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International law Modules:
- International Legal Subjects a) States b) International Organizations
- The Sources of International Law a) Customary International Law b) Treaties c) The Relationship between Sources of International Law d) Jus Cogens and Erga Omnes Rules
- The Relationship between International and National Law
- Immunity
- International Responsibility
- Human Rights Lesson 1 Public international law regulates the relationship among sovereign states. There are other subjects and actors (multinational corporations, NGOs, Greenpeace, individuals) interested in the international law. There is a big difference between the subject of international law. There is also a big difference between public and private international law. Public international law regulates the behavior of subjects of international law. Private international law deals basically with individuals and conflict of law and the treatment of cases that involve a foreign element (for example, the marriage between two persons of different national law). The birth of international law is basically tided with Europe, with the Peace of Westphalia (1648). It brought to an end to the 30 years’ war; the idea beyond was to reduce the power of the Holy Roman empire and of the religion; to separate territories into sovereign state so that the stat would become the primary source of the state. It established a number of states, each one with equal importance, that enjoy protection and every state had to rule without interference from other states. The Peace of Westphalia was the formalization of sovereign state; however, it took more than 200 years for this principle to apply for other parts of the world. This was because while sovereign state was established in Europe, the same was not applied in Latin America, Africa ecc. Europeans’ powers were totally free to appropriate territories discover over sea. The original inhabitants were not considered as equals; they were basically ignored; except they were consider to be able to enter 1
into contracts. International law justified colonialism and slavery; sovereign state where just the one in Europe (and then North America). The Colonialism ended at the end of the 60s. We can distinguish at least two period: The first period between Word War I and II, international law was basically aimed to regulate the peaceful existence of sovereign state; usually the main source of international law was customary law so international law regulated the peaceful coexistence of sovereign states. The main principle was Not intervention and not interference ; principle of customary law. States are considered equal among each other. Int law mainly concerns the manner in which sovereign state interact with each other; the field of human rights law is something that is much more recent, it’s an evolution of public international law. At the time of the coexistence there were not rules about what a state could do inside its own territory and on its citizens. The international law rules were emplaced to keep the stability; the main rules were criteria to define what a state is, not aggression, not intervention, immunity, conduct of hostility, rules on prisoners of wars, trade. The second period starts after the 2nd^ world war, we enter in a new phase: the phase of cooperation. Here international law concerns issues that are transcending borders (environment, criminal…). Before WWII they weren’t fields of human rights, it was just in 1948 that we have the declaration of human rights ; There is just now a legislation that apply to state that it tells government what to do and what they cannot do. If states are sovereign, then why are they bound by international law? Is there anything above them? International legal obligations are a consequence for let all state be sovereign; so sovereign states are bound by the rules of the society of which they are part; they are bound by international law. International law is different from all the national law. States have to implement international law with their domestic legal systems. There is this body of law that is superior to national law. In the international law system there is not legislator, a parliament composed of all the states, or a congress, a police force, a judicial system. In the absence of all of these, why states do comply with international law? How is it enforce? ICJ = international court of justice. It doesn’t have a mandatory concept of interstate. But states will always have to accept the ICJ. The enforcement power within their own country is more organized and structure than international law. It is usually benefit of all the parts so that is how it gets its power. There are many incentives, like reputational or economical; it’s driven by the incentives that states have to comply with international law. Since states themselves made international law they don’t have to break them. Rules benefit both parts. But not all international law rules rest on reciprocity; compliance in that cases is more difficult to be achieved. Reputation is an incentive for compliance. 2
- What happens when the boundaries between two 'States' are not settled and precisely demarcated?
- Territory is a portion of lands delimited by borders. Territory should be natural, not created by men.
- Government
- How do you define a government?
- Is the form of government relevant?
- Has the government to be democratically elected?
- Has the government to be 'effective'? (effective requirement) What if the government of a State is in exile? (during WWII many European governments were in exile in London)
- What if a State fails? (like Somalia)
- Does a government need to be independent? meaning that is should have the capacity to enter into relations with other States?
- What kind of independence is needed? economical, political? what about former colonies?
- Does belligerent occupation alter statehood?
- Does a change of regime (f. ex. from democracy to dictatorship) affect statehood?
- Does California have statehood? The most important criteria is the government. The form of it is not important.
- Recognition
- Does the criterion of recognition have a constitutive or a declaratory character? One thing is the letter of the norm, another one is the interpretation that is given to that provision in State practice. **Statehood criteria
- Permanent population** Individuals who permanently reside there, not necessarily all need to have the State’s nationality (granted according to national law: it falls under States’ domestic jurisdiction) - Defined territory Boundaries do not need to be precisely demarcated and settled (Israel) What is needed is the authorities’ - Government The word “Government” come from the Latin “Gubernaculum”; the classic conception is that the State is a ship and that the “Gubernaculum/Government” is the rudder or the steersman of this ship. Effectiveness A state can be accepted as such only if it is in a position to guarantee that law and order (whatever law and order) is upheld in its territory. The form of government is not relevant; for int law it is totally indifferent Independence Independence in the words of judge Anzilotti: “Independence has nothing to do with the constantly increasing situation of de facto dependence which characterize the relation of one country to other countries: as long as restrictions do not place the State under the legal authority of another State, 4
the former remains an independent State however extensive and burdensome its ties (political and/or economical) with another country are”.
- Capacity to enter into relations with other States NB the Montevideo Convention was drafted in the colonial era, when colonies could not enter into relationships with other States without consent of the colonial power Even the UN Charter contains a special provision on “Non-self-governing territories” (Art. 73 UN Charter) This criterion has to be read together with Article 2 of the Montevideo Convention: “The federal state shall constitute a sole person in the eyes of international law”.
- Other requirements? Recognition NB recognition of a State ≠ recognition of a government Two views:
- Constitutive view
- Declaratory view Article 3 Montevideo Convention The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law. Lesson 3 Recognition of a state as such by other state is something not necessary in current international law; but it is a practice that state often adopt to support a new state or to neglect the recognition of this new state. In the past, we have plenty of examples of countries that created some disputes in the international community on their status (North and South Korea, North and South Vietnam, east and west Germany). Recognition is still used; but we should distinguish between recognition of a state from recognition of a government. Here we're talking here about recognition of a new state, and an example can be made about Venezuela (legitimacy of government of Maduro and Guaidò; but this has nothing to do with the state of Venezuela, recognized by the entire international community). So, one issue is the recognition of a government and another one is the recognition of a state. For practices of international law, such as treaties, what matters is the recognition of a government. We have an example of Kosovo, that has been recognized by some state, but not from others (like Spain). There are two views: 1. declaratory view ; the prevailing doctrine. The relevant criteria remain the Trinity (population, territory, government) of the Montevideo convention. Even art. 3 affirms the independence with the recognition of other states Recognition remains a voluntary practice. 2. constitutive view : it’s a doctrine, it's not binding for int law; it’s not customary. it's only a point view. Unless an entity is recognized by the majority of the states; it will not become a state for int law. But this view is problematic because it doesn't say anything about how many states are required to 5
- Treatment of foreign nationals in the territory under their control
- Immunities granted to organs of foreign States
- Int humanitarian law rules applying to non-international conflicts on the protection of civilian and on the means and methods of combat Third States may intervene in favour of the legitimate government (supply of weapons, logistic assistance, armed contingents) but not to help insurgents; no assistance to subvert the original State; it would amount to interference with the internal affairs of the State. BUT UN SC authorisation to use force such as in the Libyan crisis of 2011 where the UNSC authorised a group of countries to use any means to protect civilians in the internal conflict which was underway and resulted in the overthrow of the Kaddafi government. Principle of self determination In classical international law (before the WWII), peoples were not at all considered as int subjects. The principle of self-determination of peoples was recognised only after WWII, attributing a right to people as such, not to the population as in the case of statehood elements, not to indigenous people, not to minorities, but to people aspiring to become an independent State. The concept of people is not easy to define, we only know it’s not the same as talking about the population criteria or the definition of indigenous people etc. Thus: Does Kosovo have a right to secede from Serbia? Does Cataluña have a right to secede from Spain? Does Quebec from Canada? The right of self-determination is one of the most contentious topics in public international law. Let's start with reading (and comparing) Art. 22 of the Covenant of the League of Nations and Art. 1.2 and 55 of the UN Charter. What strikes you most? Art. 22 Covenant of the League of Nations Art. To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. 7
It uses a number of words and terms that are very relevant for ; it talks about ppl, Art. 1 and 55 of the UN Charter Art. 1. […] To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace So, here, we start to have a new view of self-determination of people. Article 55 “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Now the principle of self-determination had acquired customary law status, peremptory character and erga omnes nature. Internal self-determination is being considered as giving people a right to participation and representation (democratic government); it is often linked to human rights protection, especially of minority. Do you see a change intervening after the second World War? Did developing countries enjoy a right to self-determination under the Covenant of the League of Nations? What is the position adopted by the drafters of the Charter of the United Nations on decolonisation? Now read Art. 1 of the two Covenants ICCPR and ICESCR. Art. 1 ICCPR and ICESCR Article 1
_1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the_ 8
Statehood is not forever, it’s not something that remain intact with the succession, dissolution, unification etc. Issue of different categories of state One of the fundamental principles of public international law is the equality of state (the so-called sovereign equality of state ), states are considered equal under international law. This principle find expression in “one state, one vote” system, adopted by the United Nations general assembly and other international organizations. But it’s not always the case, in fact the UN security council is a strictly institution of the United nation, where only 15 states sit, and only five are permanent members, the other 10 change every 2 years. The five permanent members have a veto power. Another exception is the system applied by both the World Bank and international monetary fund, where they apply a waited voting system; the most powerful state within the World Bank and IMF is the USA. Equality of states is one of the fundamental principles but in certain situations it can be derogated, there are exception to this principle. Does international law recognize categories of state? International law has rules to distinguish country based on the development level. Rogue state (like Iran and North Korea); outlaw state is a term applied by some international theorists to states they consider threatening to the world's peace. International provides a set of rules to distinguish countries on the base of development level. Developing countries is it a category well-defined? Developing countries are an important category especially in international economic law, they are allowed to receive a more favorable treatment; they are allowed to derogations and exceptions. The GDP level and other criteria are taken into account. United Nation has an office of the High representative for the least developed countries (the poorest among the developing countries), landlocked developing countries and small island developing States. The LCD category was established by the UN General Assembly in 1971 as an acknowledgment that special support measures were needed to assist the least developed among the developing countries. LDCs criteria (special support is needed to support countries):
- Income (they need to have an average per capita income below 1222$
- Human assets (different elements like health, education, mortality rate, gender quality…)
- Vulnerability (economic and environmental data) Landlocked developing countries :
- very fragile;
- Geographical located surrounded by other states, no access to seas. They have to relay on good neighborhood relationships with other countries for import and export;
- They deserve special attention;
- Many of these countries are in Africa, but also in other areas. The first category of developing countries that deserves special treatment are the Small island developing states. They are becoming more and more important nowadays because of the climate change, that can destroy them and reduce their territory (because of the rise of the sea level). This category was established in 2001. They are at the center of all the discussion about the fights of climate change. And they are the center of the fight of climate change. Exercise on Lupala (is it a state?) LDCs Least Developed Countries 10
LLDCs Landlocked Developing Countries SIDs Small Island Developing States Lesson 5 International Organizations International Organizations have a separate international legal personality, their personalities are distinct from the one of their member states. It wasn’t settled until 1950s. One of the most advanced and first positions of independent legal personality was taken before WWII, by the Italian Court of Cassazione, the Supreme Civil Court (Profili case 1931 ): an IO is “neither a State, nor a super-State nor a Confederation of States”. At the time, the definition of IOs was still controversial because the main idea was that states were the only subjects of International law, so IOs were considered to have secondary legal personalities, because they were created by states. During that period there were some IOs like the international telegraphic union, with the aim to facilitate communication, but there were not many, at least not as much as today. The spread of IOs started after the end of the WWII, mainly because of all the other regional organizations, very technical ones (like the World Trade organization). It became much more important than it was before to asset their status in international law. One of the first decisions, that was taken by the ICJ, was about the status of IOs in international law Bernadotte case Characteristics of an IO (see, ICJ 1949 Bernadotte case ) ICJ, Advisory Opinion, 1949 Reparation for injuries suffered in the service of the United Nations (so-called Bernadotte case) FACTS: The man at the center of this case, Bernadotte, was a diplomat that during the WWII obtain the release of German prisoners. So, he was chosen as a mediator by the UN in Arab Israeli conflict. He was assassinated while he was on a mission on behalf of UN. The compensation that Israel needed to pay was to be given to Sweden, his state of nationality, or to UN, as Bernadotte was working for the UN when he was assassinated in Jerusalem? Or whether both were entitled to obtain reparation?
- The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights , and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable.
- The Charter has not been content to make the Organization created by it merely a centre “for harmonizing the actions of nations in the attainment of these common ends” (Article 1, para. 3). It has equipped that centre with organs and has given it special tasks. It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it (Article 2, para. 5), and to accept and carry out the decisions of the Security Council; by authorizing the General Assembly to make recommendations to the Members; by giving the Organization legal capacity and privileges and immunities in the territory of each of its 11
ICJ Advisory Opinion, 1948 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) Question posed by the UN GA: “Is a UN member which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to UN membership together with that State?” The ICJ answered that the requirements set for by article 4 are enough and they were to be regarded not only as a necessary but also a sufficient condition. International responsibility Immunity is a procedural protection; such as in cases like the resolution of ex-Yugoslavia and Kosovo; NATO intervene in Kosovo and they bombed it. They dropped cluster munition and some of them remained unexploded. A few years later two brothers found one and it exploded, killing one kid and injuring another. Was UN responsible? Yes, but the court couldn’t have jurisdiction of the case. ICJ Adv Op, 1980 WHO-Egypt Agreement : “IOs are subject of int law and, as such, are bound by any obligation incumbent upon them under general rules of int law, under their constitutive treaties or under int agreements to which they are parties”. [we will discuss the responsibility of IOs further on in the last part of the course] Privileges and immunities Of the organization: Immunity from the jurisdiction of national courts Property, assets and currency: immunity from execution Inviolability of premises and archives Exemption from direct taxation Communications: absence of censorship, right to use codes, diplomatic pouch Of the personnel: For the purpose of exercising their functions in relation to the organization For example: according to the UN-US headquarter agreement, Head of States or Government should be able to reach the UN premises in New York this principle was challenged because the USA at the end of 2018 passed an antiterrorist act because it didn’t recognize Palestine liberation organization (PLO); but then they had to recognize freedom of movement of the PLO’s members. The antiterrorist act couldn’t impede the members of the organizations to reach the UN palace in NY privilege and immunity. The UN is adopting guidelines about how to prosecute these kinds of actions, but it has to be done by who send the peacekeeper; so, Italian court has to judge its peacekeepers. Internal law of employment relations
- Need for an independent system of law 13
- Staff regulations
- Administrative tribunals
- Cases of discrimination, improper motives for dismissal, etc.
- Duty of care United nation model to understand the principles that are common to the international law G-7/8, G- Read the description of these groups and assess whether they have the features of an IO with international legal personality.
- Since the 1970s there has been a high degree of informal consultation among countries on major political and economic issues in the context of intergovernmental fora. Intergovernmental groups ( Gs ) have no institutional structure and change their composition by mutual agreement. Given that they are not international organizations, they are devoid of any kind of conferred powers and permanent administrative structure. The government which periodically hosts the group usually provides administrative and secretarial support. They contribute to international coordination on various economic issues.
- The G-7 consists of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States, with some additional observers. Russia joined the group as full participant since 1998, thus marking the birth of the G-8. In 2014, however, in response to actions taken by Russia in Ukraine, the G-7 leaders announced they would not meet with Russia in future summits. The G-7/8 Summit meets at the level of Head of State or Government and issues Final Communiqués which are not legally binding but represent the leaders’ political commitment.
- Since 1998, in consideration of its expanding working agenda, the organization of ministerial meetings, independent from the Summit of the Heads of State or Government, has become common practice. The country holding the Presidency decides upon the number and agenda of ministerial meetings. Traditionally, along with the annual Summit of the Heads of States and of Government, the meetings of the Foreign Ministers and of the Finance Ministers and Central Bank Governors are also convened. The conclusions reached at ministerial meetings are usually reflected in the Summit Final Communiqué. Well-known meetings of the G-7 Finance Ministers and Central Bank Governors resulted in the Plaza Accord (1985) and the Louvre Accord (1987), which addressed the problems of fluctuating exchange rates of major currencies.
- The G-7/8 usually convenes immediately prior to the semi-annual IMF meetings. The agenda of G-7/ meetings of finance ministers may cover subject matters which are in the mandate of the IMF. In this case, consensus reached at the ministerial meetings might supersede consultations within the Fund. G- countries detain in fact 41,29 percent of the voting power in the IMF.
- The G-7/8 has lost much of its prominence since the emergence of the G-20, a group that was established in 1999 in the wake of the Asian financial crisis with the aim of stabilizing financial markets. The G-20 brings together major advanced and emerging economies (Argentina, Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, Saudi Arabia, South Africa, the Republic of Korea, Turkey, the United Kingdom, the United States) and the EU (represented by the President of the European Council and the President of the European Commission). Spain is a permanent invited guest. The IMF Managing Director (together with the Chair of the IMFC), the President of the World Bank and of the FSB are also invited to attend. Countries which chair key regional groups - such as the African Union, the Association for Southeast Asian Nations, the New Partnership for Africa's Development and the Caribbean Community - are generally invited to the summit.
- The G-20 Finance Ministers and Central Bank Governors meet annually and discuss measures to promote global financial stability. Since 2008, the G-20 also meets in a Heads of State or Government 14
Observer status without voting rights to non-member states, international organizations and other entities: Palestine, Holy See, EU, AU, specialised agencies, etc The status of permanents observers is based purely on practice, and there are no provisions for it in the UN Charter. The practice dates from 1946, when the Secretary- General accepted the designation of the Swiss Government as a Permanent Observers to the UN. Observers were subsequently put forward by certain states that later became a UN Members, including Austria, Finland, Italy and Japan. Switzerland became a UN Member on September 2002. Amendment and review of the UN Charter Every treaty can be amendment. Long-standing and heated debate on UN reform Two procedures for amendment and review Art.108^2 amendment must be adopted by 2/3 of UNGA members ad ratified by 2/3 of the members, including the 5 permanent members, according to their domestic legal procedures Art.109^3 review require a general Conference of UN members to be decides by a 2/ majority within the UNGA and by vote of any 9 UNSC members. In the conference each member has one vote; the conference decides by a 2/3 majority including all the UNSC permanent members. Governance structure Institutions and organs Institutions are those that are necessary for the correct functioning of the organization; Organs are accessory, are not the fundamental ones. UNGA (^2) Article 108: Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council. (^3) Article 109:
- A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the conference.
- Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including all the permanent members of the Security Council.
- If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council. 16
Consists of all UN members, each one has one vote, but it can send up to 5 representatives (opposition parties) Decisions adopted either by a qualified majority (2/3) or simple (50+1) majority of the members present and voting, respectively for important and not important matters; abstention is considered not voting Adopts recommendation, non-binding acts having a merely hortatory character, on any matter falling within the mandate of the UN UNSC The main political institution of the UN Maintenance of international peace and security 15 members: 5 permanent members (China, France, Russia, UK, USA) + 10 non-permanent members elected by the UNGA for 2 years by a 2/3 majority taking into account contributions to the maintenance of int peace and security and an equitable geographic distribution Decisions on procedural matters require an affirmative vote of 9 members On all other matters require an affirmative vote of 9 members including the concurring votes of the 5 permanent members (Art. 27.3^4 UN Charter) Abstention A new customary rule internal to the UN system has arisen according to which abstention does not prevent a decision from being validly taken. It’s a mediatic tool, the charter wasn’t modified, but simply the practice moved to consider the abstention do not prevent a decision from being validly taken Adopts both recommendations and decisions that are legally binding on all UN members, especially in the area of int peace and security (Chapter VII) Secretary General Chief administrative officer of the UN ECOSOC 54 members elected for a 3-year term by the UNGA Concludes agreements with the specialised agencies Specialized agencies are IOs working with the UN, in accordance with relationship agreements between each organization and the UN FAO, UNESCO, ILO, IMF, WB, IMO, WHO https://www.un.org/en/sections/about-un/funds-programmes-specialized-agencies-and-others/ index.html ICJ Preceded by the Permanent Court of Arbitration (PCA) established in 1899 and by the Permanent Court of International Justice (PCIJ) set up by the League of Nations in 1922 [PCA Enrica Lexie case India and Italy; the Marò case] (^4) 1. Each member of the Security Council shall have one vote.2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. 3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.” 17
It is not entitled to review the legality of the acts adopted by UN organs, especially those of the UNSC Lesson 6 SOURCES OF INTERNATIONAL LAW Sources of law determine the rules of legal societies, sources of international law determine the rules of the international community. A list of the sources of international law can be found in art. 38 ICJ Statute :
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.
- This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto._ Primary (conventions, customary, int law and general principles of law recognized by civilized countries) vs. secondary (judicial decision of tribunals and scholarly contributions; they only identify, instead of creating international law; they only apply or clarify the contents of existing law) sources of law (NB there is no hierarchy, but they have different functions). CUSTOMARY INTERNATIONAL LAW CIL is the set of rules which emerge from the constant and uniform practice of States and it is regarded as binding by them. Requires the consistent repetition of a particular behavior; states should also beehive in the same way. CIL binds all States (NB persistent objectors), including those States that have not taken part in its formation. There are areas where treaties were not being universal ratified like the convention of the law of the sea CIL arises when a particular behavior is:
- followed as a general practice among States ( the so-called the objective element/ diuturnitas ) AND
- it is accepted by those States as legally binding: i.e., they believe that the practice is legally binding (the subjective element: opinio juris sive necessitates )
- The objective or material element ( State practice ) Who: organs of States and IOs; it’s not made by single individuals; notion of State organs; What sorts of acts count and the weight to be given to them; States act all together as organs and therefore their practice among two summatory of the behaviors of the member states 19
*** Practice in itself is not sufficient for a customary rule to arise. (like sending ambassadors; they can be also verbal acts); the omission could be considered as state practice. All these acts should be adopted by states organs or ratified by the states and should be public. The density of practice (not duration): Custom may arise in a very short period of time, it’s not a time requirement, it just depends on the circumstances and nature of the practice. What’s relevant is the density of practice practice should be uniform/consistent, extensive and representative. States that don’t take a position may end up being bound by a new custom. Custom bind all states, not only those who decide to adopt the practice. The practice should also be representative. In the formation of CIL related to the law of the sea what is important is the behavior of states who have borders on the sea. The practice of landlocks is not relevant.
- The subjective requirement ( opinio juris = belief of law or of necessity) Two approaches: a) Opinio juris amounts to an expression of consent or will that something be a rule of CL (in the process of formation) OR b) Opinio juris consists in the belief that a practice corresponds to a legal obligation or a legal right, or in other words it has to be carried out because it is a legal obligation (when there is already widespread practice) The purpose is to differentiate between acts that are motivated by a desire to honor a legal obligation and those that are not:
- acts stemming from non-legal motivations
- actions done for a sense of moral obligation, rather than in compliance with a legal obligation (like compensatory payments made ex gratia ) It remains very difficult to establish when a customary law rule has formed The ILC Draft Conclusions on identification of customary international law 2018 The International Law Commission adopted in 2018 its draft conclusions on the methodology to be adopted for identifying rules of customary international law. The ILC conclusions seek to offer practical guidance on how the existence of rules of customary international law, and their content, are to be determined. [A necessary digression on the International Law Commission The ILC is a subsidiary body of the UN General Assembly which has the mandate to progressively develop and codify international law. The ILC Statute (art. 15) specifically establishes that the expression “progressive development of international law” means the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States. Similarly, the expression “codification of international law” means the more precise formulation and systematisation of rules of international law in fields where there already has been extensive State practice, precedent and doctrine. The ILC efforts have resulted in wide variety of instruments, some very successful in codifying customary law, others less. Some ILC draft articles have been converted into multilateral conventions or treaties under the umbrella of the UN General Assembly (for example the 1969 Vienna Convention on the Law of Treaties. ILC Draft Articles which do not translate in a treaty text 20
