Costumary international law - slides Flashcards
Sources of International Law
Art 38 ICJ-Statute:
1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice
accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
Elements of Customary Law
■ State practice
(= objective element)
■ Opinio iuris
(sense of legal obligation)
(= subjective element)
State practice
■ National court decisions
■ National laws
■ Diplomatic correspondence
■ Military measures
■ Executive acts (prosecutions,
expropriations, …)
Opinio iuris
■ Court rulings
■ Laws
■ Protest notes
■ Voting behaviour in IOs(!)
■ Implicitly (i.e. through imposition of
countermeasures)
Relevant ICJ-Cases
■ Asylum-Case (1950)
■ Right of passage over Indian territory-Case (1960)
■ North Sea-Continental Shelf-Cases (1969)
■ Nicaragua-Case (1986)
■ Lotus-Case (1927)
Asylum-Case, ICJ 1950
■ After an unsuccessful military coup
in Peru, Haya de la Torre, a politician,
sought refuge in the Colombian
embassy in Lima
■ Colombia v Peru
▪ Is there a right to diplomatic asylum?
▪ Is it possible that this right exists only
in the region of Latin America?
According to the ICJ…
▪ CIL does not have to be “universal”, it
can be limited to a specific region
▪ This can still be “general practice”
▪ Strict prerequisites for uniformity of
state practice and opinio iuris
▪ In this case: no regional CIL due to
lack of uniformity of state practice and
no clear opinio iuris
Right of Passage over Indian Territory, ICJ 1960
Portugal v India
■ Concerned Portuguese enclaves in
India: Goa, Diu and Daman
■ The UK (former Colonial power) and
India (since independence in 1947) had
tolerated Portugal‘s right of passage for
private persons and commercial goods
■ Police and military forced needed
permission, which had always been
granted
■ Following unrest in July of 1954, India
refused access to Portuguese troops
■ Did Portugal‘s right of passage exist in
the absence of a treaty?
■ Is there a possibility of bilateral CIL?
According to the 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.
North Sea-Continental Shelf-Cases, ICJ 1969
Denmark v Germany
The Netherlands v Germany
■ Delimitation of a Continental Shelf between adjacent states?
■ Art 6, 1958 Geneva Convention on the Continenteal Shelf : “principle of
equidistance“
■ 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?
According to the ICJ…
▪ CIL can, in principle, also emerge
from treaties
▪ Practice by states must be
“widespread and virtually uniform”, in
particular by “specially affected” states
▪ Accompanied by opinio iuris
▪ In this case, a norm of CIL did not
emerge
▪ A solution based on “equity” should
be found
Nicaragua-Case, ICJ 1986
Nicaragua v USA
■ 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
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?)
▪ States have justified the use of force based on
the exception of the rule (self-defence)
▪ 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, PCIJ 1927
■ Ship collision on High Seas
(French and Turkish ship)
■ French ship officer is arrested and tried in court upon arriving in
Istanbul
■ France protests and invokes the “flag-state principle”
According to the PCIJ…
■ 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
■ No requirement of temporary duration, but
“widespread and virtually uniform” practice
(ICJ North Sea-Continental Shelf-Cases)
■ Truman-Proclamation on the Continental
Shelf (1945)
■ i.e. Sputnik-Satellite crossing over foreign
territory (1957)
Codification of Customary International Law
■ 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
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 uncertainly, if
unsuccessful
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)
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
