Flashcards in Sources Deck (17)
Based on what Ideal
Horizontal effect between all states, as no one state can create policy for all the other states. International Court of Justice plays a significant role in this Art 93 (UN Charter) All members of UN, ipso factor members of Statue International Court of Justice, which contains Art 38 on the sources of International Law
Article 38 of Statue of International Court of Justice
A) International Conventions
B) Customary Rules
C) General Principles
D) Judicial decisions and scholars
There isn't one, but some argue there is a difference in formal and material sources. Formal being the ones which create binding rules (Treaties) Material being ones which seemingly come from the other sources of law. Akehurst points out that when writing it they decided against having a hierarchy.
Treaties highest source?
Lautherpact believes so as States must express consent into the treaties from them to have effect.
Unilateral Declarations - Nuclear Test case (France)
Soft Law - 'in the twilight between politics and law'
Jus Cogens - Normal norms
Treaties and Conventions
Determined by Vienna Convention on the Law of Treaties.
2(1) definition ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular design.’
Art 26 relies on pacta sunt servanda, which means only bind parties involved in it
Binding force of a treaty comes from the consent
Art 34 - No obligation for third parties, yet UN Charter and ICC Statute too important (Arrest Al-Bashire)
Types of Treaties
Multilateral - law-making lay down universal rules
Bilateral - Agreements between two states, specific matters
Opinio Juris and State Practice to have it
Opinio Juris - Accept the practice as binding law and under legal obligation to follow it. SS Lotus Case - States must know about obligation, crashed ships attempted to sue for manslaughter
State Practice - 'constant and uniform usage, accepted by law' Asylum Case, 3 elements - Consistency, Durability (Not important though can impose quickly) Generality (general acceptance)
Persistent objector - New norms, Asylum case (Peru) Fishers Case (UK v Norway)
Treaties v Customary Rule
If they conflict then treaties prevail, SS Wimbledon case - Uk ship, arms to Poland, Germany didn't allow but couldn't not as Art 380 of Treaty of Versailles meant they have to
Used to fill the gap, in Art 38 says only civilised nations, written 80 years ago when some states did not have developed legal systems. Main principles, Equity, Good Faith and Res Judicata.
'Accepted by all states' Phillimore
Art 59 'No binding force' No precedent, it is in order to prevent principles being established. Can reference other courts decisions, Arrest Warrant case domestic courts referenced
More likely to refer to International Law Commission than publicists now. Nottebohm case
More bindings than normal norms, relate to slavery/genocide. ICJ have refused to make a list of them, Nicaragua case 'prohibition of use of force as Jus Cogens'
Not legally binding, but can be evidence of customary rules. Even if majority agree does not mean things will get done about it Nuclear disarmament
Must be from a legitimate source of authority, made publicly and intention to declare
Global and Formal - UNGA Resolutions/Declarations
Regional and Non Formal - IMO Guidelines, Recommendations
They can affect future sources, and sources rely upon them.
Against - It cause confusion, it's not law or non-law, merely recommendation
For - It's flexible, relative normality within IL,