Weblecture 2

Weblecture 2 – Introduction to International and European Union Law

 The sources of international law:
 Absence of a centralized legal system.
 Absence of a universal parliament.
 Lack of a compulsory judiciary body.
 Absence of a hierarchy of norms.
 Article 38 of the ICJ Statute: not exhaustive:
 Conventions (i.e. treaties = agreements). The States that are party of it will be bound by the rules.
 International customary law.
 General principles of international law.
 Judicial decisions and teachings (subsidiary means).
 What about unilateral statements? And soft law?
 What is customary international law?
 Not as detailed as treaty, yet regulating many aspects of the interrelationships of States.
 Requires two elements:
 The objective element: State practice. The behaviour of States.
 The subjective element: The belief this practice is legally binding (opinion iuris).
 State practice:
 Consistent repetition of certain behaviour that is either physical or (publicly) verbal (although mere
statements are controversial): expropriating foreign property or seizing foreign vessels / or legal
practice: prosecute violators of certain (international) crime and domestic law decisions.
 Characteristics:
 General consistency.
 Duration not necessarily relevant.
 Generality -> NOT unanimity, yet it should include the majority of States*.
 Can States object to an emerging rule of international law? -> understanding the role of the
persistent objector and its limits. Cannot object against peremptory rules, they have a
fundamental value.
 *North Sea Continental Shelf (ICJ): the practice of those States whose interests are especially affected
is particularly relevant (yet not exclusively so!).
 Opinion iuris sive necessitatis:
 State practice has to be accepted as law is not politically expedient behaviour or etiquette.
 Difficulties in identifying this element.
 Examples: enacting a law, concluding a treaty, even resolutions adopted by international organizations
can be considered as reflecting opinion iuris.
 Violating customary international law or creating a new norm?*
 Courts will look for the opinion iuris when the state practice is not that clear.
 *Nicaragua (ICJ): if a State defends its breach appealing to exceptions or justifications, then it will
confirm and not weaken the rule.
 General principles of law and judicial decisions:
 General principles:
 Relied upon in case treaty or customary international law do not provide an answer to the dispute
(yet the ICJ has never relied solely on general principles to resolve disputes).
 General principles guiding the application of international law or regulating the interaction among
legal norms.
 Judicial decisions:
 Only subsidiary sources of law. Not law creating, but in practice the ICJ sometimes creates law.
 No stare decisis.
 Significant interpretative value.
 The exception(s) to the absence of hierarchy in customary international law:
 Peremptory norms (ius cogens) -> art. 53 VCLT: no derogation permitted.
 Obligations erga omnes: owed to the international Community as a whole -> a breach of such an
obligation can be invoked by all States (art. 48 ARSIWA).
 Obligations under the UN Charter (art. 103 & art. 25) -> limits? All States have to comply with these
rules. The resolutions of the UN Charter may not violate peremptory norms.
 Unilateral statements: