Sources of international law Source in domestic law

Sources of international law

Source in domestic law ß ß ß Source of law: Something (such as a constitution, treaty, statute, or custom) that provides authority for legislation and for judicial decisions; a point of origin for law or legal analysis. (Black Law Dictionary, 9 th ed. , p. 1523) In the context of legal research, the term “sources of law” can refer to three different concepts which should be distinguished. One, sources of law can refer to the origins of legal concepts and ideas…Two, sources of law can refer to governmental institutions that formulate legal rules…Three, sources of law can refer to the published manifestations of the law. The books, computer databases, microforms, optical disks, and other media that contain legal information are all sources of law. J. Myron Jacobstein & Roy M. Mersky, Fundamentals of Legal Research, 5 th ed. , pp. 1 -2. A method of discovering what the law is and how the law is created. Malcolmn. Shaw, International Law, 6 th ed. , p. 69.

ß ß Sources in international law and secondary rules In municipal law, rules could be divided into primary rules and secondary rules. Primary rules are rules laying down the rights and obligations of the subjects including principles, while secondary rules are the rules determining what are the primary rules, how they come into existence and how they can be changed. Secondary rules in municipal law are referred to in international law as the sources of international law. As a terminology, source highlights the idea that a rule must come from somewhere, as well as the idea that there is a flow, a process, which may take time: a rule may exist conceptually, as a proposal or a draft, and later come to be accepted as binding.

Material sources and formal sources ß ß ß The material sources of international law is simply the place in which the terms of the rules are set out. It may be a treaty, a resolution of UN General Assembly, a judicial decision, and etc. In identifying a material source, no account need be taken of the legal authority of the textual instrument. For example, a treaty which has never come into force at all, and is thus not binding on anyone as a treaty. The question of the authority for the rule as a rule of law, binding on States, is determined by the formal source of the rule. Legal source and historical source; direct source and indirect source

Article 38 of the Statute of ICJ ß ß ß ß 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 recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. “Ex aequo et bono”, latin for “according to the right and good”.

Some preliminary questions ß ß What’s the meaning of “international law” in paragraph one? Article 38 is just focus on the sources of international law? From the perspective of sources of international law, Article 38 stipulates both material sources and formal sources? What’s the relationship between sub-paragraphs a to d?

Treaties and conventions in force ß ß Different names of treaty: convention, international agreement, pact, general act, charter, statute, declaration, covenant, and etc. Vienna Convention on the Law of Treaties 1969: “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.

Law-making treaty and treaty-contracts ß ß ß Law-making treaty: This kind of treaty creates general norms for the future conduct of the parties in terms of legal propositions, and the obligations are basically the same for all parties. Law-making treaty are intended to have universal or general relevance. Law-making treaties are those agreements whereby states elaborate their perception of international law upon any topic or establish new rules which are to guide them for the future in their international conduct. These treaties require the participation of a large number of states to emphasis this effect, and may produce rules that will bind all. Treaty-contracts: this kind of treaty applies only as between two or a small number of states.

obligations erga omnes and obligation reciprocity ß ß ß 33. …In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-àvis another State in the field of diplomatic protection. By their very nature the former are the concern of al 1 States. In view of the importance of the rights involved, al 1 States can be held to have a legal interest in their protection; they are obligations erga omnes. 34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I. C. J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character. ICJ Reports 1970, p. 32, paras. 33 -4.

Practical consequence of breaching obligations erga omnes ß ß ß ß Draft Articles of Responsibility of States for International Wrongful Acts (2001) Article 42 Invocation of responsibility by an injured State A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.

Practical consequence of breaching obligations erga omnes (continue) ß ß ß ß Article 48 Invocation of responsibility by a State other than an injured State 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. 3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

Practical consequence of breaching obligations erga omnes (continue) ß ß Article 54 Measures taken by States other than an injured State This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.

The Court’s holding in Belgium v. Senegal case ß ß 68. As stated in its Preamble, the object and purpose of the Convention is “to make more effective the struggle against torture. . . throughout the world”. The States parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I. C. J. Reports 1970, p. 32, para. 33). These obligations may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case. In this respect, the relevant provisions of the Convention against Torture are similar to those of the Convention on the Prevention and Punishment of the Crime of Genocide, with regard to which the Court observed that “In such a convention the contracting States do not have any interests of their own ; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’etre of the Convention. ” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I. C. J. Reports

Custom ß ß The two-element theory: Customary rules resulting from the combination of two elements: an established, widespread, and consistent practice on the part of States, and a psychological element known as the opinio juris sive necessitatis, just as subparagraph (b) stipulates. “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, ie. e. , the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. (North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, para. 77)

Two elements ß ß State practice: duration, consistency, repetition and generality. Duration is not a rigid element, especially for instant custom. In the Asylum case, the International Court of Justice declared that a customary rule must be “ in accordance with a constant and uniform usage practised by the States in question”. (ICJ Reports 1950, pp. 276 -7. ) Opinio juris: When a State adopts a practice, it believes that kind of activity is legally obligatory. North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark, FRG v. The Netherlands), Judgment, paras. 75 -83.

Differences between customary law and treaty law ß ß ß General customary law is applicable to all States without exception, even for those States not involving the formation process. Local customary law is applicable to only special States, even between two States. (Asylum Judgment, 1950, pp. 276 -278) Treaty law is applicable to the parties to the particular treaty. Article 34 of VCLT General rule regarding third States A treaty does not create either obligations or rights for a third State without its consent.

Persistent objector A persistent objector will be free from the binding force of general customary law. (p. 11 of the textbook). (No rule of international law could be binding on a State without its consent) ß In practice, it is very difficult for a State to be free from a customary law by alleging itself as a persistent objector. See J. Charney, The Persistent Objector Rule and the Development of Customary International, 56 British Yearbook of International Law. ß

Relationship between treaty law and customary law The Court cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts of conventions relied upon by Nicaragua. The fact that these above-mentioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions. (I. C. J. Reports 1984, p. 424, para. 73. ) However, it is certain that when principles of customary international law are incorporated into a multilateral treaty like the United Nations Charter, these principles of customary international law do not thereby become extinct. The same principles continue to be operative and binding on states, sometimes alongside or in conjunction with treaty law, in their international relations with one another. Article 38, paragraph 1, of the Statute enumerates, as applicable by the Court, the various sources of international law which, in the course of application, usually support, rather preclude, each other. ( Seperate opinion of Judge Ni, I. C. J. Reports 1984, p. 207)

Relationship between treaty law and customary law ß ß Concerning the obligation to extradite or prosecute ( aut dedere aut judicare ), See A/CN. 4/599, para. 50 See also R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 British Yearbook of International Law, pp. 298 -300.

General principles of law ß ß ß Two different understanding: Subparagraph (c) means general principles of international law. See p. 16 of the textbook, concerning the draft process of the Statute of the Permanent Court of International Justice. Some others regard that it means the principles accepted in the domestic law of all civilized sates.

Judicial decision as subsidiary means ß ß ß The structure of decision: reason and dispositiff (the operative part), and reason could be divided into two parts: obiter dictum and stare decidendi Stare decisis (precedent) and the International Court of Justice Distinguished method

The writings of publicists ß Different from judicial decision, the writings of publicists are really the subsidiary means for the determination of rules of law. Cases are much more important than the writings.

Other sources of international law ß ß ß Ex aequo et bono : In 1984 the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada and the US. (non-liquet: a situation where there is no applicable law) Resolutions of international organizations, especially for the resolutions of the Security Council Of UN. Article 24 and Article 25 of UN Charter Effects of resolutions adopted by General Assembly of UN, for example, No. 2758 (1971) Model Law; International Standard adopted by different international organizations