1

JURISPRUDENCE
SYDNEY UNIVERSITY
BRIEF NOTES FOR STUDENTS GUIDE TO ISSUES ONLY WILL NOT REPLACE EXAM PREPARATION
Sophie York
Not for p!"i#$tio% or tr$%&fer 'ithot per(i&&io%)
The Philosophy of Law: From Kelsen to Human Rights Theory
Harris Chapter 6 (Kelsen) p 64
Bran Bx Chapter 4 (Kesen) p57
McCoubrey & Whte (Kesen) p 43
Hans Kelsen (1881-1973)
Austran ega theorst, proc and nuenta.
Modern ega postvst.
Descrbed hs theory n German as rene Rechtsehre or n Engsh a
pure theory of aw, a scence of norms.
Thought that mora |udgements, potca bases and socoogca
concusons shoud be put asde for the purposes of dvnng what was pure
aw.
Kesen wanted to soate what was unque to ega structures. It was a pure
theory because t woud descrbe aw wthout reducng t to psychoogy,
socoogy or the ke. Ths dstngushed Kesens vews from the
Scandnavan reasts.
In descrbng t as a scence of norms Kesen wanted a descrpton of the
structure of aw that was free of evaluative terms.
He thought
1.Normatve cams (how thngs ought to be or how peope ought to act) can ony
be egtmsed ony by reference to other normatve cams.
2
2. Such nes of |ustcaton come to an end at some pont.
Kesen dd not have regous fath. He theorsed that there was a
foundatona argument presupposed by aw, n a comparabe way to the
one mped by a regous-based statement.
He aso ooked at actons and worked out what actons were normatve
actons eg puttng sps of paper nto a box votng.
Kesen charactersed aws as rules or nr!s. Laws are aways part of a
system of norms havng reatonshps of vadty whch they derve from
higher norms. A norm was a vad norm f a hgher norm authorsed the
makng of the ower norm and t had been made in accordance with the
higher authorising law.
The "run#nr!
Kesen recognsed that the chans of vadty do not regress ndentey
and one w utmatey run out of hgher authorsng vad norms. What
confers vadty on the system as a whoe s not therefore another postve
rue of aw but what Kesen caed the grundnorm sometmes transated as
basc norm.
Kesen descrbed the $run#nr! as the %un#a!ental assu!ptin
!a#e &' peple in s(iet' a&ut )hat )ul# &e treate# as la). It
s not the consttuton, whch for Kesen was smpy another postve norm.
P58 Bx It s the understandng that eventuay we w come to a pont
ether so foundatona, or so eary n socetys ega theory that one cannot
go further back, and no further |ustcaton can be ohered. Assertng the
normatve vadty of a partcuar ega rue (eg you cannot park here) s to
mpcty amrm the vadty of the foundatona nk of the chan.
Ths amrmaton of the underyng beef n the system s what Kesen caed
the amrmng the Grundnorm.
eg n regon you mght say you cannot do x and y because God says, and that s
your foundatona beef f you foow the basc norm t s because you beeve
n what Parament says and the authorty Parament had for passng the
norms/aws.
It s apparent that what partcuar grundnorm appes n a socety smpy depends
upon what fundamenta assumptons are made by the members of that socety.
3
The dentty of the grundnorm s utmatey a matter of sociological fact. (No
mora or other |udgement or assessment s beng made about t).
Some peope have argued that t foows from Kesens theory that f the
assumpton shoud change as a resut of a revouton or coup dtat, and peope
appy the new assumpton, then aws made wth the new assumpton w be
vad. Kelsen*s ther' appears (nsistent )ith !a*i! +!i$ht is ri$ht,+
Whether or not ths controversa assumpton ows from Kesens theory has
been consdered n cases in,l,in$ ra#i(al nr! (han$e.
See:
The Republic of Fiji v han!ri"a Prasa! (Curt % -ppeal % .i/i
Islan#s0 1 2ar(h 3441) an#5
On a decson n Austraan aw about what appears to consttute the grundnorm
Trethowan v #ttorney $eneral for %ew South &ales (1671) 44 C8R
7645 an# 91673: -C ;36, n whch t was hed that the reevant provson
of the Consttuton Act was a aw whch deprved the egsature of the
requste power. The Prvy Counc concuded that the words manner and
form were ampy wde to comprehend a requrement that a B must be
put to referendum pror to ts vad passage.
On appea, the Prvy Counc uphed the Hgh Courts decson.
Su!!arisin$ Kelsen:
2 thngs unversay true of aw:
- coercve
- system of norms
and a ega norms coud be understood n terms of an authorsaton to an omca
to mpose sanctons. A does X (wrong act), B mposes Y (sancton) and t apped
n both cv and crmna aw (see Bx).
Concept of the basc norm:
4 questons to be asked: |see Harrs|
1.Its nature
2.content
3.functon
4.how to choose between competng basc norms
Basc norm was vad due to:
4
- system-membershp (eg we n our socety are part of a system)
- bndngness (ths had to be an attrbute of the basc norm)
when there s a revouton, OLD LAWS STOP BEING ENFORCED
new aws by the rebes are enforced nstead therefore, there s a NEW BASIC
NORM authorsng revoutonary consttuton. (Mght s Rght noton)
Crtcs say: # )e reall' !easure le$alit' &' e'ectiveness< (ie the !re
ra#i(al the (up the !re la)%ul=authrise# it is<)
Kelsen e>(a(' r e?e(ti,eness @ preA(n#itin % le$al ,ali#it'
(#esira&ilit'0 ethi(s r !ralit' nthin$ t # )ith it)
See McCoubrey re mpact and understandng of grundnorm concept upon
soveregn states agreeing to create and abide by International Law.
***
Having studied the features of law is international law actually +law,?
What are its characteristics?
At a phosophca eve:
Aspects whch can be seen n a domestc context: the exstence of obgaton,
externa or nterna, are arguaby present: anayss can be the same, that t s
obeyed, or shoud be obeyed because of arguments re attrbutes of one or some
of the others:
1. Coercon (Bentham, Austn) (Law = Command of soveregn backed up by
sancton)
2. Soca Contract (Socrates, Hobbes, Locke, Rousseau)
3. Natura Law (Aqunas, Fnns, Fuer, Grotus)
4. Integrty (Assocatve obgatons, Indvdua Mora Integrty) (Dworkns)
5. No obgaton (The Razan anayss)
Hamarks whch arguaby make t resembe aw as a practca matter:
Logca, forma body of wrtten, coded aw
Insttutons have been set up to create and enforce t Legsature, Courts
(eg IC|)
Member states ahected by t agree to be governed by t
Enforcement sometmes s ehectve
BUT:
Absence of an nternatona egsature
Absence of courts wth compusory ad|udcaton
Absence of centray organsed sanctons
Probems of |ursdcton
5
The obgatons of nternatona aw are dherent n character from those of
natona aws
|ohn Austn (postvst), foowng Hobbes, Kant and Rousseau denes the
exstence of genune nternatona aw
Argument:
A that exsts s nternatona customary moraty
Wthout a soveregn to enforce t, aw does not exst.
Internatona aw s therefore ony aw by remote anaogy.
Who s the soveregn?
The Unted Natons? And then, even within the UN:(The Genera
Assemby? The Securty Counc?)
The Unted States?
Enforcement?
ICJ<
|ursdcton of The Internatona Court of |ustce - word court, |udca organ of
UN.
Dua |ursdcton (NB ssues determnaton btw states, not |ustce n reaton to
ndvduas)
Dspute resouton - Decsons on submtted dsputes (n accordance wth
nternatona aw) by States;
Advsory opnons - ega questons at the request of the organs of the Unted
Natons or authorsed agences .
ICC<
Internatona Crmna Court (ICC), governed by treaty Rome Statute (1 |uy
2002) 111 naton-states have rated as at 2010
Non-UN s rst permanent, treaty based, nternatona crmna court (for
perpetrators of most serous crmes of concern to the nternatona communty.)
**
Some theorsts suggest that nternatona aw ony gves rse to sef-mposed
obgaton
Ths s rather ke the soca contract mode
Some of the probems whch ths gves rse to
Phosophers begnnng wth Hobbes have started out from the assumpton of
sef-nterested ndvduas pursung ther own goas (wthout a covenant wth the
state enforced by the sword, the fe of man woud be? Solitary, poor, nasty,
brutish and short)!
However, ths eads to the foowng probem:
Most emcent way to pursue ones goas s ether force or fraud
Therefore eft to ts own devces socety woud degenerate nto the war of each
aganst a
6
The souton Hobbes proposes s that ndvduas agree vountary to restrct ther
sef-nterest n pursut of the common good.
Wthout some pre-exstng framework of rues and nsttutons, then sef-
mposed obgatons woud ack an obgatory character.
Further, the noton of tact agreement fas to dea wth the fact that new
states are bound by international law which they had no stake in
formulating
Nuremberg Trials
Aong wth the Tokyo tras, the Nuremberg trbunas are at the cornerstone
of modern nternatona aw.
Stan proposed summary executon of some of German Genera Stah
Both Church and Roosevet ntay supported summary executon of
perpetrators
From the outset, however, the egaty of the tras was sub|ect to queston
YES -r$u!ent
Germany was actng n cear voaton of a number of nternatona treates
Germanys actons were n cear voaton of nternatona customary aw
The Nuremberg trbuna was merey the mechansm for enforcng
nternatona aw
NB -r$u!ent
The charges were ex-post facto (retrospectve aw? Crtcs usng Fuers
own paradgm retroactve aw eads to faure of system)
The aes were aso guty of war crmes- Hroshma, Dresden, Katyn.
Rues to sut vctors
Exampes of Internatona Bodes
Unted Natons -
Counc of Europe
Word Trade Organzaton
Organzaton of the Back Sea Economc Cooperaton
GUAM Organzaton for Democracy and Economc Deveopment
NATO
European Unon
the four Geneva onventions !"#";
the two $dditional %rotocols !"&&;
the onvention 'elating to the Status of 'efugees !"(!;
the %rotocol 'elating to the Status of 'efugees !")).
What is International Humanitarian Law? / Law of Armed Conflict
Found n :
Geneva Conventons

Hague Conventons (1899, 1907)

Other treates
Case Law
Customary Internatona Law
Geneva Conventons: 1864, 1906, 1929, 1949...
Frst Geneva Conventon *for the $melioration of the ondition of the
+ounded and Sick in $rmed ,orces in the ,ield* (rst adopted n 1864,
ast revson n 1949)
Second Geneva Conventon *for the $melioration of the ondition of
+ounded, Sick and Shipwrecked -embers of $rmed ,orces at Sea* (rst
adopted n 1906)
Thrd Geneva Conventon *relative to the .reatment of %risoners of +ar*
(rst adopted n 1929, ast revson n 1949)
Fourth Geneva Conventon *relative to the %rotection of ivilian %ersons in
.ime of +ar* (rst adopted n 1949, based on parts of the 1907 Hague
Conventon IV)
Three addtona amendment protocos to the Geneva Conventon:
Protoco I (1977): Protoco Addtona to the Geneva Conventons of 12
August 1949, and reatng to the Protecton of Vctms of Internatona
Armed Concts. As of 12 |anuary 2007 rated by 167 countres.
Protoco II (1977): Protoco Addtona to the Geneva Conventons of 12
August 1949, and reatng to the Protecton of Vctms of Non-Internatona
Armed Concts. As of 12 |anuary 2007 by 163 countres.
Protoco III (2005): Protoco Addtona to the Geneva Conventons of 12
August 1949, and reatng to the Adopton of an Addtona Dstnctve
Embem. As of |une 2007 rated by 17 countres and sgned but not yet
rated by an addtona 68 countres.
Hague and Geneva: both are branches of /us in bello, nternatona aw regardng
acceptabe practces whe engaged n war and armed conct.
S!e Re%eren(esC
Peter Baey .he 0uman 'ights 1nterprise in $ustralia and 2nternationally, 1
st
Edton,
2009
Sam Bay, Ryszard Potrowcz, Martn Tsameny %ublic 2nternational 3aw $n $ustralian
%erspective 2
nd
Edton
Gretchen Kewey - 0umanitarian 3aw in 0uman on4icts
Stuart Kaye ,reedom of Navigation in 2ndo5%aci6c 'egion %apers in $ustralian
-aritime $7airs No 22
*I.C.R.C. 0andbook of the 2nternational 'ed ross and 'ed rescent -ovement (1994).
*Deter Feck (ed) .he 0andbook of 0umanitarian 3aw in $rmed on4icts (1995).
!
*I.C.R.C 8ibliography of 2nternational 0umanitarian 3aw $pplicable in $rmed on4icts
(1987).
*Hare McCoubrey 2nternational 0umanitarian 3aw: .he 'egulation of $rmed on4icts
(1990)
*Hare McCoubrey 2nternational 0umanitarian 3aw: -odern 9evelopments in the
3imitation of +arfare (2
nd
ed, 1998).
*Henry Dunant Insttute 2nternational 9imensions of 0umanitarian 3aw (1988).
*H Durham and T McCormack (eds) .he hanging ,ace of on4ict and the 1:cacy of
2nternational 0umanitarian 3aw (1999).
*Karne Lescure 2nternational ;ustice for ,ormer <ugoslavia: .he +orking of the
2nternational riminal .ribunal of the 0ague (1996).
*R Provost 2nternational 0uman 'ights and 0umanitarian 3aw (2002).
N Ronztt (ed) .he 3aw of Naval +arfare (1988).
Use%ul De&sites
Internatona Commttee of the Red Cross http://www.crc.org
Unted Natons Hgh Commssoner for Refugees http://www.unhcr.ch
Unted Natons http://www.un.org
Unted Natons Treaty Database http://www.un.org/Depts/Treaty
Unted Natons Law of the Sea
http://www.un.org/Depts/os/ndex.htm
Internatona Crmna Court http://www.cc-
cp.nt/menus/cc
THE UNDHR s sometmes crtcsed on the foowng grounds:
1. Systematc Vagueness
2. Conct of Rghts
3. Cutura Reatvty
4. Enforceabty
What is a -just war*?
jus a! bellum 5 the rght to go to war
References:
Ccero
St Thomas Aqunas
"
Hugo Grotus (1625 work - On the Laws of War and Peace - natural laws, independent
of any individual state's leal syste!, apparent to hu!an reason and should prevail - even
durin hostilities"
the suherng ncted by the aggressor |on the naton or communty of
natons| must be astng, grave, and certan;
a other means of puttng an end to t must have been shown to be
nehectve;
there must be serous prospects of success;
the use of arms |especay consderng power of means/weapons of mass
destructon| must not produce evs and dsorders graver than the ev to
be emnated.
jus in bello 5 rght conduct wthn war dstncton (combatants),
proportonaty, mtary necessty
jus post bellum - |ustce after a war - peace treates, reconstructon, war
crmes tras, war reparatons.
(Reference: Lous V. Iaseo - former Rear Admra n the US Navy.Nava War
Coege Revew (Summer/Fa 04): |us Post Beum: Mora Obgatons of the
Vctors of War)
What is the Law of the Sea?
In summary:
The Unite# Natins Cn,entin n the 8a) % the Sea (UNC8BS),
Internatona agreement foowng UNCLOS III (1973 1982) (Repaced 4 x 1958
treates)
The Law of the Sea Conventon denes:
rghts and responsbtes of member states (natons) n:
use of the word's oceans
gudenes: for busnesses, the envronment, management of marne
natura resources etc
Phosophca conceptuasaton - from Hugo Grotus.
***