Sources of IL Flashcards
(34 cards)
What is Article 38(1) (ICJ) a copy of?
The list in Article 38(1) of the Statutes of the International Court of Justice, is itself an exact copy of Article 38(1) of the Statutes of the Permanent Court of International Justice (LoN)
Is Article 38(1) of the Statutes of the International Court of Justice considered authoritative?
Yes
Article 38(1)
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 (treaties)
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
Article 38(2)
This provision shall not prejudice the power to the Court to decide a case ex aequo et bono, if the parties agree hitherto
What does ex aequo et bono mean?
According to the right and good
- Technical meaning: 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 remnant of natural law in a largely positivist system, but very seldom used
Which part of Article 38(1) covers treaties?
a). “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”
What are other possible words for a treaty?
Treaties can be called all sorts of things, such as agreement, convention, exchange of notes, protocols, pacts, etc.
What type of international law are treaties?
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 viewed as the authoritative restatement as well as positive law of treaties
- Needs to be consented to
If treaties are not seen as sources of law what are they seen as?
Strictly speaking, some argue treaties are not sources of law as such, as much as they are sources of obligation under the law, binding on its parties
Why do treaties have to be obeyed?
Pacta sunt servanda [agreements must be kept]
- Perhaps the most important rule of customary international law
- But there are limited circumstances in which treaty obligation can be lawfully breached
How can treaties act as a source of international law?
- Some treaties codify a body of customary international law, and are generally accepted as authoritative statements of customary international law, even by non-signatories
- Treaties cannot bind non-parties, but non-parties can choose to abide by the rules it lays out
– States can say they will obey a clause even if they don’t sign it, so it applies as law but not as a contract
Typology of treaties (defining features of treaties)
- Treaties are the hard law within international law (you give consent, and they are legally enforceable)
- They can do essentially anything except authorize the violation of a peremptory norm (Article 53 of the Vienna Convention on the Law of Treaties)
– eg. you can’t have laws that go against jus cogen - Some draw a distinction between law-making treaties and contractual treaties, but all treaties are contractual
How are treaties distinctive?
- Treaties are written, made between states, represented by people authorized to do so
– There are written documents that look like treaties but aren’t - Treaties are distinguished from other international agreements in that they are legally binding - substance, not form, dictates whether something is a treaty or not
– Is it intended to create legally binding agreements that can be enforced? if yes its a treaty
Structure of a treaty
- A preamble
- Main body
- Signatures/seals
- Reservations (not always possible or accepted)
- Protocols
What are reservations in a treaty?
- When a country has signed a treaty but they say they do not agree with a certain article, or bring up a disagreement of understanding of a certain article between countries
– eg. France and Britain have different understandings of what Article x means and how it should be applied - A reservation cannot be entered if it is a country simply disagreeing/undermining the entire treaty
- One can have reservations about reservations
What are protocols in a treaty?
- An additional treaty which amends the original/main treaty
- You can also amend treaties by making a new treaty but protocols are the main way of amending treaties
- Only binding to the countries that also sign the protocol(s) in addition to the treaty
- Some protocols are mandatory so that every country that signs the treaty has agreed to the protocol
What is the final step of signing and accepting treaties?
- Signature is usually not the final step - then parties have to ratify treaties - allowing the principal (home government) to endorse what the agent (person signing) has done (or not)
- 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
- Ratification is done according to domestic procedures - usually either the executive (head of state) (eg. UK and Commonwealth countries, etc.) or the legislature (eg. USA, congress, senate)
Monism vs dualism (treaty ratification)
- In monist systems, treaties do not need to be translated into municipal law - they have effect directly (eg. Netherlands)
– Treaties still can’t override the constitution in most countries - In dualist systems, domestic legislation is required to translate the treaty obligations into municipal law (eg. UK)
– Before this is it not binding on (eg) UK law
– More democratic, can’t avoid democratic will of the people - Some states have a mix of the two (eg. USA)
– In the USA, there are self-executing treaties, don’t need to be implemented, non self-executing treaties need to be transcribed into municipal law
How can treaties end?
- On its own terms (self-termination: expiry, disappearance of essential conditions, etc.)
- By withdrawal (“denunciation”)
- In response to serious breach by one party (sometimes)
Which part of Article 38(1) covers customary international law?
b) “international custom, as evidence of a general practice accepted as law”
- Not ALL customs are customary international law
– eg. I go get starbucks every morning, I do not feel legally obliged to do this, therefore not a customary (international) law
What two elements need to exist for customs to become law?
- Evidence of widespread and settled state practice
- Opinio juris: states adhere to the custom because they believe they have a legal duty to do so
How can customary law be/become non-binding?
- Persistent breach of an existing customary rule, in some circumstances, eventually become evidence of a new rule
- States can prevent being bound by an emerging rule of customary international law by acting as a persistent objector - silence is not good enough (since consent is implied)
How are the elements of customary law ascertained?
- State practice is ascertained not only though the actions of national executives, but also from domestic courts and legislature, as well as public statements
- Opinio juris: a somewhat artificial exercise, as it implies states have a collective mind/intentionality of their own!
What is the hierarchy of treaty and customary law?
- Customary international law is inferior to treaty for the parties to that treaty, but not for third parties
– Treaty above customary law since for those who have given express consent
