HI - Week IV - Sources of International Law I

Sources of International Law

What is sources?

“…those provisions operating within

the legal system on a technical

level, and such ultimate sources

as reason or morality are

excluded, as are more functional

sources such as libraries and

Classification of Sources ;

Schwarzenberger

• Formal  a source from which a rule of law derives it force and validity  a rule will be legally binding if it meets the requirements of a custom

Article 38 (1) of the Statute of the

International Court of Justice

• 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 the contesting States

Article 38 (1) of the Statute of the

International Court of Justice - II

– The general principles of law recognized by civilized nations

Treaties

• Similar terms : Conventions, International agreements, Pacts, General Acts, Charters, Statutes, Declarations and Covenants.

• Vienna Convention on the Law of Treaties 1969, article 2 :

treaty means an international agreement concluded between States in written form and

Treaties - II

• Law making treaties  intended to have universal or general relevance  the Vienna Convention on Diplomatic Relations 1963 & the 1959 Antartica Treaty

Treaties - III

• Parties that do not sign and ratify the particular treaty are not bound by its terms  article 34 of Vienna Convention 1969

• Extension to non parties :

– Article 2(6) of the UN Charter  “the

International Custom

• ICJ in the Nicaragua Case 1986,

elements of Custom :

– a general practice

Nicaragua Case 1986

• Nicaragua v. United States

• 1979  the right-wing government in

Nicaragua was overthrown by the left wing • 1981  US terminated economic aid to

Nicaragua on the ground that Nicaragua had aided guerrillas fighting against El

Nicaragua Case 1986 - II

• Nicaragua claimed that the US had acted in violation of customary international law by :

– Using direct arms by laying mines in

Nicaraguan international and territorial waters, causing damage on ships, ports, etc

– Giving assistance to the left wing

International Custom - II

• Treaties can be evidence of customary law:

– Bilateral  extradition  political offenders

shall not be extradited  even when treaties

are silent on this matter

– Multilateral  intended to codify customary

law  can be enforced to the non party to it  even though has not been ratified by a

International Custom - III

• Exp : the 1969 Vienna Convention on Law of Treaties  states not party to it are

bound by customary law

• If a non party state can prove that the provision is not a customary law it can

International Custom - IV

• A single precedent is not enough to become CIL • Asylum Case, Columbia v. Peru (1950) :

– Unsuccessful rebellion in Peru in 1948

– An arrest warrant was issued on Haya de la Torre, a peruvian national

– Granted asylum in Colombia

– Peru refused to allow de la Torre out of the country

International Custom - V

• Colombia asked the Court to rule :

“Colombia, as the state granting asylum, is competent to qualify the offence for the purposes of the said asylum”.

International Custom - VI

• The formation of a customary rule in the case is the consistency in the practice

• What is general practice :

– Depends on the circumstances of the case and the rule at issue

– Inclds. The conduct of all states which can participate

International Custom - VII

International Custom - VIII

• North Sea Continental Cases, FDR

Germany v. Denmark and the

Netherlands, 1969

International Custom - IX

• Only dividing line for a short distance from the coast

• Begins at the point at which the land

boundary of the three states concerned was located

International Custom - X

• Denmark and the Netherlands argued the “equidistance special circumstances principle” in art. 6 (2) the 1958 Geneva Convention on the Continental Shelf applied

• The FDR denied and proposed “the doctrine of the just and equitable share”

Opinio Iuris Sive Necessitatis

• Defined as a conviction felt by states that a certain form of conduct is required by international law  imposing duties

• Permitting states to act in particular way  permissive rule  prosecute foreigners for crimes committed within the

Opinio Iuris Sive Necessitatis - II

• Distinction made in the Lotus Case, 1927 :

– French ship collided with Turkish on the high seas

– Turkish nationals were lost their lives – French Lieutenant was convicted

– Turkey had jurisdiction?

Opinio Iuris Sive Necessitatis - III

• No protest from which the concerned states in previous cases

Opinio Iuris Sive Necessitatis - III

• Elements :

– State practice

– It reflects a legal obligation

General Principles of Law

• Historical background : in order to provide a solution in cases where treaties and

custom provided no guidance (non liquet)

• Three views:

• ‘law’ incorporates ‘natural law’

General Principles

• The travaux preparatoires of Article 38 ICJ Statute (1920 PCIJ and 1945 ICJ) confirms the third view.

• principle of acting in good faith in international relations

• Nuclear Tests cases (1974) • UN Charter Art. 2(2)

• UNGA Resolution 2625 (xxv) Declaration on

General Principles

• some other principles recognised by the courts include …

• obligation to make reparation (Chorzow Factory case 1928)

• estoppel – State must not deny the truth of statements made by their

General Principles :

• _{Robert Redslop}

(1923)

• pacta sunt servanda

• freedom of States • equality of States • international

solidarity

• Ian Brownlie (1931) • sovereignty

• non-interference • state immunity

General Principles

• _{UNGA Resolution 2625 (xxv) Concerning}

Friendly RelationsBetween States, 1970 • non-use of force

• peaceful settlement of disputes

• co-operation in accordance with UN Charter • equal rights and self-determination