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Sources of International Law General
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 Art. 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. Rationale for sources
* "International law provides a normative framework for the conduct of interstate relations".
* The "diffused character" of the sources sheds light on the decentralisation of international law-making.
* Hence the sources of the public international law articulate the rules of the system.
* International law operates on the general consent of the nations.
* Evidence of normative consensus among states and other relevant actors concerning particular rules or practices is all-important. Primary Sources
* International Conventions (treaties)
* Customary International Law
* General Principles of 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 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: art. 2(1)(a),VCLT
Customary International 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
* State practice
* Accept as law -- opinio juris Custom can be universal, or local or regional: Asylum case.
State practice What is the material source of custom / State practice?
* May come in the form of treaties, decisions of international and national courts, national legislation, opinions of national legal advisers, the practice of international organisations, policy statements, press releases, official manuals on legal questions, including manuals of military law, executive decisions and practices, comments by governments on work of the International Law Commission and diplomatic correspondence.
*> "In the present context, State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of the extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention: Nicaragua (Merits) case. General Standard
* The asserted rule must be of a "fundamentally norm-creating character": North Sea Continental Shelf Cases
* Duration of practice:
*> Usually be over a "considerable period of time", but a shorter period is not a bar if it is possible to show "extensive and virtually uniform" State practice, including specially affected States: North Sea Continental Shelf Cases
- However, the passage of time can also be evidence of generality and uniformity.
*> "Constant and uniform usage": Asylum case.
- A customary norm of international law arises in consequence of the repeated action of states.
*> Must be general recognition of a rule/legal obligation: North Sea Continental Shelf Cases
- It is not enough to look at the practice of the States in dispute: Nicaragua (Merits) case.
- You would need to have "very widespread and representative participation in the convention ... provided it included that of States whose interests were specially affected": North Sea Continental Shelf Cases 1
Sources of International Law
- However, State practice need not "be in absolute conformity": Nicaragua (Merits) case. Opinio Juris State practice "should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved: North Sea Continental Shelf Cases
* Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States; in the acknowledgment, by States granting immunity, that international law imposes upon them an obligation to do so; and, conversely, in the assertion by States in other cases of a right to exercise jurisdiction over foreign States": Nicaragua (Merits) case. Opinio juris cannot be in the strict sense considered a ' legal obligation', it arises from mere belief. Treaty v Customary International Law Function of a treaty
* Treaties can generally, but not always, serve as evidence of opinio juris. Can a rule in a treaty also be or become part of custom?
* A treaty provision may relate to custom in one of three ways: North Sea Continental Shelf Cases
*> It may be declaratory of custom at the time that the provision is adopted;
- The provisions of the treaty are the codification of customary international law, and thus will be bounding non-treaty party as well.
*> It may crystallise custom, as States agree on the provision to be adopted during the treaty drafting process.
- The treaty is the final and decisive step in making the customary law.
*> The provision may come to be accepted and followed by States as custom in their practice after the treaty's adoption.
- The treaty develops the custom a little, but still no custom. Customary law operates independently of treaty law: Nicaragua (Merits) case.
* Discharge of obligation
*> Termination or suspension of a treaty on the ground of violation by the other party of a "provision essential to the accomplishment of the object or purpose of the treaty" means exemption of the obligation of the other party.
*> But in the domain of customary international law, the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule.
* Methods of interpretation and application
*> The organs competent to verity the implementation of the treaty and the customary international law are different. Accordingly, the interpretation and the application may vary. Whether a treaty overrides a customary international law, depends on:
* If a treaty was entered into after a custom has been established, it can be said that the treaty will govern as regards the parties who entered into it. This is so because, the State parties' ratification of that treaty is an expression of their consent to be bound by such, and the principle of pacta sunt servanda should be observed.
* If a treaty was entered into before a custom develops, the rules are not clear. It would seem that custom, being the latter intention, should prevail. This, however, would run counter to the very nature of a treaty. In the North Sea Continental Shelf Cases, the court attempted to reconcile treaties with custom. In practice, therefore, the solution to this situation would be to reconcile custom with treaty provisions. Persistent objector General rule: persistent objector occurs 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 Exceptions: some rules of customary international law are rules of ius cogens, persistent objector is not a justification for violation of the ius cogens. General Principles of Law
A selective approach of international tribunals in choosing, editing and adapting elements from other legal systems " insofar as they are applicable to relations of State". General principles that have been applied include the following:
* Principles of equity: Diversion of the River Meuse, PCIJ
* No State can profit from its own wrongs: Chorzow Factory Case: Indemnity
* States owe reparation for wrongs: Chorzow Factory Case:Merits
* Rules of procedural fairness, e.g. good faith / estoppel
* Rules of evidence and judicial procedure, such as res judicata
Referred to in art. 38(1)(d), subsidiary means as not formal source of law/precedent but regarded often as evidence of the law. Where there is no stare decisis in international law?
2 Sources of International Law
* This is so because first, the ICJ only derives its jurisdiction from the consent of the State. Without this consent, the ICJ has no jurisdiction at all to determine the rights and obligations of States.
* Art. 59 of the Statute of ICJ expressly provides "the decision of the Court has no binding force except between the parties and in respect of that particular case."
Therefore, the effect of this would be that State-parties cannot oblige the court to decide on their case in the same manner that the Court decided in previous similar cases. At most, these decisions are highly persuasive but not binding upon the Courts. UN Resolution
As a general rule, UN Resolutions are NOT binding.
* However, they serve as highly persuasive evidence of the States' consent to the subject of the Resolution and may therefore be evidence of customary law. Exception: There are certain UN Resolutions that are binding, depending on the subject of the Resolution. When made under Art. VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the Charter, resolutions are binding.
"Soft law" consists of written instrument that spell out rules of conduct that are not intended to be legally binding, so that they are not subject to the law of treaties and do not generate the opinio juris required for them to be state practice contributing to custom. They have not, but are in the process of, achieving the status of custom. --> Therefore, contribute to the customary law.
* However, they are not really law, hence called soft law.
* Examples include the Helsinki Final Act 1975, the Bonn Declaration on International Terrorism 1978; and the Rio Declaration on Environmental and Development 1992.
3 Public International Law & Municipal Law Theories of Interaction
* Public international law and municipal law one and the same system, hence international law can be applied directly within the domestic sphere. Dualism
* Public international law and municipal law are separate systems of law that operate independently (not affinity with positivist theories of law)
* In practice, pluralistic systems. Municipal Law
* Custom grown up within the boundaries of the State concerned, and
* Statutes enacted by law-making authority.
* Custom grown up among States, and
* Law-making treaties.
* State-person relations, and
* Person-person (interpersonal) relations
State - State relations
The law of the sovereign is over individuals.
The law is not over, but between states, and therefore is the weaker law
* Two separate orders, but neither superior. Judges should seek reconciliation of rules from both systems Municipal Law in International Law
Municipal Law as a Source of Customary International Law (State Practice)
* As evidence of state practice and opinio juris: Statute of the ICJ, Art. 38(1)(b)
* As evidence of general principles of law recognised by civilised nations: Statute of the ICJ, Art. 38(1)(c)\
It is a fundamental principle of international law that a state may not invoke absent or inconsistent provisions of its domestic law as a justification for failing to discharge its international legal obligations.
* Alabama Claims Arbitration (US/Great Britain) 1872
* Art. 27 VCLT
Customary International Law in Municipal Law
Incorporation --> monist position
* International law is automatically part of municipal law and remains so unless displace. Transformation --> dualist position
* International law only operates in municipal law when adopted by judicial decision, legislation or long-established common law custom: Trendex Trading v Central Bank of Nigeria (1977) -->UK approach Problems with incorporation/transformation dichotomy
* Does not describe complex reality of international law's influence
Australian Law and Customary International Law
Relationship between common law and international law
* International law is not as such part of the law of Australia: Chung Chi Cheung v The King (1939)
* International law is one of the sources of our law, and: Chow Hung Ching v R 
Incorporate & Transformation approach
Incorporate & Transform international law to common law
* In terms of incorporation of international law, if the contemporary notion of the international law is not inconsistent with the domestic common law, the Court is free to adopt such rules: Mabo case
* However, if the international law is inconsistent with domestic common law
*> Generally speaking, Australian courts will not adopt an international law which is inconsistent with domestic common law unless legislation transforms the international law into domestic system: Nulyarimma v Thompson 
- There is no requirement for the common law to develop in accordance with the international law: Western Australia v Ward , rationale is that international law itself is often vague and conflicting.
*> In addition, further two questions may be asked when the contemporary international law is inconsistent with the domestic common law system: Mabo case
- Whether the common law is an essential doctrine of our legal system, and
- Whether it is disproportionate to the benefit flowing from the overturning
If the answer is YES, the common law system should not be overturned because the common law does not necessarily conform with international law. 4
Public International Law & Municipal Law
However, common law may be changed if the international law declare the existence of universal fundamental rights: Mabo case
Incorporate & transform international law to statute
* When the statute is not ambiguous in itself, unincorporated international law should not be adopted in interpreting the statute: Western Australia v Ward 
*> It is a matter for the Parliament to incorporate the international law, not the Court.
* When the statute is ambiguous, unincorporated international law may assist in determining the content of the common law: Western Australia v Ward 
Incorporate & transform international law to Constitution
* International law in regards of fundamental rights should be taken into consideration when interpreting a provision of the Constitution if the provision is not clear enough and the so considered fundamental rights do not conflict with the provision of the Constitution: Newcrest Mining (WA) Ltd v Commonwealth.
*> Rationale is that international law is a legitimate and important influence on the development of the common law and constitutional law, therefore, when there is an ambiguity of the Constitution, it should be adopted as the fundamental rights is 'undergoing evolution'.
* If the provision of the Constitution is clear, no unincorporated international law and personal opinion should be adopted: Newcrest Mining (WA) Ltd v Commonwealth. Effect of incorporation and transformation
* The rule of customary international law, once adopted or received into domestic law have the 'force of law' in the sense of being treated as having modified or altered the common law: Nulyarimma v Thompson 
Australian Law and Treaties
The Australian position on transformation and incorporation of treaties is heavily influenced by Australia's constitutional structure.
* The idea of separation of power. The power to conclude treaties differentiates from the power to make the treaty effective within the domestic law:Tasmania Dam Case
*> Power to enter into treaties is an executive prerogative power derived from s 61 of the Constitution.
- The power was inherited from the Imperial Government when Australia acquired independence.
*> Power to implement treaties is an exclusively legislative power, especially related s 51(xxix) of the Constitution.
- Therefore, whether an international Convention is effective within Australia depends on the Parliament's intention: Badley v Commonwealth 
More often than not, ratification of a convention does not directly affect Australian domestic law unless and until implementing legislation is enacted: Dietrich v R 
Legislation for treaties
* Where a subject matter has become a matter of international concern, even in the absence of a treaty, Parliament has the power to make legislation under section 51(xxix) of the Australian Constitution:Tasmania Dam Case
* Any international obligation imposed upon Australia by a bona fide international treaty could form the basis for legislation enacted in reliance on s 51(xxix):Tasmania Dam Case
*> Bona fide requirement: Commonwealth Parliament would not be allowed to rely upon a treaty negotiated with the sole purpose of conferring power under s 51(xxix): Horta v Commonwealth 
*> The must be a reasonable proportionality between the law and the purpose of discharging the obligation under the convention with respect to external affairs:Tasmania Dam Case
In terms of make legislation under s 51(xxix) for the purpose of discharging the obligation under the treaty, Parliament cannot depart from the provisions of the treaty and enact legislation which goes beyond the treaty or is inconsistent with the treaty:Tasmania Dam Case
*> However, s 51(xxix) can only be relied on when the treaty deals with a subject otherwise falling outside commonwealth legislative power. For example, defence treaties can be implemented pursuant to the defence power (s 51(vi))...: George Winterton,
*> The treaty-implementation power in s 51(xxix) should not extend to treaties which are void under international law: George Winterton,
* Effect of legislation
*> Where municipal legislation imports international agreement, conventions and treaties, those international instrument will have operative effect: Project Blue Sky v Australian Broadcasting Authority 
- Two categories of municipal laws should be considered:
Law based on international instruments and are clearly designed to give effect to international obligations
Law directed to take into account the provisions of named international instruments to which Australia is a party,
* For example, provision requires that the peoples conduct in a manner consistent with various matter, including Australia's international obligations or agreements such as XXX convention.
* This situation is Project Blue Sky case.
*> However, a provision like "XXX convention is approved" cannot be regarded as having binding effect of the treaty because it does not reveal any intention to make the Convention binding upon persons within Australia as part of the municipal law of this country: Badley v Commonwealth 
Enforcement of treaties in domestic law 5
Public International Law & Municipal Law
The consistency principle
*> Where a legislation is ambiguous, treaties may be used to interpret a legislation: Minister of State for Immigration and Ethnic Affairs v Teoh 
- In construing domestic legislation which is ambiguous, Courts will presume that Parliament intends to legislate in accordance with its international obligations: Dietrich v R 
The legitimate influence principle
* Treaties, whether incorporated or unincorporated, may be use as a legitimate guide in developing the common law: Minister of State for Immigration and Ethnic Affairs v Teoh 
*> However, due circumspection should be maintained in the following aspects
- The nature of the relevant provision;
- The extent to which it has been accepted by the international community;
- The purpose which it is intended to serve;
- Its relationship to the existing principles of our domestic law.
The legitimate expectation principle
* Unincorporated treaties can create legitimate expectation on the part of people. Though Government may negative the legitimate expectation, procedural fairness requires that the persons affected should be given notice and adequate opportunity to put arguments on the point Minister of State for Immigration and Ethnic Affairs v Teoh 
*> Such an expectation cannot arise where there is either a statutory or executive indication to the contrary.
6 Personality , Statehood, Recognition States in International Law
Sovereign and equal under international law, and have full range of powers and responsibilities:
* Can make international law (through treaties, practice, participation in international organisations/discussions);
* Can enforce claims through international bodies - eg, art 34 of the Statute of the International Court of Justice;
* Be entitled to territorial integrity;
* Are responsible for internationally wrongful acts;
* States and their representatives are entitled to immunity from jurisdiction of other states or international organisations;
* Doctrine of diplomatic protection.
Subject of International Law
A subject of [international] law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims: Crawford Legal personality under public international law
* Public International Organisations
* Other forms of international legal personality including indigenous people, minority groups, non-governmental organisations, corporations, European Union, etc.
Art. 1, Montevideo Convention on Rights and Duties of States 1993 The State as a person of international law should possess the following qualifications: (a) a permanent population (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.
Elements of State A permanent population
* No minimum eg Vatican City (800), Nauru (<10,000).
* But must be permanent A defined territory
* A State may still be recognised as a legal person if the State's territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited: Deutshe Continental Gas-Gesellshaft v Polish State Government
* A state must have a practical identity i.e., an effective government exercising control over a defined territory; a "stable political organisation" of any kind: Aaland Islands case 1920
*> But failed states still recognised as states: A state may lose its de facto ability to exercise its legal capacity as a State.
- Elements of a "failed State", for example, Somalia in the 1990s (Thurer)
* Are associated with internal and endogenous problems;
* A total or near total breakdown of structures guaranteeing law and order;
* The absence of bodies capable of representing the State at the international level and of being influenced by the outside world. Independence
* Independence is also described as sovereignty, i.e., the capacity to enter into relations with other States: Austro-German Customs Union Case (1931)
* Not subject to control by any other state or external political power
* Independence needs to be declared, (the entity declines to be one):Taiwan issue. Other Evidence Membership of international organisations which admit only states, particularly UN Widespread recognition or non-recognition by other states Territory
It is the fixed portion of the surface of the earth inhabited by the people of the State, where a State's legal authority can be exercised, normally exclusively Defines the boundaries of e.g., principle of non-intervention, core of prohibition on use of force under art 2(4) UN Charter 7
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