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PIL - Week 3 - Customs/GPIL - Coggle Diagram

- - - - F. Declarations and Other Sources
        
        G. Soft Law and Non-Binding Documents
        
        H. Super Norms
        
        H1. Jus Cogens - Deals with gravity of the violation, w/n other obligation can trump that violation.
        
        H2. Obligations Erga Omnes - Deals with standing of a state to sue, whether you can be considered an injured party or not.
        
        Definition - Obligations owed to the international community as a whole. These are derived from contemporary international law.
        
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        Definition (VCLOT 53) - Compelling law; the highest possible form of international law. A norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted.
        
        Effect - Jus Cogens allow no derogation from them. They invalidate any existing treaty which come into conflict with them.
        
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        Modification (VCLOT 53) - Only a subsequent jus cogens norm can modify a jus cogens norm.
        
        All jus cogens are erga omnes obligaitons; not all erga omnes obligations are jus cogens.
        
        Sir says VLCT 53 not a definition, but defines by effect.
        
        Definition - Non-legally binding instruments, used in contemporary international relations. An international instrument, signed by subjects of international law, that are not binding.
        
        How Identified - Generic statements, statements of policy, that are not legally enforceable.
        
        Usually, attached to treaties to further elaborate details.
        
        Soft law in Treaties - Treaties can have soft law provisions, such as when they are too general and ambiguous to be legally binding. - Treaties may be formally binding but, vagueness, indeterminacy, or generality of their provisions may deprive them of the character of hard law.
        
        Also allows States to avoid domestic ratification processes.
        
        Unilateral Declarations - Public declarations which manifest the will of a state to be bound may have the effect of creating legal obligations. Any state has capacity to undertake legal obligations through unilateral declarations.
        
        How Binding - Based on good faith. Thus, states concerned may take them into consideration and rely on them; such States are entitled to require that such obligations be respected.
        
        Conflict - A unilateral declaration in conflict with a peremptory norm of GIL is void.
        
        Effect on Other States - cannot bind another state. However, if they accept the declaration clearly, they may incur obligations.
        
        Interpretation - Binds the declaring state only if it is stated in clear and specific terms. In case of doubt, restrictive interpretation to limit the scope of the obligations.
        
        Required Form - Orally, or in writing. Sir says in preamble, formal declarations, formulated by a state. Orally made, but in formal language.
        
        When Binding (GPUDS 4) - Only if made by an authority vested with the power to do so. By virtue of their functions, heads of state/government, ministers for foreign affairs are competent. other persons may be authorized if topic of declaration falling within their competence.
        
        Minister of Justice (Armed Activities) - In principle may, under certain circumstances bind the State. Provided that, statements were made under functions of the MoJ.
        
        Generally, content and circumstances of the Unilateral Declaration must be analyzed.
        
        Revocation - Unilateral declaration MAY NOT BE revoked arbitrarily. Determination of arbitrariness must be based on:
        
        Specific TERMS - Terms of the declaration relating to the revocation
        
        Extent;RELIANCE - to which those to whom the obligations are owed have relied on such obligations
        
        Extent;CHANGE - to which there has been a fundamental change in the circumstances.
        
        Other Sources -
        
        Conclusions - Of International Conferences
        
        Codification - and the work of the international law commission.
        
        Resolutions - of the general assembly, generally do not create law, except as to certain administrative matters with regards to state-members
        
        Writings - of Publicists
        
        Examples -
        
        Protest
        
        Recognition
        
        Renunciation
        
        Notification -
        
        Promise - Only unilateral act that gives rise to a proper international obligation. Establishes a new rule and binds the promising state towards one or more states.
        
        When binding (Nuclear Tests) - Declaration must:
        
        Very Specific
        
        Intent - to make the state bound
        
        Public - Given publicly, and with an intent to be bound, even though
        not made within the context of international negotiations
        
        Legal - concern legal or factual matters
        
        Who May Make (Nuclear States) - Head of State, other members of the government.
      - Scope - Only subsidiary means for the determination of rules of law. This covers both international and domestic decisions.
        
        Purpose of Domestic Decisions - Useful statements of international law on a particular point; Courts being state organs, their decisions constitute state practice on a question of customary law. Serves as evidence.
        
        Non-Binding nature of ICJ Decisions (CJ 59) - The decision of the Court has no binding force except between the parties and in respect of that particular case.
        
        Application - Evidence of the existence of a law. While no precedence per se, the courts strive to maintain judicial consistency nonetheless.
        
        Subsidiary Means - Determination under the ICJ means:
        
        A verification of the existence and state of rules of law; and
        
        A verification of the proper interpretation of rules of law (the ‘verification process’)
        
        Teachings - Help States and courts discern what the law is, and may help policy-makers
        decide what the law should be
        
        But they have no independent force
        
        Such works are resorted to by judicial tribunals for trustworthy
        evidence of what the law really is (Paquete Habana)
    - - D2. Historical Background
        
        D3. How Applied - Tribunals adopts, edits, and chooses elements form other developed systems. This results in a body of international law, the content of which has been influenced by domestic law but which is still its creation.
        
        Tribunals do not create principles, but instead identify such principles.
      - Subsidiary Source - Norm-setting processes that bring about rules to which recourse may only be had if and when no rule produced by a primary or secondary source regulates a certain matter.
        
        Purpose -
        
        General Principles of Law - fill possible gaps in the body of treaty and customary rules; avoid a non liquet, that is, a ruling by courts that the dispute cannot be adjudicated for lack of legal rules governing the matter
        
        General Principles of International Law - to choose between two or more confliciting interpretations of a treaty or customary rule.
      - General Principles of Law - Principles in municipal/domestic law. These are adopted in instances where there are no existing rules. Subsidiary Sources.
  - - - C3. Elements -
        
        General/State Practice (North Sea) - an established, widespread and consistent practice on the part of the states. This refers to what states do in relations with each other. This must be extensive and uniform.
        
        Accepted as Law (Opinio Juris) - opinion as to law or necessity; state of mind. This is subjective, there must be belief that something is permitted or prohibited by international law.
        
        C4. Local/Regional Custom (DC 16) - These apply only to particular states. However, ALL parties must comply with the custom for it to arise. Uniformity in practice is essential.
        
        Minimum Number (Right of Passage) - Only two states required for customs to arise.
        
        Requirements
        
        Uniformity
        
        Proof
        
        Duration of Practice (DC 8 & North Sea) - Only requirement is that the practice be general i.e., widespread, representative and consistent. No particular duration is required for it to ripen into customary law.
        
        Materials used to Identify Customary Law (DC 11-14)
        
        Treaties (DC 11) - May reflect a rule of customary law.
        
        Teachings (DC 14) - If from most highly qualified publicists of the various nations, may serve as subsidiary means for the determination of rules of international law.
        
        Resolutions (DC 12) - Cannot, of itself create a rule of customary international law. But, may reflect or serve as evidence of such.
        
        Court/Tribunal Decisions (DC 13) - Serve as subsidiary means for the determination of such rules.
        
        Treaties - Reflects CIL if:
        
        CODIFIED - a rule of customary international law existing at the time when the treaty was concluded;
        
        CRYSTALIZATION - Has led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or
        
        GENERAL PRACTICE - Has given rise to a general practice that is accepted as law (opinio juris), thus generaitng a new rule of CIL.
        
        Rules Repeated in Treaties - Does not necessarily indicate that the treaty rule reflects CIL.
        
        Resolutions -
        
        A resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law.
        
        A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development.
        
        A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris).
        
        Court/Tribunal Decisions -
        
        Decisions of international courts and tribunals, in particular of the International Court of Justice, concerning the existence and content of rules of customary international law are a subsidiary means for the determination of such rules.
        
        Regard may be had, as appropriate, to decisions of national courts concerning the existence and content of rules of customary international law, as a subsidiary means for the determination of such rules.
        
        Short Practice (North Sea) - must be extensive and virtually uniform.
        
        Sir says counter-intuitive, because custom suggests it becomes binding after a period of time.
        
        Specially Affected States - North Sea suggests that it only applies to customs without the passage of a considerable period of time.
        
        Instant Custom (Nicaragua) - Rejected. Based from theory that general resolutions could instantly become a custom.
        
        Opinio Juris; Uniform Practice - Opinio juris is the belief that practice is rendered obligatory by the existence of a rule of law requiring it. Thus, there can be uniform practice independent of opinio juris, such as when the parties are following it for mere convenience.
        
        State Practice - Merely conduct of a state. Sir argues, conduct of a government, not conduct of a state. Must be general, extensive and uniform.
        
        General (Draft Conclusions 8.1)- Sufficiently widespread, representative, and consistent.
        
        Representative - Requires that states specially affected be considered. All categories of states must be represented such as third world/developing/developed, etc.
        
        Consistent - The practice of the conduct must be regular. So long as there is substantial consistency in the practice of the conduct.
        
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        Forms of Practice (DC 6) - Both physical and verbal, as well as inaction may be considered to determine state practice.
        
        No hierarchy among the various forms of practice.
        
        Opinio Juris - Problematic on two grounds.
        
        Belief - Hard to determine belief of a state.
        
        Paradox - How can practice develop into a customary rule if States have to believe that the rule already exists before their acts of practice can be significant for the creation of the rule?
        
        Forms of Opinio Juris (DC 10) - includes, but not limited to public statements, official publications, govt. legal opinions, diplmatic correspondece, national court decisions, treaty provisions, conduct in connection with resolutions adopted by international organizations
        
        Inaction - May serve as evidence of acceptance as law (opinio juris) provided that States were in a position to react and the circumstances called for some reaction.
      - Exceptions
        
        Special or Customary Law - Applicable only to a defined group of States
        
        Persistent Prior Objector (DC 15) - A state which has objected consistently to the application of a rule of law while it was on the process of becoming a rule. Such states can continue to opt out of the application of the rule.
        
        State Practice (DC 5) - Any state conduct, whether executive, legislative or judicial functions. No hierarchy, can extend to action or inaction.
        
        Persistent Objector - Little Jurisprdential support for acceptance of persistent objectors. Asylum and Anglo-Norwegian. Sir says in both of the cases, persistent objector was not used.
        
        Draft Conclusions - Adopted by the ILC, an expert's group on international law. Purpose is to codify international law. (Lex Lara; Law as it stands now and Lex Ferenda Law as it should be).
        
        Requirements for invocation [Conclusion 15 and Commentary, DCICL]
        
        PERSISTENT;FORMATION - A State has persistently objected to an emerging rule of customary international law, while the rule in question was in the process of formation
        
        The assessment of whether or not the objection is persistent is a pragmatic manner, depending on the circumstances (consistency, reiterated when needed, etc.)
        
        MAINTENANCE - The State maintains its objection after the rule has been crystallized.
        
        Once an objection is abandoned, expressly or otherwise, the State becomes bound by the rule
        
        CLEARLY EXPRESSED - The objection must be clearly expressed
        
        Clear verbal objection, either in written or oral form, as opposed to physical action, will suffice
        
        INTERNATIONALLY COMMUNICATED - The objection must be communicated internationally.
        
        Internal objection will not suffice
      - International Organizations (Draft Conc. 4) - In certain cases, practice of international organizations can contribute to the formation/expressino of rules of itnernational law.
        
        Other Non-State Actors (DC 4) - Non-State actors other than international organizations is not practice that contributes to formation/expression. HOWEVER, may be relevant when assessing practice.
        
        Certain Cases (DC 12) - Resolutions of international organizations can provide evidence for establishment of existence of customary international law.
        
        Subsequent Treaties (Nicaragua 73) - Mere codification of principles does not mean that treaties supersede customs or vice versa. Both apply separately, and retain binding force individually.
    - - How Made - Not a deliberate lawmaking process. |
        
        Enforcement of Claim - Sufficient to establish that the rule exists in customary law. |
        
        A state which relies on a rule of treaty law must show that the other party is bound by the treaty.
        
        Scope - Sir says customs and treaties, more or less the same. Can or cannot affect all states.
        
        Something about intentional vs unintentional creation of laws (paved roads vs beaten path analogy)
        
        States come together willingly to agree upon legal standards of behavior binding upon all those who participate in the lawmaking process.
      - Unlike treaties which have a main and conscious intent to lay down international rules/standards.