Sources And Norms Flashcards
What are sources and the two different kind of sources of international law
Sources = where it comes from
1. Formal sources: method of law creation (the process ➞ if it completes the stages then it is a law)
2. Material sources: provide evidence of the content of existing legal rules (e.g. books -1st. Where you look to read the rule)
state consent ➞ only those obligations to which the states have consented are binding to that state
Key sources
➞ listed in article 38 ICJ statue
A. International conventions (treaty law)
B. International custom
C. The general principles of law recognized by general civilised nations
= the three formal sources
D. Subsidiary means ➞ ways to determine what rule it is
Treaty law
= the predominant source of international law (has the most coverage)
- governed by the Vienna Convention on the Law of Treaties 1969: this is a residual convention and defines the treaties
- if a treaty is a legally binding thing between states, then it is a treaty, no matter the name. (Agreements, covenant, charter, pact, etc)
- pacta sunt servanda: must keep your promises
- bilateral = between two states, multilateral = more than two parties. (Now you have a few treaties which have more than 100 parties, lawmaking treaties = when almost all states are bound by it
- states as ‘masters’ of the treaty: everything comes down to what the states want
The making of a treaty ➞ article 11 VCLT
Article 11 Vienna convention on the law of treaties (VCLT)
➞ states can express consent to be bound in several ways:
A.signature: article 12 VCLT
B. ratification: article 14 VCLT
- depends on what is expected. Nowadays signature is not enough and has to be ratified as well, you will see this in the treaty whether or not it is required
C. accession: article 15 VCLT
- when you join a treaty when it is already operating
Who can express consent to be bound to a treaty
➞ see art 7 VCLT
Full powers
1. A person representing a state for the purpose of adopting or authenticating
a. He produces full powers; or
b. It appears from practice of the states concerned that it is done that way
2. Exception to the above, without having full powers
a. Heads of state, heads of government and ministers of foreign affairs
b. Heads of diplomatic missions ➞ only when they are adopting the text of a treaty
c. Representatives accredited by states ➞ only adoption of the text, when accredited to an international organization or an organ
Entry into force and amendment of a treaty
Entry into force - art 24 VCLT
- will be defined within the terms of the treaty
- may refer to a time period or other conditions
- when the treaty hasn’t entered into course, there is an obligation not to defeat the object and purpose of a treaty ➞ so making it impossible first the treaty to come into play (article 18 VCLT)
Amendment
- requires the consent of all parties to an agreement
- some treaties contain clauses on the amendment procedure
Reservations to treaties
➞ articles 19 to 23 VCLT
= any statement which modifies or excludes the legal effect of certain treaty provisions (e.g. when you agree with the treaty, but not a specific article)
- must be reserved upon ratification
- must be compliant with the reservation requirements of the treaty
-> Must not deafest the object and purpose of the treaty
Options to responds to a reservation
When one states makes a permissible reservation, the other states parties to the treaty have 4 options:
1. Do nothing: after 12 months, the treaty applies as between these two states as modified by the reservation
2. Accept the reservation: the treaty applies as between these two states as modified by the reservation
3. Object to the reservation (simple objection): the treaty applies as between these two states except the provisions that would have been modified by the reservation
4. Object the reserve nation, and object the entry into force of the treaty between the state and the reserving state: the treaty does not enter into force as between those two states
Treaty interpretation
➞ article 31: general rule of interpretation
A treaty shall be interpreted in good faith in accordance with the ordinary meaningto be given to the terms of the treaty in their context and in the light of its object and purpose. (…)
Customary international law - elements
➞ treaty law now has more materials on this
= the general practice accepted as law
- usually global, but can be regional (asylum case) or even bilateral (right of passage case)
2 elements required:
i. State practice (what states do ➞ they must behave)
ii. Opinio juris (the mental element ➞ the belief of states that there is a rule and when they behave this way they do so because they are required to)
State practice
elements considered:
- should be extensive and virtually uniform ➞ North Sea continental shelf case (lots of states have to be doing this, and in almost the same way)
- specially affected states ➞ this will weigh heavier (North Sea Continental Shelf case)
- persistent object doctrine ➞ applies to all states normally, expect persistent objector (anglo-norwegian fisheries case). You have to object constantly and clearly throughout the formation of the rule and before
North Sea Continental Shelf
was essentially a dispute about who got which part of the continental shelf in the north shelf. Argument that there was a custom rule that the continental shelf should be split in a way.
- The Court stated: For a customary law rule to be identified state practise needs to be extensive and uniform. The states need to be complying with this rule extensively and with almost no exceptions.
Opinio Juris
➞ the belief: the ‘psychological’ element
It is difficult to prove ➞ it is easy when states speak something which says they believe in this
- abstention alone is insufficient (lotus case) ➞ need something to demonstrate that they believe
there needs to be active affirmation that the rule exists
Relationship between treaty and custom
A treaty may ‘crystallize’ an emerging customary law rule
- they can coexist in parallel (Nicaragua vs US case ➞ prohibition of the use of force, as a custom and treaty rule)
- the existence of overlapping treaty law can complicate the identification of Opinio juris (north sea case)
General principles of law recognized by civilized nations
They play a minor role compared to treaty and customary law
- usually refers to legal principles which are common to many jurisdictions across the world (e.g good faith, estoppel, etc)
- gap filling function ➞ a lot of procedural gaps, and the general principles make things work
- dependent on state consent? ➞ tend to not pose a lot of obligations to a state, but the court often looks at principles which are already known by states
