consensus may ultimately receive international sanction as declaratory of the principle involved. In citing such consensus, international tribunals refer to these state department publications as "diplomatic correspondence".

 International Law is a rapidly evolving system. It appears more similar to the common law than to civil law in the complexity of its sources and codification. It is, however, well codified, ancient in origin, growing in volume, detail, force, and importance. One of its oldest, most effectively codified, and enforced areas is maritime international law. So hopefully we have disabused you of any notion that International law is just some sort of pipe dream. In our next exploration we will start to examine important areas of International law from the maritime view point starting with the concept of sovereignty.