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SOURCES OF INTERNATIONAL LAW, ICJ Case concerning the application of the…
SOURCES OF INTERNATIONAL LAW
Art 38 Statute of the ICJ: sources of IF
International customary law
Conventions
General principles of IL
Judicial decisions
Writings of publicists
Equity
but doesn't provide a hierarchy of sources, doesn't reflect the evolution of IL
Customary law:
objective (material element)
subjective (psychological element)
universality not required
must be proved by states (cannot be presumed) in connection with a dispute to be decided by a tribunal (national or international): ex
ICJ judgment Germany v. Italy 2012
objective element: a relatively uniform and constant State practice (no ambiguity).
Public actions and public verbal acts
State organs (heads of states, foreign ministers,...)
treaties, executive decisions, state legislation,...
Duration? ICJ, North Sea Continental Shelf Cases 1969= no particular/ pre-determined duration is established for State practice to become customary law.
Example of immediate customs: freedom of extra-atmospheric space.
How uniform and consistent must be the practice? ICJ, case Nicaragua v. US 1986: if a state acts in a way prima facie incompatible with a recognized rule, but defends its conduct by contained within the rule itself, the significance of that attitude is to confirm rather than to weaken the rule.
How general/ extensive must be the practice be? Universality is not required. The opposition of a minority of interested states can block the creation of a new customary norms
Subjective element: states must regard a customary rule as
binding
and must be convinced that they are under a
legal obligation to obey a rule
ICJ Judgment North Sea Continental Shelf Cases 1969
customary rules
rules of international comity
= acts which are not performed by a sense of legal duty
Jus cogens rules:
prohibitive rules, contain obligations of result
peremptory norms (norm accepted and recognized by the international community of states from which no derogation is permitted)
special category of customary international law rules
not mentioned in article 38 ICJ statute
art 53,64,66, 71 VCLT
no list but generally: bans aggressive war, crimes against humanity, war crimes, sea piracy, slavery,...
obligations under customary international law (erga omnes)
:
ICJ decision, Barcelona Traction 1970
accepted and recognised by the international community of states
allow
all states
to claim from the responsible states the cessation of the wrongful act and reparation (even if they are not specifically affected by the violation) = difference regarding jus cogens
Obligaobligations under a multilateral treaty (erga omnes partes)
: a state party to the treaty owes in any given case to the other states parties to that treaty so that a breach of that obligation enables all these states to take action.
persistent objector rule:
state that persistently, consistently and openly dissents from a customary international law rule during the formative stage will not be bound by it
doesn't apply to peremptory rules and jus cogens
ex: UK, US, France object to the prohibition on the use of nuclear weapons.
Difference between customary rules/ treaty rules:
customary rules: binding when objective/ subjective element are separately proved
treaty rules: binding because of the express consent of the states
Conventions: law of Treaties= provides a definition and regulates the
formation
entry into force
application
validity
amendment and modification
interpretation
suspension and termination
of conventions, treaties, agreements, pacts, covenants (bilateral or multilateral).
codified in Vienna Convention on the law of treaties 1969 (= reflects customary international law rules)
fundamental principles:
free consent => relative effect of treaties [exceptions art 34-36 VCLT]
pacta sunt servanda art 26 VCLT
good faith art 18, 26, 31 VCLT
scope of the application of the VCLT art 1,2,3,4,5,29 VCLT
non- retroactivity of treaties
Minimum criteria to identify a treaty:
written
between states
governed by international law
must be intended to create legal obligations
formation of treaties:
negotiations art 7 VCLT
adaptation of the text of a treaty art 9 VCLT
Authentication art 10 VCLT
Consent to be bound art 2(1)(b), 11 + 12-16
VCLT) → signature, ratification, accession...
Entry into force art 24 VCLT
Deposit art 76-77 VCLT
Registration & Publication art 80 VCLT and
art 102 UN Charter
reservations to treaties must be expressed, written, justified, notified to allow acceptance or objection art 20/23 VCLT
Convention of the Council of Europe on Offences relating to Cultural Property:
negociations
adoption
entry into force
unprepared state representatives or lost in translation
Relationship between treaties and customary law :
=>coexistence
treaties may give rise to rules of customary
law
Treaties may reflect and codify rules of
customary law
=>conflict
Lex specialis derogat lex generalis
Lex superior derogat lex inferiori
General principles;
the function= filling the gaps
may serve to avoid the problem of non liquet (argument that a court cannot decide a matter because there is no law on the subject)
reserve source
GP may become customary law rules if they fulfil the objective/ subjective elements
limited relevance as a source of international law (played a marginal role in the case law and advisory opinions of ICJ and PCIJ but widely discussed by judges and scholars)
Case law of ICJ shows multiple principles:
principles inferred from national systems
principles inferred from the nature of the international community and which have no counterpart in national systems
Judicial decisions: subsidiary means for the determination of rules of law, no binding force except between parties and in respect of that particular case art 59 ICJ statute
theory= no authority of precedent in IL
practice= tribunals/ ICJ follow previous decisions= chaotic development of IL
also covers the decisions of domestic courts (= state organs) : express the position of a state with respect to customary law (objective/ subjective element)
other sources of IL:
secondary law of international organizations (not listed 38)
primary law= founding treaties concluded by states
secondary law= acts adopted by IOs (resolutions, directives, ...)
soft law= not a formal source of IL, entails legal effects,
ICJ Advisory opinion on the Legality of the Threat or use of nuclear weapons 1996
hard law= not considered as binding (more of a political gesture)
UDHR 1948
DRIP 2007
DHRET 2011
DRM 2016
Implementation of IL= domestication of IL rules, no legal system is effective if its norms are not enforced.
art 26 VCLT: pacta sunt servanda principle (binding to the parties, good faith)
art 27 VCLT: logic of ratification process
principle of the external/ internal harmony
problem: interational means and procedures for the implementation of IL are weak/ insufficient
state is responsible for the implementation of IL (ensure compliance with and avoid breaches of IL)
Each state can determinate how it will implement its international commitments (acts, procedures, manners, rights, obligations).
can encompass national policies, legislation, judicial decisions, etc.
exceptions to the freedom of states about the implementation of IL= EU law/ international criminal law
Distinction between self-executing / non self- executing treaties/ norms:
non-executing= when IL only attributes faculties, when IL cannot be implemented due to the lack of domestic organs or procedures, when the implementation of IL requires some constitutional procedures/ amendments
implementation of treaties:
treaty is incorporate into a new national law, with treaty as an annex
the treaty is reformulated in a new national law or an amendment to an existing law
ICJ Case concerning the application of the convention on the prevention and punishment of the Crime of Genocide 2019.