2: Sources of PIL Flashcards
where to find the rules of IL?
Art 38(1) of the ICJ statute - international conventions, international customs, general principles of law, judicial decisions, etc.
courts do not create law and define the rules like the common law system
- are not real sources of IL but subsidiary means since they clarify law
treaties
customs
treaties
express agreement whereby the contracting parties bind themselves legally to act in a particular way or to set up particular relations between themselves
- not always states, organisations like the EU can also sign treaties
- intention of a legally binding engagement
need for the definition of precise rights/obligations of the parties
express consent of parties required - agreement is never silent/tacit but expressed explicitly
- state sovereignty allows them to choose
- every state has sovereignty
non-parties are not bound by the treaty so states that have not ratified the treaty are not legally bound to respect it
why are treaties binding?
pacta sunt servanda
most resolutions produced by the UN general assembly are not legally binding but UN SC resolutions adopted under peace and security (chapter 7) are
customs
source of law deduced from the practice and legal consciousness of states as subjects of IL
2 essential elements
- repetition of practice/acts (denominated precedents)
- conviction or belief that the execution of these acts is obligatory because the law requires it
- psychological element of opinio iuris sive necessitates (real belief and conviction of the states that such a conduct is necessary - real legal obligation/right)
material element of customs
proving the uniformity of acts
- practice has to be uniform, constant and general
but this also means issues with time and continuity
no rigid time frame but in the period being studied, if there was a change to adopt such a conduct, need to prove that states always adopted the same type of behaviour/reaction
an isolated precedent cannot give rise to a customary rule (rejection of an instant or immediate custom)
general usage of customs/customary rules
customary rules apply to the whole world and general custom is always universal
- no state escapes its effects
- but also cannot expect that all states take part
Art 38 of the ICJ statute
- “general practice”
enough that countries tacitly approve and this is what gives rise to a custom
refusal to be bound by a general custom - ‘persistent objector’
- state that raises objections against the creation of a customary norm but did not succeed in preventing its emergence
- state is exempted from effects and the custom doesn’t apply to it
jus cogens (peremptory norm) customary rule
- some superior rules in IL that are supreme above all other intra-national rules
- untouchable and cannot derogate from them
- genocide, slavery, piracy, torture, fundamental principles of IHL would be jus cogens
- also the 4 international crimes (genocide, war crimes, acts of aggression, crimes against humanity)
- all use of force apart from 2 exceptions in the UN charter and the safeguard of citizens abroad in a state of emergency are illegal and are jus cogens
jus cogens can be modified by another jus cogen norm
local customs
regional, local customary norms are those with a limited geographical effect
need unanimity
- all affected parties have to actively consent to it
psychology element of customs
opinion juris (sive necessitatis) is the belief that a particular activity is legally obligatory - states feel to be legally bound to act in a certain way
treaties vs customs (equal sources of IL)
treaty as legal security with expressed consent
custom reflects essential values and needs of the international community at a given time with some flexibility
- customary process where factual reality is gradually transformed into a legal reality
for a treaty you need direct consent, whereas customs are not a product of a legal act but a series of conducts in a decentralised process
hierarchy of sources
all sources are on the same level so it doesn’t actually matter whether obligations come from customs or from unilateral acts but there are hierarchies among legal norms
- differentiate norms and sources (e.g. norm is the prohibition to use force)
conflict of norms between lex specialis derogat generali (special rule prevails over a general rule) and lex posterior derogat priori (rule which is later in time has priority)
superior principles of IL as peremptory norms (higher status)
- treaty is void if it conflicts which a peremptory norm of general IL
- peremptory norm as one that is accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can only be modified by a subsequent norm of general IL having the same character
general custom applies to the whole world
- every jus cogens is a custom and does not have to be written in a treaty
- exists in the mind of states so it is a custom and peremptory
obligations erga omnes
- obligations of a state towards the international community as a whole (unlike obligations vis-à-vis another state deriving from a bilateral treaty)
- all states have a legal interest in their protection
- all jus cogens obligations are erga omnes but not all erga omnes obligations are jus cogens
joint non-conventional acts
gentleman’s agreements
- promises between 2 politicians that are not legally binding
- political promise
- matter of personal honour
pacta sunt servanda does not apply
other sources of IL: general principles of law
principles common to various national legal systems and transferred into international legal order
distinguished from general principles of IL
function to fill up the conventional/customary law - if there is a gap and general principles of law are suitable, they can be used
other sources of IL: equity
referenced in Art 38 of ICJ
- to rule ex aequo et bono
notably used in territorial disputes where they ask judges to put existing legal rules on the side and apply equity/justice to reach a just legal settlement
to fill gaps in law
- cannot set aside positive law and rule contra legem
other sources of IL: unilateral acts
acts imputable to a single subject of IL
imputability and publicity
state will unilaterally announce a promise or intention, thus creating a new obligation for itself
- unilateral expression of will, so no acceptance by other subjects required on the basis that it is not a consensus but bona fides
pacta sunt servanda
e.g. notification, recognition, protest, promise, renunciation
