INTERNATIONAL LAW
WEEK 2
SUBJECTS AND SOURCES
International law: “the system of law that regulates the interrelationship of sovereign states and their
rights and duties with regard to one another”
SOURCES
Introduction
- The identification of legal sources is more difficult in international law.
o The lack of universal legislature
o The lack of a system of courts with compulsory jurisdiction.
o Legal obligations may derive from more than one particular source
- Modern theory = positivist consensual theory (article 38 ICJ Statue)
Article 38 ICJ Statute
- (attempted) list of the sources of international law
o Primary law (= law making)
§ International conventions (=treaty law)
• Bilateral treaties:
o Treaties between two states
• Multilateral treaties
o Treaties between more than two states
o Often have general application and possess law-making features
§ International custom
• Particularly important source
o Because of the absence of an international ‘law-maker’
• Fulfilment of the following elements requirements
o The objective element (state practice)
§ Consistency
• The conduct has to be generally consistent but minor deviations may
be acceptable (Nicaragua case)
§ Duration
• Consistency and representation are of greater importance than solely
the duration.
§ Generality
• Unanimity is not required, but the practice should include the
majority of states.
• States whose interests are specially affected is of particular relevance
(North Sea Continental Shelf Cases)
o The subjective element (opinio juris)
§ Opinio iuris sive necessitates.
• Persistent objectors are not bound by custom law [jus cogens excluded]
§ General principles of law (Jus Cogens)
• The ICJ rarely refers to general principles.
• Are Gap fillers
o Secondary law (=law explaining)
§ [Isn’t a source of law] judicial decisions and teaching of the most highly qualified
publicist.
Tilburg University | 1
, Soft Law
- Non-binding
- Resolutions and declarations adopted by UNGA
- Is faster and more flexible than hard law
THE ACTORS/SUBJECTS
Introduction
- Subject of international law
o Hold rights
o Powers
o Obligations
- The principal features of legal personality
o Can claim breaches of international law
o Can conclude treaties
o Privileges and immunities from the exercise of national jurisdiction
- Reparations Case
o Legal subjects are not identical in:
§ Their nature, this depends upon the needs of the community
§ The extent of their rights
States
- Recognition of a state
o There is a difference between government and a state
§ State = legal entity
§ Government = representative of the state (legal entity)
- Two approaches
o Declaratory view (= contemporary international law)
§ Satisfy predetermined requirements (Montevideo criteria = article 1)
• Permanent population
o Non requirements on the size of the population
• Defined territory
o An authority controls a consistent area of undisputed territory
• Government
o Doesn’t need to be democratic
o Two situations
§ Entity tries to secede
• Criteria of effectiveness control is applied strictly
§ Government lost power in certain areas
• Effective control is interpreted les strictly
• Capacity to enter into relations with states
o Legal independence
o Constitutive view
§ Recognition by other states is a precondition
§ Problem of quantity
Tilburg University | 2
, Political existence of a state is independent of recognition by other states
(Article 3, Montevideo conventions)
- Ex iniuria ius non oritur
o Legal rights cannot arise from wrongful conduct
- Recognition has evidentiary value
o Other states accept entity fulfils the conditions of Statehood
- Recognition is important
o Precondition for the establishment of bilateral relations.
Illegal creation of a state
- States arises in violation of basic (even Ius Cogens) norms
- Iniuria ius non oritur
o Creation of states violates the local’s rights of self-determination
Self-determination
- Internal
o Autonomy within the framework of an existing
- External
o Only in the most extreme cases
§ Situation of extreme oppression
o E.g., colonized states who exercised their right of external self-determination
New territory
- Cession
o The acquiring state cannot obtain more rights to the territory
- Accretion = new land naturally created
o Artificial
§ Manmade if not infringement other states’ rights or
§ Consent must be given by the other state
o Avulsion
§ New land acquired by sudden or violent changes (e.g., storm)
o Erosion
§ Gradual disappearance of land
- Occupation
o Territory never been subject of another state
§ Terra nullis
§ Isn’t res communis = no legal title for any state (e.g., deep sea, high air)
o State exercises effective control
o [no longer relevant because most territory is under effective control of another
government/state)
- Prescription
o Based on consent
State succession
- ‘clean slate’ approach
o Exceptions
§ Uti possidetis juris: geographical boundaries created by treaties remain in force
§ Human rights treaties remain in force
Extinction of a state
- Its near impossible to lose state hood involuntary (e.g., lag of effective government isn’t a reason)
- Three situations
o Decides to dissolve itself
o Merge into one single state
o Voluntary split into dependant states
Tilburg University | 3
WEEK 2
SUBJECTS AND SOURCES
International law: “the system of law that regulates the interrelationship of sovereign states and their
rights and duties with regard to one another”
SOURCES
Introduction
- The identification of legal sources is more difficult in international law.
o The lack of universal legislature
o The lack of a system of courts with compulsory jurisdiction.
o Legal obligations may derive from more than one particular source
- Modern theory = positivist consensual theory (article 38 ICJ Statue)
Article 38 ICJ Statute
- (attempted) list of the sources of international law
o Primary law (= law making)
§ International conventions (=treaty law)
• Bilateral treaties:
o Treaties between two states
• Multilateral treaties
o Treaties between more than two states
o Often have general application and possess law-making features
§ International custom
• Particularly important source
o Because of the absence of an international ‘law-maker’
• Fulfilment of the following elements requirements
o The objective element (state practice)
§ Consistency
• The conduct has to be generally consistent but minor deviations may
be acceptable (Nicaragua case)
§ Duration
• Consistency and representation are of greater importance than solely
the duration.
§ Generality
• Unanimity is not required, but the practice should include the
majority of states.
• States whose interests are specially affected is of particular relevance
(North Sea Continental Shelf Cases)
o The subjective element (opinio juris)
§ Opinio iuris sive necessitates.
• Persistent objectors are not bound by custom law [jus cogens excluded]
§ General principles of law (Jus Cogens)
• The ICJ rarely refers to general principles.
• Are Gap fillers
o Secondary law (=law explaining)
§ [Isn’t a source of law] judicial decisions and teaching of the most highly qualified
publicist.
Tilburg University | 1
, Soft Law
- Non-binding
- Resolutions and declarations adopted by UNGA
- Is faster and more flexible than hard law
THE ACTORS/SUBJECTS
Introduction
- Subject of international law
o Hold rights
o Powers
o Obligations
- The principal features of legal personality
o Can claim breaches of international law
o Can conclude treaties
o Privileges and immunities from the exercise of national jurisdiction
- Reparations Case
o Legal subjects are not identical in:
§ Their nature, this depends upon the needs of the community
§ The extent of their rights
States
- Recognition of a state
o There is a difference between government and a state
§ State = legal entity
§ Government = representative of the state (legal entity)
- Two approaches
o Declaratory view (= contemporary international law)
§ Satisfy predetermined requirements (Montevideo criteria = article 1)
• Permanent population
o Non requirements on the size of the population
• Defined territory
o An authority controls a consistent area of undisputed territory
• Government
o Doesn’t need to be democratic
o Two situations
§ Entity tries to secede
• Criteria of effectiveness control is applied strictly
§ Government lost power in certain areas
• Effective control is interpreted les strictly
• Capacity to enter into relations with states
o Legal independence
o Constitutive view
§ Recognition by other states is a precondition
§ Problem of quantity
Tilburg University | 2
, Political existence of a state is independent of recognition by other states
(Article 3, Montevideo conventions)
- Ex iniuria ius non oritur
o Legal rights cannot arise from wrongful conduct
- Recognition has evidentiary value
o Other states accept entity fulfils the conditions of Statehood
- Recognition is important
o Precondition for the establishment of bilateral relations.
Illegal creation of a state
- States arises in violation of basic (even Ius Cogens) norms
- Iniuria ius non oritur
o Creation of states violates the local’s rights of self-determination
Self-determination
- Internal
o Autonomy within the framework of an existing
- External
o Only in the most extreme cases
§ Situation of extreme oppression
o E.g., colonized states who exercised their right of external self-determination
New territory
- Cession
o The acquiring state cannot obtain more rights to the territory
- Accretion = new land naturally created
o Artificial
§ Manmade if not infringement other states’ rights or
§ Consent must be given by the other state
o Avulsion
§ New land acquired by sudden or violent changes (e.g., storm)
o Erosion
§ Gradual disappearance of land
- Occupation
o Territory never been subject of another state
§ Terra nullis
§ Isn’t res communis = no legal title for any state (e.g., deep sea, high air)
o State exercises effective control
o [no longer relevant because most territory is under effective control of another
government/state)
- Prescription
o Based on consent
State succession
- ‘clean slate’ approach
o Exceptions
§ Uti possidetis juris: geographical boundaries created by treaties remain in force
§ Human rights treaties remain in force
Extinction of a state
- Its near impossible to lose state hood involuntary (e.g., lag of effective government isn’t a reason)
- Three situations
o Decides to dissolve itself
o Merge into one single state
o Voluntary split into dependant states
Tilburg University | 3
