PIL (Sources of International Law) PDF

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Sources of International Law The Making of International Law 1. For the making of International Law, there is no formal machinery for making of law and there is no world government. In working together, the different states function in the role of both lobists and legislators. 2. International law o...

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Sources of International Law The Making of International Law 1. For the making of International Law, there is no formal machinery for making of law and there is no world government. In working together, the different states function in the role of both lobbyists and legislators. 2. International law only comes into effect when states consent to it. The general consent of the international community can be found in “state practice”- the conduct and practices of states in their dealings with each other. 3. Statements or evidence of general consent can be found in the decisions of the International Court of Justice, in resolutions passed by the General Assembly of the United Nations, in law making multilateral treaties, and in the conclusions of international conferences. 4. Unratified treaties and reports of international agencies, such as the International Law Commission, are often cited by legal writers as indicating a trend. Sources of International Law 1. The sources, or evidence of international law are those things that international tribunals rely upon in determine the content of international law. 2. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positivists that a sovereign could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. International Law 1. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in Article 38(1) of the 1946 Statute of the International Court of Justice. 2. Article 38(1) is generally recognised as a definitive statement of the sources of international law, which lists the sources which that court is permitted to use 3. The list is regarded by most writers as being a reasonably complete list and one that represents the sources that other international courts should use as well. 4. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:  International conventions, whether general or particular, establishing rules expressly recognized by contesting parties (parties in dispute)  International custom as evidence of a general practice accepted as law  General principles of law recognized by civilized nations  Subject to the provisions of Article 59, judicial decisions and the teachings of most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Alabama Claims Arbitration Case 1. This case between US and Britain which involved a claim by the US for damages inflicted upon Union merchant ships during the American Civil War by the Alabama and other Confederate warships built and fitted out in England.

2. The treaty that the parties had signed creating the tribunal also specified the rules it was to apply. 3. The tribunal limited itself to using only the rules designated in the treaty. Treaties and Conventions 1. The international law equivalents of legislation are treaties and conventions. 2. Treaty: legally binding agreement between two or more states. 3. Convention: legally binding agreement between states sponsored by an international organization such as United Nations. 4. Both are legally binding upon states because of a shared sense of commitment, and because one state fears that if it does not respect its promises, other states will not respect their promises. Treaties 1. Treaties are called by several names: treaties, international agreements, protocols, covenants, conventions, exchanges of letters, exchanges of notes, etc. 2. Regardless of the name chosen, all of these international agreements under international law are equally treaties and the rules are the same. 3. Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law for that breach. 4. The central principle of treaty law is expressed in the maxim pacta sunt servanda which means pacts must be respected. 5. A multilateral treaty has several parties, and establishes rights and obligations between each party and every other party. Multilateral treaties are often, but not always, open to any state; others are regional. 6. Bilateral treaties by contrast are negotiated between a limited number of states, most commonly only two, establishing legal rights and obligations between those two states only. 7. It is possible however for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between Switzerland and the European Union (EU) following the Swiss rejection of the European Economic Area agreement. 8. Each of these treaties has seventeen parties. These however are still bilateral, not multilateral, treaties. 9. The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally; it does not establish any rights and obligations amongst the EU and its member states. 10. Arnold Duncan McNair in his article, “The Functions and Differing Legal Character of Treaties had stated the wide use and application of treaties. 11. According to Mr. Arnold, a treaty is needed:  If international society wishes to enact a fundamental, organic, constitutional law, such as the Covenant of the League of Nations.  If two states wish to put on the record their adherence to the principle of the threemile limit of territorial as in the first article of the Anglo-American Liquor Convention of 1924.

Vienna Convention on the Law of Treaties 1. It came into force on 27th January 1980, is the authoritative treaty on the international law of treaties, establishing the procedures by which treaties are adopted, interpreted, and invalidated. 2. It is considered mostly a codification of already existing and binding customary law on treaties, and so aside from some necessary gap-filling and clarification, it is not viewed as a change in existing international law. 3. This means that unlike most treaties, the Vienna Convention is arguably binding on those states that are not parties to the treaty, such as the United States. Binding of treaties 1. An unilateral promise situation can be seen in the case of Nuclear Test Cases (Australia and New Zealand v France) : 2. In 1963, the Nuclear Test Ban Treaty was concluded, forbidding atmospheric tests of nuclear bombs. France did not sign the treaty and conducted tests in the South Pacific in 1972 and 1973. 3. Australia and New Zealand sued France in ICJ and the cases were taken off the Court’s list without a decision on the merits when France declared that it would discontinue testing after 1973. 4. It was stated by the Court that, “It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. 5. The objects of the statements (by France) are clear and they were addressed to international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect.” 6. In 1981, France did again the test. 7. In Legal Status of Eastern Greenland (Denmark v Norway) , after World War 1, Denmark sought to obtain declaration from several Allied Powers that they would not object to recognizing Danish sovereignty over whole of Greenland. 8. 14 July 1919 – Danish minister met Norway Foreign Affair Minister to tell him the purpose of considering the claims that may be put forward by different countries to Spitzbergen at the Paris Peace Conference. 9. Denmark would not raise any objection to Norway’s claim over archipelago (island surrounded by sea), and if Norway has no objection to Danish’s claim over Greenland. 10. 22 July 1919 – the Norwegian minister announced that “the Norwegian Government would not make any difficulty” concerning the Danish claim. 11. Later, in the suit between the two countries over which had sovereignty to Greenland and Denmark argued that this declaration (made by the Norway’s foreign minister) was binding upon Norway. 12. ICJ judgment was in favour of Denmark. International Customs 1. Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general practice accepted as law. 2. This definition comprises of two elements: a general practice and its acceptance as law. These two elements are necessary for the formation of customary international law.

3. The first element, the behavioural or objective element, requires a recurring consistent action or lack of action by States, which is indicated by such activities as official statements or conducts, legislative or administrative action, court decisions and diplomatic behaviours or correspondence. 4. The second element (the psychological or subjective element) entails the conviction that in similar case such a practice is required or permitted by international law. 5. In this sense, international customs may be defined as practices or usages which have been observed by a large number of States over a lengthy period of time and considered by them to be legally obligatory, i.e., being a law. 6. State practice is a continuous and constant state practice of international acts over a period of time, Governmental actions, rule makings and execution of policies, governmental declaration and pronouncement, administrative procedures and policies within states constitute good links and sources of state practice. 7. In Assylum case (Colombia v Peru), to form customary law, it must be ‘in accordance with a constant and uniform usage practised by states in question'. This was stated in Fisheries case (United Kingdom V Norway). 8. The ‘uniformity' and ‘consistency' test is ‘general practice' and not a ‘universal practice' and ‘practice of most influential and powerful states would carry the greatest weight'. 9. Once a practice is established as forming part of customary International law', all states are bound including states and the new states that failed to contribute to the practice initially. 10. Nevertheless, we cannot rule out the ‘opt out' possibility for the ‘persistent objectors' at the formative stage of the law, as Thirlway put it, ‘an attractive option' which will disallow the imposition of specific rule by the majority over the minority, it has been deeply criticised in international law, as a result of this, the practice is as stated earlier, states are bound as a general rule either as ‘objectors' or not. 11. Consistency of state practice is significant to the alteration of an existing custom. In Lotus case, the court said customs must be ‘constant and uniform'. It must at least be significantly constant state practice to become customary international law. 12. Generality of Practice is about the knowledge of the Custom, to significant number of states. It is a general adoption of practice by state, in North Sea Continental Shelf Cases, it may be difficult to determine the number of state to participate in international law before a general practice can become law because it is not about majority of votes cast, the degree depends on the various subject matters. 13. Dixion holds that ‘state practice must be accompanied by a belief that the practice is obligatory, the belief in the obligatory nature of the practice is called the opinio juris' but ICJ on several occasion refer to opinio juris as having equal footing with ‘state practice' in Continental shelf case (Libyan Arab Jamahinya V Malta) and legality of Nuclear Weapons Advisory Opinion. 14. In Nicaragua case where state practice and opinio juris was alluded to arrive at a conclusion that use of force had attained the status of customary rule of jus cogen before the advent of UN charter of 1945.The time element and duration of customary law varies. General Principles of Law 1. Article 38 of the Statute of the ICJ refers to “the general principles of law recognized by civilized nations” as a primary source of International Law.

2. This source is listed the third after international conventions and international customs. The Court shall apply the general principles of law in cases where treaties and customs provide no rules to be applied. 3. Its main objectives is to fill in gaps in treaty law and customary law. 4. Some of the general principles are based on ‘natural justice’ common to all legal systems such as the principles of good faith, estoppel or acquiescence, and proportionality. 5. General principles are frequently found in the field of evidence, procedure and jurisdictional questions. 6. Even some substantive law principles can be found in the decisions of the court. In the Barcelona Traction case (Second Phase), the court applied the concept of the ‘lifting the corporate veil’ to be found in the national legal systems. 7. However, in International Status of South-West Africa case, the court held that as the nature of international law is essentially different from that of domestic law, the principles of domestic law can only be used to fill in the gaps in international law if they are appropriate to the international situation. Judicial Decisions and Legal Scholarship 1. Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary means for the determination of rules of law. 2. This direction is made subject to the provisions of Article 59, which states that “the decision of the Court has no binding force except between the parties and in respect of that particular case.” 3. There is no rule of stare decisis in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case. 4. The judge of the ICJ sometimes does a little more than merely determine a law; he may establish a law. This has occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the recognition of baseline from which to measure the territorial sea; and the Reparations case of 1949, which established the legal personality of international organizations. 5. The ICJ gave a large number of decisions and advisory opinions on matters of international concern, thereby developing International Law. 6. Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. 7. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. 8. This is accepted practice in the interpretation of international law and was utilized by the United States Supreme Court in The Paquete Habana case. 9. The primary function of these writings is to provide reliable evidence of the law. Writers on International Law cannot make the law; their works are to elucidate and ascertain the principles and rules of International Law. Other sources: Ex aequo et bono (Equity)

1. The Court can decide a case submitted to it ex aequo et bono (in justice and fairness) only if the parties agree thereto. 2. Ex aequo et bono is somewhat analogous to but not exactly the same as the Common Law concept of equity. It is broader than equity and gives the Court greater power than the latter. 3. It allows the Court to decide a case on considerations other than legal rules, or even in contrary to these rules, if it sensed that justice can be served thereby. 4. Other scholars do not recognize equity as a separate and distinct source of law; they regard the principles of equity as part of the general principles of law that are common to all national legal systems. 5. Strictly, “equity” cannot be a source of law; yet it may play an important role in supplementing the law. A judge or arbitrator can always use equity to interpret or fill gaps in the law, even when he has not been expressly authorized to do so. But he may not give a decision ex aequo et bono unless he has been expressly authorized to do so. Acts of International Organizations 1. Decisions of the organs of international organizations may be binding or non-binding. An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law. 2. Some organs would probably constitute an evidence of customary law because they reflect the views of the state voting for them. For instance, the resolutions and declarations of the General Assembly of the United Nations. 3. When the vast majority of States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a State practice will be established and a binding rule of customary International Law will emerge. 4. Thus, these resolutions and declarations will constitute an evidence of the existence of customary International Law. Hierarchy of Sources 1. This listing implies a hierarchy in which the sources are to be relied upon. 2. That is, the treaties and conventions are to be turned to before custom, custom before general principles of law, and general principles before judicial decisions and publicists’ writings. 3. Actually, it does not set up a hierarchy but in practice the ICJ and other tribunals turn first to treaties. 4. This is appropriate because treaties (especially those ratified by the state parties involved in a dispute) are clear-cut statements of the rules the court should apply. 5. Also customary law, which is based upon practice, is more appropriate than general principles, which are usually found inductively by legal writers who have examined the long-standing practices of nations. 6. Finally, all of these are considered more reliable than either court decisions or lawyers’ writings because the latter are used only to apply or interpret the former. 7. Legal writers have often wondered if the ICJ must apply all of the sources indicated in Article 38(1), or if the parties (by mutual agreement) were to tell the Court to use only certain sources, would the Court have to respect these instructions.

8. The ICJ itself has never decided the point. In other tribunals, however, the parties frequently do limit the sources that may be considered....