2. the Sources of International Law-2

8/17/2019 2. the Sources of International Law-2

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THE SOURCES OF

INTERNATIONAL LAW


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• At the end of this topic the students

should be able to:

List all the sources of IL

Define and distinguish different types

of treatiesDescribe the formation and elements ofcustomary law

Describe the interrelationship between

treaties and customary lawAssess the importance of judicialdecision and writings of eminent juristsas sources of IL


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• Sources of international lawmeans those origins from whereinternational law attains its

authority and coercive agency.


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*Article 38(1) of the Statute of the

ICJ provides that in determining therules of international law the Courtshall apply:

* (a) International Conventions whethergeneral or particular, establishing rulesrecognised by the contesting states

* (b) International Custom, as evidence ofa general practice accepted by law

* ( c) General rinciles of laws

recognised by civilied nations* (!) Ju!icial !ecisions an! writings ofhighly "ualifie! ublicists


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• Article !" is regarded as anauthoritative statement ofthe sources of internationallaw.


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*I#$%A$I'#A C'#%#$I'#S

•International conventions are generallyreferred to as treaties.

•

*hat is a treaty+Art, - ienna Convention on aw of$reaties 1./. (C$ 1./.) # $aninternational agreement conclu!e!

between states in written form an!governe! by international law0 whetherembo!ie! in a single !ocument or in twoor more relate! instruments whatever its

articular !esignation,


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• %reaties are referred to by

different names: agreements,conventions, covenants,protocols, e&changes of notes,

pact, charter.

• %reaties can be bilateral,

multilateral, regional andglobal.


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• A treaty is based on consent #e&pressed through signature,ratification, accession etc.

• 'nce entered into effect, the treaty

is binding on the parties to it #principle of Pacta sunt servanda,

• Article -/ of the C$ 1./. 2 everytreaty in force is bin!ing uon thearties to it an! must be erforme!in goo! faith(.


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• $reaty4ma5ing caacity:

)ntities generally regarded ashaving treaty ma*ing capacity :

states and internationalorganisation.

+tates: head of state head ofgovernment and minster of foreignaffairs.


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•Article 11 of C$ 1./.

enumerates the ways in which astate can e&press its consent:

6y signature

6y e7change of instrumentsconstituting a treaty

6y ratification0 accetance

or aroval6y accession


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Signature

%he formalofficial affi&ing ofnames to the te&t of treaty bythe state-s representatives.

%he effect of signature of a

treaty depends on whether ornot the treaty is subject toratification.

If the treaty is not subject toratification or is silent onthis point, the instrument ispresumed to be binding.


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%7change of instruments

the consent of states tobe bound is e&pressed bythe e&change itself if the

instruments so provide orif it is otherwise agreedby those states that

e&change should have thateffect.


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&atification

%he approval of a treaty. %a*esplace when the document ofratification is e&changed

deposited. easons for ratification: the

treaty may re/uireslegislation treaty is not

valid without consent on thepart of 0arliaments.


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Accession the formal agreement of acountry to aninternational treaty if itis unable to sign thetreaty for a reason. ).g.the dateline for signature

has passed.


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• &eservation to treaties # aunilateral statement made by astate when signing, ratifying,

accepting, approving or accedingto a treaty whereby it purportsto e&clude or to modify thelegal effect of certainprovisions of the treaty intheir application to that state.


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• Article 1. of C$ 1./. prescribe thebasic rule that a state may formulate areservation unless:

%he reservation is prohibited by the

treaty. %he treaty provides that onlyspecified reservations which do notinclude the reservation in /uestion

may be made. %he reservation is compatible withthe object and purpose of the treaty.


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'nly those states which haveaccepted those treaty provisionsare bound, unless it can beestablished that the treaty has

become part of customaryinternational law.

1nli*e customary rules, treatiespossess considerable precision.


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• $%&I#A$I'# '9 $&%A$I%S:

aterial breach

Article /:(3) defines a $materialbreach- as

2a3epudiation of the treaty notsanctioned by the presentConvention.

2b34iolation of a provisionessential to the accomplishmentof the object and purpose of thetreaty.


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Suervening imossibility oferformance

Article /1 limits this

ground to the $permanentdisappearance or destructionof an object indispensiblefor the e&ecution of thetreaty-.


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9un!amental change of circumstances(rebus sic stantibus)

All treaties are concluded subjectto an implied conditions thatthings remaining as they are.

It may not be invo*ed in relationto a treaty establishing $boundary-and if the change was caused by abreach of its own internationalobligations, either under thetreaty in /uestion or any other

international agreement.


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*C;S$'S

• Customary international lawrefers to law which has evolve!from the ractice of states.

• )&amples of rules of customary law:5giving foreign diplomats

criminal immunity

5recognise the right of innocentpassage

5protecting non5combatants duringinternational armed conflict


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•%he essential elements:

State ractice

Opinio juris


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State ractice

•6enerality: Common and widespreadpractice among a significant

number of states is re/uired.

•Consistency: +tate practice must

be reasonably consistent #complete consistency is notre/uired.


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• *hat acts constitute Stateractice+

the actual words and actionsand omissions of states


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• %he evidence of state practice:

%reaties

7udicial decisions

8ational legislation

Diplomatic correspondence

'pinions of national legal advisers esolutions relating to legal/uestions of the 6eneral Assembly

0ractice of internationalorganisations


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• 9hen there has been a widespread

and consistent state practice,$silent- by others may beinterpreted as $ac/uiescence-.

•


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Opinio juris

• %he practice must be acceptedby states as law.

• Absence of protests andobjections against a practicetends to prove that it isaccepted as law.


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GENERAL PRINCIPLES OF LAWS AS

PRACTISED BY CIVILISED NATIONS

• Legal principles which are ir!l"

es#a$lishe% in all &r !&s# & #hena#i&nal legal s"s#e!s; based on

‘natural justice’ / legal logic/ statutory

interpretation.


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• To be utilised when the two primary

sources are unable to provide a solution.

• E.g

The duty to provide reparation in the

event of a wrongful act

The principles of good faith

Estoppel

Proportionality

Nemo judex in causa sua

Res judicata


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*J;>ICIA >%CISI'#S A#> *&I$I#GS'9 ?IG?@ ;AI9I%>


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•8o concept of stare decisis inrespect of the decision of theIC7.

•In principle, internationalcourts are not obliged to followprevious decisions, however in

practice they almost ta*eprevious decisions into account5 Ju!icial consistency,


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T!E" P##$%&E #'"(E#)

Res&l'#i&ns & &rgans & in#erna#i&nal

&rganisa#i&ns

declare principles of $& in abstract terms or thatapply such rules to a particular case.

The *eneral +ssembly and the #ecurity (ouncil

resolutions are of particular importance.

E.g

*+" ,- + 'niversal eclaration of !uman "ights

*+" ,-0- eclaration on 1on2intervention


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S&# lawsa body of guiding principles3 standards3 rules of

conduct or declarations of policy which are not

strictly binding law.

(an be found in treaty not yet in force or inresolutions or declarations of international

organisations.

E.g

-44, "io eclaration on evelopment andEnvironment


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E('i#"

*eneral principle of fairness and justice.

$n the North Sea Continental Shelf case)the $(5 incorporated ‘e6uitable principles’

into its statement of a rule fro the

determination of continental shelfboundaries.

$n Gulf of Maine case) the court stated thatthe concepts of ac6uiescence and estoppel

in $& ‘follow from the fundamental principlesof good faith and e6uity’.


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$?% ?I%&A&C?@ '9 $?% S';&C%S:

Jus co"ens # a rule principlein IL that is so fundamentalthat it binds all states and

does not allow any e&ception.).g. the use of force,genocide, slavery, piracy

$reaty Custom

General rinciles

2. the Sources of International Law-2

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