Summary "International Law" - Gleider Hernandez

Public International Law
Summary “International Law” - Hernández
Chapter 2: Sources of international law
Chapter 2.1 Introduction: sources and nature of international law
 Formal sources: legally binding methods for law-creation on their addressees and generally
binding.
 Material sources: not legally binding, can provide evidence on the existence of a legally
binding rule. (e.g. judgement of int. court, study of ILC, etc.)

Chapter 2.2 Article 38 ICJ
Lex arbitri or an authoritative general statement?
 Article 38 lays out categories of sources to be applied by the ICJ: its lex arbitri (applicable
law):
Primary sources
a. International treaties (conventions), whether general (multilateral) or particular
(between smaller group of States), so long as they establish recognizable rules;
b. International custom, ‘as evidence of a general practice accepted as law’;
c. General principles of law ‘recognized by civilized nations’;
Subsidiary sources
d. ‘subsidiary means for the determination of rules of law’, naming expressly judicial
decisions and ‘teachings of most highly qualified publicists’.

Customary law:
 a recurring interaction between individuals and groups, accompanied by the
acknowledgment that such a mode of interaction produces certain expectations of conduct
ought that ought to be satisfied.
 No law-making process, emerges over a long period of time through social practice.
 Entails the recognition that the practices of States on the international plane can create new
legal rules.
Two elements of custom:
 Material element relating to the actual practice of States in their relations (usus)
 Subjective belief of States that such behaviour is ‘law’ (opinio juris sive necessitatis, an
opinion as to law or necessity, acceptance of law)

Requirements for a ‘general practice’ (usus)
 State practice in relation to jurisdictional immunities, the ICJ stated:
‘state practice of particular significance is to be found in the judgements of national courts
faced with the question whether a foreign State is immune, the legislation of those States
which have enacted States dealing with immunity, the claims to immunity advanced by
States before foreign courts and the statements made by States.’
 ICJ in Nicaragua-case: ‘instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indication of the recognition of a
new rule.’
- The key is the manner in which the inconsistent conduct is justified by the acting State,
and whether it is accepted by other States.


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,Evidence of ‘acceptance as law’ (opinio juris sive necessitatis)
 PCIJ in Lotus-case: ‘only if such abstention were based (on a State) being conscious of a duty
to abstain would it be possible to speak of an international custom’.
→ act of abstention alone is insufficient to determine the existence of an international
custom
 Process which changes and develops customary rules raises a paradox:
- if new rules depend on new practice and new opinio juris, what does this mean for the
first State to depart from an existing customary rule?
→ conduct, inconsistent with an existing customary rule, might simultaneously breach
the existing rule and serve as evidence that a new rule has emerged; ‘law breaking is an
essential method of law making’
 Look at the relational matter in which custom develops and to view opinio juris as a
component which allows for rationalization of practice into something more coherent, which
allows for development to occur
- ICJ in Nicaragua-case: ‘reliance by a State on a novel right or an unprecedented
exception to the principle might, if shared in principle by other States, tend towards a
modification of customary international law.’
→ one State may assert a right and other States affected may object, or not, to the
assertation of the first State.
 Paramount for the existence of opinio juris, is the content of a document or instrument, and
whether it demonstrates the attitude or belief of the States, not the form it has taken.

Relativity of custom
 ICJ in Gulf of Maine: ‘tacit unilateral recognition of a new customary norm’ demonstrated by
a State through its conduct, is a form of consent.
 New general rule of customary law will bind all States;
 Three exceptions:
- Persistent objection, in relation to a new rule;
- persistent and explicit objection during the period in which the new norm was
emerging. New States are bound by all existing customary law from the date of its
independence.
- Subsequent objection, in relation to change an existing rule;
- When other States appear to agree to the protest, the objector won’t be bound by
the scope of the new rule
- Possibility of regional, bilateral, or otherwise localized forms of custom.
- Regional custom:
ICJ in Asylum-case: ‘a party which relies on a custom of this kind (local / regional)
must prove that this custom is established in such a manner that it has become
binding on the other party’.
- Bilateral custom:
ICJ in Right of Passage-case: long continued practice between two States accepted by
them as regulating their relations can form the basis of mutual rights and obligations
between them.
- A state cannot claim unilaterally to be bound by special custom applying only to said
State




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,Treaties
 Embodiment of pacta sunt servanda (agreements shall be kept), Article 26 VCLT
 Pacta tertiis nec nocent nec prosunt (a treaty binds the parties only, not a third)
 Law-making treaties: Multilateral conventions creating a regime of legal rules of general
application (e.g. Geneva Conventions)
 Court in North Sea Continental-case: a provision of a treaty can lead to the creation of new
customary rules, if the provisions was ‘of a fundamentally norm-creating character’, and so
capable of the forming the basis of an emergent or pre-existing customary law.
 Existing customary rule will continue existing even though a treaty rule is adopted.

General principles recognized by ‘civilized nations’
 New definition ‘civilized nations’: a principle should exist across a broad range of legal
systems, traditions and regions.
 General principles:
- consist of a mix of principles applied within a State’s municipal law and of general
notions which are necessary or inherent in the concept of law or a legal system.
- Aspire to:
- provide closure to the international legal system
- aid in the interpretation of other primary sources in novel situations
- ensure that, even if there is no immediate and obvious rule applicable to an
international situation, ‘every international situation is capable of being determined
as a matter of law’.
- One view is that any principle generally accepted in the municipal legal orders of a
majority of States may be drawn upon to elucidate a rule of international law.
→ Difficult to compare a wide range of different legal systems and deriving common
standards from them → never prevailed before ICJ

Equity
 Reference to general considerations of fairness and reasonableness.
 Guiding principle which can steer the interpretation and application of existing legal rules
 Art. 38 (2) ICJ: offers States the possibility to consent to a dispute being decide ex aequo et
bono, and thus to depart from settled rules of law → equity contra legem (contrary to law) or
equity ultra legem (beyond law), involving a high degree of uncertainty
- Art. 38 (2) ICJ has never been invoked
 Equity Infra legem, general principle which provides guidance for the resolution of a dispute.
- Court in North Sea continental and Maritime Delimitation in the Black Sea has considered
equity as part of a specific international legal rule.

Judicial decisions
 Court does not regard its previous judgements as binding
 Extents to:
- International Criminal Court (ICC), International Criminal Tribunal for the former
Yugoslavia (ICTY), Decisions of various panels constituted under the World Trade
Organization (WTO), arbitral tribunals, ECHR and the UN Human Rights Committee.
- Decisions of municipal courts:
- They are State organs, their decisions are presented and treated as State practice


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, - Could contain useful interpretation of a rule, even though it’s a material source of
law
Chapter 2.3 Beyond Article 38: other possible sources
 Unilateral acts of a State
- E.g. ratification of a treaty or an objection to an act by another State which might
prevent the formation of a new customary rule
- To be binding, the unilateral act must be accepted, recognized and acknowledged by
another State: no reaction, not legally relevant
- It can, in certain circumstances, generate a legal obligation
 Resolutions of the General Assembly
- General Assembly consists out of Members of the UN
- No power to issue binding resolutions
- Have provided an outlet for States to make statements which can constitute evidence of
their opinio juris as to the existence of a rule. This depends on the clarity of the terms of
the resolution, voting pattern of States and whether the terms reflect earlier resolutions.
 Resolutions of the Security Council
- 15 States elected by General Assembly
- Decisions of the Security Council have to be carried out by all UN members (art. 25
Charter)
- No formal law-making organ, but has the power to create international legal obligations
binding on all States.
- Obligations created by the Council prevail over other international agreements during
conflicts
 Soft law
- Instruments which do not impose legally binding obligations on States or other legal
actors
- Frequently invoked when States have not found the consensus necessary to enter into
binding obligations
- Can be a non-binding instrument that States point to as a substitute for action.

Chapter 3 Hierarchy of norms in international law
Conflict of rules / obligations
 Lex posterior derogate priori: later law over earlier law
 Lex specialis derogat legi generali: special law over general law

Jus cogens (peremptory rules)
 Article 53 VCLT:
 “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, 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”
- Non-derogable
- Applicable to all States
- Accepted and recognized as peremptory (binding) by the international community of
States as a whole



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