International Law
Malcolm D. Evans, Fifth Edition
ISBN: 9780198791836
This summary contains following chapters:
Chapter 4: The Theory and Reality of the Sources of International Law ............ 2
Chapter 5: Soft Law in International Law-Making ............................................. 6
Chapter 6 The Practical Working of the Law of Treaties .................................... 9
Chapter 7: Statehood, Self-determination, and Recognition ............................. 11
Chapter 8: International Organizations ............................................................. 15
Chapter 9: The Individual and the International Legal System ......................... 17
Chapter 11: International Law and Restraints on the Exercise of Jurisdiction by
National Courts of States .................................................................................. 20
Chapter 12: Immunities Enjoyed by Officials of States and International
Organizations ................................................................................................... 22
Chapter 17: Countermeasures and Sanctions .................................................... 26
Chapter 24: International Criminal Law ........................................................... 30
1
,Chapter 4: The Theory and Reality of the Sources of
International Law
- States are important actors in the process of creation of international law, but they are
not the only actors
Treaties
- The VCLT, which largely codifies the customary international law rules on treaties,
states the principle in Article 26, under the heading ‘Pacta sunt servanda’
- As Article 34 of the VCLT puts it: ‘A treaty does not create either obligations or rights
for a third state without its consent’
- Even though treaties are only binding on the parties to them, they may also reflect or
come to reflect customary international law
- When this occurs, States that are not parties to the treaty may be bound by the same
substantive obligation as contained in the treaty, but they are bound as a matter of
custom rather than treaty
- A good example of this comes from the Military and Paramilitary Activities in and
against Nicaragua case (Nicaragua case), in which the International Court of Justice
found that it did not have jurisdiction to rule on the relevant treaty, but that the United
States was nonetheless bound by the same substantive rules as a matter of customary
international law as to which the Court did have jurisdiction.
Custom
- General international law
- Two elements: State practice and opinio juris
- The leading statement on the matter comes from the North Sea Continental Shelf case,
in which the ICJ observed: Not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in such a way, as to be evidence
of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, ie the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis
- All relevant practice of a State is to be considered. If the practice is inconsistent—for
example, one State organ acts in one way and another State organ acts in a different
way—the contribution of the individual State’s practice to the general ‘State practice’
element of custom may be reduced or discounted
- The requirement that the practice be representative necessitates looking at whether the
practice is followed by States that are geographically, economically, and geopolitically
diverse.
- For instance, if only Western European States follow or accept a practice, it is difficult
to claim that it amounts to a rule of customary international law
- One problem that exists in this regard is when there is a divergence between what
States say and what they do, for example, when they assert that a particular rule of
customary law exists but their practice is inconsistent with or contrary to that rule.
2
, - ICJ in the Nicaragua case explained that: The Court does not consider that, for a rule
to be established as customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of States should, in general, be
consistent with such rules, and that instances of State conduct inconsistent with a
given rule should generally have been treated as breaches of that rule, not as
indications of recognition of a new rule. If a State acts in a way prima facie
inconsistent with a recognized rule, but defends its conduct by appealing to exceptions
or justifications contained within the rule itself, then whether or not the State’s
conduct is in fact justifiable on that basis, the significance of that attitude is to confirm
rather than to weaken the rule.
- Another difficulty occurs when an issue is new and very little practice has had time to
accrue. In this regard, the ICJ in the North Sea Continental Shelf case held that:
[A]lthough the passage of only a short period of time was not necessarily a bar to the
formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, it was indispensable that State practice during
that period, including that of States whose interests were specially affected, should
have been both extensive and virtually uniform in the sense of the provision invoked
and should have occurred in such a way as to show a general recognition that a rule of
law was involved.
- ‘Custom is developed by a dialogue in time. By definition, therefore, instant custom is
excluded. Like good coffee, international law has to be brewed.’
- How long it takes to brew depends on the generality and consistency of the practice
- Multilateral treaties and declarations by international fora such as the General
Assembly can declare existing customs, crystallize emerging customs, and generate
new customs
- Where a treaty is widely adopted, it is more likely to reflect custom, but it can also be
more difficult to identify whether treaty parties are following it out of a sense of treaty
or customary obligation.
- An important difference between customary international law and treaties is that
custom is binding on all States, whereas, as we have seen, treaty law is binding only
on the parties to the particular treaty.
The relativity of custom
General custom Special or local custom Subsequent objectors Persistent
objectors
If a claim is based on As regards local custom, In order to opt out of a According to the
general customary an oft-cited example customary rule, a State persistent objector
international law, it is relates to the practice of has to oppose the rule doctrine, a State
sufficient to establish that diplomatic asylum in during its formation. which objected
the customary rule exists. Latin America, whereby This rule has been consistently to a
There is no need to show the States of the region critiqued for rule of law while
that the other party has recognize the right of the permitting the rules it was still in the
accepted it, or participated embassies of other States that were developed process of
3
, in the practice from which of the region to give by colonial powers to becoming such a
the rule derives. asylum to political remain in effect even rule can continue
- Two exceptions to fugitives. after decolonization to ‘opt out’ of the
this: occurred, despite application of the
special or local customary objection by some of rule even after it
law, which is binding on the newly independent has acquired the
only a defined group of States. If enough status of a rule of
States; and the persistent States object to a rule, general customary
objector doctrine it may be possible for law.
those States to
undermine the
existence of a
customary
international law rule
or create sufficient
State practice.
General principles of law
- There is no unanimity among scholars as to the nature of the principles that may be
invoked under this head
- There are two interpretations of this:
1. General principles are those which can be derived from a comparison of the
various systems of domestic law, and the extraction of such principles as appear to
be shared by all, or a majority, of them.
2. An alternative interpretation is that the principles to be applied by the International
Court of Justice also include general principles applicable directly to international
legal relations and general principles applicable to legal relations generally.
Judicial decisions and the teaching of publicists
- In the early days of the development of international law, the teachings of publicists
carried considerably more weight than do the authors of even the most respected
textbooks of today.
- Historically, teachings of publicists exercised a profound influence on the
development of international law
- States involved in a dispute, or their counsel, will often cite the leading textbooks and
monographs in support of their claims, as will arbitral tribunals in their awards,
international criminal courts in their judgments, and individual judges of the ICJ in
separate or dissenting opinions.
- The reference in Article 38(1)(d) to judicial decisions includes the decisions of the ICJ
itself.
The modern reality of the doctrine of sources
- Article 38(1) has often been suggested that it is inadequate, out of date, or ill-adapted
to modern international relations
- There are a whole host of other materials that are relevant insofar as international law
obligations are concerned (not only those mentioned in the Article 38)
4
Malcolm D. Evans, Fifth Edition
ISBN: 9780198791836
This summary contains following chapters:
Chapter 4: The Theory and Reality of the Sources of International Law ............ 2
Chapter 5: Soft Law in International Law-Making ............................................. 6
Chapter 6 The Practical Working of the Law of Treaties .................................... 9
Chapter 7: Statehood, Self-determination, and Recognition ............................. 11
Chapter 8: International Organizations ............................................................. 15
Chapter 9: The Individual and the International Legal System ......................... 17
Chapter 11: International Law and Restraints on the Exercise of Jurisdiction by
National Courts of States .................................................................................. 20
Chapter 12: Immunities Enjoyed by Officials of States and International
Organizations ................................................................................................... 22
Chapter 17: Countermeasures and Sanctions .................................................... 26
Chapter 24: International Criminal Law ........................................................... 30
1
,Chapter 4: The Theory and Reality of the Sources of
International Law
- States are important actors in the process of creation of international law, but they are
not the only actors
Treaties
- The VCLT, which largely codifies the customary international law rules on treaties,
states the principle in Article 26, under the heading ‘Pacta sunt servanda’
- As Article 34 of the VCLT puts it: ‘A treaty does not create either obligations or rights
for a third state without its consent’
- Even though treaties are only binding on the parties to them, they may also reflect or
come to reflect customary international law
- When this occurs, States that are not parties to the treaty may be bound by the same
substantive obligation as contained in the treaty, but they are bound as a matter of
custom rather than treaty
- A good example of this comes from the Military and Paramilitary Activities in and
against Nicaragua case (Nicaragua case), in which the International Court of Justice
found that it did not have jurisdiction to rule on the relevant treaty, but that the United
States was nonetheless bound by the same substantive rules as a matter of customary
international law as to which the Court did have jurisdiction.
Custom
- General international law
- Two elements: State practice and opinio juris
- The leading statement on the matter comes from the North Sea Continental Shelf case,
in which the ICJ observed: Not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in such a way, as to be evidence
of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, ie the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis
- All relevant practice of a State is to be considered. If the practice is inconsistent—for
example, one State organ acts in one way and another State organ acts in a different
way—the contribution of the individual State’s practice to the general ‘State practice’
element of custom may be reduced or discounted
- The requirement that the practice be representative necessitates looking at whether the
practice is followed by States that are geographically, economically, and geopolitically
diverse.
- For instance, if only Western European States follow or accept a practice, it is difficult
to claim that it amounts to a rule of customary international law
- One problem that exists in this regard is when there is a divergence between what
States say and what they do, for example, when they assert that a particular rule of
customary law exists but their practice is inconsistent with or contrary to that rule.
2
, - ICJ in the Nicaragua case explained that: The Court does not consider that, for a rule
to be established as customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of States should, in general, be
consistent with such rules, and that instances of State conduct inconsistent with a
given rule should generally have been treated as breaches of that rule, not as
indications of recognition of a new rule. If a State acts in a way prima facie
inconsistent with a recognized rule, but defends its conduct by appealing to exceptions
or justifications contained within the rule itself, then whether or not the State’s
conduct is in fact justifiable on that basis, the significance of that attitude is to confirm
rather than to weaken the rule.
- Another difficulty occurs when an issue is new and very little practice has had time to
accrue. In this regard, the ICJ in the North Sea Continental Shelf case held that:
[A]lthough the passage of only a short period of time was not necessarily a bar to the
formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, it was indispensable that State practice during
that period, including that of States whose interests were specially affected, should
have been both extensive and virtually uniform in the sense of the provision invoked
and should have occurred in such a way as to show a general recognition that a rule of
law was involved.
- ‘Custom is developed by a dialogue in time. By definition, therefore, instant custom is
excluded. Like good coffee, international law has to be brewed.’
- How long it takes to brew depends on the generality and consistency of the practice
- Multilateral treaties and declarations by international fora such as the General
Assembly can declare existing customs, crystallize emerging customs, and generate
new customs
- Where a treaty is widely adopted, it is more likely to reflect custom, but it can also be
more difficult to identify whether treaty parties are following it out of a sense of treaty
or customary obligation.
- An important difference between customary international law and treaties is that
custom is binding on all States, whereas, as we have seen, treaty law is binding only
on the parties to the particular treaty.
The relativity of custom
General custom Special or local custom Subsequent objectors Persistent
objectors
If a claim is based on As regards local custom, In order to opt out of a According to the
general customary an oft-cited example customary rule, a State persistent objector
international law, it is relates to the practice of has to oppose the rule doctrine, a State
sufficient to establish that diplomatic asylum in during its formation. which objected
the customary rule exists. Latin America, whereby This rule has been consistently to a
There is no need to show the States of the region critiqued for rule of law while
that the other party has recognize the right of the permitting the rules it was still in the
accepted it, or participated embassies of other States that were developed process of
3
, in the practice from which of the region to give by colonial powers to becoming such a
the rule derives. asylum to political remain in effect even rule can continue
- Two exceptions to fugitives. after decolonization to ‘opt out’ of the
this: occurred, despite application of the
special or local customary objection by some of rule even after it
law, which is binding on the newly independent has acquired the
only a defined group of States. If enough status of a rule of
States; and the persistent States object to a rule, general customary
objector doctrine it may be possible for law.
those States to
undermine the
existence of a
customary
international law rule
or create sufficient
State practice.
General principles of law
- There is no unanimity among scholars as to the nature of the principles that may be
invoked under this head
- There are two interpretations of this:
1. General principles are those which can be derived from a comparison of the
various systems of domestic law, and the extraction of such principles as appear to
be shared by all, or a majority, of them.
2. An alternative interpretation is that the principles to be applied by the International
Court of Justice also include general principles applicable directly to international
legal relations and general principles applicable to legal relations generally.
Judicial decisions and the teaching of publicists
- In the early days of the development of international law, the teachings of publicists
carried considerably more weight than do the authors of even the most respected
textbooks of today.
- Historically, teachings of publicists exercised a profound influence on the
development of international law
- States involved in a dispute, or their counsel, will often cite the leading textbooks and
monographs in support of their claims, as will arbitral tribunals in their awards,
international criminal courts in their judgments, and individual judges of the ICJ in
separate or dissenting opinions.
- The reference in Article 38(1)(d) to judicial decisions includes the decisions of the ICJ
itself.
The modern reality of the doctrine of sources
- Article 38(1) has often been suggested that it is inadequate, out of date, or ill-adapted
to modern international relations
- There are a whole host of other materials that are relevant insofar as international law
obligations are concerned (not only those mentioned in the Article 38)
4
