THE Sources OF International LAW PDF

Preview

Summary

THE SOURCES OF INTERNATIONAL LAWThis lecture will focus on the sources of international law as outlined in Article 38 of the Statute of the ICJ. While special attention will be paid to international customary law and treaties, other sources such as general principles of international law and soft la...

Description

THE SOURCES OF INTERNATIONAL LAW This lecture will focus on the sources of international law as outlined in Article 38 of the Statute of the ICJ. While special attention will be paid to international customary law and treaties, other sources such as general principles of international law and soft law (not recognized by Article 38) will also be discussed. Students will appreciate the features of the various sources of international law as well as the complexity of current international law-making. Reading List Required: Shaw, Chapters 3 and 16 (pp. 654-671) Additional: Roberts and Sivakumaran, “The Sources of International Law", in Evans, International Law, chapter 4 A. Boyle, "Soft Law in International Law-Making” in Evans, International Law, chapter 5 Sir Michael Wood, What Is Public International Law? The Need for Clarity about Sources, 1 (2011) Asian Journal of International Law, pp. 205–216 Jennings, "The Judiciary and the Development of International Law", (1996) 45 ICLQ 1 M. Fitzmaurice, The Practical Working of the Law of Treaties, in M. Evans, International Law, chapter 6 ILC Report on Customary International Law (on moodle) Statute of the International Court of Justice 1945 Art 38 United Nations Charter, Articles 10 and 103 Vienna Convention on the Law of Treaties 1969 esp. Articles 53 and 64. For this seminar please only read extracts of the cases in D&M LECTURE OUTLINE 

Article 38 of the ICJ



International Customary Law: State Practice and Opinio Juris



Treaties



General Principles of International Law



Soft Law in the International Legal System



Hierarchy of Sources

Detail: Statute of the International Court of Justice 1945 (D&M 21) Article 38 1 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 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. 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereon. Questions • Why is this article our starting point? • Is article 38 (1) sufficiently up-to-date/comprehensive? Can you think of any other sources that should be listed? • Is article 38 (1) helpful? Would it on its own be sufficient for you to determine whether a purported rule is part of international law or not? Or do you need to resort to further rules (rules about finding the rules)? • To what extent is international law based on the consent of States? How can we build a system of law against the wishes of sovereign States? If you were put in charge of designing a system of international law would you want the legal rules to reflect states’ behaviour – or would you want them to govern (or restrain) state behaviour? What is the problem with each? TREATIES, CUSTOM, GENERAL PRINCIPLES, JUDICIAL DECISIONS AND THE REST TREATIES 38 (1) a. Statute of the International Court of Justice 1945 The general rule is that treaties are only binding on a State that becomes a party to the treaty. Vienna Convention on the Law of Treaties 1969, Article 2(1)(a): “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Some background on Treaties: Terminology:

Adoption – of the text of a treaty, usually by consensus, and binds none of the negotiating States to sign or ratify. Authentication – establishment of the definite text. All languages are equally authentic unless otherwise provided. The text of a multilateral treaty is usually attached to the Final Act of a conference. Consent to be bound – essential precondition to becoming party to a treaty; if agreed, by signature alone; otherwise by signature followed by ratification (or acceptance or approval), or by accession. Distinguish ratification from Parliamentary procedures for approving treaties or enacting implementing legislation; ratification is an executive act involving deposit of an instrument of ratification etc with the depositary (see below). (Note: Ratification etc, in itself, does not make the State bound by the treaty; it is only bound if and when the treaty has entered into force for that State) Entry into force – only when both States (bilateral treaty) or a number of States specified in the treaty (multilateral treaty) have consented to be bound by the treaty. Once in force, the treaty is binding only on those States which have consented to be bound. Such States are said to be parties to the treaty. (Note: avoid use of “signatory”) Depositary – The Government (but often an international organisation) which holds the original text of a multilateral treaty and receives signatures, ratifications etc, and circulates information. Must act impartially. Registration - required for all treaties: Article 102 UN Charter. Registration only after entry into force. Reservation “a unilateral statement, however phrased or named, made by a State, when ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State.” (Article 1(d)). A reservation is permitted unless: 1. expressly prohibited; 2. is outside specifically permitted reservations; 3. if neither 1 nor 2, is “incompatible with the object and purpose of the treaty”. (Article 19). Note the problem of the legal effects of an objection to a reservation, especially for human rights treaties. Third state

Can benefit from rights in treaty (assent is presumed), but is not bound by treaty obligations without its express written consent. Amendment By the agreement of both (or all) parties, or as provided for in the treaty. Built-in compulsory amendment mechanisms common for modern multilateral treaties. Interpretation VCLT: Article 31, general rule: “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. The context includes contemporaneous agreements. Also relevant are subsequent agreements and practice. Preparatory work (travaux préparatoires) may be used to confirm an interpretation or to resolve a problem if the meaning is ambiguous or obscure or manifestly absurd or unreasonable. Termination By agreement or according to the treaty. Material breach can be invoked as ground for termination. Severance of diplomatic relations has no effect on treaties unless diplomatic relations are indispensable to their performance. Territorial scope A treaty applies to the whole territory of State unless otherwise provided. Note UK practice for the Isle of Man, the Channel Islands and the overseas territories. Vital to consult them before extending a treaty to them. Succession to treaties Whether a new State will be bound by (succeed to) a treaty to which the predecessor state was bound e.g. UK/Fiji; Soviet Union/Georgia. Vienna Convention on the Succession of States in respect of Treaties 1978. Only 15 parties. Convention does not represent customary international law. No rule that new States are bound by all treaties which previously applied to them. In practice new states reach separate agreements with other states about which bilateral treaties will continue to bind them.

CUSTOM Custom: Article 38 (1) b. Statute of the International Court of Justice 1945: international custom as evidence of a general practice accepted as law; Questions As an international practitioner when/why would you look for the existence of a customary rule?

What is custom? How is it created? How do we identify customary rules? Why bother with custom? What are the elements of custom? How is it created? Where do we find it? What are the rules about customary rule formation? Two elements of custom: a) b)

State practice Opinio juris sive necessitatis -

These give rise to a number of questions that in turn have given rise to a number of rules (rules about how to find the rules). The relevant cases are in D&M : 1) General practice (of States) But what amounts to a ‘practice’? Must be uniform. Asylum Case (Columbia v. Peru) ICJ Reports p. 266; D&M ‘constant and uniform usage’. How many States are required to participate in the practice? Must be general – but need not be universal. North Sea Continental Shelf Cases ICJ Reports 1969 p. 3; D&M 25-6 Which States’ practice counts for custom formation? North Sea Continental Shelf Cases ICJ Reports 1969 p. 3, para.73. Bellinger letter, D&M 28 ‘specially-affected States.’ Duration: How long must a practice have been in place? Traditional rule: ‘Time Immemorial’. But see: North Sea Continental Shelf Cases ICJ Reports 1969 p.3 para.73 Can custom be ‘instant’? 2) Opinio Juris sive Necessitatis – What do we mean by opinio juris? Asylum Case (Columbia v. Peru) ICJ Reports 1950, p.266; Must be: ‘constant and uniform usage, accepted as law.’ North Sea Continental Shelf Cases ICJ Reports 1969 3 para.77; D&M 26 Not only the acts concerned amount to a settled practice, but they must also be such, or 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 States concerned must therefore feel that they are conforming to what amounts to a legal obligation … The frequency or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol which are performed almost invariably but which are motivated only by considerations of courtesy, convenience or tradition and not by any sense of legal

duty Where and how do we find evidence of opinio juris? If there is a general state practice can we presume that there is also opinio juris? North Sea Continental Shelf Cases ICJ Reports 1969, 3 para. 78. (Applying Lotus). “[t]he position is simply that in certain cases - not a great number - the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled ... by reason of a rule of customary law obliging them to do so… “ Contrast: Judge Sorenson, Dissenting Opinion, North Sea Continental Shelf Cases ICJ Reports 1969, p. 3; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. the United States of America) (Merits) ICJ Reports 1986 p. 148 para.207; D&M 35. What if opinio juris is divided? Legality of the Threat or Use of Nuclear Weapons Advisory Opinion ICJ Reports 1996. p. 226 para.67; 35 ILM 809 (1997); D&M 45 “Furthermore, the Members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinion juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris. “ Bellinger letter, D&M 28 C) The effect of a customary rule. Who does it bind? General rule: custom is binding on all States (contrast treaties). Two exceptions: Regional or local custom The Asylum Case ICJ Reports 1950 p. 266, paras. 277- 278; ‘American international law in general.’ The Persistent Objector rule The Asylum Case ICJ Reports 1950 p. 266; D&M 31 “even if it could be supposed that ... a custom of [diplomatic asylum] existed between Latin American States only it could not be invoked against Peru which far from having by its attitude adhered to it, has, on the contrary, repudiated it.” Anglo-Norwegian Fisheries Case (UK. v. Norway) ICJ Reports 1951, p.116; D) What is the relationship between treaty and custom? Can a treaty rule ever become customary? And what would be the significance if it did? North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and the Netherlands) ICJ Reports 1969, p.3.paras.70-76; D&M 35 Para. 71 … There is no doubt that this process is a perfectly possible one and does

from time to time occur: it constitutes indeed one of the recognised methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained. The Test : • fundamentally norm creating character - such as could be regarded as the basis for a general rule of law (para.72); • widespread and representative participation in the treaty – especially by States whose interests are specifically affected. (para.73); • duration – short time element not itself a bar - if practice is extensive and virtually uniform (para.74). For latest English case on sources of PIL take a look at the Court of Appeal decision in R. (on the application of Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs Court of Appeal (Civil Division) 19 July 2018 [2018] EWCA Civ 1719; Official Transcript;

GENERAL PRINCIPLES OF LAW D&M 37-41 Article 38 (1) Statute of the International Court of Justice c: the general principles of law recognised by civilised nations; •

The Diversion of Water from the Meuse Case (Netherlands v. Belgium) PCIJ Reports Series A/B, No. 70, pp. 76-77; D&M 39).

Equity JUDICIAL DECISIONS AND TEACHINGS OF PUBLICISTS Article 38 (1) ICJ Statute: 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.

Judicial Decisions (D&M 41-43) Article 59, ICJ Statute: The decision of the Court has no binding force except between the parties and in respect of that particular case. Compare doctrine of stare decisis.

Teachings of Publicists The Paquete Habana, US 1900 175 U.S. 677 20 S.Ct.290 BEYOND ARTICLE 38(1): ARE THERE OTHER SOURCES OF LAW? 1. General Assembly resolutions? 2. Security Council resolutions? 3. Soft Law 1. General Assembly resolutions Article 10, United Nations Charter 1945 The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter and except as provided for in Article 12 may make recommendations to the Members of the United Nations or to the Security Council or to both on any such question or matters. Legality of the Threat or Use of Nuclear Weapons Case Advisory Opinion ICJ Reports 1996 p.226; 35 ILM 808 (1997) Para.70-The Court notes that General Assembly resolutions, even if they are not binding may sometimes have normative value. They can in certain circumstances provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.

2. Security Council resolutions? 3. Soft Law Further reading: A. Boyle, ‘Soft-Law in International Law Making’ in M. Evans (ed.), International Law Is there a Hierarchy of Sources? United Nations Charter, Article 103 Jus cogens norms: Vienna Convention on the Law of Treaties 1969 esp. Articles 53 and 64. A treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of international law…a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Checklist: make sure you are confident about the following: •

• • •

Consider the sources of international law in Article 38(1) of the ICJ statute. Is there anything you might have expected to see that is ‘missing’ from the enumerated list of sources? Do you think Article 38(1) contains a hierarchy of sources in international law? In other words, does a treaty take precedence over custom, and custom take precedence over a general principle, and so forth? To what extent are the sources in Article 38 (1) based on the consent of states? What do you understand by the term soft law? Is it not a contradiction in terms?

Questions to consider As an international practitioner when/why would you look for the existence of a customary rule? What is custom? How is it created? How do we identify customary rules? What does President Trump think about treaties? Consider the relationship between treaties and custom...