Public International Law I

Law 510

Sources of International Law

19 September 2013

Introduction

Five distinct sources of law can be identified from Article 38 (1) of the Statute of the ICJ which is generally taken to be the classic statement of the sources of international law:

• Treaties

• International custom

• General principles of international law

• Judicial decisions

• The writing of the publicists

• Equity a source additional also originates from Article 38.

• However, the above list drafted more than 90 years ago (Article 38 reproduces the same article of the Statute of the PCIJ does not take account of the evolution of international law)

• Secondary legislation of the IGOs should be added to the above list.

• It is debatable whether declarations made by a state or group of states which produce binding legal effects are to be regarded as a distinct source of international law.

• Contemporary international law non-binding rules, the so called soft law, which emanates from states and non-states actors, although not a source of law, plays an increasingly important role in the international law making process.

Treaties

• Treaty can be defined as an agreement (usually written) between two or more states, governed by international law and intended to create legal obligations.

• Distinction between law making treaties (normative treaties) and treaty contracts.

• Law making treaties lay down rules of general or universal application and are intended for future and continuing observance.

• Treaty contracts resemble contracts in that they are concluded to perform contractual rather than normative functions (e.g. building an aircraft).

• They are entered into between two or only a few states and deal with particular matters concerning those states exclusively.

• Such treaties like contract., expire when the parties have performed their obligations (e.g. build the aircraft).

International Custom

A customary rule requires the presence of two elements:

• An objective element consisting of a relatively uniform and constant state practice;

• A psychological element consisting of the subjective conviction of a state that it is legally bound to behave in a particular way in respect of a particular type of situation. This element is usually referred to as the opinio juris sive necessitatis.

The objective element

• This is normally constituted by the repetition of certain behavior on the part of a state for a certain length of time which manifest a certain attitude, without ambiguity, regarding a particular matter.

• However, as no particular duration is required for practice to become law, on some occasion instant customs come into existence.

• For that reason, a few repetitions over a short period of time may suffice or many over a long period of time or even no repetition at all in so far as an instant custom is concerned.

• However, the shorter the time, the more extensive the practice would have to be to become law.

• A practice must be constant and uniform, in particular with regard to the affected states, but complete uniformity is not required.

• It would suffice that conduct is generally consistent with the rule and that instances of practice inconsistent with the rule are treated as breaches of that rule rather than as recognition as a new rule.

• So far as the generality of the practice is concerned, this will usually mean widespread but not necessary universal adherence to the rule.

• Indeed, custom may be either general or regional.

• General customs apply to the international community as a whole.

• Local or regional customs apply to a group of states or just two states in their relations inter se.

The subjective element-opinio juris sive necessitatis

• To assume the status of customary international law the rule in question must be regarded by states as being binding in law, i.e. that they are under a legal obligation to obey it.

• This is a sort of tautological statement i.e. state practice is not law unless state consider it as law.

• Nevertheless, the main purpose of the opinio juris sive necessitatis is to distinguish between a customary rule and mere usage followed out of courtesy or habit

The persistent objector rule

• If during the formative stage of a rule of customary international law a state persistently object to that developing rule it will not be bound by it.

• This rule is known as the persistent objector rule.

• Once a customary rule has to come into existence, it will apply to all states except any persistent objectors.

• However, as objecting state, on order to rely on the persistent objector rule, must:

• Raise its objection at the formative stage of the rule in question;

• Be consistent in maintaining its objection;

• Inform other states of its objection. This is particularly important with regard to a rule which has been almost universally accepted.

• If a state remains silent, its silence will be interpreted as acquiescence to the new rule.

• The burden of proof is on the objective state.

The relationship between treaties and international customs

• Relationship is complex.

• They co-exist, develop each other, and sometimes clash.

• If there is a clash between a customary rule and provision of a treaty then, because they are of equal authority (except when the customary rule involved is of a jus cogens nature) whereupon being superior it will prevail, the one that is identified as being the lex specialis will prevail,

• The lex specialis will be determined contextually.

Special rules of customary international law jus cogens and rules creating erga omnes obligations

• Jus cogens rules represent the highest source in the (informal) hierarchy of sources of international law.

• The emphasis of jus cogens obligations is on their recognition by the international community ‘as a whole.’

• The emphasis of erga omnes is on their nature. It mentioned embody moral values which are of universal validity.

• They are binding because they express moral absolutes from which no state can claim an exemption whatever its political, economic and social organizations.

• The legal consequences of violating erga omnes obligations differ from those for breach of the rules of jus cogens

• In addition to the consequences deriving from a breach of erga omnes obligations further consequences, specified in Article 53 of the Vienna Convention on the Law of Treaties, follow from violations of the rules of jus cogens.

General principles of international law

• If there is no treaty relevant to a dispute or there is no rule of customary international law that can be applied to it, the ICJ is directed under Article 38 of the Statute, to apply general principles of international law.

Judicial decision

• As there is no binding authority of precedent in international law, international court and tribunal cases do not make law.

• Judicial decisions are, therefore, strictly speaking not a formal source of law.

• However, they clarify the existing law on the topic and may, in some circumstances, create a new principle in international law.

• They can also be considered evidence of state practice.

The writing of publicists

• This source generally only constitutes evidence of customary law.

• However, learned writings can also play a subsidiary role in developing new rules of law.

Equity

• This is a complex concept.

• Under Article 38(1) (c) of the ICJ Statute equity is understood to be:

• A general principle of international law and thus may be considered as a material source of law.

• A way of infusing elements of reasonableness and ‘individualized’ justice whenever law leaves a margin of discretion to a court in deciding a case. This is equity which operates within the boundaries of law (equity intra legem)

• Under Article 38 (2), equity means that a decision may be made ex aequo et bono, i.e. the court should decide the case not on legal considerations but solely on what is fair and reasonable in the circumstances of the case (equity contra legem).

• However, the parties must expressly authorize the court to decide a case ex aequo et bono. So far, the ICJ has never delivered any judgment based on Article 38 (2).

Secondary law of IGOs

• There is disagreement whether secondary acts adopted by IGOs constitute a source of law or whether, being a derivative source of law, they do not form part of general international law.

• It is important to make a distinction between primary and secondary law of IGOs.

• Primary laws refer to the founding treaties, i.e. treaty establishing the relevant IGOs.

• Secondary law refer to acts adopted by IGOs on the basis of primary law.

• Under traditional international law, secondary acts cannot be qualified as a separate source of international law.

• They are neither binding, nor abstract, nor general rules but derive from the founding treaties, concern a specific area of law and produce legal effects only in respect of member states of the relevant IGOs.

• However the positivist approach has been challenged by the establishment of IGOs having almost universal membership (e.g. UN) and by globalization which entails not only the increasing interdependence of states but also the need to find swift and appropriate solutions to new problems facing the international community.

• The better view, therefore, is that the secondary law of IGOs constitutes an important source of international law.

Declarations-an uncertain source?

• Whether a declaration by states is a source of international law depends on the context in which it has been made.

• It is debatable whether declarations which produce legal effects are a source of international law.

Soft law

• Non-binding rules of international law are called ‘soft law’ whilst binding rules are considered as ‘hard law.’

• Soft law is of relevance and importance to the development of international law because it:

1. Has the potential of law-making, i.e. it may be a starting point for later ‘hardening’ of non-binding provisions (e.g. UNGA resolution may be translated into binding treaties);

2. May provide evidence of an existing customary rule’

3. May be formative of the opinio juris or a state practice that creates a new customary rule.

4. May be helpful as a means of a purposive interpretation of international law;

5. May be incorporated within binding treaties but in provisions which the parties do not intend to be binding;

6. May in other ways assist in the development and application of general international law.

7. The importance of soft law is emphasized by the fact that not only states but also non-state actors participate in the international law making process through the creation of soft law.

• Nevertheless. Soft law is made up of rules lacking binding force, and the general view is that it should not be considered as an independent, formal source despite the fact that it may produce significant legal effects.

Codification of International Law: The contribution of the ILC

• The ILC established by the GA of the UN in 1947 is made up of 34 legal experts representing the world’s major legal system.

• The two main task of the ILC are:

1. The codification of international law, which is defined as the more precise formulation and systematization of the existing customary rules of international law.

2. The progressive development of international law, which involves the creation of new rules of international law either but means of the regulation of a new topic or by means of the revision of the existing rules.

• Since its inception the ILC has fulfilled its tasks with great professionalism and dedication, producing numerous high quality international treaties, declarations resolutions and model laws.

THANK YOU

contacts: shahrizalzin@salam.uitm.edu.my