L5 - sources of IL Flashcards
(19 cards)
intro
!!this is an important lecture (big chunk exam)
where does IL come from?
= doctrinal class, what composes law, the logic of law
law as discipline has own logic + vocabulary
typology
where does IL come from? -> art. 38 subsection one statues ICJ (part of charter UN)
The list in Article 38(1) of the Statutes of the International Court of Justice, which is itself an exact copy of Article 38(1) of the Statutes of the Permanent Court of International Justice, is generally considered to be authoritative:
- The Court, whose function is to decide in accordance with IL such disputes as are submitted to it, shall apply
- international conventions, whether general or particular, establishing rules, expressly recognized by the contesting states
= treaties - international custom, as evince of a general practice accepted as law
- the general principles of law recognized by civilized nations
- 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
= list of sources of IL
*a,b,c are IL, d is merely reflecting of what IL is
- the provision hall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto
- art. 38(2) refers to ex aequo et bono (according to the right and the good)
- power for the Court (and some tribunals) to decide cases based on what they feel is right without reference to any rule of positive law
- a remanent of natural law in a largely positivist system, but very seldom used
- can only use this if the parties agree -> lawyers never agree, bc if one agrees, the other fears it is in their benefit, so they won’t agree
- difference between law and justice
treaties
Art 38(1)(a): “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”
A note on terminology: treaties can be called all sorts of things, such as agreement, convention, exchange of notes, protocol, pact, etc etc
- name given to it doesn’t really matter, you need to look at the substance to see if it is a treaty in the sense of IL (not every document signed between two states is a treaty)
- e.g. not all exchanged notes between diplomats are treaties (they can also be e.g. insults)
The rules relating to treaties are part of customary international law, but also in the Vienna Convention on the Law of Treaties (116 parties), which is viewer as the authoritative restatement as well as positive law of treaties
- rules to decide if something counts as a treaty
- *note there are 3 diff Vienna Conventions, each discussing diff things
- some treaties repeat what customary law says -> sometimes a treaty just repeats what IL already is (when there is a conflict between customary law and treaties, treaties prevail -> diff parties, depending on what they agreed to have diff ideas about how authorative it is) = example customary law
- treaties = positive law, not customary law
- party can argue it is a treaty that just restates customary (making it subordinate to treaties), while others say it is positive law
why do treaties have to be obeyed?
pacta sunt servanda = agreements must be kept
= rule of law at the basis of treaty making
= why treaties have to be obeyed
- perhaps the most important rule of customary IL
- but there are (limited circumstances in which a treaty obligation can be lawfully breached)
- can be seen as basis of civilization
(there are some circumstances where treaties can be breached lawfully, e.g. when other party behaves unlawfully, you are allowed to stop obeying to your obligations, to punish them)
treaties as IL or source of obligation under law?
you can see it as source of law (positive law) or as an obligation under law (like a contract, it does not create law, but it states obligation to law)
- treaties as contrast (it merely creates obligations that are enforceable) not making law, but creating obligation
strictly speaking some argue treaties are not sources of law as such, as much as they are a source of obligation under the law, binding on its parties (at last)
majority view = that treaties do create new IL
- we need to know there is a dispute
compromise view:
some draw distinction between “law-making” treaties and “contractual treaties”, but all treaties are contractual
- Geneva = treaty that makes law (but it is also a contract, bc you also agree to be bound by it)
- treaty to give Aruba to the US, it is a contract, not a law
- HE SAYS THIS DISTINCTION IS FALSE: BOTH ARE CONTRACTUAL
treaties as sources of law
treaties can be sources of IL:
- some treaties codify a body of customary IL, and are generally accepted as authoritative statements of customary IL, even by non-signatories
- treaties CANNOT bind non-parties, but non-parties can choose to abide by the rules it lays out
treaties can do pretty much anything EXCEPT authorize the violation of a peremptory norm (Article 53 of the Vienna Convention on the Law of Treaties)
- peremptory norms: inscribed in customary law, are higher than treaties (so in this case customary is more authoritative, treaties can’t breach peremptory norms)
- e.g. norm against genocide: no treaty can allow for genocide to become legal
- peremptory norms are controversial, if custom changes law changes, so are they really peremptory? why is genocide impossible to legalize?
how are treaties made?
they are written + made between states + represented by people authorized to do so
- written: traditionally what distinguishes treaties from customary law
- also between states and IOs, e.g. ICC and NL treaty -> is it really a treaty? = debatable
*generally considered to be between states - but what is a state? ambassador, king, representative? = can only be made by people with legal authority to do so = paper that gives them full power (some positions are presumed to have full power, e.g. presidents)(power to conduce a treaty)
Treaties are distinguished from other international agreements in that they are legally binding—substance, not form, dictates whether something is a treaty or not
Signature is (usually) not the final step—then parties have to ratify the treaties— allowing the principal to endorse what the agent has done (or not)
- how to know if treaty requires ratification? if the treaty says so
Most treaties are not binding on states until they are ratified—but in the meantime the state is not meant to do anything that would defeat the purpose of the treaty
- controversial: Rome Statute = Clinton signed, Bush didn’t like it, refused to ratify it + stopped the statutes from being executed -> int’l lawyers say he is breaking the law by impeding purposes ICC, eventually US withdrew signature (but it is controversial if this even exists)
Ratification is done according to domestic procedures—usually either the executive (e.g. UK and Commonwealth countries etc) or the legislature (e.g. United State 2/3 Senate -> hard to sign treaties)
- depends on domestic law of the country doing the ratification -> two approaches:
- British tradition = executive (e.g. UK King (gov in name of the King)
- democratic control: legislature has to ratify signature made by executive (e.g. most European countries + US)
treaties typically have
treaties often look similar
- a preamble
- sometimes a long list of signatories’ names
*(esp C19, often signatories list is longer than the content itself, bc it also mentions all titles) - main body
- signatures/seals (traditionally sealed with wax, now only the most important, e.g. Lisbon Treaty EU, but usually signatories is enough)
then
- reservations (but not always possible or accepted)
*reservations declaring issues with a treaty, are only accepted if it does not defeat the purpose of the treaty (e.g. treaty against using landmines, but reservation to keep using it is invalid bc if accepted it makes signature irrelevant)
**if treaty just between two countries, if a reservation is rejected, the treaty is basically dead, but with multilateral treaties it is more complicated, one country objecting to it makes that it sees the country a breaking a treaty (bc it doesn’t acknowledge the reservation) - protocols
(protocol is new treaty that amends a previous treaty)(can be optional or mandatory)
treaties - monism vs dualism
(one of the most important distinctions in IL, REALLY IMPORTANT)
monist systems = treaties (IL) do NOT need to be translated into municipal law - they have effect directly
- in most countries (e.g. NL)
- if it is ratified it is immediately effective, automatically part of domestic law because it is a monist system
- logic: if gov is elected and legislative have both agreed to it, it is as good as law (that is how it is made: gov makes the law, legislative passes it)
- International law and domestic law form a single legal system.
dualist systems = domestic legislation is required to translate the treaty obligations into municipal law
- e.g. UK
- not effective unless parliament has passed law that gives effect to the Treaty
- treaties signed and ratified by same body: the executive -> make sure the legislative has a say through this
- it is not law for domestic purposes until legislative has passed it
- possibility of breaching IL when executive has signed and ratified and legislative refuses to pass it in domestic law
some states have a mix of both
- e.g. US
wikipedia:
- monism: Monists accept that the internal and international legal systems form a unity
- dualism: emphasize the difference between national and international law, and require the transposition of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law
how do treaties end?
- on its own terms (self-termination - expiry, disappearance of essential conditions, etc.)
- some treaties say they expire after 5y
- some are over immediately, e.g. treaty over ownership, once it is done it is over
- or e.g. treaty about ownership lake ends if the lake dries up - withdrawal (“denunciation”)
- in response to a serious breach by one party (sometimes)
- not always, but sometimes allowed to do this
*some treaties you can never leave, e.g. treaty recognizing territory
**most treaties you can leave
customary IL
Art 38(1): “international custom, as evidence of a general practice accepted as law”
NOT all customs are customary IL, for a custom to become law, two elements are necessary:
- evidence of widespread and settled state practice (it has to be custom: enough countries have to follow it for long enough)
-
opinion juris = states adhere to the custom bc they believe they have a legal duty to do so (it has to be accepted as law)
- don’t follow it bc it is nice to do, only if you feel it is law
State practice is ascertained not only through the actions of national executives, but also from domestic courts and legislatures, as well as public statements
- practice is relatively straightforward, opinio juris isn’t
Opinio juris—a somewhat artificial exercise, as it implies states have a collective mind/intentionality of their own
What this means is that persistent breach of an existing customary rule, in some circumstances, eventually becomes evidence of a new rule
- if enough states breach an existing customary rule for long enough it can create new customary law (e.g. ocean owning up to 3 miles, some countries claiming bigger and bigger parts -> after 40-50 years of lawbreaking it was extended to 200 miles)
States can prevent being bound by an emerging rule of customary international law by acting as a PERSISTENT OBJECTOR—silence is not good enough
- so not all countries are equally bound by IL
- e.g. every year someone in the US sends a mail with a list of all customary rules not accepted
- if you sign you accept it, you need to vocally object it
- you need to persistently object to an emerging custom
Customary international law is inferior to treaty for the parties to that treaty, but not for third parties
(from positivist view customary law is problematic because it assumes acceptance of something as IL, not everyone remembers/has means to constantly object)
opinion juris
= states adhere to the custom because they believe they have a
legal duty to do so
Opinio juris—a somewhat artificial exercise, as it implies states have a collective mind/intentionality of their own
- what is France? foreign ministry, president, parliament?
- implies the state has a mind of its own
- artificial exercise to determine this
general principles ‘recognized by civilized nations’
Art 38(1)(c): “the general principles of law recognized by civilized nations”
problem: no one really knows what it means, there are 2 views about this seldom-invoked source
- it refers to principles which are to be found in most of all municipal law systems, but which do not exist as positive international law
*e.g. every country has law on contracts, but no positive IL of contracts - It also includes very basic legal principles such as pacta sunt servanda (promises need to be kept)
= also includes basic principles of IL that basically everyone accepts
(refers mostly to fairly basic principles to which most/accept)
judicial decisions and writings by publicists
Art 38(1)(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.”
Article 59: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”
- common law: under British influence = decisions by judges are source of law
- civil law: under French/European influence = decisions by judges are not source of law
SUBSIDIARY MEANS bc what is contained in textbooks and judicial decisions are derived from the first three sources
- subsidiary = secondary
- 38(1)d = what is law isn’t what they say, it reflects what is law == it is if you’re lazy and don’t want to read all law, the textbook isn’t law, it is the evidence of law
- it is not law as such, it is evidence of what the law is (diff from common law systems where e.g. a court ruling is law)
in practice, the lines are somewhat blurred today bc judges/lawyers in IL are very often also scholars of repute
Unlike in common law systems, each case is only binding on the parties involved and are NOT binding precedents
- but ICJ has a tendency of citing itself as to the content of customary IL, even sometimes ignoring state practice = ICJ in practice ignores art 59, in practice there is a system of precedence
Judicial decisions are not only those of international courts but also of municipal courts, which also serve an additional purpose of constituting state practice
other possible sources?
many people argue there are also other sources (outside ICJ 38(1))
- Resolutions of the UNGA (arguably) = they are not legally binding -> how can they be sources of IL? bc everyone is member, if majority votes in favor, it has moral weight, that translates to legal weight (REALLY controversial)
*esp. global south sees it as law - Studies produced by the International Law Commission, even if not adopted (part of the UN responsible for codification IL)
= some argue this is law bc they are compiled by the most highly qualified publicists, it does reflect what law is - UNSC resolutions: does not make law, but rather creates specific obligations, backed by a treaty (the UN Charter)
- has legally mandatory powers, BUT not sources of law: creates specific obligations backed by treaty = law is the treaty, the UNSC gives order that specify obligations, they are not of themselves law, but derived from law
- a derivative of law, not law as such
none of these sources has universal acceptance as being IL
basic principles of interpretation and hierarchy
Is there a hierarchy of norms? Sort of, but not completely
ius cogens/peremptory norms are above everything else, but really very few of those exist:
- Wars of aggression
- Genocide/crimes against humanity/Apartheid
- Slavery/torture/execution of juvenile offenders
- Piracy
= norms that can never be broken by anyone
- any treaty/custom etc. going against this is invalid
a treaty prevails over customary law as between the parties to the treaty but not over non-parties
(when parties aren’t both signatories, the lowest common denominator is chosen: customary IL)
(customary IL used to be more important bc much wasn’t codified yet)
lex specialis derogat generali
- special/specific rule prevails over the general rule
lex posterior derogat priori
- the latter rule overrides the earlier rule
lex specialis derogat generali
= the special/specific rule prevails the general rule
- e.g. general rule over herds vs the rule about chickens
Given that legislators/treaty-makers are assumed to know the customary international law, normally a treaty will be lex specialis over a customary rule
- implies that treaty is lex specialis over customary rule, because you already know customary and you still decided to go for a treaty
What if a customary rule emerges after a treaty? Is it lex specialis?
- If the customary rule is peremptory, it overrides the treaty
- If NOT, but if the parties to the treaty contributed to its emergence, the customary rule can be seen as modifying/interpreting the treaty rule
- otherwise? who knows
lex posterior derogat priori
= the latter rule overrides the earlier rule
- treaty signed in 1960 < treaty signed in 1980
- more recent rule overrides the earlier rule
positive law vs customary law
= shitty explanation based on question
positive = law based on what states agree to
customary = can be positivist or naturalist
- body of law derived from actions of state
if you sign a treaty, you agree to something being law = positive law
customary law is not necessarily positive
- based on consensus, habit etc.
- not necessarily written down, it is not signed by states, it is practiced
philosophically speaking positive law is what states agree to (but what does it mean to agree to it?))
natural law is morality requires it, law of nature and god
positive law = law of people
(usually in practice treaty law is more authoritative than customary law, but in theory they are equal)
- peremptory norm = exception (it is really controversial): it is customary law more authoritative than treaty law
