Reminder 1st lecture

The role of consent of the state in International Law (IL) The legal nature of IL and the existence of international norms/ standards with which states are obliged to comply Lack of legislative structure: where is law to be found? When can one tell that a proposition amounts to a legal rule?

Formal and Material Sources of Law

Concentrate on the functions, which sources of law can perform within a legal system: Procedures and methods by which rules become legally binding = formal sources of law Substance and content of legal obligations = material sources of law

Primary Sources
Article 38(1) of the Statute of the International Court of Justice The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions b) international custom, as evidence of a general practice accepted as law c) general principles of law d) judicial decisions and the teachings of the most highly qualified publicistsas subsidiary means for the determination of rules of law

1 International Conventions / Treaties

create legally binding obligations for the states that are parties to them.
UN

Charter Other UN-sponsored agreements Regional conventions

(More during the next lecture)

2 - Customary International Law

Definition
Under ICJ Statute Article 38(1)(b), customary international law is defined as a general [State] practice accepted as law

To establish existence of a custom the following criteria must be satisfied (e.g. in North Sea Continental Shelf Cases ICJ Rep 1969 para 77):

settled state practice i.e. usus or diuturnitas (objective element), and evidence that states have a sense of legal obligation i.e. opinio juris (subjective element)

Two elements one behavioral and one psychological:

1) Usus (Latin for: usage):

Is

the consistent and recurring action (or lack of action if the custom is one of noninvolvement) by states.

2) Opinio juris sive necessitatis (Latin for: Of the opinion that the rule is proper and required): The custom must be regarded by states observing it as one that they must obligatorily follow.

2 - Customary International Law State practice

Generality of state practice Degree of uniformity and generality of state practices to amount to a customary rule Acquiescence as consent If States do not object to a practice then it may become a custom by acquiescence However, if a State raises and objection from the very beginning and maintains it sustainably, then such a custom will not be binding w.r.t. that Particular State INITIAL AND SUSTAINED objection Duration of the State practice Possibility of Instant custom

Opinio Juris

Conceptual definition
belief

that an activity by the State is obligatory, a factor which turns a practice into a custom If a State does not engage in a certain activity, it does not automatically mean that such activity is prohibited by international law.

Determining the existence of Opinio Juris

Unilateral acts

Ambivalence of unilateral acts: source or application of international law ? Characteristics: express the will of one party to which it will only be imputable Volontarist theory : one state can only create internal or international obligations for himself

Classification of unilateral acts

Opposability
Exercise of sovereign rights (according to IL) Creation of legal obligations

Legal effect

These unilateral act do have an independent existence whether the concerned third parties agreed to it or not Some unilateral acts however only exist in reference to a treaty : adhesion to a treaty, reserves, denunciations, decision to step out of an IO Importance of the concept of legal security: once a state engaged itself to do smtg, it must comply with it Can be used as an indicator for the creation of a new custom

Discussion on the resolutions of International organisations

Binding resolutions Non-binding resolution

General Principles of Law

Origin: commentary of art. 38 of the ICJ statutes : is that an auxiliary source of IL ?

Principles recognised as general principles of law

Auxiliary sources of international law:

Judicial Decisions
The doctrine or teachings of the most highly qualified publicists

THE SCOPE OF INTERNATIONAL LAW

The Practice in International Tribunals

Municipal

law is regarded as subordinate (subservient) to international law. States have a general obligation to bring their municipal law into compliance with international norms. Procedurally, municipal law is treated as mere fact.the onus of proof

Polish nationals in Danzing case , PCIJ Reports vol. 1930, series B No. 17, p332(1930): it should be observed that a state cannot adduce as against another state its own Constitution with a view to evading obligation incumbent upon it under international law or treaties in force

THE SCOPE OF INTERNATIONAL LAW

The Practice in Municipal Courts:

International

law is regarded as

(correlative).
Court determines if a particular international law has been received into the municipal jurisprudence. If it has, the Court applies it as if it were a local law and not a mere fact.

THE SCOPE OF INTERNATIONAL LAW

Determining

if International Law has been Received Into the Local Jurisprudence

Customary international law:

Doctrine of Incorporation: a custom is automatically part of a nation's laws as long as it is not inconsistent with those laws. (Majority rule) Doctrine of Transformation: a custom is not part of a nation's laws until expressly adopted by legislative or (legislative) act, or by local usage. (Minority rule)

As for treaties:

Reception rules depend upon two factors:

(i) The nature of the treaty; and (ii) The constitutional structure of the ratifying state.

1] The nature of treaties they may be:

Self-executing treaty: One that contains a provision that says the treaty will apply in the parties municipal courts without their having to adopt any domestic enabling legislation. Non-self-executing treaty: One that has no such provision.

2] The structure of states

constitutions may assign to one or more state organs (or branches) the responsibility for entering into treaties.

Making and effectiveness of the pact

Bilateral treaties produced by foreign ministries or embassies. Multilateral treaties made through conferences

Signing of treaty does not indicate acceptance of treaty by signatory

Merely indicates authentication of text. Usually twothirds of conference must authenticate text

State may choose to bind itself through signature, but also by ratification or accession Ratification is act where state declares itself bound by treaty Instrument of ratification deposited with designated state or I.O. Ratification allows parliament to consider treaty Accession is act of state that did not negotiate original treaty. One or more parties to treaty may object to certain of its provisions. Reservation allows reserving state to exclude or modify provisions as to that state.