Chapter 1 Nature and sources of international law PDF

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WEEK 2 The Nature of International Law

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Concept of international law International law was regarded as a system of legally binding rules and principles that regulated relations exclusively among sovereign states. These states were held to be the only subjects of international law and the only entities possessing legal personality on the international plane. For the purpose of international law states denotes a country that exhibits certain specific features o Independent government o Definite territory o Permanent population o Capacity to enter into legal relations with other states

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International law can now be defined as a body of rules and principles that regulates relations: i) Among states and public international organisations inter se; ii) Between states and individuals in the field of international human rights, and iii) Between the international society and individuals who had committed international crimes.

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Public international law – is a uniform and autonomous system of norms regulating relations among its subjects Private international law- consists of norms developed within states as part of their own domestic legal orders to resolve disputes between private parties where a foreign element is involved.

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Conflict of private and public international law A clash between public international law and private international law may arise in a number of ways. For example, there may be a simple failure to comply with a treaty coordinating or harmonising rules of private international law among the contracting states. In such a case, the state has failed to maintain or reform its domestic law or practices in accordance with it’s treaty obligation has committed a breach of the treaty in question. This is breach of public international law.

Development and scope of international law Ancient Rome - Dating from around 3000 BCE, treaty relations among rulers remained a feature for political life throughout ancient history.  - There was an absence of that specifically modern concept of sovereignty that is emblematic of modern statehood and  that makes possible an autonomous body of international law to exercise political authority. - During the period of the law governing relation among  European rulers most commonly use expression included jus gentium. This concept was both rooted in Roman law and natural law. - The principle pacta sunt servanda applied equally to  treaties and to private commercial contracts as an  expression of the jus gentium.

Glossary Jus gentium- ‘the law of nations’ or ‘the common law of all mankind. Pacta sunt servanda- a general principle of law requiring that agreements are to be complied with. Jus cogens- a peremptory morn of customary international law which takes precedence over and nullifies any other inconsistent rule or principle Res judicata- a thing decided Stare decisis- the legal principle of determining points according to precedent.

16th and 17th century - After the 16th an 17th Europe’s religious wars modern international law was long dominated by norms regulating the conduct of war and clarifying matters about which disagreements might lead to war. In 1925 Dutch Jurist and diplomat Hugo Grotius wrote the book De iure belli ac pacis (on the law of war and peace). Grotius expounded upon issues such as the property of the states and their freedom on the high seas. He was concerned with the lawfulness of war, the causes of just war and the legal status of particular acts performed in the waging of war. - The treaties concluding the Peace of Westphalia at the end of the Thirty Years War (1618-48) confirmed the modern state system. - The peace treaties confirmed the legitimacy of states based on differing versions of Christianity, established that no political authority existed over states, and enshrined the principle of religious tolerance for minorities in some parts of Europe. - These treaties established diplomatic machinery for the peaceful settlement of international disputes. 18th century - The final act of the congress of Vienna (1815) and related international agreements sought to adapt the Westphalian State system. - The task of the agreement was to maintain international peace in situation brought about by the insistent movement within many European states away from the monarchical despotism under which territories and populations could be transferred at will, towards various forms of democratic control based on nationalism a national self- determination. - Nationalism became highly disruptive in Europe and as a result European powers established a formal system of collective security against revolution was successfully employed. - The increasing mobilisation of military technology posed challenges to the international law o o

The Geneva convention in 1864 gave legal protection to the wounded in international military conflicts and to those seeking to assist the wounded. The Brussels Conference of 1874 and Hague Peace conference 189 formulated rules protecting civilians, protecting the treatment of prisoners of war and international armed conflict.

19th century - The Paris peace conference (1919) established the league of nations a bold experiment in international order. - It was created to assure that similar conflicts such as wwI would not occur again and it was thought that the principal catalyst of hostilities was the rush to war by several states. - The remedy contained in the covenant was a mandatory cooling off period of 3 months before resorting to war. - War was conditionally preserved as a remedy of last resort among the League’s member states. - In 1928 The Kellogg Briand Treaty, or Pact of Paris tried to outlaw war. - A successful development was the establishment of the permanent court of international Justice by the League of nations handing down 32 judgements and 27 advisory opinions - The UN charter was opened for signature in 1945. - In particular the League Covenant’s highly qualified restriction on resort to war was replaced by a more comprehensive UN charter prohibition “on the threat or use of force’ subject to an inherent right of individual or collective self- defence if an armed attack occurs.

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Structure of international Law Legal norms Certain resolutions adopted by the UN security council will impose legally binding obligations on all states International law is primarily a system of customary law, increasingly supplemented by rules and principles that are agreed upon in treaties.

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These two sources of law are referred to as ‘positive international law’ in the sense that the norms that they generate have been chosen or agreed upon by states in their dealings with each other. Customary systems of law are generally characterised by their stability and high levels of compliance such norms do not impose onerous burdens and states find compliance convenient. Customary international law are universal in character that is, they apply to the entire society of states. Norms of customary international law may be ‘local’ ‘regional’ or ‘special’ in character, which means that they apply only as a between two or several members. Treaties are agreements between states or between states and intergovernmental organisations, which the parties intend to be legally binding under international law. They are almost always in writing. Treaties are analogous to domestic contracts and typically bind only those states or intergovernmental organisations that are party to them. The general principles of law provide another source for lawyers to draw on and fill the gaps in the network of treaty and customary norms. The general principles are frequently employed to fill gaps in matters of international judicial administration. Soft law includes materials as non- binding guidelines formulated by international organisations or hortatory resolutions of conferences or assemblies of states. The term is also sometimes used in reference to resolutions or guidelines adopted by certain international non- governmental organisations at least where they perform functions officially recognised by treaties.

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A norm contained in an applicable treaty takes priority over a customary norm, so that in the event of an inconsistency the treaty norm prevails. However, there are some customary laws of peremptory character, usually known as jus cogens norms, from which treaties may not derogate and that will cause any inconsistent treaty to be void.

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In international law evidence is usually material that tends to establish the content and scope of the particular norm derived from custom, treaties or the general principles. There is no doctrine of stare decisis in international law. International courts and tribunals are not bound by earlier judicial decisions.

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Institutions There are at present no institutions other than states that exercise comprehensive political authority. Institutions maybe classified from the perspective of their scope ratione materiae (that is their subject matter competence) or their scope ratione personae (that is the range of states legally affected by their exercise of competence.) The Un is the one international organisation with 193 members and whose purposes extend to regulating most matters of international concern.

Six branches of the UN 1. The general assembly- is the only principle organ on which all UN members are represents. It is able to consider, discuss and make recommendations relations to any matters within the charter’s scope. 2. The security council- it consists of 15 members, 5 of which are permanent members China, Russia, France, UK and USA. They have the power to veto on all but procedural matters. The other 10 members are elected for a two-year term by the general assembly. They have the responsibility of maintaining international peace and security. In certain circumstances the security council may adopt resolutions that legally bind all states to which the resolutions are addressed. 3. The economic and social council- has 54 members which are elected for three year terms by the general assembly. They make, initiate studies and reports, make recommendations, prepare draft conventions and call international conference. 4. The UN Trusteeship council- it’s task was to supervise the administration by some member states of certain non- independent territories knows as trust territories. 5. The ICJ- is the principal judicial organ of the United Nations. The ICJ’s statute is annexed to the UN charter and every member of the UN is automatically a part of the Statue. The

ICJ consists of 15 judges who are elected by the general assembly for renewable terms of 9 years. It may issue judgements in issues between states or advisory opinion on legal questions. It exercises no jurisdiction on contentious cases unless the parties have consented. 6. The Secretariat- comprises of the secretariat general. It has approximately 40,000 people located in its headquarters in New York. They bring to the attention of the security council any matters which may threaten the maintenance of international peace and security. -

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Subsidiary organs - they are bodies that are not established by the UN charter itself but are established by the UN organs in accordance with the charter. For example, the ECOSOC established United nations children’s fund (UNICEF), The world food program(WFP). The most significant one is the International law commission under article 13(1)(a) of the UN charter. It’s objective is to promote the progressive development of international law and it’s codification. It is primarily concerned with public international law. It has 34 member states elected for 5 years. Specialised agencies are neither principle organs nor subsidiary organs. They are autonomous international organisations affiliated to the UN. ECOSOC has the responsibility of entering into agreements with specialised agencies. For example, the International labour organisation. Legal characters of international law -

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Jeremy Bentham and John Austin are founders of what is known as legal positivism. According to Austin, ‘the matter of jurisprudence is positive law’. Positive law is distinguished from natural law and is law existing by position- that is law set by men to men. Only sovereigns may set positive law. In Austin’s view, international law fails the test of law strictly so called because it does not emanate from a sovereign to an independent political society. States have continued to regard international law as real law. They continued to abide by international law’s requirement in the vast majority of cases Many disputes that raise ethical and moral issues because there is an applicable legal norm. For example, a legal norm emerges permitting states to set the width of their territory at 12 nautical miles, a moral obligation to observe this norm arises.

Week 3 Sources of international law

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Rules of obligation – These tell us our rights and responsibilities under the law, eg: • Defamation Act 2005 (NSW) • Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 (Commonwealth) • Doctrine of offer and acceptance in the common law of contract Rules of recognition – These tell us how to recognise which rules are legally binding and which are not, eg: • A Bill only becomes binding once it has passed three readings in the legislative chambers and has royal assent. • A parent’s instruction to a child does not carry the weight of law. • In the event of a statute that contradicts a common law rule, the statute takes precedence. • One statutory rule can be repealed by another, subsequent statutory rule. – Australia’s overarching rule of recognition: ‘Australian law is represented by the Constitution and the constitutionally valid enactments of its Parliaments, as supplemented by subsidiary legislation and the common law, and as all these are interpreted by Australia’s courts.’

Hart also argued that although international law is a set of real laws, it’s not a legal system – partly because it apparently lacks an overarching rule of recognition which both provides an ultimate validation of all laws in the set and authoritatively creates a definite hierarchy among them.  Different classes of primary rules for instance: enactments, customs and etc, are capable of being validated by reference to different criteria. These can exist even in the absence of a single overarching rule of recognition.  International law is a less developed or less tightly structured system than most national (domestic) legal systems. Secondary rules of recognition must exist in the most primitive legal systems, if only to distinguish rules of law from non-legal standards of conduct such as etiquette, tradition or fashion which do not attract publicly recognised sanctions in the event of a breach.  It is these rules of recognition that are the sources of law possessed by every legal system, even where the system consists entirely of customary norms.  If law provides reasons for action and decision, then the sources of law are the sources of reasoning in any legal system.

STATUTE OF ICJ, 1945, ARTICLE 38 (1). Permanent Court of International Justice (PCIJ) drafted a statute during the 1920’s and the ICJ adopted this after WW2 when the PCIJ was replaced.  In addition, ICJ Article 38(1) contains a listing of four instruments that a Court may apply in deciding cases and these are also sources of international law.  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. *The first three are considered primary sources of international law and the last is considered the subsidiary. Extra notes regarding Article 38:

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Generally, customary law and treaties can supersede each other and also exist alongside each other. These two sources are considered stronger sources of international law, as both rest firmly on the consent of states. Principles of international law have as their main function the filling of gaps. These will only be resorted to if there is a situation where there is neither an applicable treaty nor an applicable rule of customary international law. Judicial decisions and the writings of the most highly qualified publicists are listed as subsidiary means only, and reference to Article 59 further makes it clear that judicial decisions have no precedent effect in international law; decisions of the Court can only bind the parties to the dispute

2.0 TREATIES (1) TREATIES:  DEFINITION: A treaty refers to a legally binding arrangement between two or more states or public international organisations by which they agree to regulate their conduct in accordance with its terms.  In other words, a contractual engagement between states or organisations established by states.  Treaties are also known as Covenants, Pacts, Charters, Acts, Declarations, Agreements, Concordats and Protocols.  Conventional law – rights, obligations and processes prescribed by a treaty. Treaties refer to a ‘material source of law’ as opposed to a ‘formal source’.  Material sources (‘sources of obligation’) specify legal obligations and entitlements. For instance, contracts and treaties.  Formal sources endow the obligation or entitlement with a legally binding character. For instance, Pacta sunt servanda which means that agreements are to be complied with (Contract law). Only the (a)-(c) of Article 38(1) are ‘formal sources’ of international law, (d) subsidiary sources are not sources of law, rather they can be used to help prove the existence and content of legal norms sourced in treaties, custom or the general principles.  Treaties can be either ‘general’ or ‘particular’:  ‘General’: Multilateral treaties relating to universal substantive legal principles. For instance, UN Charter (with its general prohibition on the use of force. ‘Legislative’ or ‘Law-making’.  ‘Particular’: Bilateral treaties relating to a specific issue. For instance, Treaty of Canterbury (1986) between France and the UK which dealt with the building of the Channel Tunnel between the two countries.  Advantage: treaties are capable of furnishing States with instant and clearly defined rights and obligations. Hence, this is an advantage over customs.  States must express their consent to be bound; in this way, being bound by a treaty can be reconciled with the starting point of state sovereignty.  1969 Vienna Convention of the Law of Treaties (VCLT) is the law of treaties which deals with matters such as treaty-making capacity, formation, interpretation, impact on third parties, reservations, invalidity, breach and termination.

3.0 INTERNATIONAL CUSTOMARY LAW (2) INTERNATIONAL CUSTOMARY LAW:  People living in groups engage in all sorts of practices, and it probably the case that all societies recognise that in certain circumstances, those practices can acquire the force of law. -

Advantage: sometimes this may make practical sense as it’s easier to regard activities that people do anyway as law, instead of making written laws. While written laws are more precise, customary law has the advantage that since it is based on social practices, it is usually engrained in the everyday life of that society.

 ICJ should only take into account international customs that meet two requireme...