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Samenvatting uitwerkingen leerdoelen international and european law nabespreking 2
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EU/INTERNATION LAW PROBLEM 2Literature:
- Henriksen, International Law, Chapter 2 and Chapter 3.9
Case law:
- North Sea Continental Shelf Cases (Judgment of 20 February 1969)
- Nicaragua (Judgment of 27 June 1986)
- Legality of the Threat or Use of Nuclear Weapons (advisory Opinion of 8 July 1996)
- The S.S. Lotus (judgment of 7 September 1927)
1. What are the sources of public international law?
2.2 article 38 of the Statute of the international Court of Justice
In most states, the lawyer will consult parliamentary legislation and relevant court cases to
find the law.
International law is a decentralized legal system.
The sources of international law are listed in article 38 of the ICJ Statute.
- International conventions, whether general of particular, establishing rules expressly
recognized by the contesting states.
- International custom, as evidence of a general practice accepted law
- The general principles of law recognized by civilized nations
- Subject to the provisons of article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination
This provision shall not prejudice the power of the Court to decide a case ex aequo et bono
(according to the right and good), if the parties agree thereto.
So:
- Treaty law
- Customary law
- General principles of law recognized by civilized nations
- Judicial decisions
- ‘the teachings of the most highly qualified publicists of the various nations’
The first three sources are law creating because they create (new) rights and obligations and
the latter two are law identifying since they merely apply of clarify the content of existing
law.
,2.3 conventions (treaties) as a legal source
The adoption of a convention is the most direct way states create rights and obligations
under international law and it is the only instrument available to two or more states that
want to enter into a formal legal relationship.
The legal basis of treaty-based obligations is state consent and a treaty only creates legal
obligations for the consenting states. The effect of a treaty is expressed in the principle pacta
sunt servanda.
Bilateral treaty: a treaty concluded by two states. Often governs a particular issue of mutual
interest.
Multilateral treaties: treaties between larger groups of states. Usually have general
application and possess ‘law-making’ features.
Constituent treaty: a treaty that establishes an international organization.
2.5 General principles as a source of law
They were primarily intended as ‘gap fillers’ that only needed to be consulted when a dispute
could not be resolved on the basis of a treaty of customary international law.
The most relevant ‘general principle of international law’ is equity. According to the Court, it
relies on equity as a logical and integral part of the application of law and only as a means to
influence the application of substantive legal rules. Thus, it is unrelated to more overarching
considerations of ‘justice’.
International law also contains a general principle of good faith demanding that states must
act honestly in fulfilling their international obligations -> ICJ referred to the principle in the
Nuclear tests cases.
Another general principle is that international agreements are binding -> pacta sunt servanda
-> also referred to in Nicaragua
It also referred to ‘elementary considerations of humanity’ in the legality of the threat or use
of nuclear weapons.
Due diligence principle -> requires a state to act regardless of whether the harmful acts are
lawful or not. In practice, the greater the risk of harm to other states, the greater effort the
territorial state must exercise to prevent the harm from occurring.
, 2.6 Judicial decisions
Are a subsidiary source of law. They are only binding on the parties to the case. Judicial
decisions may the ICJ’s decisions and advisory opinions particularly important contributions.
In practice, there may be a thin line between instances where the Court merely identifies
rather than develops the law.
The judgments (‘awards’) from international courts of arbitration also contain important
contributions.
Decisions by international courts and tribunals with specialized subject- matter competence
are also of substantial interpretative value. Specialized regional international courts include
the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union
(CJEU). Finally, depending on the circumstances, decisions by national courts, in particular
those of courts of last instance, such as supreme courts and constitutional courts, may also
be of relevance. Noticeable examples include the Canadian Supreme Court’s 1998 opinion
about the province of Quebec’s right to self-determination48 and the District Court of
Jerusalem’s judgment in the case against Adolph Eichmann.
2.7 Scholarly contributions and the ILC
The least important source.
Although some courts refer to academic analysis, the ICJ rarely refers explicitly to specific
academics. Academic interpretations and commentaries may, of course, influence
practitioners or those who develop international law, especially if the author(s) of the
contribution is/are highly esteemed academics or if the institution has a special role to play.
New and updated commentaries began to be published by the ICRC in 2016.
The contributions of the International Law Commission (ILC) play a special role in
international law. The ILC was established in 1947 with the primary purpose of promoting
the progressive development of international law and its codification. The composition of the
Commission is intended to be representative of all the principal legal systems of the world
and the members sit in their individual capacities. Among other things, the Commission
selects topics and makes proposals for draft conventions and codifications. Usually, once a
topic has been chosen for consideration, a working group will be formed and a Special
Rapporteur will be appointed to produce reports with concrete recommendations and
proposals. In turn, these may lead to the adoption of important conventions. If so, the
Commission’s draft articles and commentaries thereon serve as valuable interpretive tools.
The ILC has been instrumental in the adoption of important treaties, such as on the law of
the sea, diplomatic and consular relations, human rights, and on treaty law itself.
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