Public international law
Voor het tentamen:
(Nicaragua case doornemen)
- Per week ‘other materials’ doornemen
- Arresten leren en kijken welke in de bundel staan
- oefenen
Week 1: introduction and revision
H2 - Sources of international law
A source of PIL is a process by which international legal norms are created,
modified, or annulled and it is also a place where such norms may be
found.
The term ‘source of international law’ has to meanings as it refers to:
1. Legal process
2. The location of the norms that are the result of these processes
States are both the creators and the subjects of PIL, meaning that they
create a law that than applies to them. States mainly create PIL through
treaties and customary law.
Article 38(1) ICJ Statue lists five different sources of PIL which create
binding legal obligations:
1. Conventions (treaties)
2. Customary IL
a. State practice
b. Opinio juris
3. General principles of law
represent process for law-making
4. Judicial decisions (subsidiary)
5. The teachings of the most highly qualified publicists of the various
nations (subsidiary)
represent places where international legal norms may be found (and
treaties as well)
ICJ
- Is the principle judicial body of the United Nations (UN)
- Is the oldest standing international judicial body
- According to art. 38, the ICJ has jurisdiction over ‘disputes’ and in
deciding these disputes, it is bound to apply the sources listed in §1,
unless the parties indicate otherwise
, 1. Treaty law
Treaties are written agreements between states, between states and IO, or
between IO, which are governed by PIL.
Treaties can also function as ‘constitutive instruments’, which constitute or
establish IO and international courts.
- The UN Charter is the constitutive instrument of the UN
- Rome Statute is the founding document of the International Criminal
Court
States have freedom of making their own treaties as long as the treaty
does not contravene peremptory norms of PIL. Legal norms that are
’peremptory’ or jus cogens are hierarchically above other legal norms as
they are norms from which no State may deviate or derogate. Jus cogens
norms are a type of norm rather than a process of law creation or a place
where legal norms may be found.
The process of making a treaty has several steps:
1. Negotiation and conclusion of a text that is formally adopted
2. States /IO express their consent to be bound by the treaty
a. Expressing the consent usually happens with some form of
approval at the domestic level
3. Entering into force when a certain number of states have expressed
their consent to be bound
a. Once the treaty enters into force, they are binding on the parties
and must be performed by them in good faith (pacta sunt
servanda)
b. They are not binding on parties that have not consented to be
bound!
4. Treaties become living instruments, which may interpreted,
amended or modified and implemented by states at the domestic
level.
5. Treaties may cease to exist through termination or due to invalidity
and they may also be suspended.
2. Customary law
Customary law remains an important source of law in some areas such as
the law governing the immunity of states and high-level state officials in
foreign court proceedings. CL consists of two elements which are both
necessary for the formation of a customary rule which are bot captured in
art. 38(1)(b):
1. General practice (among states and in some occasions IO)
2. Acceptance by or the conviction of states/IO that this practice is
required by law (Opinio juris)
General practice
Refers to consistent actions and statements that are made by states
(physical or written etc.). Has to be widespread and consistent.
,General practice is the objective element and can be found in the words
and action of states. The term ‘operational conduct on the ground’ refers
to physical actions rather than spoken or written statements (since most
statements are just words). This term encompasses a range of actions,
including ‘law enforcement and seizure of property’, as well as battlefield
or other military activity.
The term ‘general practice’ means that the relevant practice does not
hinge on the words or actions of just a few major powers, but instead
involves practice that is ‘sufficiently widespread (when it is large or
extensive but not necessarily universal) and representative (states from
various geographical regions, and with various interests, must engage in
practice), as well as consistent (not an absolute requirement)’.
Persistent objectors when a given customary rule is in the process of
forming, a state that persistently objects to the rule may be exempt from
its application, but only during and after the formation of the customary
rule. Their behavior can still be unlawful due to other rules.
Opinio juris
Opinio juris is the subjective element. The term opinio juris means that
states engage in a given practice out of a sense of legal obligation. In
other words, states recognize or hold a conviction or belief that
international law requires, prohibits, or allows a particular practice.
The relationship between treaty law and customary law
Treaty law and customary law exist in parallel, such that the same rule
may be found in both sources of law. A treaty rule may relate to a rule of
customary law in at least three different ways:
1. A treaty rule may codify a customary rule that already existed at the
time of the treaty’s conclusion.
2. A treaty rule leading to the crystallization of a rule of customary law
that was in the process of emerging prior to the treaty’s conclusion.
3. A treaty rule may itself generate a new customary rule.
In some branches of PIL, customary law exist alongside the treaty rules,
and bind those states that are not parties to particular treaties.
3. General principles of law
General principles of law are unwritten legal norms of a broad character
that play a gap filling role in the international legal field. The principle
ensure that there is no gap if there is an absence of specific rules in treaty
or customary law.
There are two different understandings of this source:
1. General principle of law may be understood as a source of law that
derives from principles that are common in all domestic legal
systems and transportable to an international level.
o Unlike customary law, which derives from the practice among
states, general principles of law derive from the practice
, within states: the fundamental principles of domestic legal
systems.
2. General principles of law may also be understood as fundamental
principles grounded in the international legal system.
o Precautionary and preventive principles for example
4. Decisions (of IO)
IO’s have defining characteristics, in particular they are established by
treat and they possess their own legal personality, separate from their
member states. While the binding character of decisions by an IO derives
from the organization’s constituent treaty or instrument, such decisions
nevertheless constitute an independent source of PIL, separate from treaty
law. The process by which the Security Council reaches a binding decision
is quite distinct than from the process by which states conclude treaties.
The fifteen members of the SC vote on the adoption of resolutions, which
require at least nine affirmative votes. In addition, the five permanent
members of the Council have the power to veto resolutions in particular
circumstances.
- Art. 25 UN Charter (example of binding)
According to Article 10 of the UN Charter, which defines the functions and
powers of the GA, “The General Assembly may discuss any questions or
any matters within the scope of the present Charter or relating to the
powers and functions of any organs provided for in the present Charter,
and … may make recommendations to the Members of the United Nations
or the SC or to both on any such questions or matters.” In other words,
resolutions adopted by the GA on agenda items are considered to be
recommendations. They are not legally binding on the Member
States. The only resolutions that have the potential to be legally
binding are those adopted by the SC!.
5. Unliteral declarations (of states)
This source is not found in article 38 ICJ. Unliteral declarations of states,
made publicly, may in certain limited circumstances create binding legal
obligations for the declaring state, upon which other concerned states are
entitled to rely.
Overig
While the ICJ and other international and domestic courts and tribunals
have played important roles in the development of the international legal
field, they fundamentally do not create IL, this is what states do. Art. 59 ICJ
serves as a reminder of this point.
