Sources of Law Flashcards
Article 38(1) of the ICJ Statute
o 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
Asylum case (1950) - Customary international law
the court declared that a customary rule must be ‘in accordance with the constant and uniform usage practised by the states in question’ - essentially state practice had to be consistent and uniform to amount to the necceassary practical element of creation of customary international law
(facts: Colombia granted diplomatic asylum in its Lima embassy to Peruvian politician Victor Raúl Haya de la Torre, accused of rebellion. Colombia claimed the unilateral right to classify his offense as political (requiring Peru to grant safe passage). The ICJ ruled against Colombia)
Anglo Norwegian fisheries case - customary international law
The ICJ emphasised its view that some degree of uniformity along state practises was essential before a custom could come into existence
Also established that a state opposing the existence of a custom from it’s inception would not be bound by it. This is known as the persistent objector rule
Nicaragua v. United states - customary international law
The court emphasised that it was not necessary the state practise in question had to be ‘in absolute rigorous conformity with the purported customary rule’ - in the context of the state practice element of forming a customary international law
Also established that customary international law doesnt get absorbed into treaty law when provisions cover the same content. Customary law will maintain its separate existence.
Lotus Case - customary international law
The permanent Court of International Justice laid down a high standard by declaring that abstention could only give rise to the recognition of a custom if it was based on a conscious duty to abstain.
So, states had to actually be aware that they were not acting in a particular way because they were under a definite obligation not to act in that way
North Sea continental shelf cases
Established that parties that do not sign and ratify a particular treaty in question are not bound by its terms
* However, when treaties reflect customary law, non-parties are bound, not because it is a treaty provision, but because it reaffirms a rule or rules of customary international law
Case also recognized that a treaty provision could form the basis of customary international law if it has a “fundamentally norm-creating character”—meaning it is capable of establishing a general legal rule. When coupled with state practice (opinio juris), such provisions can bind even non-party states over time, though their interpretation may vary by context.
* Declaratory: Codifies existing CIL.
* Crystallizing: Emerges as CIL during treaty drafting.
* Generative: Becomes CIL through widespread state practice (opinio juris) post-treaty
