lecture 2 - sources of il

8/2/2019 Lecture 2 - Sources of IL

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Reminder 1st lecture

The role of consent of the state in International Law (IL)

The legal nature of IL and the existence of international

norms/ standards with which states are obliged tocomply

Lack of legislative structure: where is law to be found?When can one tell that a proposition amounts to a legalrule?


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Formal and Material Sources of Law

Concentrate on the functions, whichsources of law can perform within a legal

system: Procedures and methods by which rules

become legally binding = formal sources oflaw

Substance and content of legal obligations= material sources of law


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Primary SourcesArticle 38(1) of the Statute of the International Court ofJustice

The Court, whose function is to decide in accordance withinternational law such disputes as are submitted to it, shallapply:

a) international conventionsb) international custom, as evidence of a general practice

accepted as law

c) general principles of lawd) judicial decisions and the teachings of the most highly

qualified publicistsas subsidiary means for thedetermination of rules of law


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1 International Conventions /

Treatiescreate legally binding obligations for the states

that are parties to them.

UN Charter

Other UN-sponsored agreements

Regional conventions

(More during the next lecture)


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2 - Customary International Law

Definition

Under ICJ Statute Article 38(1)(b), customary internationallaw is defined as a general [State] practice accepted aslaw

To establish existence of a custom the following criteriamust be satisfied (e.g. in North Sea Continental ShelfCases ICJ Rep 1969 para 77):

settled state practice i.e. ususor diuturnitas(objective element), and evidence that states have a sense of legal obligation

i.e. opinio juris(subjective element)


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Two elements one behavioral and one psychological:

1) Usus (Latin for: usage): Is the consistent and recurring action (or lack

of action if the custom is one ofnoninvolvement) by states.

2) Opinio juris sive necessitatis (Latin for:Of the opinion that the rule is proper and

required): The custom must be regardedby states observing it as one that theymust obligatorily follow.


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2 - Customary International Law

State practiceGenerality of state practice Degree of uniformity and generality of state practices to

amount to a customary rule

Acquiescence as consentIf States do not object to a practice then it may

become a custom by acquiescenceHowever, if a State raises and objection from the very

beginning and maintains it sustainably, then such a

custom will not be binding w.r.t. that Particular StateINITIAL AND SUSTAINED objection

Duration of the State practice Possibility of Instant custom


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Opinio Juris

Conceptual definition

belief that an activity by the State is obligatory,

a factor which turns a practice into a custom If a State does not engage in a certain activity,

it does not automatically mean that suchactivity is prohibited by international law.

Determining the existence of Opinio Juris


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Unilateral acts

Ambivalence of unilateral acts: source orapplication of international law ?

Characteristics: express the will of one party towhich it will only be imputable

Volontarist theory : one state can only create

internal or international obligations for himself


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Classification of unilateral acts

Opposability

Exercise of sovereign rights (according to IL)

Creation of legal obligations


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Legal effect

These unilateral act do have an independent existencewhether the concerned third parties agreed to it or not

Some unilateral acts however only exist in reference to

a treaty : adhesion to a treaty, reserves, denunciations,decision to step out of an IO

Importance of the concept of legal security: once astate engaged itself to do smtg, it must comply with it

Can be used as an indicator for the creation of a newcustom


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Discussion on the resolutions of

International organisations

Binding resolutions

Non-binding resolution


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General Principles of Law

Origin: commentary of art. 38 of the ICJ statutes : isthat an auxiliary source of IL ?

Principles recognised as general principles of law


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Auxiliary sources of international law:

Judicial Decisions

The doctrine or teachings of the most highlyqualified publicists


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THE SCOPE OF

INTERNATIONAL LAW The Practice in International TribunalsMunicipal law is regarded as subordinate

(subservient) to international law.States have a general obligation to bring their

municipal law into compliance withinternational norms.

Procedurally, municipal law is treated asmere fact.the onus of proof


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Polish nationals in Danzing case , PCIJ Reportsvol. 1930, series B No. 17, p332(1930):it should be

observed that a state cannot adduce asagainst another state its own Constitutionwith a view to evading obligation

incumbent upon it under international lawor treaties in force


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THE SCOPE OF INTERNATIONAL LAW

The Practice in Municipal Courts:

International law is regarded as

(correlative). Court determines if a particular international law

has been received into the municipal jurisprudence.

If it has, the Court applies it as if it were a locallawand not a mere fact.


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THE SCOPE OF INTERNATIONAL LAW

Determining if International Law has beenReceived Into the Local Jurisprudence

Customary international law:

Doctrine of Incorporation: a custom isautomatically part of a nation's laws as longas it is not inconsistent with those laws.(Majority rule)

Doctrine of Transformation: a custom is not part of a nation'slaws until expressly adopted by legislative or (legislative) act, orby local usage. (Minority rule)


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As for treaties:

Reception rules depend upon two factors: (i) The nature of the treaty; and (ii) The constitutional

structure of the ratifying state.

1] The nature of treaties they may be: Self-executing treaty: One that contains a provision that

says the treaty will apply in the parties municipal courtswithout their having to adopt any domestic enablinglegislation.

Non-self-executing treaty: One that has no such

provision. 2] The structure of states

constitutions may assign to one or more state organs(or branches) the responsibility for entering into treaties.


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Making and effectiveness of the

pact Bilateral treaties produced by foreign ministries or

embassies.

Multilateral treaties made through conferences

Signing of treaty does not indicate acceptance oftreaty by signatory

Merely indicates authentication of text. Usually two-thirds of conference must authenticate text


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State may choose to bind itself through signature, butalso by ratification or accession

Ratification is act where state declares itself bound bytreatyInstrument of ratification deposited with designatedstate or I.O.

Ratification allows parliament to consider treaty Accession is act of state that did not negotiate original

treaty.

One or more parties to treaty may object to certain of its

provisions. Reservation allows reserving state toexclude or modify provisions as to that state.

lecture 2 - sources of il

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