California Class 3-4

Class presentation by Boldizsár Nagy

Sources of International Law 2008

Issues of classes 3-4 • The meaning and importance of art 38 of the ICJ Statute – is it exhaustive? – how many types of sources are identified? – is there a hierarchy among them?

• Customary international law – its building blocks • General principles of law – their nature, reason for inclusion into the Statute, origin, examples • The role of the judicial decisions and the teachings of the „most highly qualified publicists” • Other types of sources, not mentioned in the Statute

ICJ Statute 38 § Article 38 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. Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case.

Treaty • Designation – does not matter

(Agreement. convention, charter, covenant, protocol, etc- AJIL: 38 type)

• Definition: “treaty” means an international agreement concluded

between States [or other subjects of international law] in written form [or orally] and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; /Adapted from Art 2 of the 1969 Vienna Conv. on the Law of Treaties/ or:

Paul Reuter: „A Treaty is an expression of the concurring wills, attributable to two or more subjects of international law, and intended to have legal effects under rules of international law” Introduction to the Law of Treaties, 1989, p. 22

Treaty

• Classification – notions – bilateral - multilateral (universal –regional-particular) – open – closed – treaty-making – executive

• The sociological meaning of a treaty (compromise or consensus) • Reasons for its binging nature (see treaty law class)

Customary law

• Not dead – still developing! (space law, humanitarian intervention, state responsibility e.g.)

• Not equal with precedents! Building blocks: State practice + opinio juris • Time factor: instant – 100 years? • General international law (custom) v. regional/bilateral (+ persistent objector /see next page/)

Customary law – state practice • silence = acquiescence? • consequent resistance = persistent objector (Norway) • new states: are they bound? How to identify customary international law?

• state practice

judicial practice

scholarly writings

resolutions of international organisations

• State practice to be found in: digests, records of international organisations, scholarly journals (e.g RGDI, AJIL)

Customary Law - opinio juris

• Expressions of opinion juris: – Heads of states, of governments, MFA statements, – statements at codifications, – national court decisions, – diplomatic notes

– Lack of practice and/or silence? • non-use of nuclear weapons since 1945 = ???? (See ICJ Advisory opinion on the Legality of Nuclear Weapons, 8 July 1996!)

Customary law and treaties: their dialectical relationship over time, and the efforts to codify

Treaty conclusion – driving forces •

New fields to be regulated – complicated technical matters

•

Overarching ideological cleavages: East – West, North – South

•

Developing nations’ will to participate in the creation of the law

•

Certainty and precision of the written text

Dialectical relationship Treaties may codify or change earlier customary law but new customary law rules may override treaties! (e.g. law of the sea developments) see also: hierarchy

General principles of law • „civilised”- codification history (1920!) – goal: to supplement existing international law and enable smooth operation of PCIJ „Peaceful change through law”

• Not: „fundamental principles” (sovereignty, etc.) • Fields of application – judicial procedure • • • •

nobody should be a judge in her own case res iudicata prescription evidence –witness

– responsibility • duty to compensate • clean hands (?)

– substantive law • unjust enrichment • prohibition of abuse of rights

Judicial decisions and teachings

• Not sources! • „ subsidiary means for the determination of rules of law” (Statute) • Nevertheless: „abbreviations” (especially ICJ, ECHR, and arbitral awards) • instead of review of state practice (and opinio juris) court findings – assuming the court/tribunal or the parties) did

Hierarchy? None, but

•

Charter Art 103. In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

•

Ius cogens (Vienna, 69 LoT) § 53: a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Hierarchy treaty - custom

• From villain of the international community to harbinger of the future!

Precarious balance: When does new customary law start to emerge? Can a (regional) subgroup deviate from general (customary) international law? Principles of law aimed at consistency: lex specialis lex posterior

Further sources not mentioned in Art. 38.

• Decisions/resolutions of international organisations • generally not, but – – – –

internal organisatory matters (budget, elections) law making - if entitled to ~ (WHO, EC) sanctions ordered by the Security Council treaties concluded by the organisation

• Unilateral statements / (in)actions – questions: was it meant to be? • • • • •

who „said” to whom in what form context if inaction /silence = acquiescence?

Thanks! Boldizsár Nagy Eötvös Loránd University and Central European University Budapest [email protected] www.nagyboldizsar.hu