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Samenvatting tekstboek Henriksen Public International Law
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• Chapter 2 (Sources of international law)§2.1 Introduction
• lack of universal legislature and courts with compulsory jurisdiction makes uncovering international law
more difficult
• international law is a decentralised legal system; legal obligations may derive from more than one source
• The International Court of Justice has stressed the difference between law and politics; humanitarian
considerations are not sufficient in themselves to generate legal rights and obligations; moral principles are
only taken into account in so far as these are given a sufficient expression in legal form
• natural law: finds sources of international law in elementary dictates of justice
• positivist law: look for evidence of state consent
- explicitly in a treaty or tacitly in an international custom accepted as law or in a general principle
recognised by states; international legal obligations are derived from state consent
- States are always bound by behavioural norms required for the maintenance of peaceful coexistence in the
society of which they form part
§2.2 Article 38 of the Statute of the International Court of Justice
• article 38 is not exhaustive and international legal answers may be found elsewhere too (mostly in
unilateral statements by states)
primary law [law creating]
a. international conventions (establishing rules expressly recognised by the contesting states)
b. international custom (evidence of general practice accepted as law)
c. general principles of law recognised by civilised nations
secondary law [law identifying]
d. judicial decisions and teachings of the most highly qualified publicists of the various nations (scholarly
contributions)
• in practice ICJ had relied on sources not mentioned in the article, most notably unilateral statements
§2.3 Conventions (treaties) as a legal source
• only available instrument to two or more states that want to enter into a formal legal relationship
• legal basis is state consent (only obligations for consenting states)
• pacta sunt servanda
• bilateral treaty = between two states (often a particular issue of mutual interest; infrastructure)
• multilateral treaty = between larger groups (general application and law making features)
§2.4 Custom as a source of international law
§2.4.1 Introduction
• common usage and interstate practice are important source of international law because of the absence of
an international ‘law maker’
• ability to adapt to changing circumstances
• international customary law arises when a particular way of behaving is (1) followed as a general practice
among states, and (2) accepted by those states as legally binding
- objective element = state practice
- subjective element = belief that the practice is legally binding
• a customary rule binds all states (unless a state objects), including states that have not taken part in the
formation of the practice
- customary legal norms do not need to be universal in scope: long continued practice between two states
accepted by them as regulating their relations can form the basis of mutual rights and obligations between
those states => regional customary international law
§2.4.2 The objective element - state practice
= consistent repetition of a particular behaviour = the way things are done = for a considerable period of time
states have acted in a certain identical manner when confronted with the same facts
,three elements =
(5) consistency, (reasonably uniform; conduct is generally consistent with the rule and inconsistent conduct
is by and large treated as a breach of the rule)
(6) duration, (consolidated and confirmed gradually over time)
=> in North Sea Continental Shelf Cases the ICJ noted that: “ passage of only a short period of time is not
necessarily, in itself, a bar to the formation of a new rule of customary law” (voorbeeld van instant custom is
reactie op 9/11)
(7) generality (unanimity is not required but practice should include the majority of states)
=> in North Sea Continental Shelf Cases the ICJ noted that: the practice by states “whose interests are
specially affected” is particularly relevant
• a state may avoid being bound by an emerging customary rule by persistently objecting to the practice;
persistent objector rule only applies in relation to new and emerging customary rules and does not apply to
jus cogens/peremptory normss
§2.4.3 The subjective requirement - opinio juris
• opinio juris sive necessitatis = state practice only creates legally binding custom when it is accepted as law
• according to the International Law Associations the existence of sufficient general and representative state
practice is usually sufficient to create a binding custom and evidence of opinio juris is only looked for if
there is reason to believe that particular behaviour stems from non-legal motivations
• the subjective element is important when a state acts contrary to an existing customary rule
• repeated breaches of customary rules will not do away with the binding natura of te customary rule as
long as opinio juris of their normative status continues to exist
=> customary law is binding on all states, including states who have not taken part in the formation of the
practice, unless a state persistently objects
§2.4.4 The relationship between custom and treaty law
• when a treaty codifies customary international law, the parties to the treaty are bound by the treaty and
customary law and non-parties are only bound by customary law
- in Nicaragua case the ICJ confirmed the potential existence of such ‘parallel obligations’
• treaty law can over time develop into customary law
• if treaty and custom are not identical a potential conflict can often be avoided through interpretation, but if
not then the source that has a peremptory/jus cogens (dwingend recht) character, then that source prevails
- in many instances the conflict will be governed by the principle of lex posterior whereby that which is
later in time prevails
- if there is a conflict between a norm of a general and one of a more detailed character the detailed rule
prevails = lex specialist principle
§2.5 General principles as a source of law
• general principles were added to article 38 to prevent a dispute not being decided due to a shortage of
applicable law
• most relevant general principle of international law is ‘equity’
• most nattily in cases concerning maritime delimitations (=afbakening)
• 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
• principle of good faith: states must act honestly in fulfilling their international obligations
• principle of pacta sunt servanda = international agreements are binding
• no harm principle = every state’s obligation not to allow knowingly its territory to be used for acts contrary
to the rights of other States’
• due diligence principle = a state must seek to prevent activities on its territory from causing significant
damage in another state (regardless of whether the acts are lawful or not) => obligation of effort, not result
§2.6 Judicial decisions
• subsidiary source of law
,• only binding to the parties of the case (article 59 of Statute)
• in practice a mere line between instances where the Court identifies rather than develops the law
• court is not bound by earlier decisions but strives to maintain judicial consistency
• judgements from international courts of arbitration also contain important contributions
§2.7 Scholarly contributions and the ILC (International Law Commission)
• scholarly contributions rarely get referred to by the ICJ
• ILC set up in 1947 with primary purpose of promoting progressive development of international law and
its codification
§2.8 Unilateral statements
• only binding if it is stated in clear and specific terms
• binding unilateral declarations can be issued by heads of state, heads of government and ministers for
foreign affairs
• nothing in the nature of a quid pro quo (=tegenprestatie) nor any subsequent acceptance of the declaration
nor even any reply or reaction from other States is required for a unilateral statement to be legally binding
• intention to make a binding statement: depends on the context, circumstances in which it was formulated
and the text of the declaration
=> ICJ Nuclear Test Cases: a restrictive interpretation is called for when states make statements by which
their freedom of action is limited
§2.9 Hierarchy of sources
• national systems are vertical: constitutional norms have a higher legal status than legislation and
administrative regulation
• international legal system is horizontal legal order; conflict between norms is not resolved by granting one
of the sources a higher normative value than the other but by determining which of the conflicting norms
prevails in the particular case
- conflict between treaty and customary law: priority to a treaty based-rule because the adoption of a treaty
can be seen as a more deliberate act of law-creation than the creation of customary law
• three exceptions to the general presumption of normative equality in international law:
(8) ius cogens (treaty or unilateral statement is void if they conflict with jus cogens)
- jus cogens norm is one that is 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
- ICJ => “ those substantive rules of conduct that prohibit what has come to be seen as intolerable because
of the threat it presents to the survival of States and their peoples and the most basic human values” [ban
on slavery, prohibition against torture and genocide, prohibition of aggression, ban on crimes against
humanity etc.]
(9) erga omnes = obligations owned to the international community as a whole [communitarian norms];
breach of such a norm can be invoked by any state and not just by a state that is the immediate
beneficiary of the obligation
=> jus cogens refers to substantive obligations that cannot be derogated from
=> erga omnes is a procedural designation of a set of obligations that all states van invoke
(10) obligations under the UN Charter
=> article 103 UN Charter stipulates that obligations under the Charter prevail if they conflict with
obligations under any other international agreement
§2.10 Non-binding commitments and the concept of ‘soft law’ instruments
• political instrument tend to be a much faster and more flexible way to come to an agreement than to adopt
legally binding instruments
• soft law = when a legally non-binding instrument begins to play a rollin the creation of international law
, • soft law documents can be evidence of state practice or opinio juris and on that basis become relevant to
the creation of binding international law
• Chapter 3 (Law of treaties)
§3.1 Introduction
• primary rules in the law of treaties are found in the 1969 Vienna Convention on the Law of Treaties
• applies to all types of written treaties
§3.2 The treaty as a concept under international law
• treaty = international agreement governed by international law concluded by two or more international
subjects with treaty-making capacity
- as long as the instrument testifies to an intention to create rights and obligations under international law it
is a treaty
- the intention of the parties is decisive; lack of precision in wording and use of very general and vague
terms indicates a lack of intention to create a legally binding commitment
• treaty with International Organisation is governed by the 1986 Vienna Convention on the Law of Treaties
• art. 34 = legal basis is state consent
• art. 26 = pacta sunt servanda = binding upon the parties to it and must be performed by them in good faith
• art. 27 = state is obliged to comply with a treaty even if doing so requires breaching national laws
=> it does not take much for an agreement to be considered legally binding; minutes from a meeting
reflecting commitments to which the parties have consented and a memorandum of understanding are a
treaty under international law
§3.3 The authority to conclude a treaty
• art. 6 VCLT: all states have legal capacity to conclude treaties (but not all representatives of a state are
competent)
• full power = document that authorizes a state representative to negotiate and conclude a treaty on behalf of
the state
- heads of state, heads of governement and ministers for foreign affairs may perform all acts that relate to
the conclusion of a treaty without presenting full powers (article 7 (2)(a))
• art. 8 VCLT: if a person with no authority to conclude a treaty has nevertheless done so, that state may
decide to avail itself of the opportunity to disavow the act of the person in question by subsequently
endorsing the act and thereby establishing its consent to be bound
§3.4 Treaties between states and international organisations
• Vienna Convention on the Law of Treaties between International Organisations or between States and
International Organisations (1986)
§3.5 Consent to be bound
• consent may be expressed by a signature, change of instruments, ratification, acceptance, approval or
accession (or by any other means if so agreed)
- art. 15 = accession = consent to be bound by a treaty already negotiated and signed by other states =>
possibly if the treaty provides for it, if it is established that the negotiating parties were agreed that it
should be possible or if all the parties have subsequently agreed that a state may express its consent by
such means
• art. 14 = ratification = after signing a certain period of time before it gives its binding consent
- signing of treaty that is subject to ratification triggers an obligation to refrain from acts that would defeat
the object and purpose of the treaty
- ratification is required if: (1) it is specified in the treaty itself, (2) it is otherwise established that the
negotiating parties agreed that it was needed; (3) the representative who signed the treaty did so subject to
ratification; (4) it appeared from the full powers of the representative or it was expressed during the
negotiation that that was the intention of the state
=> if not specified there is a presumption that ratification is not required
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