Week 3 Sources of International Law Flashcards
Sources
Source of IL, as found in Article 38 ICJ
1. General principles
2. Customary IL
Source: General Principles
- Article 38 ICJ Statute
The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply: … c. the general principles of law recognized by civilized nations;
● Art 38 has definitional problems
o North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), SO Judge Ammoun (Art. 132-133)
▪ if there are “civilized” nations, there is an underlying assumption of “uncivilized” nations → should be changed!
o Proposal for Amendment:
▪ Mexico & Guatemala → UNGA, ‘Review of the ROle of the ICJ: Report of the Secretary-General’ (15.09.1979) (23-25) → still not changed
- International Law Convention Draft Conclusions 3+4
- Draft 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 - Draft 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 … it is necessary to ascertain:
(a) the existence of a principle common to the various legal systems of the world;
▪ → not just about geography, but also types of law: civil law & common law
▪ Traditional common law is based on previous court judgments, which are called precedents. In contrast, the civil law system is based on acts and codes typically passed by the legislative body of the country
▪ possible that countries also have hybrid version
what is important: in order to make a proper claim that xyz is general principle, it needs to be
found in all types of legal systems (civil, common, where geographically, etc.) → character of principles needs to have reason to be “moved up” to IL
(b) its transposition to the international legal system
Source of IL: CIL / Practice
*1) Practice = the objective element, means looking at how states are behaving, 2 important sub-elements of practice:
▪ A) Duration, see North Sea Continental Shelf cases, para. 73, 74
* Practice has to take place for a period of time, be widespread and representative (73)
* Especially the practices of states that have a special interest in carrying ou these acts (74)
▪ B) Consistency and uniformity (“constant and uniform” – ICJ)
▪ North Sea Continental Shelf case: whether NL and Denmark could apply a concept of a treaty to the detriment of Germany, even though it isn’t party to it
▪ Whether the rules of this treaty that DK and NL were trying to apply also existed in customary IL, and hence could also be legally binding on GER which is not a party to the treaty
▪ Practice means acts of the state that are recurring/repeating, over a certain
duration, and that they are of a certain constitency and uniformity; the practice doesn’t have to be perfect, but the practice has to be there
* In the words of the ICJ, the practice has to be “constant and uniform”
Persistent objectors to CIL
Generally customary IL applies to everyone
HOWEVER countries can object the customary IL when it is being created (only in creation process) when justifying why it does not apply
- Fisheries case (ICJ)
o was no customary rule, but if there was, then… - Roach & Pinkerton v USA (IACmHR)
o did not approve the objector’s argument - Michael Domingues v USA (IACmHR)
o right to life is jus cogens rule, therefore objector’s argument cannot be applied - Issues
o (non)-automatic application to new States → Frontier Dispute (Burkina Faso/Mali) ICJ decided that (1) giving new States the ability to react to the Law, (2) but also: stability of international relations, in case they object, they might destabilize the region → argues in favor of automatic application of CIL to new states
o Relationship with jus cogens
Sources of IL: Treaties
Article 38 ICJ Statute
The Court … shall apply: … a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
● Types of agreements as defined by the VCLT
-> not ratified by the USA
Treaty Interpretation
E. de Vattel - “In claris non fit interpretatio” = if something is clear, it does not need to be interpreted
● Contextualization = defining content of a rule
Rules and Schools of Interpretation
RULES OF INTERPRETATION IN INTERNATIONAL LAW
→ customary IL
→ Art 31 VCLT
→ anything parties agree on
3 SCHOOLS OF INTERPRETATION
● textual/grammatical interpretation
● teleolgical interpretation → object and purpose of treaty (final/ideal state of being)
● “founding fathers’ approach” / drafters’ intention aporoach/ intentions’ approach Element: Time - temporal considerations object and purpose can be closely related to drafters’ intentions
Hierarchy of Art 31
Source of IL: CIL / Opinio Juris
the subjective element, the way states think regarding a particular norm/rule and whether they believe that it is binding and creating legal obligations
- The element of practice is not enough, Opinio Juris is also necessary to make it customary law = the widepread and recurring practice also has to be carried out because of their belief that they have a legal obligation to do so
▪ …but on the other hand, para 51-54 Arrest warrant case (Congo v. Belgium)
*Conclusion of the court in the North Sea Continental Shelf case was that Germany wins, the rule of equal distance does not reflect Opinio Juris nor the practice requirement→no legal obligation for Germany as it cannot be classified as customary IL
▪ Court resorts to equity: there should be an equal solution that serves all of the 3 countries interests
- Determining whether a rule of customary IL exists is an process of claims, protests and counterclaims
▪ See e.g. Nicaragua case , para 186 - The ICJ was trying to determine whether the prohibition on the use
of force also existed in customary IL - ICJ referred back to the North Sea Continental Shelf case and the 2 elements of customary IL it established (practice and Opinio Juris)
▪ Para. 168 : it is not expected that the practice should be perfect
▪ Also para. 168 : emergence of new rules (“instances of state conduct inconsistent with a given rule should generally be treated as a breach of that
rule, not as indication of the recognition of a new rule”)
How do we prove CIL?
- How to prove the existence of customary law – the role of resolutions of international organizations (particulary the UN General Assembly)
▪ E.g. Nuclear weapons advisory opinion, para. 70 (requested by the GA) - Resolutions of the GA, are ofc not legally binding, but they have a
normative value, depending on how they were adopted and the content→resolutions can provide potential evidence of Opinio Juris! - Because the resolutions can contain the position of states regarding certain rules IL
- The ICJ ruled that resolutions can can be used as proof, but because in this case a number of states with interest in use of nuclear weapons voted against the resolution, the resolution did not reflect a general consensus/belief regarding nuclear weapons
- Because of that, the particular resolution did not provide evidence of Opinio Juris
- →thus, have to consider the number of states voting in favour/against/abstaining the resolution in order to decide whether a specific resolution can prove Opinio Juris
▪ Example where a resolution can be provide evidence of Opinio Juris: GA Resolution 194 (III) 1948, para 11, on the right to return of refugees from Palestine - Does this resolution reflect a norm (of soft law) of customary IL? Depends on how states voted on this resolution and how they explained their position
- Resolutions can be relevant for Opinio Juris, but may also indicate practice
- (Developing countries sometimes argue that they should not be bound by customary IL because as former colonies they were not involved in the custom-making)
