LAWS1023 Lec 1 Sources Flashcards
What are the SOURCES of IL?
[Art. 38(1) Statute of the ICJ]
(a) Treaties
(b) Customary law
(c) General principles of law recognized by civilized nations
(d) Subsidiary means: judicial decisions, teachings of the most highly qualified publicists.
[Art. 38(2) Statute of the ICJ] Courts still have the power to decide a case EX AEQUO ET BONO, if the parties agree to this via a treaty.
What does ex aequo et bono mean?
Power of courts to ignore rules which are the product of [Art. 38(1)] and to substitute itself as a law.
What are the 2 requirements to prove a CUSTOMARY RULE?
- State Practice
2. Opinio Juris (subjective psychological element): state’s belief that it is obliged by law to act in a particular way.
What is CUSTOM?
“Constant and uniform usage, accepted as law” [Asylum Case].
“Evidence of general practice accepted as law” [Art. 38(1)(b) Statute of the ICJ].
Why is Opinio Juris important?
To distinguish between doing something bc you have to vs. doing something bc it is what everyone else does (e.g. national anthem)
(e.g. ceremonial acts / international comity, motivated by courtesy, not any sense of legal obligation.)
[Asylum case, Columbia v Peru]
Keywords: political expediency, feeling of legal obligation, regional custom, uncertainty / inconsistency in evidence, persistent objection.
F: Arrest warrant for rebellion leader (Peruvian national) - flees to Columbian embassy - asylum granted - request for safe passage denied stating that De La Torre was not a political prisoner, but guilty of common crimes.
C argued that there was a CR which entitled C to the sole right of determining the nature of the offence (i.e. P did not have a right to say that he wasn’t a political prisoner), and also a CR obligating territorial state to allow safe passage.
- “Political expediency seem to have led the territorial state to recognize asylum without that decision being dictated by any feeling of legal obligation.”
- Couldn’t prove in the examples that state from whom asylum was sought deliberately refrained. “oh, we’re not allowed to do it, only for state granting asylum.”
- Illustrates that custom does not need to be applied internationally, can also be recognized between 2 states or as local / regional custom.
- Too much uncertainty / inconsistency in evidence. Even if custom existed, cannot be invoked against P due to their refusal to ratify the Montevideo Conventions which were the first to include a rule concerning the qualification of the offence in diplomatic asylum matters.
Things to consider when doing a custom problem Q:
- Onus to prove existence of a custom.
- Local / regional custom.
- Persistent objector (consider last).
What are the elements to prove STATE PRACTICE?
[North Sea Continental Shelves Case]
(a) Whether SP is performed with a fairly high degree of regularity? consistency? Whether there is acquiescence / absence of protest?
(b) How many states respect it and which states?
(c) Length of time has it been followed?
Are there differences in the STRENGTH / SIGNIFICANCE of evidence of SP?
[Anglo-Norwegian Fisheries] noted that ACTIONS (e.g. physical seizure of trespassing ships) were more significant evidence than WORDS (e.g. cases prohibiting trespass by foreign ships).
[North Sea Continental Shelf Case, Germany v Denmark and The Netherlands]
Keywords: treaty becoming customary law, evidence from parties to treaty irrelevant, short period of time, states whose interests are specially affected, “extensive and virtually uniform”, fundamentally norm-creating character, framed as secondary obligation, ability to make qualifications + reservations, unresolved / ambiguous meanings / scope of phrase, shortly becoming parties to treaty.
F: Delimitation of shelf - G concave coastline.
- Treaty may have (1) codified existing CR’s, (2) crystallized existing norm thereby forming a CR, (3) CR had subsequently developed after.
- Evidence of practice from parties to the treaty are irrelevant as they would simply be acting in compliance with their treating obligations.
- The passage of a short period of time is not of itself a bar to the formation of a new CR. However, if the period is very short, state practice (especially those whose interests are specially affected e.g. coastal v landlocked states), should have been “both extensive and virtually uniform”.
- For a treaty provision to be regarded as CIL: (1) provision must be of a fundamentally norm-creating character, (2) must be widespread and representative participation in the treaty, (3) must be a general recognition of a rule / legal obligation.
A: Art. 6(2) essentially states that the equidistance principle is the exemption, only applied in the absence of agreement, which undermines the view that the equidistance principle is a general CR. Also, equidistance principle does not get applied if there are special circumstances, and it is possible for states to make reservations to it. Unresolved controversies as to the exact meaning and scope of “special circumstances”. Of the 15 cases cited as being relevant, over half shortly became parties to the Geneva Convention and therefore were acting potentially in application of the Convention and not under custom.
[Military Activities in Nicaragua, Nic v USA]
Keywords: inconsistent conduct treated as breaches, not as recognition of new rule, co-existence with treaty.
P: no need for “absolutely rigorous conformity” or “universal acceptance” of state practice (unless dealing with short period). “Sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of inconsistent conduct should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.”
P: CR can co-exist with treaty rule.
[Dispute Regarding Navigational Rights, Costa Rica v Nicaragua]
Keywords: acquiescence.
F: N was imposing charges on vessels, requiring passengers to have visas, thus hindering CR’s right to free navigation in their part of the SJ river. N had to prove that CR had no such right of free navigation.
O: CR had developed a customary right of free navigation as they had been engaged in the practice unquestioned over a very long period of time.
[Legality of Nuclear Weapons Case]
Keywords: OJ, openly declare, reserve the right, deterrence.
Attempt to argue that there was a customary prohibition on using NW’s as no one had used them for 50yrs. This non-use could not be ascribed to a legal obligation not to use. There are states that own NW’s, states that have openly declared that they reserve the right to use NW’s for DETERENCE purposes, undermines the existence of OJ.
[South West Africa Case]
Keywords: persistent objector, time of objection, frequency, state’s existence.
P: Cannot prevent practice from turning into custom, however, if State objects before the crystallisation of the customary rule, and persistently objects, they will not be bound by the CR.
P: Objector may still be obligated if they only object after the custom’s creation.
P: Whether the state was in existence at the time of the custom’s creation is significant.
[Norwegian Fisheries Case]
Keywords: persistent objector, acquiescence, knowledge of claim.
F: Complaint by UK against how N had defined its territorial sea – rather than tracing parallel to low water mark, N had drawn straight baselines – N’s coast is very indented, contained a lot of fiords.
- Even if you the existence of a CR is proved, it would not bind N. The general toleration of the international community, UK’s position in the North Sea and her own interests in the question, her prolonged abstention, would warrant N’s enforcement of her system against the UK. UK did not immediately object so were deemed to have acquiesced.
- Silence / absence of protest in circumstances which generally call for a positive reaction
- Acquiescence cannot be established unless a state has actual / constructive knowledge for the claim being made.
