Chapter 2 PIL- Sources of international law PDF

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Chapter 2: The Sources of International Law (Authorities ofInternational Law) *content inclusive of my slidesArticle 38(1) of the Statute of the International Court of Justice provides that the Court, in deciding judgment for international law disputes, shall apply:(a) International conventions, whe...

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Chapter 2: The Sources of International Law (Authorities of International Law) *content inclusive of my slides Article 38(1) of the Statute of the International Court of Justice provides that the Court, in deciding judgment for international law disputes, shall apply: (a) International conventions, whether general or particular, establishing rules recognised by the contesting States; (b) International custom, as evidence of a general practice accepted as law; (c) The general principles of law recognised by civilised nations; (d) Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rule of law, subject to the provisions of Article 59.

Article 38(1) of the Statute of ICJ, the court will be applying international law. In practice, Article 38 of the Statute of ICJ is generally regarded as an authoritative statement of the sources of international law. It is legally binding on the International Court of Justice (ICJ) because it is provided in the Statute of the court and is authoritative because it reflects State practice. Under Article 38(2) of the Statute of ICJ, the court is allowed to decide a case ex aequo et bono, that is, otherwise than in accordance with law; to decide what seems to the judge as just and equitable in the circumstances, only when the parties agree to it. Article 38(1) shall not prejudice the power of the Court to decide a case ex aequo et bono, of the parties agree thereto. 

ex aequo et bono means ‘according to what is equitable and good’. A decision-maker who is authorised to decide ex aequo et bono is not bound by the legal rules and may instead follow equitable principles.

1. Treaties (international agreements) • Article 38(1)(a) of the Statute of ICJ requires the court to apply international convention, whether general or particular, establishing rules expressly recognised by the contesting States. • The word ‘convention’ means treaty which is an agreement made between two or more States or other subjects of international law • Treaties is a generic term and the law that governs the treaties is known as the Law of Treaties. For instance, the Vienna Convention on the Law of Treaties, 1969.

1.1 Binding force of treaty A treaty is based on consent which may be expressed by some methods. For instances, signature, ratification, accession, etc.

Once a treaty has entered into force, it is binding on the parties to it by virtue of the customary international law rule of pacta sunt servanda (agreement must be kept and neglect of obligation is a violation of contract). 

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As in Article 26 of the Vienna Convention on the Law of Treaties, 1969 where it provides every treaty in force is binding upon the parties to it and must be performed by them in good faith. As in the Case Concerning Gadcikovo-Nagymaros Project (Hunagry/Slovakia) (Danube Dam Case), it was held that any failure to comply with the terms of a binding treaty will incur international responsibility unless there is a defence. As in Certain German Interests in Polish Upper Silesia, only the parties to the treaty are bound by its terms. According to Art 34 of the Vienna Convention on the law of Treaties, 1969, a treaty may not impose obligations or confer rights on a third State without its consent. This was also expressed in the Latin maxim pacta tertiis nec nocent nec prosunt.

1.2 Importance of Treaties in International law 

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Treaty-making process is relatively faster than customary international law-making process. Thus, the States may enter into treaty at any time when they feel that a new rule is required. Treaties are the only way by which international law can be made by a deliberate act of States. Treaty law as a written law possesses the merit of considerable precision. It is the most important source of international law.

1.3 Interaction between treaty law and customary law Treaties are the material source of custom. They interact and interrelate with each other. 

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According to Continental Shelf (Libya/Malta), it was held that treaty plays an important role in recording and defining rules deriving from custom, or indeed in developing them. However, the material of customary international law is to be looked for primarily in the actual practice and opinion juris of States. Article 38 of the 1969 Vienna Convention on the Law of Treaties also provides for the possibility where the rule set forth in a treaty may be binding on a third State as a customary rule of international law. According to the Eritrea-Ethiopia Claims Commission, Geneva Conventions of 1949 have largely become expression of customary international law as they have obtained nearly universal acceptance. In Prosecutor v Sam Hinga Norman, it was provided that the relevant provisions of the Convention on the Rights of the Child had come to reflect customary international law due to huge acceptance of all international Conventions. In North Sea Continental Shelf cases (FRG v Denmark; FRG v The Netherlands), it was held that a rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule

o Is declaratory of, or codifies, a pre-existing rule of customary international law; o Has led to the crystallisation of a rule of customary international law that had started to emerge prior to the conclusion of the treaty o Has given rise to a general practice that is accepted as law (opinion juris), thus generating a new rule of customary international law. As in North Sea Continental Shelf cases, it was held that a multilateral (>2) treaty may codify, crystallise or generate customary international law and in that circumstance the substance of the obligations specified in the treaty may be binding on all States even though they are not parties to the treaty because the obligations are rooted on customary international law.

1.4 Parallel existence of treaty rules and customary rules In US v Nicaragua, Nicaragua brought a claim against the US alleging that the latter had used armed force and intervened in its affairs contrary to international law. The US argued that the court had no jurisdiction as it had made reservation to its acceptance to the court’s jurisdiction that excluded disputes arising under a multilateral treaty which is Article 2(4) of the UN Charter on the non-use of force. Nicaragua claimed that the court had jurisdiction as the claim was based on the rules of customary international law. The court held that customary rules did exist in parallel with treaty law.

2. Custom (International Customary Law) Custom is the source of international law which generate rules binding on all States. According to Article 38(1)(b) of the Statute of ICJ, the Court, in deciding judgment for international law disputes, shall apply international custom, as evidence of a general practice accepted as law. The existence of a rule of customary international law requires 2 elements: 1. State practice 2. Acceptance of that practice as law (the so-called opinion juris = opinion that an act is necessary by rule of law)

In North Sea Continental Shelf cases, it was held that there are two conditions to be fulfilled in constituting a customary international law. Firstly, the act must amount to a settled practice and it must also be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such belief is implicit in the very notion of the opinion juris sive neccessitatis. Thus, the States must feel that they are conforming to what amounts to a legal obligation.

In Continental Shelf (Libya/Malta) case, the ICJ ruled that the substance of the customary international law includes actual practice and opinion juris of States. (opinion of law or necessity)

2.1 State Practice   

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Customary international law is that law which evolved from the practice of States. State practice consists of conduct of the State, whether in the exercise of its executive, legislative, judicial or other functions. It includes the conduct in relation to other States or other subjects of international law and conduct within the States. For examples, national legislation, decisions of domestic courts, a State’s treatment of its own nationals. Forms of state practice include, but are not limited to diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organisation; conduct in relation to treaties; executive conduct; legislative acts; and decisions of national courts. State practice comprises of both physical and verbal acts. o Verbal conduct, whether oral or written, may count as practice.  For instance, a protest by one State addressed to another. o Inaction under certain circumstances may also count as practice.  For instances, abstaining from instituting criminal proceedings; refraining from exercising protection in favour of certain naturalised persons; and abstaining from the threat or use of force. The practice must be general and consistent where no particular duration is required. o The State practice must be widespread and representative. o The State practice must be sufficiently widespread among a significant number of States  Any remaining inconsistent practice will be marginal and without any direct legal effect.  If the State practice is substantially divided and conforms to two or more differing solutions on one issue, it is not sufficiently widespread and not amount to a general customary rule. o The State practice must include the practice of specially affected States.  As in North Sea Continental Shelf cases , it was held that a very widespread and representative participation in the Convention might suffice of itself, provided it included that of States whose interests were specially affected.  For instance, the practice of coastal States and major shipping States will have more significance in the formation of customary rules on the law of the sea than that of landlocked States.  In Continental Shelf (Libya / Malta), the court determined that after several significant maritime States had claimed EEZs, the EEZ had ripened into a rule of customary international law despite the fact that a majority of eligible coastal States had not yet claimed an EEZ.

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Where there has been a widespread and consistent State practice, then silence by others may be interpreted as acquiescence in the development of a rule of customary international law. Thus, it established the acceptance of the rule. o This can be proved by Article 38(1)(b) of the Statute of ICJ, where there is a presumption that all States whether or not they have participated in the practice are presumed to have assented to the rule unless they can demonstrate that they have the status of consistent objector. However, the States may wish to dissent from the customary rules by reservation, by doing it expressly in their statements or votes, by means of protests, or impliedly by abstaining from practice or adhering to a different practice. o As a general rule, no international obligation may be placed on a State without the State’s consent unless it is a rule of jus cogens. o A State is unable prevent by its own objection to prevent a customary law from coming into existence as there is no need for a State practice to be universally accepted as a rule of customary international law. Also, a State is not bound by any evolving customary law if the State fulfils two conditions through the persistent objector rule. Firstly, the objections must have been maintained from the early stages of rule onwards, up to its formation, and beyond. Secondly, the objections must be maintained consistently. o As in Anglo-Norwegian Fisheries case, the ICJ held that the coastline delimitation rule put forward by the United Kingdom was inapplicable against Norway because Norway has always opposed any attempt to apply the rule to the Norwegian coast. o In practice, the persistent objector may be difficult to remain outside of the scope of a new customary rule for very long due to the pressure to conform to the new rule and the disadvantages of being outside the legal regime. The subsequent objector to an established rule of customary law cannot prevent that rule binding the State. o However, subsequent objection may become so widespread that lead to a change in the previous rule. o For example, the UK’s objection to the extension of the territorial sea from 3 to 12 miles, a position now adopted in the UK’s Territorial Sea Act 1987. Particular customary International Law o A particular customary International Law is a practice limited to few States within a particular region and accepted as law by them. o As in Colombian-Peruvian Asylum case, the Court held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law. o In Right of Passage over Indian Territory case, the court acknowledges that a particular custom may exist even between two States as a long continued practice between two States accepted by them as regulating their relations form the basis of mutual rights and obligations between the two States.

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Consistency of Practice o As in Lotus case, a State practice must be constant and uniform. o Nevertheless, in Nicaragua case, complete consistency is not required. In order to deduce the existence of customary rules, it is sufficient that the conduct of States is in general consistent with such rules. o When inconsistency takes the form of breaches of a rule, this does not necessarily prevent a general practice from being established. This is particularly so when the State concerned denies the violation and or or expresses support for the rule. Duration of Practice o In North Sea Continental Shelf cases , the court suggested that the length of time needed will vary from subject to subject and that the passage of only a brief period of time is not necessarily a bar to the formation of customary law.

2.2 Opinio Juris (Acceptance as law)  

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The State practice must be accepted by the States as law. (art 38(1)(b) of ICJ) Requirement of opinion juris: o There must be some criteria to distinguish State practice amounting to law from other kinds of State activity, such as acts of comity or courtesy or friendship. o In Lotus case, opinion juris was accepted as an essential element in the formation of custom. o This was reaffirmed in North Sea Continental Shelf cases and other later cases. Proof of opinion juris o According to Brownlie’s Principles of Public International Law, there are two methods of approach regarding the proof of opinion juris. Firstly, through the evidence of general practice, or a consensus in the literature, or the previous determinations of the Court or other international tribunals. Secondly, through more positive evidence of the recognition of the validity of the rules in question in the practice of States. The choices of approach depend on the nature of the issue and discretion of the court. o Absence of protests or objections against a practice tends to prove that States do not consider the practice contrary to their interests and they do not object to the formation of a customary rules. o Toleration of a practice by other States justifies the presumption of its acceptance as law. o As in Nicaragua case, casting an affirmative vote to a resolution of an international organisation or ratifying an international convention is also a clear commitment in the nature of opinio juris on the part of a particular State. Burden of proving a customary law o In principle, a court is presumed to know the law and may apply a custom even if it has not been expressly pleaded.

o In practice, the burden of proving the existence of the customary rule lies on the party which invokes it. o The nature of the burden will depend on the subject matter of the disputes. (Add) o As in Lotus case, the World Court acknowledged the plaintiff’s burden in respect of a general custom. o In Asylum case, it was held that a party in a local or regional custom case must prove that the custom is established in such a manner that it has become binding on the other party while invoking a customary rule.

3. General Principles of Law 

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The general principles of law are accepted as the legal principles which are firmly established in all or most of the national systems of law, in so far as they are applicable to relations between States. Examples: i. Examples of general principles include the duty to provide reparation in the event of a wrongful act as in Chorzow Factory case. ii. Some of the general principles are based on natural justice common to all legal systems such as the principles of good faith as in Nuclear Test case (Australia v France), estoppel or acquiescence as in Eastern Greenland case, and proportionality. iii. Some of the general principles are based on legal logic or statutory interpretation such as the principles of lex posterior derogate legi priori (which means that A later law repeals an earlier) , lex specialis derogate legit generali (which means that, that more specific rules will prevail over more general rules), and contra proferentem. General principles are frequently founded in the field of evidence, procedure and jurisdictional questions. i. For instances, the rules as nemo judex in causa sua (no man shall be judge in his own cause) as in Mosul Boundary Case, ii. res judicata which was applied by the ICJ as a generally recognised principles of law in the Effect of Awards of the UN Administrative Tribunal, and ex injuria jus non oritur (an illegal act does not give rights to any right) which was relied upon by the World Court in Gabcikovo-Nagymaros case. Even some substantive law principles can be found in the decisions of the court. i. As in Barcelona Traction case (Second Phase), the court applied the concept of the lifting the corporate veil to be found in the national legal systems. However, in the South-West Africa case, it was reminded that the nature of international law is essentially different from that of national law, and principles of national law can be transplanted to international level only when they are appropriate to the international situation.

4. Judicial Decisions and Writings of Jurists Article 38(1)(d) of the Statute of ICJ directs the court to apply 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. Judicial Decision  

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Not limited to decisions of the international courts and tribunals, they also include decisions of national courts. Article 59 of the Statute of ICJ provides that the decisions of the Court have no binding force except between the parties and in respect of that particular case. It means that there is no concept of stare decisis in international law. They can be the evidence of customary international law. In principle, IC are not obliged to follow previous decisions. However, in practice, the courts always take previous decisions into account in order to strive to maintain judicial consistency. Whatever the theory, the court in practice is involved in the process of law creation. o Firstly, the court will decide the substance of a dispute submitted to it and the decision of the court has cre...