Chapter 2 Flashcards
Article 38 ICJ
Attempt at listing sources of international for the Court. Distinguishes between primary and secondary sources of law.
Primary: constituted by conventions
Secondary: judicial decisions and scholarly contributions.
First three sources are law creating and the latter law identifying.
Convetions (treaties) as a legal source.
Most direct way states create rights and obligations international law. Is the only way for states to enter a formal relationship. Only has legal obligations for consenting states.
Pacta sunt servana: a state must honour their treaty-based obligations.
Treaties come in many forms. What titles can they have?
A title is immaterial/ unimportant.
- Bilateral treaty= treaty with two or more states that often governs a particular issue of mutual interest. Resembles a contract
- Multilateral treaties= between larger groups of states. Usually have a general application and possesses law-making features.
- Constituent treaty = treaties that establish an international organization. Some of those treaties can adopt instruments that are legally binding to the members. These are treaty-based an not an independent source.
Why is there custom law?
Because of the absence of an international ‘law-maker’
Many well-known legal principles are derived from common usage and interstate practice. Not as detailed as treaty law, but can adapt to changing circumstances.
However, is a controversial source of international law
Customary law arises when:
When a particular way of behaving is:
1. Followed as a general practice among states, and
2. Accepted by those states as legally binding.
Thus there is an objective element (state practice) and a subjective element (the belief that the practice is legally binding)
Challenge of customary law
To identify when custom ceases to be voluntary and instead becomes legally binding.
Who does customary law bind?
all states including a state that has not taken a part in the formation of the practice, such as a newly emerged state.
Customary legal norms don’t need to universal in scope. And it can also develop regionally between groups of state. Example of this: In Europe, democratic governance.
Objective element
‘the way things are done’.
1. Consistency: reasonably inform state practice. Minor departures from uniformatiy may be acceptable.
- Duration: evolves slowlu and gradualluy over time. North Sea CSC: consistency en generality are of greater duration than duration. In situations of rapid change state practice may be formed in a very short time = instant custom (example: 9/11)
- Generality: practice should include most states. North Sea CSC: states whose interests are specially affected is most relevant.
Subjective element - opinio juris
- distinguishes legal obligations from other motivations
- Violations don’t automatically invalidate a custom if states still recognize it
- Can be universal or regional
Reltionship between custom and treaty law
When a treaty codifies customary int law, the parties are bound to both and non-parties only to the customary law.
Treaties can codify existing custom or crystallize new customary law.
Non parties must follow existing customs, but if many states follow new treaty rules, those rules can become customs too.
Identical treaty& customary obligations reinforce each other
Conflicts between the two may be resolved through interpretation or hierarchy rules
General principles as a source of law
Third source article 38. ICJ rarely refers to it, but a lawyer finds legal answers here that cannot be found in domestic law.
Why was this inserted into this article?
because there were concerns that treaties and custom were insufficient to provide all the legal answers needed.
General principles of international law would prevent the Court being unable to decide a dispute due to a shortage of applicable law, so-called non liquet.
Gap filler
Only needs to be consulted when a dispute could not be resolved on the basis of a treaty or customary international law.
Recognized by civiled nations
Meant to illustrate that the general principles are limited to those common to devoloped national legal systems as a means to prevent arbitrariness on the part of judges.
Important term: equity. The ICJ relies on equity.
General principle of good faith
States must act honestly in fulfilling their international obligations.
Pacta sunt Servanda
International agreements are binding.
Judicial decisions (article 38d)
Subsidiary source of law. Reflected in 38-59 of the Statute. The ICJ’s decisions are only binding on the parties to the case, but they also carry interpretative weight.
Scholarly contributions and the ILC
Least important source article 38.
Unilateral statemenrs
unilateral statements by state representatives can create obligations under international law. No form requirements. Only binding if stated in clear and specific terms.
Hierarchy of sources
Except for primary and secondary sources of law (like in 38). All sources carry the same weight. Three exceptions
- Jus cogens: the norms of international law that cannot be set aside. Article 53 Vienna Convention law of treaties.
- Erga omnes: rights or obligations are owed toward all: communitarian norms. A procedural designation of a set of obligations that all states evoke.
- Obligations under UN charter. Primacy of security council resolutions is not absolute and the Council cannot oblige states to disregard norms of jus cogens character.
Non- binding commitments and the concept of soft law instruments
Soft law= non-binding instrument that plays a role in the creation in int. law. Is an expectation to follow norms.
Hard law= legally binding instrument
Soft law is legally relevant in the assistance in the formation or interpretation of customary international law. Soft law documents can be evidence of state practice or opinio juris and on that basis become relevant to the creation of (binding) international law.
