Hoorcollege 1
Sources of international law Article 38 of the ICJ Statute:
Law making:
- Conventions (i.e. treaties = agreements)
- International customary law
- General principles of international law
Law identifying:
- Judicial decisions and teachings (subsidiary means)
What about unilateral statements? And soft law?
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 subjective element: The belief this practice is legally binding
(‘opinion iuris’)
State practice is a consistent repetition of certain behaviour that is either
‘physical’ or (publicly) ‘verbal’ (although mere statements are
controversial). Characteristics:
1. General consistency
2. Duration not necessarily relevant
3. Generality -> NOT unanimity, yet it should include the majority of
States
4. Can States ‘object’ to an emerging rule of international law? ->
understanding the role of the ‘persistent objector’(bezwaarmaker)
and its limits.
Opinio iuris sive necessitatis:
• State practice has to be ‘accepted as law’ ≠ politically expedient
(opportunischtisch) behaviour or etiquette.
• 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?
General principles: Judicial decisions:
• Relied upon in case treaty or • Only subsidiary (subsidiaire)
customary international law do not sources of law
provide an answer to the dispute • No stare decisis
(yet the ICJ has never relied
solely
on general principles to resolve
disputes) -> aanvullend recht.
• General principles ‘guiding’ the • Significant interpretative value
application of international law or
regulating the interaction among
, legal norms
The ‘exception(s) to the absence of hierarchy in customary
international law:
Peremptory (dwingende) 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?
!!: Customary law can arise between a limited number of States.
Unilateral declarations of States’ representatives can create legally binding
obligations, but the intent of the State needs to be clear:
- Restrictive (beperkte) interpretation (Nuclear Tests Cases, ICJ)
- Text of the declaration (verklaring)
- Circumstances of the declaration
Non-binding legal instruments; Notion of ‘soft-law’: it cannot create
legally binding obligations, but it can….
- Contribute to creating customary international law
- Contribute to interpreting customary international law
- Evidence of already existing or emerging opinion iuris
- Most notable example: UNGA Resolutions
A treaty and when is an agreement (the ‘name’ or ‘title’ of the instrument
does not matter!) governed by international law concluded by two or more
international subjects with treaty-making capacity. Based on state
consent and intention (or will): treaties cannot create rights and
obligations for third parties unless they agree. A state is bound by a treaty,
if the state in question has ratified or acceded (toegetreden) to the treaty
and the treaty in question has entered into force (artt. 11-17 VCLT). But
signature of a treaty has legal consequences (art. 18 VC): bound by the
object and purpose of the treaty, not to defeat it by acting in good faith.
Grounds for invalidity: error, fraud, threat of use of force,, manifest
violation of internal law (defects of consent), violation of a peremptory
(dwingende) norm (substantive violation).
Reservations (only for multilateral treaties):
• Unilateral act of state, aim to modify or exclude the effect of a certain
treaty provision ≠ interpretative declarations!
• Tool of flexibility -> More parties? Yes, but complex web of bilateral
relations!
Can reservations always be formulated? Article 19 VCLT provides for three
situations:
a. Reservation is prohibited by treaty;
b. Only particular reservations are permissible under treaty;
Sources of international law Article 38 of the ICJ Statute:
Law making:
- Conventions (i.e. treaties = agreements)
- International customary law
- General principles of international law
Law identifying:
- Judicial decisions and teachings (subsidiary means)
What about unilateral statements? And soft law?
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 subjective element: The belief this practice is legally binding
(‘opinion iuris’)
State practice is a consistent repetition of certain behaviour that is either
‘physical’ or (publicly) ‘verbal’ (although mere statements are
controversial). Characteristics:
1. General consistency
2. Duration not necessarily relevant
3. Generality -> NOT unanimity, yet it should include the majority of
States
4. Can States ‘object’ to an emerging rule of international law? ->
understanding the role of the ‘persistent objector’(bezwaarmaker)
and its limits.
Opinio iuris sive necessitatis:
• State practice has to be ‘accepted as law’ ≠ politically expedient
(opportunischtisch) behaviour or etiquette.
• 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?
General principles: Judicial decisions:
• Relied upon in case treaty or • Only subsidiary (subsidiaire)
customary international law do not sources of law
provide an answer to the dispute • No stare decisis
(yet the ICJ has never relied
solely
on general principles to resolve
disputes) -> aanvullend recht.
• General principles ‘guiding’ the • Significant interpretative value
application of international law or
regulating the interaction among
, legal norms
The ‘exception(s) to the absence of hierarchy in customary
international law:
Peremptory (dwingende) 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?
!!: Customary law can arise between a limited number of States.
Unilateral declarations of States’ representatives can create legally binding
obligations, but the intent of the State needs to be clear:
- Restrictive (beperkte) interpretation (Nuclear Tests Cases, ICJ)
- Text of the declaration (verklaring)
- Circumstances of the declaration
Non-binding legal instruments; Notion of ‘soft-law’: it cannot create
legally binding obligations, but it can….
- Contribute to creating customary international law
- Contribute to interpreting customary international law
- Evidence of already existing or emerging opinion iuris
- Most notable example: UNGA Resolutions
A treaty and when is an agreement (the ‘name’ or ‘title’ of the instrument
does not matter!) governed by international law concluded by two or more
international subjects with treaty-making capacity. Based on state
consent and intention (or will): treaties cannot create rights and
obligations for third parties unless they agree. A state is bound by a treaty,
if the state in question has ratified or acceded (toegetreden) to the treaty
and the treaty in question has entered into force (artt. 11-17 VCLT). But
signature of a treaty has legal consequences (art. 18 VC): bound by the
object and purpose of the treaty, not to defeat it by acting in good faith.
Grounds for invalidity: error, fraud, threat of use of force,, manifest
violation of internal law (defects of consent), violation of a peremptory
(dwingende) norm (substantive violation).
Reservations (only for multilateral treaties):
• Unilateral act of state, aim to modify or exclude the effect of a certain
treaty provision ≠ interpretative declarations!
• Tool of flexibility -> More parties? Yes, but complex web of bilateral
relations!
Can reservations always be formulated? Article 19 VCLT provides for three
situations:
a. Reservation is prohibited by treaty;
b. Only particular reservations are permissible under treaty;
