CHAPTER 2 SOURCES OF INTERNATIONAL LAW

What Sources are

Domestic Laws—found in statute books and in collections of court decisions

Classifications of Sources 1. Formal sources—various processes by which rules come into existence

a. Legislation b. Treaty making c. Judicial decision making d. Practice of states

2. Material sources—identify what the obligations are a. State practice d. Judicial decisions b. UN Resolutions e. Writings of jurists c. Treaties

Art. 38(1) of the Statute of the International Court of Justice

1. International conventions—establishing rules expressly recognized by contesting states 2. International custom—evidence of a general practice accepted as law 3. General principles of law recognized by civilized nations 4. Subsidiary means for determination of rules of law

a. Judicial decisions b. Teachings of the most highly qualified publicists

Restatement of Foreign Relations Law of the US 1. Customary Law 2. International agreement 3. General principles common to the major legal system

Sources of International Law 1. Custom 4. Generally recognized principles of law 2. Treaties 5. Judicial decisions 3. International agreements 6. Teachings of highly qualified publicists

Custom or Customary Law A general and consistent practice of states followed by them from a sense of legal obligation Elements:

1. Material factor—how state behaves o Elements of Practice of sates or usus a. Duration—may be either short or long; not the most important element

North Sea Continental Shelf Cases: Short duration, by itself, will not exclude the possibility of practice maturing into custom provided that other conditions were satisfied. State practice should be extensive & uniform in the sense of the provision invoked, and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.

b. Consistency—continuity and repetition

Asylum Case: Colombia wanted Haya de la Torre be granted safe conduct & be a refuge. Columbia had not proven the existence of a constant & uniform practice of unilateral qualification as a right of the State to refuge and an obligation upon the territorial state.

c. Generality of the practice of states—uniformity and generality of practice need not be complete but it must be substantial

Nicaragua v. US: practice need not be in absolute uniformity with the purported customary rule as long as it is consistent with such rules.

Opinio Juris—belief that a certain form of behavior is obligatory

Nicaragua case: for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but must be accompanied by opinion juris sive necessitas

Dissenting states: subsequent contrary practice o Dissenting states are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation o It is also possible that after a practice has been accepted as law, contrary practice might arise

Fisheries Jurisdiction Case: if the contrary practice should gain general acceptance, it might instead become the law

Evidence of state practice and opinio juris a. Treaties b. Diplomatic correspondence c. Statements of national leaders and political advisers d. Conduct of states

Instant Custom o A spontaneous activity of a great number of states supporting a specific line of action

The Martens Clause Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of the law of nations as they result from: usages of civilized people, laws of humanity & public conscience

2. Psychological or subjective factor—why they behave the way they do

Treaties Determine the rights and duties of states just as individual rights are determined by contracts Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior

Treaties and Custom If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law Adherence to treaties can be indicative also of adherence to practice as opinio juris If treaty comes later than a particular custom, treaty should prevail If a later treaty is contrary to a customary rile that has the status of jus cogens, custom will prevail The later custom, being the expression of a later will, should prevail A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Preemptory norm of general international law = a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character

General Principles of Law Recognized by Civilized Nations This has reference to principles of municipal law common to the legal systems of the world

Judicial Decisions Decisions of the court have no binding force except between the parties and in respect of that particular case Decisions do not constitute stare decisis Decisions of the ICJ are not only regarded as highly persuasive in international circles but they have also contributed to the formulation of principles that have become international law

Teachings of Highly Qualified Writers and “Publicists” Publicists = institutions which write on international law a. The International Commission b. The Institut de Droit International c. International Law Association d. Restatement of Foreign Relations Law of the US e. Annual publication of the Hague Academy of International Law

Equity When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice Where 2 parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party The Court’s recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case ex aequo et bono, if the parties agree thereto Kinds of Equity: 1. Intra legem—within the law; the law is adapted to the facts of the case 2. Praeter legem—beyond the law; used to fill the gaps within the law

3. Contra legem—against the law; refusal to apply the law which is seen as unjust

Other Supplementary Evidence 1. UN Resolutions—generally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis 2. Soft Law—―Non-treaty Agreements‖; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties

o Administrative Rules—guide the practice of states in relation to international organizations