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Law Notes Public International Law (Detailed Version) Notes

Sources Of International Law Notes

Updated Sources Of International Law Notes

Public International Law (Detailed Version) Notes

Public International Law (Detailed Version)

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2. Sources of International Law Article 38(1) Statute of the International Court of Justice 1. 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 practice accepted as law; c. the general principles of law recognised by civilised nations; d. subject to the provisions 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. Article 38 of International Court of Justice Primary Sources * International Conventions (treaties) * Customary International Law * General Principles of International Law Secondary Sources ("evidence") * Judicial Decisions - compromise between common law system and civil law systems (which are much more code based) * Teachings of most highly qualified publicists Formal Sources International Conventions (Treaties) A treaty is defined 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.1 Customary International Law Two elements: * General practice * Accept as law Custom consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by such states out of a sense of legal obligation or opinio juris: North Sea Continental Shelf Cases Custom is a "constant and uniform usage, accepted as law": Asylum Case According to Judge Hudson: "elements which must be present before a PRINCIPLE OF INTERNATIONAL CUSTOM can be found to be established": a. concordant practice by a number of States with reference to a type of situation falling within the domain of international relations b. continuation or repetition of the practice over a considerable period of time c. conception that the practice is required by or consistent with prevailing international law d. general acquiescence in the practice by other states. State Practice Objective:The way in which states are conducting themselves officially on the international stage Elements * Duration of Practice *> There is no required length of time before a particular state practice may be considered custom. Provided that the principles of consistency and generality are proven, there is no necessity of passage of a long period of time. However, the passage of time can also be evidence of generality and uniformity. - Is there such a thing as instant custom? YES. According to the ICJ in the North Sea Continental Shelf Cases, an instant custom, involving a fairly quick maturing of practice, may emerge. * Although the passage of only a short period of time is not necessary, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely 1 For more information, see topic 6. 1 2. Sources of International Law conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked. * Consistency *> State practice must be continuous and repetitive. - Consistency was discussed in the Asylum Case. In this case, however, the Court held that Colombia was not able to prove the constant and uniform practice of unilateral right of refuge of a State and an obligation upon the territorial state. - Repetition of practice or actions of states is necessary. A customary norm of international law arises in consequence of the repeated action of states. The element of repetition is basic to the formation of a rule of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct. * Generality - Practice need not be exactly the same throughout States; it only needs to be substantial. - Even without the passage of any considerable period of time, a very widespread and representative participation in the Convention might suffice of itself, provided it included that of States whose interests were specially affected: North Sea Continental Shelf Cases - Universality is not required. As a matter of fact, according to the Asylum Case, there are instances when a regional custom, or a practice present and binding only to a particular region, may arise. List of forms that state practice may take --> non-exhaustive * treaties, * decision of international and national courts, * national legislation, * diplomatic correspondence, * opinions of national legal advisers, * practice of international organisations, * policy statements, * press releases, * official manuals on legal questions Opinio Juris Opinio Juris is the belief that a certain form of behaviour constitutes a legal obligation. * According to Brierly, it is the recognition by States that a certain practice is obligatory and that it requires a conception that the practice is required by or consistent with prevailing international law. It means that a State abides by a practice because of a sense of legal obligation, as opposed to motives of courtesy, fairness, or morality. However, it should be noted that opinio juris cannot be in the strict sense considered a ' legal obligation', it arises from mere belief. Consent issue Generally, States are bound only by that to which they consent. * It can be reflected in the principle of persistent objector when the state, from the very beginning, has expressly objected to the applicability of the said customary behaviour to its own State: Anglo-Norwegian Fisheries case * Exception is that some rules of customary international law are rules of ius cogens, or peremptory norms. * Examples include: genocide, racial discrimination, torture, etc. * Legal Consequences States cannot escape being bound by a customary rule that has the character of ius cogens. The principle of persistent objector also cannot be relied on. Voids treaties. Situation of New State--> different from persistent objector * What about when, in a region of States, there has already been a long-standing custom and there emerges a new State. Is the New State bound to comply with the existing customs? 2

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