Costumary international law - lecture 3 Flashcards
Customary international law
named in art 38 of the ICJ-statute, “international custom, as evidence of a general practice accepted as law”
How does custom become law? what? How do we know its law?
unwritten law
elements of customary law= state practice (=objective element) + opinio iuris (sense of legal obligation; = subjective element) (motivation of a state; can be stated explicit and implicit, hard to know motivation)
state practice= national court decisions, national laws, diplomatic correspondence, military measures, executive acts (prosecutions, expropriations, arrests …)(national court decision is relevant for international law; not rly binding, but it’s considered state practice)
opinio iuris = court rulings, laws, protest notes (when they say behavior is unlawful and protest it) , voting behavior in IOs (ex in UN general assembly,; can give opinio iuris), implicity ( ie through imposition of countermeasures)
IOs = international organizations
relevant ICH cases: Asylum case (1950), Right of passage over indian territory case (1960), north sea continental shelf case (1969), nicaragua case (1986), lotus case (1927) (just bc we look at case, doesn’t mean the applicant won the case)
Asylum case 1950
after an unsuccessful military coup in Peru, Haya de la Torre, a politician, sought refuge in the Colombian embassy in Lima (was supposed to be arrested, but he fled to the Colombian embassy);
Columbia V Peru (is there a right to diplomatic asylum? is it possible that this right exists only in the region of latin america?)
(Columbia said there is right to political asylum + Peru has to recognise this and let him leave the country and get into Columbia ; Peru upset? )
in latin america the right to diplomatic asylum is recognised, but in the rest of the world it is not, bc world believes point of embassy is different
customary international law only in latin america = ICJ said customary int. law does not have to be “universal”, it can be limited to a specific region; it can still be “general practice”; strict prerequisites for uniformity of state practice and opinio iuris)
⇒ conclusion of ICJ= no regional CIL due to lack of uniformity of state practice and no clear opinio iuris (peru disagreed (among others), mattered for region; also ICJ made statements about motivation of columbia to grant it, said it was for convenience/ courtesy/ etc.; )
columbia unsuccessful
there is no right to diplomatic asylum
in general there can be regional CIL, but not in this case
Right of passage over indian territory case (1960)
Portugal v India
Concerned Portuguese enclaves in India: Goa, Diu and Daman (ports, where portugal had right of passage, had institutions there, it was considered to be under portuguese sovereignty, belonged to portugal fr, etc.)
The UK (former Colonial power) and India (since independence in 1947) had tolerated Portugal‘s right of passage for private persons and commercial goods ( could cross indian territory to get from one enclave to the other)
Police and military forced needed permission, which had always been granted
Following unrest in the enclaves in July of 1954, India refused access to Portuguese troops (portugal wanted to send troops, India refused) (portugal argued that bc they got allowance all the times before it was CIL, and they should be allowed to send troops again) (Can this right be revoked?)
right not based on treaty, but custom
Did Portugal‘s right of passage exist in the absence of a treaty?
Is there a possibility of bilateral CIL?
ICJ = existence of bilateral custom is possible, this can still be “general practice”, exercised by those whose interests are particularly affected,
in this case = it is essential to distinguish between private/ commercial and military activities; Portugal does have a right of passage for private persons, civil officials and goods in general ⇒ but not for police and military forces (portugal always needed permission, just bc it was granted, it does not mean, it is a right; permission always being needed showed that India had right / idea to reject it)
Portugal lost (opinio iuris of India not sufficient)
unrest succesful = end of portuguese sovereignty in these areas
north sea continental shelf cases (1969),
Denmark v Germany
The Netherlands v Germany
Delimitation of a Continental Shelf between adjacent states?
Art 6, 1958 Geneva Convention on the Continental Shelf : “principle of equidistance“
baseline = coast; (continental shelf goes further than coastline, prolongation of the territory, giving coastal state exclusive state, in continental shelf we have a lot of resources, ex: oil;
DE had small continental shelf, did not have access to the high seas (=economic disadvantage), DE always rejected norm, did not ratify convention
Only DK and NL were state parties, GERMANY not
GERMANY has always rejected the norm
Has the principle of equidistance developed as an emerging customary norm by means of the 1958 Geneva Convention? Has the Geneva convention introduced a new concept? Meaning it’s still applicable even to countries which did not ratify it?
UNCLOS 1982 = UN convention on the laws of the seas (more relevant today than geneva convention) (rule of equidistance disappears in this one)
ICJ = CIL can, in principle also emerge from treaties, practice by states must be “widespread and virtually uniform”, in particular by “specially affected” states (=coastal states) ; accompanied by opinio iuris
in this case= norm of CIL did not emerge, a solution based on “equity” should be found
denmark + netherlands lost;
nicaragua case (1986),
During the ravages of the Nicaraguan civil war, the US supported the “Contras” (rebels fighting the socialist government of Nicaragua) by supplying them with weapons, financial aid, and training
Organs of the US were also directly engaged in the mining of ports
Nicaragua = violated norms like non intervention, self determination, prohibition for the use of force, etc. (Un charter)
ICJ couldn’t apply UN charter, bc of reservation/ competence issues, needed to apply customary international law
Korean war, Vietnam war => was there respect for the prohibition for the use of force?
According to the ICJ= Dual-element-theory (state practice and opinio iuris) reiterated; Opinio iuris highlighted as especially significant (carrying almost more weight than state practice?; reason why the states act like they do, maybe more important) ; States have justified the use of force based on the exception of the rule (self-defense) (states don’t claim to have right to use force, but have exceptions) ;GA Resolutions can be an expression of opinio iuris
Outcome: The prohibition of the use of force, the prohibition of intervention, and state sovereignty are principles of CIL
lotus case (1927)
Ship collision on High Seas (French and Turkish ships) (8 ppl died, loss for türkiye, türkiye said it was french officers fault, bc he didn’t pay enough attention) => ships crashed into each other
French ship officer is arrested and tried in court upon arriving in Istanbul
France protests and invokes the “flag-state principle” (french ship, france has jurisdiction, not turkey; flag state principle= a flag state can claim exclusive jurisdiction over the ship on the high seas, unless restricted by special conditions of a treaty and a convention or special resolutions of the UN Security council, UNSC) (türkiye argued that they were injured + affected by this crash, so they have direct injury)
According to the PCIJ… (Permanent court of international justice)
CIL concerning exclusive jurisdiction of the flag-state?
Lack of sufficient state practice
No opinio iuris in favour of denying jurisdiction
“Lotus-principle”: In case of doubt, restrictions on state sovereignty must not be presumed. Or: “What is not explicitly prohibited, is allowed.”
Duration of costums
no requirement of temporary durations, but “widespread and virtually uniform” practice (ICJ North sea continental shelf case)
Truman proclamation on the continental shelf (1945; said the US has the right to exclusively use resources of the continental shelf) - customary international law? no protest, many countries made similar declarations;
ie sputnik satellite crossing over foreign territory (1957) (recognised that outer space is no longer air space of a country)
codification of customary international law:
treaty = how we want to regulate/ looking at future; custom = looking at past
On the basis of Art 13 UN-Charter
“progressive development of international law and its codification”
International Law Commission
▪ Subsidiary organ of the GA, installed by GA Res 174
▪ 34 members, elected for a 5-year-term, representing the predominant legal systems of the world.
▪ Austria: Alfred Verdross, Stephan Verosta, Gerhard Hafner, August Reinisch
Examples for Codification
Vienna Convention on Diplomatic Relations (1961)
Vienna Convention on Consular Relations (1963)
Vienna Convention on the Law of Treaties (1969)
Vienna Convention on Succession of States in Respect of Treaties (1978)
Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (1983) (hasn’t gone into force yet)
Codification of CIL?
Advantages:
Systematization
Specification
Progressive development
Indisputability
Common interests
Legitimization
Disadvantages:
Inhibition of gradual legal development
Representation of only the smallest common denominator
Compromises in wording
Legal uncertainty, if unsuccessful
CIL in Austrian Law
Art. 9 B-VG (Federal Constitution Act) (1) The generally recognized rules of international law are regarded as integral parts of federal law.
Examples: Immunity of states and IOs, immunity of foreign state representatives, state succession
Article 38 ICJ statute
c. general principles of law recognised by civilized nations
had permanent international court before ICJ, where they made statute in 20s
general principles of law:
discussion on the scope and outcome of the topic and methodological approach. Description of previous work of the Commission. Question of the development of general principles of law over time. Consideration of the elements and origins of general principle of law. Proposals for three draft conclusions.
unwritten law not created by will of states
determination:
a. comparative approach
b. natural law approach?
c. civilized nations?
purpose:
gap filling (in addition to treaties)
comparative approach (what’s the rule according to austrian law? what is it according to other countries? ex: when you steal smth in Austria you have to pay interest; in most of the world if u do harm you need to do smth to make it good again; whose nation’s legal system do u look at? every system in the world? ?or select systems?
c. civilized nations not really relevant today (bc of colonial connotation)
c. is gap filler (if court needs to make a decision and there are no treaties/others they may use national law to make a decision) —> is there gap?
there is no hierarchy w the sources of international law (treaties are not above customs or general principles) → gap filling theory from before doesn’t work
Article 5 Claims settlements declaration of Algiers 19 january 1981:
“The tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances.”
1981: Iran and US on bad terms, after Iranian revolution in 1979 (relationship had reached lowpoint; only way they could form agreement was that Algerian gov stepped in as third party to talk to both sides, after Algeria made unilateral declaration where both countries agreed it was in their agreement) -> US and Iran did not make treaty with each other, just both agreed w Algerian declaration
Article 340 para 2 TFEU: “In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of MSs, make good any damage caused by its institutions or by its servants in the performance of their duties.”
→ if EU institutions do smth bad, they need to do it good again
Article 6 para 3 TEU: “ Fundamental rights, as guaranteed by the European Convention for the protection of human rights and fundamental freedoms and as they result from the constitutional traditions common to the MS, shall constitute general principles of the Union’s law. “ (nowadays fundamental rights are part of primary EU law, so not that important paragraph anymore)
→ this allowed European Court of Justice (in Luxembourg) to apply unwritten principles of law to cases (fundamental rights binding on institutions of EU)
“Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the MS, must be ensured within the framework of the structure and objectives of the Community.”
case 11/70 Internationale Handelsgesellschaft v Einfuhr - und Vorratsstelle für Getreide und Futtermittel (1970) ECR 1125
purpose:
gap filling (in addition to treaties)
comparative approach (what’s the rule according to austrian law? what is it according to other countries? ex: when you steal smth in Austria you have to pay interest; in most of the world if u do harm you need to do smth to make it good again; whose nation’s legal system do u look at? every system in the world? ?or select systems?
c. civilized nations not really relevant today (bc of colonial connotation)
c. is gap filler (if court needs to make a decision and there are no treaties/others they may use national law to make a decision) —> is there gap?
there is no hierarchy w the sources of international law (treaties are not above customs or general principles) → gap filling theory from before doesn’t work
Article 5 Claims settlements declaration of Algiers 19 january 1981:
“The tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances.”
1981: Iran and US on bad terms, after Iranian revolution in 1979 (relationship had reached lowpoint; only way they could form agreement was that Algerian gov stepped in as third party to talk to both sides, after Algeria made unilateral declaration where both countries agreed it was in their agreement) -> US and Iran did not make treaty with each other, just both agreed w Algerian declaration
Article 340 para 2 TFEU: “In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of MSs, make good any damage caused by its institutions or by its servants in the performance of their duties.”
→ if EU institutions do smth bad, they need to do it good again
Article 6 para 3 TEU: “ Fundamental rights, as guaranteed by the European Convention for the protection of human rights and fundamental freedoms and as they result from the constitutional traditions common to the MS, shall constitute general principles of the Union’s law. “ (nowadays fundamental rights are part of primary EU law, so not that important paragraph anymore)
→ this allowed European Court of Justice (in Luxembourg) to apply unwritten principles of law to cases (fundamental rights binding on institutions of EU)
“Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the MS, must be ensured within the framework of the structure and objectives of the Community.”
case 11/70 Internationale Handelsgesellschaft v Einfuhr - und Vorratsstelle für Getreide und Futtermittel (1970) ECR 1125
purpose:
gap filling (in addition to treaties)
comparative approach (what’s the rule according to austrian law? what is it according to other countries? ex: when you steal smth in Austria you have to pay interest; in most of the world if u do harm you need to do smth to make it good again; whose nation’s legal system do u look at? every system in the world? ?or select systems?
c. civilized nations not really relevant today (bc of colonial connotation)
c. is gap filler (if court needs to make a decision and there are no treaties/others they may use national law to make a decision) —> is there gap?
there is no hierarchy w the sources of international law (treaties are not above customs or general principles) → gap filling theory from before doesn’t work
Article 5 Claims settlements declaration of Algiers 19 january 1981:
“The tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances.”
1981: Iran and US on bad terms, after Iranian revolution in 1979 (relationship had reached lowpoint; only way they could form agreement was that Algerian gov stepped in as third party to talk to both sides, after Algeria made unilateral declaration where both countries agreed it was in their agreement) -> US and Iran did not make treaty with each other, just both agreed w Algerian declaration
Article 340 para 2 TFEU: “In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of MSs, make good any damage caused by its institutions or by its servants in the performance of their duties.”
→ if EU institutions do smth bad, they need to do it good again
Article 6 para 3 TEU: “ Fundamental rights, as guaranteed by the European Convention for the protection of human rights and fundamental freedoms and as they result from the constitutional traditions common to the MS, shall constitute general principles of the Union’s law. “ (nowadays fundamental rights are part of primary EU law, so not that important paragraph anymore)
→ this allowed European Court of Justice (in Luxembourg) to apply unwritten principles of law to cases (fundamental rights binding on institutions of EU)
“Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the MS, must be ensured within the framework of the structure and objectives of the Community.”
case 11/70 Internationale Handelsgesellschaft v Einfuhr - und Vorratsstelle für Getreide und Futtermittel (1970) ECR 1125
general principles of law
venire contra factum proprium (estoppel) (=“To come against one’s own fact (is not allowed”// prohibition of starting to act against expectations u have created // not allowed to go against ur own expectations u have created)
compensation for causing harm
unjust enrichment
interest for late payment
responsibility for unlawful behavior
state of necessity
abuse of rights
ILC Article 25 necessity
1.Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
- In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes the possibility of invoking necessity; or
(b) the State has contributed to the situation of necessity.
- art 25 can be invoked when there is natural crisis or economic crisis (unless state has contributed to situation, often fatal when it comes to economic crisis)
