LECTURE 8 - sources of international law Flashcards
Sources of International Law according to International Court of Justice
nternational 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 teaching of the most
highly qualified publicists
of the various nations, as
subsidiary means for the
determination of rules of
law.
2. This provision shall not prejudice
the power of the Court to decide
a case according to the right and good, if the
parties agree thereto
4 main sources of IL
- International custom
(binding = legally enforceable) - General principles (binding)
- Judicial decisions/teachings
(non-binding) - International treaties
(binding)
Customary Law: Precedent of General
Practice
The “common law” of the law of nations
*Consists of a vast body of rules that, until the 20th c., constituted the chief body of international law
- general rule of law of nation
- which global tradition have written much of the customary law - western european, northern atlantic practice
- ethnocentrism of liberalism, which carries into IL
Customary Law: 2 main rules
- there must be a general
practice - the general practice must be
accepted and bring with it a
sense of legal obligation
additionally,
* Based on social practices
* For international Law, customary law
grounded in general practice
Customary Law: based on established
practices
law should be based
on the established and
consistent practices of
states in international
relations, e.g.
* Diplomatic immunity,
* Prohibition of slavery,
* Prohibition against
genocide
* Ban on maritime piracy
* Recognition of other
states as subjects of law
Customary Law: Based on established
practices, precedent
- Customary law comes into effect when adherence to the rules by states becomes widespread and common
- Global understanding is that the rule becomes binding upon all states in international system
– Binds even those states
do not explicitly consent
– Means explicit
declaration of non-
consent can be critical,
i.e., - US rejection of international criminal court
- Brazilian rejection of
the additional
protocols of the
non-proliferation
treaty
General Principles of Law Recognised by Civilized Nation
(1)Actual rules of international law which have such a broad description that they can be called principles (ie. don’t kill)
(2)Maxims (short statement expressing general rule of conduct) of universal application in domestic law which ought to apply in the international sphere also
General Principles of Law: meaning + example
Ideas that form part of multiple legal
settings
– i.e., murder is illegal
* Principles are open-ended in nature
* Do not specify a particular case
outcome
– Provide guidelines for reasoning
through a case
* Principles not grounded in explicit
consent of states or codification in
national legal systems
– Not used as sole basis for ICJ
decisions
jus cogens
Fundamental principles of
international law from which
no derogation is ever
permitted
A treaty provision contrary
to jus cogens is void
Apply erga omnes (owed towards all), accepted
and recognised by the
international community
and may be found either in
treaty or custom
examples:
Prohibitions on:
* Waging aggressive war
* Crimes against
humanity
* War crimes
* Genocide
* Maritime piracy
* Apartheid
* Slavery
* Torture
3 general principles of major legal systems
- Nemo iudex in causa
sua – no one should be
a judge in his own case - The principle of
reparation: the breach
of an engagement
involves an obligation
to make reparations” - The principle of a
state’s responsibility
for all its agents
another source: Judicial decisions/teachings
Common law tradition
– courts make decisions and can create
precedents used going forward
* goes against concept of sovereignty
– Most international courts and bodies state they do not operate on precedent (an earlier event acting as a guide)
– May matter more for domestic view
judicial decision process of ICJ:
Previous decisions – examined and taken into account by ICJ, but may not be binding
* There is no higher appeal than the ICJ
– Can ask for reviewed decision if new facts found
jurisdiction of ICJ
- The Court can handle all cases that parties bring to it and issues mentioned in the United Nations Charter or active treaties.
- States that agree to this statute can automatically accept the Court’s authority for legal disputes about treaty interpretation, international law questions, breaches of international obligations, and deciding what kind of reparations should be made for those breaches when another state with the same obligation also agrees.
importance of jurist’s writings
Oral arguments matter, but
they are preceded by written
briefs and submissions
* Writers had an important
role in the early
development of international
law
* Writers still make a
contribution by highlighting,
where appropriate, the need
for international regulation
* Can be called upon as expert
witnesses
EXAMPLE: Nuremberg trials = completely new, = importance of writings of jurists, even if its not binding to the future they still must make a decision
international treaties
*Specific rules to govern specificsituations
*Central method for creating binding rules of international law
*Legitimacy derived from expressState consent
*Two key principles from Vienna Convention (international agreement that regulates treaties among sovereign states):
1.Treaties based on free consent of signatories
2.Once consent given and in force, treaty shall be kept by parties in good faith
