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Statute of the ICJ, art38(1)

(a) INT conventions, whether general or particular, establishing rules expressly recognised by the contesting states
(b) internaitonal custom, as evidence of gneral practice accepted as law
(c) the general principles of law recognised by civilised nations
(d) judicial decisions and teaxaching of hgghly qualified pubicists of the various nations, as subsidiary means for determination of rues of law


Priority of the Sources

D holds lower herarchical position and is subsidiary of the other sources
A B and C are of eual legal value, but there is practical hierarchy of application
General principle that the special rule is applies over the general rule, so look to T first, then CIL, then GP


"Formal" and "material" sources

Formal sources are the 4 sources
Material sources are the actual documents that = Ts, of the SPs that demonstrate CIL (the manifestations of the sources)


"Lotus presumption"

The SS Lotus (1927)
Nature of "sovereignty" in IL
Ss are free to do whatever they are not prohhibited from doing
So if we can't find a rule, original background rule = you can do it
Bu there is additional background to the background rule. E.g. you can make anything criminal, but can't criminalise stuff in other's territory. Except when you can.
Useful in most, but not all, contexts


A complete system?

Generally recognisd as complete, as can fall back on LP, or GP
One case in lat 90's that throws that inot doubt
But really, there is no non liquet in IL


Classical theoretical basis of binding force in IL

The SS Wimbledon (1923)
Ss = free to accept limitations on their actions
Based on this theory IL is based on S consent
If S no accept rule not binding on them
Lotus, 18
Manner of expressing consent and precisely what the S must e taken to have consented to = sticking points
Meaning of "legal positivism"


What are Treaties?

Specific formal agrements between competent parties
Almost always written
If two parties = bilateral, if more "multi-lateral"
Only bind parties to them
Cannot create obligations or take rights of 3Ps who don't agree to them


Who can contribute to CIL?

States alone are uncontested in formal capacity to contribute to formal capacity to contribute to formation and modification of CIL
Maybe in specific area of law of IO, they can contribute to development of this area only. Only alleged by certain parties, not accepted by all.


Scope of binding force of rules of CIL?

CIL is binding on all Ss, or at least all that hve not maintained position of persistent objection.
In vast majority of cases, binds all Ss
Persistent objctor status = controversial


Asylum Case (Colombia vs Peru)
re creation of CIL

"General practice accepted as law"
C hopes to rely on alleged custom or practice peculiar to Latin Americann States. Must prove that this custom is established such as to be binding on other party. Rule must have constant and uniform usage, which is expression of rights and duties of the parties


Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), para 55
re creation of CIL

North Sea shelf made clear need SP and OJ to have rule of CIL
Continental Shelf said its axiomatic that we find CIL in SP and OJ, not MLTs, even though those can play important role too
What kind of thing = SP? National court judgments, legislation, claims advanced by Ss before foreign courts, staments made to ILC and in context of adoption of UNC
What kind of thng = OJ? Assertions by Ss in claiming x that IL accords them right to x, acknowledgment by S granting x that IL requires them to do so, converse assertion by another S that there is right of y
If S does X more extensive than required by IL, might not be accompanied by OJ, so doesn't help
Here, x = grant of immunity


What kind of stuff can constitute State Practice?

Any conduct of an organ of the state (legislature, judiciary executive)
What = conduct? Actual actions (e.g. sending armies), Acts of Pt, courrt decisions
Can have oral and written conduct
Nonfeasance can be SP
State's reaction to acts of another S = SP


Number of States requirement for General Practice

Need not be universal, and noumber requirements is not mathematic or consistent. Must be representative number of Ss


Repetition requirement for General Practice

Got to do it enough


Political, economic, regional etc representativity of states

North Sea Continental Shelf
Lachs dissent: Only 70 Ss engaged in exploration of continental shelf, its those Ss who are important to SP
Sorensen: Significant that the Ss which have become parties to the convention are fairly representative of all geo regions of the world and are of different economic and social systems
Texaco Overseas Petroleum v Libya


"Specially affected" states

Have to have SP of the states that are affected more so than others
Bc f it doesn't affect you you are less likely to consider the harm etc, would other wise not really have S consent, participatory democracy idea that even if not in majority your voice still matters
Powerful Ss almost have a veto


North Sea Continental Shelf paras 73-4
re specially affected states

Even without passage of considerable time, a very widespread and representative participation might be enough, provided it includes the specially affected Ss
Although pasage of only a short period is not necessarily a bar, within that period SP, including of those specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked, and sould moreover have occurred in such a way as to show a general recognition that a rule of law or legla obligation is involved


North Sea Continental Shelf, 175 diss op Tanaka
re specially affected States

To decide whether SP and OJ exist is delicate and difficult matter
Repetition, number of examples of SP, duration of time required for generation of CIL "cannot be mathematically and uniformly decided"
Each fact requires to be evaluated relatively according to different occasions and circumstances


North Sea Continental Sheld, diss op Lachs 229
re specially affected states

The evidence should be sought in the behaviour of a great number of States, possibly the majority of States, in any case the great majority of the interested States



Can have short time rule, but need more Ss
Time in itself is not fatal to creation of rule of IL
North Sea Continental Shelf, para 74, short time may suffice proovided "very widespread and representative participation", practice "should have been both extensive and virtually uniform in the sense of the [rule] invoked"


What is Opinio Juris?

Sometimes we mean the right sort of subjective belief, sometimes we mean any.
Not enough to have SP, need conviction that action comports w rule of IL
Either that they believe they are obliged to do the thing they are doing, or that they have a right to do it at IL


SS Lotus Case, 28
re OJ

French Gvt tried to sy that rarity of collission cases being tried in criminal courts showed tacit consent on part of Ss that shows what IL is in collision cases
Court says no, merely shows that they have abstained, not that they recognise themselves as being obligd to do so
Only if their abstention was based on their being conscious of having a duty to abstain would it be possibe to speak of INT custom


North Sea Continental Shelf para 77
re OJ

To have OJ, two conditions must be fulfilled
Not only msut acts amount to settled practice, must also be such/carried out in such a way as to be evidence of a belief that practice is rendered obligatory by existence of a rule of law
Need for such belief i.e. subjective element = implicit in very notion of OJ


Military and paramilitary acitivies in and against Nicaragua (Nicaragua v United States of America) Merits para 207
re OJ

As in North sea, for new customary rule to be formed, not only must the acts amount to settled practice, but must be accompanied by OJ
Either the S taking such action or other States in position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is obligatory under rule of law


Onus of demonstrating OJ

North Sea: ‘acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature’
but also: ‘the general practice of States should be recognized as prima facie evidence that it is accepted as law’ but ‘[s]uch evidence may, of course, be controverted’ (North Sea, 231 (diss op Lachs); see also ibid, diss op Tanaka) and diss op Sørensen)
So basically it will depend on things like what kind of rule it would be. If breakign o prohibition, might take that as evidence that the party believes there is an exception eg.


How is new CIL created?

"accepted [or acceptable] as law"
OJ can sometimes be belief that something should be law, rather than that it is.
States don't say this directly in practiec though, and instead if they want a change in CIL, they say that is how it already is


Effect pf breach of CIL

Nicaragua, para 186
Not to be expected that SP be perfect. Sufficient that conduct in general be consistent w rules, and instances of conduct inconsistent rulw is treated as breach, not indications of recognition of new rule
para 207
For new rules, SP must be accompanied by OJ
Either S takign the action, or other Ss in position to react must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by existence of law requiring it”
Reliance on novel right/exception, if shared in principle by other Ss, might tend towards modification in CIL


Relationship between Treaty and CIL

CIL, then Treaty: Derogation from CIL inter se via treaty, r codification via treaty
Sometimes negotiation of treaty crystallises CIL
Treaty and subsequent CIL (see different card)
Serial treaty provisions as evidence of CIL? (See different card)


Treaty and subsequent CIL

VCLT, art31(3)(c): Try to interpret the treaty in line w new rrule of CIL


Treaty as inspiration for subsequent rules of CIL?

North Sea
Para 71: general statement that a treaty can inspire a new CIL rule, or in effect become one
Para 76: but compliance by non-parties does not hve that effect automatically, need more OJ