Week 2 - International law - Sources

characteristics of international law

• sovereign equal states are most important law makes

• horizontal relationship

• no hierierarchy between legal sources (except: jus cogens)

Which art states legal sources of international law

art. 38 ICJ statute

sources of international law

a. international conventions

b. customary law

c. general principles of law

d. subsidiary sources (judiciary decisions, teachings of most qualified scholars

primary binding sources of international law

• international conventions (treaties)

• customary law

• general principles of law

definition of a treaty (what is it? which article?)

• art. 2(1)(a) VCLT

• international written agreement between states governed by international law

who has the power to conclude treaties?

state representative with full powers can conclude treaties

which articles state that state representatives with full powers can conclude treaties on behalf of states?

art. 6 VCLT

Art. 7 VCLT

types of treaties

• bilateral

• multilateral

• constituent treaties

what are constitutent treaties

establish an international organization

which articles state that states consent to be bound to a treaty

art. 11 - 16 VCLT

which articles state that treaties become binding for states which have consented to be bound after treaty enters into foce

art. 24-26 + art. 18 VCLT

pacta sunt servanda

treaties binding to parties that have entered into it

which article outlines the principle of pacta sunt servanda

art. 26 VCLT

how can consent to be bound be shown (+ which articles)

• signature = art. 12 VCLT

• ratification = art. 14 VCLT

• accession = art. 15 VCLT

• any other menas if so agreed = art. 11 VCLT

art. 18 VCLT

when state signs a treaty it can no longer defeat the object and purpose of the treaty

after a state signs a treaty…

it may still have to provide consent through ratifications

which article discusses in what instances signature constitutes full effect?

art. 12 VCLT

customary international law

• unwritten rules of international law

• sometimes codified in treaties or in “soft law”

• a rule of customary law is in principle binding on all states

How to determine if an unwritten rule exists?

ICJ continental shelf cases

what are the 2 requirements for customary international law

1. State practice (objective element)

• generally consistent

• virtually uniform

• widespread

2. Opinio juris (subjective element)

• belief that this practice is legally required

• not morally = practice because it is right

• not socially = practice out of respect

• not optional = stopping practice without legal consequences

differing views on state practice

1. 3 elements (Hendricksen

2. State practice according to ICJ

3. International law commission (2018) = draft conclusions on identification of customary international law

explain Hendricksen’s 3 element to state practice (1st element of customary international law)

1. Consistency

2. Duration

3. Generality

explain the state practice according to ICJ

• asylum case (colombia v peru) = Focuses on Regional Custom requires "constant and uniform usage" (a very high bar for local rules).

• nicaragua case (nicaragua v US) = Realistic Bar "Generally consistent"

• north sea continental shelf cases = High Bar "Extensive and virtually uniform."

How many states is enough for virtually uniform practice?

• not all countries

• but most especially affected areas (ICJ North sea continental shelf cases)

explain international law commission view on state practice

• draft conclusion 6 = forms of state practice

  • practice may take wide range of forms (physical and verbal)

  • diplomatic acts

  • decisions of national courts

• draft conclusion 10 = forms of opinio Juris

  • evidence of acceptance as law may take wide range of roms

  • public statements made on behalf of states

  • treaty provisions

what happens when treaties and customary law conflict?

• no hierarchy but rules for dealing with conflict

• lex specialis = more specific rule prevails

• lex posterior = younger rule prevails

• jus cogens

• art. 103 UN charter = un charter prevails in case of a conflicting treaty

what are jus cogens rules

superior form of international law from which states can never derogate from

where are jus cogens rules outlined?

art. 53 VCLT

what is 103 UN charter

UN charter prevails in case of a conflicting treaty

general principles of international law

• gap fillers for legal decision making

• often similar to and dericed from legal principles found in national law

examples of general principles of international law

• principle of equity

• principle of good faith

• pacta sunt servanda

what are subsidiary sources of international law?

• judicial decisions

• teachings of highly qualified scholars

explain judicial decisions as a subsidiary source of international law

• decisions of international and national courts

• ICJ is not bound to its own previous decisions

• no formal hierarchy between decisions of bodies

who are included in the teachings of highly qualified scholars

• scholars

• international law commission

which sources are not in art. 38 ICJ statute

• binding decisions of international organizations = UN security council

• jus cogens

• soft law (not legally binding)

• unilateral acts / statements

what is an example of soft law

• resolutions of UN general assembly

• resolutions of UN human rights council

what is an example of a unilateral act

• france’s statement on stopping nuclear tests in pacific

• ICJ nuclear test case

relationship between national and international law

• international law considers itself to prevail over national law

national law cannot be used to justify a …

violation of an international treaty (art. 27 VCLT)

what is an exception to national law never being able to be used to justify violating an international treaty

art. 46 VCLT

consent to be bound was given in clear violation of national laws on competence to conclude treaties

what are the 2 systems of incorporation of national law

• monism

• dualism

monism

international and national law are one legal order

dualism

international law and national law are 2 legal orders

key characteristics of monism

• international law and domestic la are a single legal order

• international law applies directly in the domestic legal order

• international law prevails over domestic law in case of conflict

• national courts can set aside national law in case of conflict

why is the netherlands moderatly monist?

1. Monist part

Treaties and customary law are automatically part of the law the moment they are ratified

2. Moderate part

• Treaties can only be used if they have direct effect

• avoiding international law-making by judges

  • if treaty is not clear and precise and judge tries to enforce it anyway = judge would be writing details

  • job of the judge is to interpret

case lotus

• International law governs the relationship between independent states

• rules of international law are binding upon states

• international law originates from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law

• restrictions upon independence of states cannot be presumed

ICJ north sea continental shelf cases

• state practice according to ICJ = short period of time is not necessary nor is it a bar for formulation of customary law

asylum case

• state practice according to ICJ = constant and uniform

• strict requirement = states must act in the exact same way each time

nicaragua case (nicaragua v us)

• state practice according to ICJ = generallu consistent

• generally consistent = if state breaks a rule but excuses its behaviour it confirms that the custom exists

ICJ nuclear test case

• unilateral act

• established that states can create a legal obligation for itself by making a public promise

• france legally bound itself to stop atmospheric nuclear testing