Week 3 - Sources of International Law Flashcards
What are the general principles of law recognised by civilized nations?
ARTICLE 38 ICJ Statute: C
Explantation: North Sea continental shelf case
WHO:
The cases involved a dispute between the Federal Republic of Germany and the Kingdom of Denmark, and between the Federal Republic of Germany and the Kingdom of the Netherlands,
The continental shelf refers to the submerged extension of a coastal state’s land territory
The North Sea Continental Shelf cases set important precedents in the field of maritime boundary delimitation. They established the principle that the equidistance method should generally be used but can be adjusted when relevant circumstances (e.g Frisian islands) require it to achieve an equitable outcome. These cases contributed to the development of customary international law regarding maritime boundaries and continue to be referenced in subsequent disputes involving the delimitation of continental shelves between coastal states.
How does the north sea continental shelf relate to customary international law
- crucial role in the development and establishment of principles relating to maritime boundary delimitation.
- This recognition of equitable considerations in boundary delimitation has become a recognized principle of customary international law.
-establishing a precedent that states should consider both equidistance and equitable principles when delimiting maritime boundaries.
What are the ILC draft conclusions
ICL - International law commission
Conclusion 3: Categories of general principles of law
› General principles of law comprise those:
› (a) that are derived from national legal systems;
› (b) that may be formed within the international legal system.
Conclusion 4:
› Identification of general principles of law derived from national legal systems
To determine the existence and content of a general principle of law derived from national legal systems, it is necessary to ascertain:
› (a) the existence of a principle common to the various legal systems of the world; and
› (b) its transposition to the international legal system.
What are the definitional and inherent problems of article 38.b ICJ statute?
Determining Customary International Law: One challenge with Article 38(b) is the difficulty in establishing and identifying customary international law. Customary law is derived from the general and consistent practice of states followed out of a sense of legal obligation (opinio juris). Determining whether a particular practice has achieved the status of customary law requires evidence of widespread and consistent state practice and an accompanying belief that the practice is legally binding. However, there can be debates and uncertainties regarding the existence and scope of customary law, making it challenging to ascertain its parameters.
Proof of Acceptance: Article 38(b) requires the practice to be accepted as law. Establishing the acceptance or opinio juris of a particular practice can be complex. It often relies on subjective elements, including states’ statements, treaty practice, and the overall attitude of states towards the practice. Gathering sufficient evidence to demonstrate the acceptance of a customary norm can be challenging and may involve controversies and divergent interpretations.
Evolving Nature of Customary Law: Customary international law is not static but evolves over time. New customary norms can emerge, and existing norms can evolve or become obsolete. Determining the point at which a customary norm has formed or changed requires careful analysis of state practice and opinio juris. The challenge lies in keeping pace with the evolution of customary law and ensuring that legal decisions reflect contemporary customary norms.
Selectivity in State Practice: State practice is not always consistent, and different states may engage in diverse practices. This selectivity in state practice can make it challenging to identify a consistent and widespread pattern that meets the requirements of customary international law. Courts may need to navigate through conflicting state practices and determine which practices should be considered authoritative for the purpose of establishing customary norms.
Regional and Cultural Variations: Customary international law can vary across regions and cultures. Practices and beliefs may differ between states and regions, which can lead to discrepancies in the identification and interpretation of customary norms. The Court needs to strike a balance between acknowledging regional and cultural variations while ensuring coherence and consistency in the application of customary law.
What is opinio Juris?
The second element necessary to establish a legally binding custom. hat custom should be regarded as state practice amounting to a legal obligation, which distinguishes it from mere usage. found in article 38.1 of ICJ statute and is one of the four sources of customary IL
In simpler terms, opinio juris can be understood as the belief among states that they are bound to follow a particular practice because they consider it to be a legal obligation. It goes beyond mere habitual behavior and reflects the understanding that states are acting in accordance with a legal norm.
example: granting immunity
Double counting occurs when the same state practice is used as evidence both to establish the existence of a customary norm and to demonstrate opinio juris. This can create a circular or circularly-reinforcing argument, potentially weakening the evidentiary basis for customary international law.
To avoid double counting, it is important to consider additional evidence beyond state practice alone to establish opinio juris. This can include factors such as official statements, diplomatic correspondence, voting patterns in international organizations, or state behavior indicating a recognition of legal obligation.
What are the requirements of practice?
Widespread, representative, constant/consistent, (virtually) uniform
What is wild custom in international law
It suggests that a single state’s practice, without the necessary element of opinio juris (the belief that the practice is legally required), can still give rise to a binding customary norm.
the concept of wild custom proposes that if a state consistently and uniformly engages in a particular practice, it can create a binding customary norm even in the absence of opinio juris.
critics: Critics argue that opinio juris is an essential element in customary law formation because it reflects the shared belief and acceptance of states regarding the legal nature of a practice. Without opinio juris, a practice may simply be a result of a state’s idiosyncratic behavior or preference, lacking broader legal significance.
What is needed for customary international law?
Customary international law requires the combination of state practice and opinio juris, meaning that the practice must be followed by states out of a sense of legal obligation.
Sources of Customary international law:
What is a consistent objector in Customary IL?
According to this concept, if a state persistently objects to a developing customary rule during its formative stage, it is not bound by that customary rule even if it becomes widely accepted by other states. The persistent objector is considered to have opted out of the customary norm due to its explicit objection.
Persistent Objection: The state must consistently and expressly object to the rule during its formation. The objection should be made known to the international community and other states.
Timeliness: The objection should be raised at an early stage of the norm’s development, before it has crystallized into customary law.
Clarity: The objection should be specific, clear, and directed towards the norm in question.
Consistency: The state must maintain its objection over time and in subsequent interactions with other states.
Fisheries case:
The Fisheries Case, officially known as the Case Concerning the Fisheries Jurisdiction (United Kingdom v. Iceland), was a contentious case brought before the International Court of Justice (ICJ) in 1972. The dispute arose between the United Kingdom and Iceland regarding the extent of Iceland’s fisheries jurisdiction in the waters surrounding the island.
Iceland had unilaterally extended its fisheries limits from 4 nautical miles to 12 nautical miles, asserting exclusive jurisdiction over the resources within that zone. The United Kingdom, along with other fishing nations, challenged Iceland’s actions, arguing that they violated customary international law.
The ICJ was tasked with determining the legality of Iceland’s actions and defining the principles of international law applicable to the case. In its judgment delivered in 1974, the Court addressed various aspects of the dispute and made significant findings:
Historic Rights: The Court recognized the existence of historic rights for coastal states in their adjacent waters. However, it clarified that such rights were not absolute and must be balanced against the interests of other states.
Exclusive Fisheries Zone: The Court found that states have the right to claim an exclusive fisheries zone beyond their territorial sea, subject to certain limitations. It held that a 12-nautical-mile exclusive fisheries zone could be justified under specific circumstances.
Equitable Principles: The Court emphasized the importance of equitable principles in resolving disputes related to fisheries. It called for a reasonable balance between the rights of coastal states and the rights of other states.
Customary International Law: The Court concluded that customary international law played a crucial role in determining the legal rights and obligations of the parties. It considered relevant state practice and opinio juris in reaching its decision.
Ultimately, the ICJ ruled that Iceland’s extension of its fisheries limits from 4 to 12 nautical miles was valid. However, the Court stressed the need for cooperation and equitable sharing of fishery resources to ensure sustainable management.
The Fisheries Case remains significant in clarifying the principles of international law related to fisheries jurisdiction, the rights of coastal states, and the equitable use of marine resources. It has influenced subsequent legal developments and discussions concerning fisheries management and the rights of states in maritime zones.
Customary international law in the fisheries case:
Certainly! In the Fisheries Case (United Kingdom v. Iceland), customary international law played a crucial role in the International Court of Justice’s (ICJ) examination of the dispute. The Court considered customary international law to determine the legal rights and obligations of the parties involved.
Customary Law on Historic Rights: The Court acknowledged the existence of historic rights for coastal states in their adjacent waters. It recognized that certain traditional fishing rights and practices may have acquired the status of customary law. The Court looked at the historical practices of fishing in the relevant waters to assess the extent and nature of the claimed historic rights.
Customary Law on Exclusive Fisheries Zone: The Court examined whether the extension of Iceland’s fisheries jurisdiction to 12 nautical miles was consistent with customary international law. It analyzed state practice and opinio juris to determine whether the 12-nautical-mile limit had crystallized into customary law. The Court concluded that customary international law permitted coastal states to claim an exclusive fisheries zone beyond their territorial sea, subject to certain limitations.
Customary Law on Equitable Principles: The Court emphasized the importance of equitable principles in resolving disputes related to fisheries. It referred to the principle of equity, which calls for a fair and reasonable balance between the rights of coastal states and the rights of other states. The Court highlighted the need for cooperation and equitable sharing of fishery resources to ensure sustainable management.
Formation of Customary Law: The Court’s analysis focused on establishing the existence and formation of customary international law. It examined state practice, including the fishing practices of coastal states and the reactions of other states to those practices. The Court also assessed opinio juris by evaluating the beliefs and statements of states regarding their legal obligations in the field of fisheries jurisdiction.
In the Fisheries Case, customary international law served as the foundation for determining the legal framework applicable to the dispute. The Court’s analysis involved an examination of state practice and opinio juris to ascertain the existence and content of customary norms related to historic rights, exclusive fisheries zones, and equitable principles. This case contributed to the ongoing development and understanding of customary international law in the context of fisheries jurisdiction and the rights and obligations of coastal states.
ARticle 28 ICJ Customary IL: Treaties found in 1a
international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
What are the rules of interpretation in international law?
1) Customary Law
2) Arts 31-33 VCLT
3) Anything the parties agree on
What are the 3 schools of interpretation?
*Textual/Grammatical Interpretation
*Teleological Interpretation
In teleological interpretation, the interpreter looks beyond the literal text of the law and considers the underlying purpose or policy behind it. The goal is to give effect to the spirit of the law and the intended outcomes, rather than relying solely on the strict letter of the law.
*“Founding fathers’ ” approach/ Drafters’ Intention Approach/Intentions’ Approach\ (historic)
draws upon the intentions, beliefs, and practices of the framers or founders of a particular international legal instrument or document. It seeks to understand the original understanding and purpose behind the creation of a treaty, convention, or other legal instrument.
