Literatuursamenvatting
Chapter 2: Sources of International law
The international society has its own set of rules. In essence the sources of
international law contain the legal answers to the questions that cannot be answered
in national law. It is hard to uncover the law and due to the fact that the system is
decentralized, legal obligations may derive from more than one particular source.
The classical attempt at listing the sources of international law is found in article 38of
the Statute of the International Court of Justice. The article is considered of general
relevance, but not exhaustive. A difference is being made between primary and
secondary sources of law:
1. While primary sources are constituted by treaties, customary law and general
principles, secondary sources of law refer to judicial decisions and scholarly
contributions.
2. The primary sources are law creating and the secondary sources are law
indentifying since they merely apply or clarify the content of existing law.
The primary sources are:
Conventions (treaties)
This is the most direct and formal way for states to create rights and obligations
under international law. In fact it is the only way available to two or more states if they
want to enter in some sort of legal relationship. The legal basis of treaty-based
obligations is state consent, because a treaty can only create legal obligations for the
consenting states. There are bilateral and multilateral treaties. When a treaty
establishes an international organization it is referred to as a ‘constituent treaty’.
Pacta sund servanda
International custom
This is based on the everyday interaction between states and therefore has the
ability to adapt to changing circumstances. As a legal source however, custom is
controversial. Customary rules binds all states, but customary international law may
also develop regionally between a particular group of states.
International customary law arises when a particular way of behaving is (1, objective)
followed as a general principle among states and (2, subjective) accepted by those
states as legally binding:
Objective element USUS
For a considerable period of time states have behaved in a certain manner
when confronted with the same facts. For this all states acts may be taken in
consideration: psychical acts, verbal acts (these must take place in public) and
resolutions and declarations by international organizations. Internal documents
do not qualify as state practice.
Conceptually, state practice can be divided into three elements:
1. Consistency
, This requires that practice is reasonably uniform and constant. Minor
departures from a collective uniformity may be acceptable.
2. Duration
Practice evolves slowly and gradually over time. It can take years, but it is
also possible, so is said by the International Court of Justice, that the
passage of a short amount of time can be enough to create a new rule of
customary law (for example the rules that has been made after 9/11).
3. Generality of practice
While unanimity is nog required, practice should include the majority of
states ‘whose interest are specially affected’. This means that you have to
look at which states participate and not how many of them.
A state may avoid being bound by an emerging customary rule by persistently
objecting to the practice. This only applies to new and emerging customary
rules: once a rule has come in existence, it can no longer be objected to and
new states are also bound by existing customary law.
Subjective element OPINIO IURIS
There is a distinction between behavior at a time when a particular rule begins
to be formed and behavior at the time when it has already been established.
This rule is particular important when a state acts contrary to an existing
customary rule.
Lees 2.4.4.
General principles of law
General principles of law where primarily intended as gap fillers that only needed to
be consulted when a dispute could not be resolved on the basis of a treaty or
customary international law. Today, the reference to civilized nations’ is devoid of
meaning, but it meant that the general principles are limited to those common to
developed national legal systems.
The most relevant principle is equity. Besides equity there is also a general principle
of good faith and the fact that international agreements are binding. There is also a
principle that ensures that litigation comes to an end at a certain point.
&
The secondary principles are:
Judicial decisions
Judicial decisions carry substantial interpretative weight. Depending on the
circumstances decisions by national courts, in particular those of courts of last
instance, may also be of reference.
The teachings of the most highly qualified publicists of the various nations
This is the least important one. The ICJ rarely makes any references to academics,
no matter how high their historical influence is. The ICJ does use articles and
commentaries in their working groups when they are busy writing a proposal.
An unilateral declaration (eenzijdige verklaring) should only be considered binding if it
is stated in clear and specific terms. The ICJ has stated that a restrictive
interpretation is called for when states make statements by which their freedom of
action is being limited.
Chapter 2: Sources of International law
The international society has its own set of rules. In essence the sources of
international law contain the legal answers to the questions that cannot be answered
in national law. It is hard to uncover the law and due to the fact that the system is
decentralized, legal obligations may derive from more than one particular source.
The classical attempt at listing the sources of international law is found in article 38of
the Statute of the International Court of Justice. The article is considered of general
relevance, but not exhaustive. A difference is being made between primary and
secondary sources of law:
1. While primary sources are constituted by treaties, customary law and general
principles, secondary sources of law refer to judicial decisions and scholarly
contributions.
2. The primary sources are law creating and the secondary sources are law
indentifying since they merely apply or clarify the content of existing law.
The primary sources are:
Conventions (treaties)
This is the most direct and formal way for states to create rights and obligations
under international law. In fact it is the only way available to two or more states if they
want to enter in some sort of legal relationship. The legal basis of treaty-based
obligations is state consent, because a treaty can only create legal obligations for the
consenting states. There are bilateral and multilateral treaties. When a treaty
establishes an international organization it is referred to as a ‘constituent treaty’.
Pacta sund servanda
International custom
This is based on the everyday interaction between states and therefore has the
ability to adapt to changing circumstances. As a legal source however, custom is
controversial. Customary rules binds all states, but customary international law may
also develop regionally between a particular group of states.
International customary law arises when a particular way of behaving is (1, objective)
followed as a general principle among states and (2, subjective) accepted by those
states as legally binding:
Objective element USUS
For a considerable period of time states have behaved in a certain manner
when confronted with the same facts. For this all states acts may be taken in
consideration: psychical acts, verbal acts (these must take place in public) and
resolutions and declarations by international organizations. Internal documents
do not qualify as state practice.
Conceptually, state practice can be divided into three elements:
1. Consistency
, This requires that practice is reasonably uniform and constant. Minor
departures from a collective uniformity may be acceptable.
2. Duration
Practice evolves slowly and gradually over time. It can take years, but it is
also possible, so is said by the International Court of Justice, that the
passage of a short amount of time can be enough to create a new rule of
customary law (for example the rules that has been made after 9/11).
3. Generality of practice
While unanimity is nog required, practice should include the majority of
states ‘whose interest are specially affected’. This means that you have to
look at which states participate and not how many of them.
A state may avoid being bound by an emerging customary rule by persistently
objecting to the practice. This only applies to new and emerging customary
rules: once a rule has come in existence, it can no longer be objected to and
new states are also bound by existing customary law.
Subjective element OPINIO IURIS
There is a distinction between behavior at a time when a particular rule begins
to be formed and behavior at the time when it has already been established.
This rule is particular important when a state acts contrary to an existing
customary rule.
Lees 2.4.4.
General principles of law
General principles of law where primarily intended as gap fillers that only needed to
be consulted when a dispute could not be resolved on the basis of a treaty or
customary international law. Today, the reference to civilized nations’ is devoid of
meaning, but it meant that the general principles are limited to those common to
developed national legal systems.
The most relevant principle is equity. Besides equity there is also a general principle
of good faith and the fact that international agreements are binding. There is also a
principle that ensures that litigation comes to an end at a certain point.
&
The secondary principles are:
Judicial decisions
Judicial decisions carry substantial interpretative weight. Depending on the
circumstances decisions by national courts, in particular those of courts of last
instance, may also be of reference.
The teachings of the most highly qualified publicists of the various nations
This is the least important one. The ICJ rarely makes any references to academics,
no matter how high their historical influence is. The ICJ does use articles and
commentaries in their working groups when they are busy writing a proposal.
An unilateral declaration (eenzijdige verklaring) should only be considered binding if it
is stated in clear and specific terms. The ICJ has stated that a restrictive
interpretation is called for when states make statements by which their freedom of
action is being limited.
