HI - Week IV - Sources of International Law I
Sources of International Law
General Course of Public
International Law – Week VII
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
1
What is sources?
“…those provisions operating within
the legal system on a technical
level, and such ultimate sources
as reason or morality are
excluded, as are more functional
sources such as libraries and
journals”.
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
2
Classification of Sources ;
Schwarzenberger
• Formal a source from which a rule of
law derives it force and validity a rule
will be legally binding if it meets the
requirements of a custom
• Material a source from which is derived
the matter state practice
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
3
Article 38 (1) of the Statute of the
International Court of Justice
• The court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply
– International conventions, whether general or
particular,
establishing rules
expressly
recognized by the contesting States
– International custom, as evidence of a general
practice accepted as law
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
4
Article 38 (1) of the Statute of the
International Court of Justice - II
– The general principles of law recognized by
civilized nations
– Subject to the provision of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of
rules of law
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
5
Treaties
• Similar terms : Conventions, International
agreements, Pacts, General Acts, Charters,
Statutes, Declarations and Covenants.
• Vienna Convention on the Law of Treaties 1969,
article 2 :
treaty means an international agreement
concluded between States in written form and
governed by international law, whether
embodied in a single instrument or in two or
more related instruments and whatever its
particular designation
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
6
Treaties - II
• Law making treaties intended to have
universal or general relevance the
Vienna
Convention
on
Diplomatic
Relations 1963 & the 1959 Antartica
Treaty
• Treaty contracts apply only as between
two or a small number of states and on a
limited topic but may provide evidence of
customary rules extradition treaties
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
7
Treaties - III
• Parties that do not sign and ratify the
particular treaty are not bound by its terms
article 34 of Vienna Convention 1969
• Extension to non parties :
– Article 2(6) of the UN Charter “the
organization shall ensure that states which
are not members of the UN act in accordance
with these principles so far as may be
necessary
for
the
maintenance
of
international peace and security”
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
8
International Custom
• ICJ in the Nicaragua Case 1986,
elements of Custom :
– a general practice
– opinio iuris sive necessitatis
accepted as law
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
9
Nicaragua Case 1986
• Nicaragua v. United States
• 1979 the right-wing government in
Nicaragua was overthrown by the left wing
• 1981 US terminated economic aid to
Nicaragua on the ground that Nicaragua
had aided guerrillas fighting against El
Savador by allowing USSR arms passed
through its ports and territory
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
10
Nicaragua Case 1986 - II
• Nicaragua claimed that the US had acted
in violation of customary international law
by :
– Using direct arms by laying mines in
Nicaraguan international and territorial waters,
causing damage on ships, ports, etc
– Giving assistance to the left wing
– Breaching the bilateral 1956 US-Nicaraguan
Treaty of Friendship, Commerce and
Navigation
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
11
International Custom - II
• Treaties can be evidence of customary
law:
– Bilateral extradition political offenders
shall not be extradited even when treaties
are silent on this matter
– Multilateral intended to codify customary
law can be enforced to the non party to it
even though has not been ratified by a
sufficient number to come into force.
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
12
International Custom - III
• Exp : the 1969 Vienna Convention on Law
of Treaties states not party to it are
bound by customary law
• If a non party state can prove that the
provision is not a customary law it can
disregard the provision stated in the treaty
• This possibility is not open to states which
are parties
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
13
International Custom - IV
• A single precedent is not enough to become CIL
• Asylum Case, Columbia v. Peru (1950) :
– Unsuccessful rebellion in Peru in 1948
– An arrest warrant was issued on Haya de la Torre, a
peruvian national
– Granted asylum in Colombia
– Peru refused to allow de la Torre out of the country
– The Colombian invoked “American International Law
in General”
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
14
International Custom - V
• Colombia asked the Court to rule :
“Colombia, as the state granting asylum, is competent to qualify the
offence for the purposes of the said asylum”.
• The Court rejected the Colombian Government’s
argument stating :
“the court cannot therefore find the Colombian
Government has proved the existence of such a
custom…”
“customary rule must be based on “a constant and
uniform usage”
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
15
International Custom - VI
• The formation of a customary rule in the
case is the consistency in the practice
• What is general practice :
– Depends on the circumstances of the case
and the rule at issue
– Inclds. The conduct of all states which can
participate
– It does not require the unanimous practice of
all states or other international subjects
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
16
International Custom - VII
• A state can be bound by the general
practice if it does not protest against the
emergence of the rule and continues
persistently to do so
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
17
International Custom - VIII
• North Sea Continental Cases,
Germany
v.
Denmark
and
Netherlands, 1969
FDR
the
– Bilateral agreements between the adjacent
and opposite states drawing median line
delimiting the North Sea continental shelves,
incl. agreements between the Netherlands
and the FDR (1964) and Denmark and the
FDR (1965)
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
18
International Custom - IX
• Only dividing line for a short distance from
the coast
• Begins at the point at which the land
boundary of the three states concerned
was located
• What principles and rules of international
law are applicable?
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
19
International Custom - X
• Denmark and the Netherlands argued the
“equidistance
special
circumstances
principle” in art. 6 (2) the 1958 Geneva
Convention on the Continental Shelf
applied
• The FDR denied and proposed “the
doctrine of the just and equitable share”
• The court rejected all the arguments
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
20
Opinio Iuris Sive Necessitatis
• Defined as a conviction felt by states that
a certain form of conduct is required by
international law imposing duties
• Permitting states to act in particular way
permissive rule prosecute foreigners
for crimes committed within the
prosecuting state’s territory
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
21
Opinio Iuris Sive Necessitatis - II
• Distinction made in the Lotus Case, 1927 :
– French ship collided with Turkish on the high
seas
– Turkish nationals were lost their lives
– French Lieutenant was convicted
– Turkey had jurisdiction?
– Turkey argued permissive rule empowering it
to try him
– The PCIJ accepted the Turkish argument
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
22
Opinio Iuris Sive Necessitatis - III
• No protest from which the concerned
states in previous cases
• There was no evidence that states in
previous cases, which had refrained from
prosecuting, had done so out of legal
obligation
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
23
Opinio Iuris Sive Necessitatis - III
• Elements :
– State practice
– It reflects a legal obligation
– Exp. Flag salute greeting a foreign ship on the
high seas based on comity
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
24
General Principles of Law
• Historical background : in order to provide
a solution in cases where treaties and
custom provided no guidance (non liquet)
• Three views:
• ‘law’ incorporates ‘natural law’
• ‘law’ in Article 38(1)(c) is international law
• general principles mean those principles
recognised by national law systems
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
25
General Principles
• The travaux preparatoires of Article 38 ICJ Statute
(1920 PCIJ and 1945 ICJ) confirms the third view.
• principle of acting in good faith in international
relations
• Nuclear Tests cases (1974)
• UN Charter Art. 2(2)
• UNGA Resolution 2625 (xxv) Declaration on
Principles of International Law Concerning Friendly
Relations and Co-operation Among States, 1970
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
26
General Principles
• some other principles recognised by
the courts include …
• obligation to make reparation
(Chorzow Factory case 1928)
• estoppel – State must not deny the
truth of statements made by their
accredited representative (Temple of
Preah case 1962)
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
27
General Principles :
• Robert Redslop
(1923)
• pacta sunt servanda
• freedom of States
• equality of States
• international
solidarity
10/26/17
• Ian Brownlie (1931)
• sovereignty
• non-interference
• state immunity
• self determination
Prepared by SNMP for Gen
eral Course of Public Int
28
General Principles
• UNGA Resolution 2625 (xxv) Concerning
Friendly RelationsBetween States, 1970
• non-use of force
• peaceful settlement of disputes
• co-operation in accordance with UN Charter
• equal rights and self-determination
• sovereign equality of States
• good faith in fulfillment of obligations
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
29
General Course of Public
International Law – Week VII
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
1
What is sources?
“…those provisions operating within
the legal system on a technical
level, and such ultimate sources
as reason or morality are
excluded, as are more functional
sources such as libraries and
journals”.
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
2
Classification of Sources ;
Schwarzenberger
• Formal a source from which a rule of
law derives it force and validity a rule
will be legally binding if it meets the
requirements of a custom
• Material a source from which is derived
the matter state practice
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
3
Article 38 (1) of the Statute of the
International Court of Justice
• The court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply
– International conventions, whether general or
particular,
establishing rules
expressly
recognized by the contesting States
– International custom, as evidence of a general
practice accepted as law
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
4
Article 38 (1) of the Statute of the
International Court of Justice - II
– The general principles of law recognized by
civilized nations
– Subject to the provision of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of
rules of law
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
5
Treaties
• Similar terms : Conventions, International
agreements, Pacts, General Acts, Charters,
Statutes, Declarations and Covenants.
• Vienna Convention on the Law of Treaties 1969,
article 2 :
treaty means an international agreement
concluded between States in written form and
governed by international law, whether
embodied in a single instrument or in two or
more related instruments and whatever its
particular designation
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
6
Treaties - II
• Law making treaties intended to have
universal or general relevance the
Vienna
Convention
on
Diplomatic
Relations 1963 & the 1959 Antartica
Treaty
• Treaty contracts apply only as between
two or a small number of states and on a
limited topic but may provide evidence of
customary rules extradition treaties
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
7
Treaties - III
• Parties that do not sign and ratify the
particular treaty are not bound by its terms
article 34 of Vienna Convention 1969
• Extension to non parties :
– Article 2(6) of the UN Charter “the
organization shall ensure that states which
are not members of the UN act in accordance
with these principles so far as may be
necessary
for
the
maintenance
of
international peace and security”
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
8
International Custom
• ICJ in the Nicaragua Case 1986,
elements of Custom :
– a general practice
– opinio iuris sive necessitatis
accepted as law
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
9
Nicaragua Case 1986
• Nicaragua v. United States
• 1979 the right-wing government in
Nicaragua was overthrown by the left wing
• 1981 US terminated economic aid to
Nicaragua on the ground that Nicaragua
had aided guerrillas fighting against El
Savador by allowing USSR arms passed
through its ports and territory
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
10
Nicaragua Case 1986 - II
• Nicaragua claimed that the US had acted
in violation of customary international law
by :
– Using direct arms by laying mines in
Nicaraguan international and territorial waters,
causing damage on ships, ports, etc
– Giving assistance to the left wing
– Breaching the bilateral 1956 US-Nicaraguan
Treaty of Friendship, Commerce and
Navigation
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
11
International Custom - II
• Treaties can be evidence of customary
law:
– Bilateral extradition political offenders
shall not be extradited even when treaties
are silent on this matter
– Multilateral intended to codify customary
law can be enforced to the non party to it
even though has not been ratified by a
sufficient number to come into force.
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
12
International Custom - III
• Exp : the 1969 Vienna Convention on Law
of Treaties states not party to it are
bound by customary law
• If a non party state can prove that the
provision is not a customary law it can
disregard the provision stated in the treaty
• This possibility is not open to states which
are parties
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
13
International Custom - IV
• A single precedent is not enough to become CIL
• Asylum Case, Columbia v. Peru (1950) :
– Unsuccessful rebellion in Peru in 1948
– An arrest warrant was issued on Haya de la Torre, a
peruvian national
– Granted asylum in Colombia
– Peru refused to allow de la Torre out of the country
– The Colombian invoked “American International Law
in General”
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
14
International Custom - V
• Colombia asked the Court to rule :
“Colombia, as the state granting asylum, is competent to qualify the
offence for the purposes of the said asylum”.
• The Court rejected the Colombian Government’s
argument stating :
“the court cannot therefore find the Colombian
Government has proved the existence of such a
custom…”
“customary rule must be based on “a constant and
uniform usage”
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
15
International Custom - VI
• The formation of a customary rule in the
case is the consistency in the practice
• What is general practice :
– Depends on the circumstances of the case
and the rule at issue
– Inclds. The conduct of all states which can
participate
– It does not require the unanimous practice of
all states or other international subjects
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
16
International Custom - VII
• A state can be bound by the general
practice if it does not protest against the
emergence of the rule and continues
persistently to do so
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
17
International Custom - VIII
• North Sea Continental Cases,
Germany
v.
Denmark
and
Netherlands, 1969
FDR
the
– Bilateral agreements between the adjacent
and opposite states drawing median line
delimiting the North Sea continental shelves,
incl. agreements between the Netherlands
and the FDR (1964) and Denmark and the
FDR (1965)
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
18
International Custom - IX
• Only dividing line for a short distance from
the coast
• Begins at the point at which the land
boundary of the three states concerned
was located
• What principles and rules of international
law are applicable?
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
19
International Custom - X
• Denmark and the Netherlands argued the
“equidistance
special
circumstances
principle” in art. 6 (2) the 1958 Geneva
Convention on the Continental Shelf
applied
• The FDR denied and proposed “the
doctrine of the just and equitable share”
• The court rejected all the arguments
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
20
Opinio Iuris Sive Necessitatis
• Defined as a conviction felt by states that
a certain form of conduct is required by
international law imposing duties
• Permitting states to act in particular way
permissive rule prosecute foreigners
for crimes committed within the
prosecuting state’s territory
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
21
Opinio Iuris Sive Necessitatis - II
• Distinction made in the Lotus Case, 1927 :
– French ship collided with Turkish on the high
seas
– Turkish nationals were lost their lives
– French Lieutenant was convicted
– Turkey had jurisdiction?
– Turkey argued permissive rule empowering it
to try him
– The PCIJ accepted the Turkish argument
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
22
Opinio Iuris Sive Necessitatis - III
• No protest from which the concerned
states in previous cases
• There was no evidence that states in
previous cases, which had refrained from
prosecuting, had done so out of legal
obligation
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
23
Opinio Iuris Sive Necessitatis - III
• Elements :
– State practice
– It reflects a legal obligation
– Exp. Flag salute greeting a foreign ship on the
high seas based on comity
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
24
General Principles of Law
• Historical background : in order to provide
a solution in cases where treaties and
custom provided no guidance (non liquet)
• Three views:
• ‘law’ incorporates ‘natural law’
• ‘law’ in Article 38(1)(c) is international law
• general principles mean those principles
recognised by national law systems
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
25
General Principles
• The travaux preparatoires of Article 38 ICJ Statute
(1920 PCIJ and 1945 ICJ) confirms the third view.
• principle of acting in good faith in international
relations
• Nuclear Tests cases (1974)
• UN Charter Art. 2(2)
• UNGA Resolution 2625 (xxv) Declaration on
Principles of International Law Concerning Friendly
Relations and Co-operation Among States, 1970
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
26
General Principles
• some other principles recognised by
the courts include …
• obligation to make reparation
(Chorzow Factory case 1928)
• estoppel – State must not deny the
truth of statements made by their
accredited representative (Temple of
Preah case 1962)
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
27
General Principles :
• Robert Redslop
(1923)
• pacta sunt servanda
• freedom of States
• equality of States
• international
solidarity
10/26/17
• Ian Brownlie (1931)
• sovereignty
• non-interference
• state immunity
• self determination
Prepared by SNMP for Gen
eral Course of Public Int
28
General Principles
• UNGA Resolution 2625 (xxv) Concerning
Friendly RelationsBetween States, 1970
• non-use of force
• peaceful settlement of disputes
• co-operation in accordance with UN Charter
• equal rights and self-determination
• sovereign equality of States
• good faith in fulfillment of obligations
10/26/17
Prepared by SNMP for Gen
eral Course of Public Int
29