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Summary Master Course PIL
- Instelling
- Maastricht University (UM)
Uitwerking van onderwijsgroepen van Public International Law Master Blok 1 Maastricht University
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PIL TUTORIAL 1 LAW-MAKING PROCESS AND THE SOURCES OF ILCASES
-ICJ Nicaragua case:
- para 178-179. A new treaty does not extinguish pre-existing custom regulating the same
subject matter.
-para 188. UN General Assembly Resolutions can be indicative of opinion juris. ‘This opinio
juris may, though with al1 due caution, be deduced from, inter alia, the attitude of the Parties
and the attitude of States towards certain General Assembly resolutions, and particularly
resolution 2625 (XXV).
-The Anglo-Norwegian Fisheries case (persistent objector):
Persistent Objector status is more clearly identified in this case by the ICJ. We know that the
theory of the persistent objector clearly has a role within the international legal system: the
difficulty is identify its true effect, because it is difficult to remain outside the rule
indefinitely. In this case, the UK objected to the delimitation of the territorial sea carried out
by Norway by two Royal Decrees. Part of UK objection rested on the fact that there was a
customary rule of IL that closing lines along the mouths of bays could be no longer than 10
nautical miles. As well as deciding that such rule did not exist in general customary
international law, due to inconsistent State practice, the court also observed that ‘in any
event the ten mile rule would appear to be inapplicable as against Norway as she has always
opposed any attempt to apply it to the Norwegian coast.’ Norway said we are doing this for
so long, we been doing this before cil developed We are against it, to the treaty too: and as a
result not bound by cil and treaty.
-we also know that the degree of consistency may vary according to the subject matter of
the rule in dispute.
-Asylum case (Colombia v Peru) (local customary international law) :
one issue in the dispute was whether a local custom existed in Latin America permitting one
state to grant political asylum and thereby offer consequential protection to the asylum
seeker. The court found against the existence of local CIL because of lack of evidence, but
the possibility that it could exist was confirmed in the Right of passage over Indian territory
case. Important in Asylum case: Colombia took Peru to the Court. Colombia: Peru had
signed the Montevideo treaty, but on the other hand it failed ratification. For the
Persistent Objector status see task. Peru failed ratification and still holds Persistent
Objector status.
LECTURE
-If you talk about a violation of IL, you need to be more specific. What legal obligation was
violated? And from which source is it derived?
IL is for the most part a system that regulates legal obligations between states.
States have legal obligations and those are derived from sources.
States are bound by the rules of IL
In Article 38(1) ICJ Statute, we find the sources of International Law.
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
recognized by the contesting states; treaties, conventions, pacts…
b. international custom, as evidence of a general practice accepted as law, non written law,
but not less authoritative than treaty law.
c. the general principles of law recognized by civilized nations, the principles often derive
from domestic legal systems.
d. subject to the provisions of Article 59, judicial decisions (case law, international or
national domestic courts) and the teachings of the most highly qualified publicists (scholars,
academic lawyers) of the various nations, as subsidiary means for the determination of rules
of law.
so subsidiary sources (judicial decisions, academic lawyers) do not operate on the very same
level as a, b, c. But these are more interpretative sources. Subsidiary sources are not sources
in their own right, So these can clarify legal doctrine, in relation on how a,b,c apply. So that
they try to determine the normative scope.
This is not only the choice of law of the ICJ in disputes, This article is also the authoritative
statement of what the sources of international law are. So this article in International law is
very important. A legal argument begins and ends with this article.
Extra slide:
Article 38(1) ICJ Statute
•No hierarchy between sources (treaties, CIL and general principles operate on the same
level)
•But there is a concept of subsidiary sources (judicial decisions and writings)
•The relationship between treaty law and CIL
•No hierarchy, equally authoritative
•Operate in parallel (a new treaty does not extinguish a pre-existing custom)
•Multilateral treaties can codify pre-existing custom
•Widely ratified multilateral treaties can lead to new custom
Treaties (conventions, agreements, pacts)
•Think of treaties as a concept similar to contracts in domestic law (private law logic)
•Imagine treaties as contractual relations between states
•Only parties are bound by treaties (like contracts domestically)
•Regulated by the VCLT(only between states) and under customary international law the
VCLT for the most part codifies pre-existing CIL. So the VCLT was drafted in 1969, clearly
treaties existed before that, regulated by CIL.
•Treaties can be of various kind
•Bilateral;2, multilateral;vclt, universal (uncharter, almost all states bound by it)
•Technical (e.g. Treaty on Musical Pitch) or creative of an international organization (i.e. UN
Charter)
•Details on treaties in week 2
So only states party to a certain treaty can violate that treaty (so always check), which
means that if a State is not a party to a treaty, it cannot violate it. So treaties are not
,applicable to all States, but to the States that are parties to that treaty. States have treaty
making capacity under IL, individuals, transnational corporation not (contractual).
Customary International Law (CIL)
•Two components
-State practice: what states do, behavior
-Opinio juris: belief of states that this behavior is required by law
•Unwritten law, yet no less binding than treaties, the legal obligations under custom is much
more difficult to see, then treaty law, because we can look at treaty text. Custom is
unwritten, so no text, for example.
•State practice and opinio juris need to be general, but not necessarily universal
So it does not need to be followed by every single state in the world, but the more the better.
•Generally applicable on states (on all states in the world, also on those states that did not
engage in providing opinio juris and State practice)
•The persistent objector status (States that fundamentally disagree with the development of
the new rule, they have the possibility of making sure they are in the end not bound by the
rule)
-the ICJ more clearly identified in the The Anglo-Norwegian Fisheries case
-The objecting state needs to start objecting in the formative stages of the rule and needs to
object persistently
identify if there is a general applicable rule of CIL that has developed and whether any of the
states could be persistent objectors (high burden of proof).
General principles of law
•Derived from domestic legal systems
•Systemic elements of international law they can reconcile a conflict between treaty
obligations, or to identify the scope of a legal obligation.
•Some examples•Pacta sunt servanda•Lex posterior derogat legi priori•Les specialis derogat
legi generali•Estoppel
This is a slightly controversial source of law, it is not used very often. The ICJ has never
decided a case only on general principles. They are more used to help interpret treaty and CIL
rules, rather than sources in their own right.
Subsidiary sources
•Writers
-Teachings of the most highly qualified academic lawyers may be used for doctrinal
clarification
•Judicial decisions
-Note that this are not merely international judicial decisions
•Case law of domestic courts may also be relevant
•Note that international law is not common law, although in practice the ICJ’s case law may
be very important
CIL rule is hard to identify, ICJ identifies costum, ICJ decisions is a very authoritative place to
, look to the decisions of ICJ, or domestic ones. For example: jurisdiction and immunity is
largely developed by domestic courts.
the relationship between treaty and CIL
•No hierarchy between them, just that treaties are the first in art 38, does not mean it is
more highly ranked, or a priority. Treaty and CIL operate on the same level.
•Can exist in parallel (a new treaty does not extinguish pre-existing custom regulating the
same subject matter) (see ICJ, the Nicaragua case, paras 178 and 179) treaty law is regulated
by Vienna convention and CIL. Exist in parallel. VCLT is widely ratified international treaty,
but not universal France for example did not sign it. But the rules of treaty law are still
bounded on France, because cil. Vclt for the most part codified pre- existing custom.
•A treaty can codify pre-existing custom (vclt,law of the sea for example too UN convention)
•A widely ratified treaty may lay foundations for a new customary rule of international law
example: 1966 international covenant on civil and political rights.
- If we want to know the scope of CIL rule, right to life, this treaty reflects custom so
the scope will be roughly the same so we can use for the interpretation the treaty.
is there a hierarchy of sources? NO
•International law is a horizontal legal system
•Unlike domestic legal systems where constitutions are on the top
•There is no hierarchy of sources
•All sources apply on the same level particulary treaty and custom but in theory also general
principles. There is nothing like a vertical relationship like in domestic legal systems. (maybe
refer to the paper written about hierarchy)
Some special examples: what are they in terms of sources?
•Jus cogens and obligation erga omnes (towards everyone, the effects of jus cogens.)
• some say it is Double custom, normative content of the norm customary international law
and its special character adopted through international custom.
•Some say jus cogens are General priciples
Jus cogens is a bit controversial topic, it is acknowledged that something like jus cogens exist
in theory but practical application is another question. Jus cogens norms have a strong
ethical underpinning, such as the prohibition of slavery, prohibition of racial discrimination,
use of force, torture for example. So the prohibition of torture may be of jus cogens standing
but it does not create remedies where remedies otherwise do not exist. So, if there is a jus
cogens violation, this give not a procedural right to ask for compensation, or does not
override immunity (states). So the practical effects of jus cogens are very
debatable/controversial. it is not Jus cogens is not a source on itself but can be find in the
38(1) sources icj statute. Article jus cogens is mentioned in VCLT: treaties conflicting with a
peremptory norm of general international law (jus cogens)
•UN Security Council Resolutions
-Normative force derived from the UN Charter which is a treaty
-Binding only those that are adopted under Chapter VII UN Charter
•UN General Assembly Resolutions
-Not legally binding per se,
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