Unit 2 the Sources of International Law

8/17/2019 Unit 2 the Sources of International Law

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Ella Siang’andu

Unit 2: The Sources ofInternational Law – Part 1


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The Sources of International Law(IL)

source refers to the origin of ILSource is the rocess !" which the rules !eco#e

identi$a!le as rules of law – Ti# %illier (1&&') P2

Source is not to !e confused with the !asis of ILwhich is !ased on co##on consent of theinternational co##unit"*

Its co##on to distinction !etween the for#al +

#aterial sources of IL,or#al - ,or#al source is the source fro# which

a legal rule deri.es its .alidit" (/reates Law)


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Sources of IL0aterial – ro.ide e.idence of the eistence of

rules which when ro.en !eco#e legall" !indingrules of general alication*

Thus state ractice ractice of inter’l organisations

udicial decisions writings of urists+ resolutions 3all #aterial sources the" indicate what theo!ligations of states are rather than the #ethod !"which those o!ligations !eco#e legall" !inding*

i*e* for#al source of a articular rule #a" !e

custo# although its #aterial source #a" !e foundin a treat" #an" "ears ago (4ennings + 5atts (eds)1&&2) *267


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8rticle 6' of statute of theinternational court of ustice1 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 recognised by the contesting states;

b, International custom, as evidence of a general practiceaccepted as law;

c. The general principles of law recognised by civilised nations;

d. subject to the provisions of rticles !"#, judicial decisions andteaching of the most highly qualied publicists of thevarious nations, as subsidiary for the determination of the rules of

law

$ This provision shall not prejudice the power of the Courtto decide a case ex aequo et bono, if the parties agree*

Court can decide a case ex ae%uo et bono & /rt could al" e9uit"su!ect to arties of the disute agreeing*


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8rticle 6'(1) - I8rt 6' is the traditional starting oint for discussion of sources

of international law*

8art fro# a few for#al changes the article is si#ilar to theStatute of the Per#anent /ourt of International 4ustice (P/I4)*

8rt 6' does not use the ter# source’ !ut rather descri!es how

the /rt is to settle disutes which co#e !efore it forsettle#ent*

8rt 6' does not refer to resolutions of the United ;ations (U;)or an" international


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8rticle 6'(1) - II;o rigid hierarch" of sourcesIt is argued that it was the intention of the

draft #an for the court to o!ser.e the orderin which the" aear

It is o!.ious that treaties and custo# are to!e regarded as i#ortant – necessar" togrant treaties riorit" !ecause it source of#utual o!ligations of the arties*

,urther reading on 8rticle 6' 3ead =ion – Tet!oo> on International Law


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International /on.entions0eans treaties/on.entions?treaties are descri!ed !" .arious na#es e*g*

co.enant #odus .i.endi echange of letters#e#orandu# of understanding rotocols accords/harter act or statute*7

Su!stance rather than na#e that is i#ortant8rticle 2(1) (a) @ienna /on.ention on the Law of Treaties

(@/LT) 1&& - =e$nes a treat" as an internationalagree#ent concluded !etween states in written for# andgo.erned !" international Law

/onsensual engage#ent at international law (SchwarAen!erger)

Treaties #a" !e !ilateral or #ultilateral*

The" #a" create a Beneral + articular treaties


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Beneral Treaties- I8C8 traite loi or legislati.e treaties (Law #a>ing) –

#isleading ter# gi.en the a!sence of an" centrallegislati.e authorit" in the international s"ste#

The" are li>e legislation in the do#estic scene

The" are onl" !inding on states that ha.e signedthe treaties? or !eco#e a art" to treat"*

i*e* #ultilateral treaties or treaties to which asigni$cant nu#!er of states ha.e !eco#e art" andwhich esta!lish legal o!ligations !etween the#*

/reates general nor#s for the future conduct ofarties- o!ligations created are the sa#e for allarties*


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Beneral Treaties- II0ultilateral treaties #a" !e used for a .ariet" of

uroses such as

Esta!lishing a general legal regi#e

/reating international institutions

Ea#les of Beneral Treaties The =eclaration of Paris Treat" 1'D (neutralit" in

#ariti#e warfare)

The %ague /on.iction 1'&& + 1&F (Law of war +neutralit")

The Bene.a Protocol 1&2D (rohi!ition of weaons)

Bene.a /on.ention 1&G'

The United ;ations /harter


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Particular Treaties2) Treaties concluded !etween a li#ited nu#!er of

states – traite contrat – !iartite or !ilateraltreaties

Such treaties #a" !e used to

8gree a !oundar"Esta!lish #ost fa.oured nation trade relations

8gree air transort routes etc*

,itA#aurice – Treaties sources of obligation rather

than sources of law’Beneral 3ule: Treaties are !inding onl" uon the

states arties ( pacta tertii nec nocent nec prosunt )


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EcetionsEcetion to the general rule – treat" can !e

etended to arties who are not a art" to treat" incertain occasionsH

'orth (ea Continental (helf cases# (1&&) I/4 3e*6HG1 IL3 FG*

/ase had to deter#ine the etent to which theBer#an ,ederal 3eu!lic was !ound !" thero.isions of the /ontinental Shelf /on.ention whichit had signed !ut not rati$ed*

/ourt held !" ele.en .otes to si that it was onl"!ound !" the ro.isions of the $rst three articles ofthe con.ention which was !ased on re-eistingcusto#ar" law*


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Treaties #a" !e caa!le of roducing eects which areo!ecti.el" !inding uon third artiesH

a* Esta!lishing a territorial regi#e for a articulararea (disositi.e treat")

aland )sland L;


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Ecetions II*eparations Case (1&G&) I/4 3e 1FGH 1 IL3 61' The U;* )s a subject of international +aw and is

capable of possessing international rights andduties and . -as capacity to maintain its rights

by bringing international claims* P*1FG/* Treaties can codif" /usto#ar" International Law

'icaragua v. ( ( Para#ilitar" 8cti.ities /ase)(1&') I/4 3e * 1GH F IL3 6G&*

=* can also lead to creation of custo#ar"international law (/IL)

;orth Sea /ontinental Shelf /ases (1&&) I/4 3e* 6H G1 IL3 2&


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Treat" in 9uestion need not !e in force toroduce such eects (countries cannot !eforced to co#l")


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International /usto#ar" Law- I

8rt 6'(1) (!) de$nes custo# as:e.idence of general ractice acceted as law’

;eed to show

1* Beneral ractice and

2* That the ractice is acceted as law*

Therefore custo# is a ractice followed !" thosein.ol.ed !ecause the" feel legall" o!liged to!eha.e in such a wa"*

/usto# #ust !e distinguished fro# #ere usagesuch as acts done out of courtes" friendshi orcon.enience rather that out of o!ligation*


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International /usto#ar" Law-II/orresonds to roof of 1* 0aterial ele#ent (corus) +

2* 0ental ele#ent (ani#us)

.States see>ing to rel" uon a rule of custo#ar"

international law in a disute #ust ro.e its eistence*.+otus /ase (,rance . Tur>e") P/I4 Ser* 8 no* 1 * 1'

.,rench shi collided with a Tur>e" shi >illing ' eole

. Tur>e" rosecuted the 2 eole fro# the ,rench crew

./ourt held in fa.our of Tur>e"*

. sylum /ase (/olo#!ia . Peru) (1&D) I/4 3e* * 2H1F IL3 2'*


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0aterial ele#ent (corus)E.idence of this is deri.ed fro# state

ractice

%owe.er the e.idence of state racticealone is not suJcient to esta!lish the

#aterial ele#ent in the for#ation ofcusto#*

0ust !e shown that ractice is

1* Unifor# and consistent2* SuJcientl" general

6* of acceta!le duration


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E.idence of state Practice - whereto $nd it -I

State ractice includes !ut not li#ited to acti.ities could !eo#issions*

E.idence of state ractice consists of acts or state#entsha.ing legal signi$cance can !e found in the following:

1* =ilo#atic corresondence + other dilo#atic echanges

2* The oinions of go.ern#ental legal ad.isers6* State#ent !" co#etent go.ern#ent oJcials

G* 0ilitar" #anuals

D* Treaties

* =o#estic Legislation

F* International + national /ourt decisions'* 0e#orials su!#itted to international tri!unals

&* State#ents and .oting atters in international organisationetc


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E.idence of state Practice - whereto $nd it -II

These factors were listed in 1&D !" theInternational Law /o##ission as classicalfor#s of e.idence of custo#ar"international law’

@alue of the na#ed ea#les of stateractice #ust !e weighed according totheir relia!ilit" i*e*

State#ents #ade in international oliticalforu# #a" not ha.e the sa#e le.el ofcredi!ilit" as the oinions of legal oJcers*

Statutes #a" !e in force !ut #a" not !e

enforced in fact !" national authorities*


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Unifor# and consistent - I8!solute (co#lete) unifor#it" and consistenc" is

;


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%owe.er/ourt went further + said*eliance by a state on a novel right or an

unprecedented exception to the principle might,if shared in principle by other states tend towards

a modi2cation of customary international lawLeading decision sylum case I/4 3eorts (1&D)

1F-F

/rt held that !efore state ractice could !e

ac>nowledged as law the /olo#!ian go.ern#enthad ro.e that the rule in.o>ed !" it is inaccordance with a constant and uniform usageracticed !" the states in 9uestion*


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/ase !etween /olo#!ia . Peru which concernedolitical as"lu# after an unsuccessful re!ellion in Peruone of the leaders was granted as"lu# in the /olo#!iane#!ass"*

/olo#!ia sought a guarantee of safe conduct of the

leader out of Peru which was refused*/olo#!ia too> the #atter to the I/4 + as>ed for a ruling

that /olo#!ia as a state granting as"lu# wasco#etent to 9ualif" the oence for the uroses ofgranting as"lu#*

/olo#!ia argued for the ruling on the !asis of 8rt* 6' ofthe statute of the /ourt which refers to Inter’l custo# ase.idence of a general ractice acceted as law’


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*,acts !rought to the >nowledge of the /rt of so

#uch uncertaint" contradiction Muctuationand discreanc" in the eercise of dilo#aticas"lu# + in the oJcial .iews eressed on

.arious occasions8!sence of inconsistenc" on the issue- ractice

was inMuenced !" olitical eedienc"*


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I/4 #ade a si#ilar ruling in,isheries case I/4 3eorts (1&D1) 11 at

161*

%eld there was no unifor#it" or consistenc"of ractice re9uiring States to li#it closing

lines for !a"s to a #ai#u# of 1 nautical#iles as argued !" the UC*

8ccordingl" su!stantial unifor#it" isre9uired as illustrated in the ,isheries case7- /rt refused to accet the eistence of a1 #ile rule for !a"s*


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SuJcientl" general?Beneralit"Practice needs to !e consistent*Uni.ersalit" is not re9uired – does not re9uire e.er" state to do it

Under 8rt 6' (1) (!) what #atters is that it has to !e acceted aslaw*

;o re9uire#ent that a seci$c nu#!er of states needs to

articiate in ractice for it to reach the standard re9uired forthe creation of custo#*

sylum case – /olo#!ian Bo.ern#ent was as>ed to ro.e therule in.o>ed in accordance with a constant and unifor# usageractised !" the states in 9uestion*

It does not #atter how #an" states are racticing as long as it is

constant + unifor#*In 3isheries 4urisdiction Case / nited 5ingdom v )celand)7 I/4

referred to the etension of a $sher" Aone u to 12 #ile li#itwhich now aears to ha.e !een generall" acceted*


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=uration

;o articular duration is re9uired;o re9uire#ent that a ractice #ust ha.e

eisted for a seci$c length of ti#e*

8!sence of e#hasis on the ti#e ele#ent*

If the two ele#ents of custo# are resentin strong #easure (Unifor# consistent andgeneralit") then ti#e factor is insigni$cant*

This was e.ident in the 'orth (eaContinental (helf /ases – /ases in.ol.ingthe federal 3e of Ber#an" =en#ar> +%olland and a disute o.er the continental

shelf*


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'orth (ea Continental (helf/ases

I/4 said lthough the passage of only a short period

of time is not necessarily, or in itself, a barto the formation of a new rule of customary

international law. n indispensablere%uirement would be that within the

period in %uestion, short though it mightbe, state practice should have been

both extensive and virtually uniformand should moreover have occurred in sucha way as to show a general recognition thata rule of law or legal obligation is involved.


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0ental?Ps"chological ele#ent(ani#us)

6pinio 4uris (ive 'eccessitatis ( It is a !elief in the o!ligator"nature of the conduct in 9uestion or necessit")

0ental ele#ent is a necessar" ele#ent in the for#ation ofcusto#

3eferred to as 6pinio juris

Idea that it is not enough for for#ation of custo#ar" law thatthere is a general unifor# and consistent state ractice*

In order for this ractice to constitute law states #ustrecognise it !linding uon the# as law*

State ractice #ust !e acco#anied !" a belief that the

ractice is o!ligator" rather than #erel" convenient orhabitual*


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6pinio juris

The !elief of the o!ligator" nature of ractice is called 6pinio juris.

In the Lotus case P/I4 e#hasised that 6pinio juris was anessential ele#ent in the for#ation of custo#ar" inter’l law*

@iew was restated in 'orth (ea Continental (helf /ases whereI/4 stated as rigorous as P/I4 in re9uiring roof of 6pinio juris.

'ot only must acts concerned amount to a settled practice,but must also be such or be carried out in such a way, as to beevidence of a belief that this practice is rendered obligatory bythe existence of a rule of law re%uiring it. The need for such a

belief, i.e. the existence of a subjective element is implicit inthe very notion of 6pinio juris sive necessitatis. The statesconcerned must therefore feel that they are conforming towhat amounts to legal obligation.


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The eistence of notion of 6pinio juris #a>es it eas" to

distinguish state ractice a#ounting to law fro# otherstate acti.ities which states do out of friendshi

%owe.er as #uch as it is eas" enough to understandthe need for 6pinio juris.

It is not so eas" to see how it can !e esta!lished*

It is .er" rare that we see state gi.e an account for wh"the" ha.e acted in a articular wa"*


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3elationshi !etween Treat" +/usto#

/usto#ar" + treat" Law ha.e e9ual authorit"*%owe.er if there is a conMict !etween the two it is

the treat" law that re.ails* This oint is illustrated!" the 5i#!ledon case (1&26)7

In case P/I4 while recognising that /IL rohi!ited theassage of ar#a#ents through the territor" of aneutral state into the territor" of !elligerent stateuheld the Treat" of @ersailles 8rt 6' which

ro.ides that Ciel canal was to !e a free + oen toall co##ercial .essels + warshis !elonging tostates at eace with Ber#an"*

In stoing a .essel of a state with which was ateace Ber#an" was in !reach of treat" o!ligations*


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Tutorial

1* 8rticle 6' is to !e regarded to constitute aco#rehensi.e list of sources ofinternational law- =iscuss

Documents

Unit 2 the Sources of International Law