International Legal order & Sources of Law
Understand the relationship between State sovereignty and the decentralized nature of
international law; Know what obligations are created via counterterrorism treaties.
The decentralised structure of international law is that there are different steps to create
international laws: law-making, adjudication and enforcement. Given the decentralised
system for counterterrorism to work it has to happen from the bottom up. Creating treaties
and customary law, so states make treaties then consent to be bound by them and apply them.
(other sources see Hernandez and article 38 ICJ)
Terrorism is defined as a crime in many treaties, which states are obliged to enact and enforce
laws against terrorism and exercise jurisdiction against terrorism. This can all be done
through consent making counterterrorism highly dependent on state cooperation. This bring
in the concept of state sovereignty, which means that states are independent and have the
right to govern themselves without outside interference. There is internal sovereignty where
the state has the exclusive power to exercise public functions over individuals and territory
under it’s jurisdiction and external sovereignty where the sovereign of a state requires that no
other state seek to undermine the sovereignty of another state. International law is
decentralized because there is no central authority to enforce rules uniformly. Instead, states
voluntarily enter into agreements and follow customs. This right to sovereign equality is
represented in the UN as they have equal vote.
Sovereign equality is defined in article 2(1) Un charter and it is based on two point equality
and sovereignty. Equality is formal as whatever the economic status, population, military
power states enjoy equal weight in international legal subjects. They have the same rights and
obligation as one another, they are subject to limitations that they themselves will accept over
their freedom of manoeuvre.
Understand how the decentralized nature of international law manifests itself in the sources
of international law.
The decentralized nature of international law manifests itself because the sources of IL are
based on consent, state practice and legal reasoning. All states make laws through treaties,
and enforcement is up to the states themselves. Enforcement can only occur if states gave
consent. Exceptions to this rule UNSC resolutions. There is a horizontal legal order with no
superior authority meaning that states come together to create new legal obligations. The
basis of obligation in international law is that multilateral instruments and Un charter limit
states freedom in relation to use of force. The rise on peremptory norms has created some
non-derogable obligations to states.
1
,Know the sources of international law.
International law sources are two folded, they are based on expressed consent, signature, and
tact consent, implied consent by conduct.
Article 38 ICJ statue lays down categories of sources of applicable law used in the ICJ, so the
lex albitri. It is an authoritative statement as to the sources of international law and has been
accepted by all states. The sources are: international treaties, international customs, general
principles of law and subsidiary means for the determination of rules of law.
Customary international law, doesn’t have to be written as it entails the recognition that the
practices of states can create new legal rules. There are two elements for this source, material
element which related to the actual practice of states and a subjective element of states that
such behavior is law(opinio juris).
Material element/state practice: The North Sea Continental Shelf Case showed
that customary law can crystallize from treaties or consistent practice, but only when enough
states follow the rule because they believe they are legally required to not just out of
convenience or treaty obligation. The notion of state practice encompasses both action and
inaction. In the Nicaragua case the existence of customary rules on the use of force was
considered by the ICJ, that state conduct which is inconsistent with a given rule should
generally be treated as breaches of that rule and not as indication of the recognition of new
rules. This is crucial because the notion of practice is a dynamic phoenomenon where actions
of one actor may be accepted, tolerated, or rejected by other actors which may adopt a similar
course of action.
Opinio juris: abstention alone is insufficient to determine the existence of an
international custom. Therefore, it is through combined interactions of all the involved states
that the development of a new rule proceeds. A new rule of customary international law will
bind all states, there are three situations where the application of a customary rule is not
universal. The first one is persistent objectors in relation to a new rule. In this case there
needs to be persistent objection towards the rule. Then there is subsequent objection in
relation to a change in an existing rule, where one has adhered to the rule but refuses to the
proposed changes to that rule. The final is the possibility of regional, bilateral, or otherwise
localized forms of custom. These are customs which apply to a sub-set of states, so will not
be binding to others.
Treaties, have a basic principle of pacta-sunt servanda where a treaty only creates laws as
between states which are parties to it. Thus, binding only, the parties and not thirds. Must be
performed in good faith. An existing customary rule will continue to exist irrespective of the
adoption of the treaty rule, as two rules with the same content may be subjected to different
principles of interpretation and application. A treaty can only bind third parties, pacta tetriis
rule, under article 38 VCLT if the rules set forth in a treaty provision have entered into
customary law. They are written agreements, concluded between international legal subjects
and governed by international law.
2
, General principles of law, these principles are not derived by state consent but by principles
applied within a state’s municipal law and of general notions which are necessary or inherent
in the concept of law. They are logically necessary and derive from universal principles, they
fill in the gaps and aid the interpretation of primary sources. Eg. Pacta sunt servanda.
Subsidiary means, rest on the idea that a judge or publicist will create a legal argument based
on the sources of the law. They do not create new legal rules, but they clarify, confirm,
explain, and interpret law.
Other sources of international law are unilateral acts of the state, which may have effect of
creating legal obligations. Then resolutions from general assembly which are non-binding but
can provide evidence of opinion juris as to the existence of a rule. Resolutions from security
council are binding so may be characterized as coming close to legislating. Soft law, although
non-binding, it is invoked when states have not found the consensus necessary to enter an
obligation.
Know how treaties are created, interpreted, and suspended or terminated.
Treaties start from negotiations, then the adoption takes place, entry into force, operation, and
termination. When the adoption takes place states apply the “consent to be bound” principle,
stated in articles 11-17 VCLT. This consent to be bound does not limit sovereignty. During
the adoption two steps take place: signature or exchange of instruments and ratification.
Signature is a symbolic act, shows the intent to be bound and the finishing of the negotiation
process. This is seen through article 19-23 where reservations can be creates during the
signatures. Where the signature is subject to ratification, acceptance or approval, the
signature does not establish the consent to be bound. qualifies the signatory state to proceed
to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith,
from acts that would defeat the object and the purpose of the treaty.
Ratifications is seen in article 18 VCLT shows the obligation not to defeat the object and
purpose of the treaty prior to its entry into force. This means that if a state signed the
genocide convention and takes a long time to ratify, in the meantime that state cannot commit
genocide over a minority as it goes against article 18, even if it was not ratified yet the intent
to be bound was shown with the signature. If a treaty is in breach of any jus cogens norms
that it is automatically void. The first element is approval under domestic law and then the
second element is that parties formally exchange or deposit their respective instruments of
ratification.
Interpretation, Treaties need to be interpreted in light ordinary meaning of terms in their
context and in light of the treaty’s object and purpose. The obligations which arise from
treaties also need to be performed in good faith- pacta sunt servanda. (Article 2(2)Un charter
& Article 26, 31 VCLT) Primary means of interpretation: There is an objective approach
which aims to discern the objective meaning and emphasize the analysis of the words used. A
3
Understand the relationship between State sovereignty and the decentralized nature of
international law; Know what obligations are created via counterterrorism treaties.
The decentralised structure of international law is that there are different steps to create
international laws: law-making, adjudication and enforcement. Given the decentralised
system for counterterrorism to work it has to happen from the bottom up. Creating treaties
and customary law, so states make treaties then consent to be bound by them and apply them.
(other sources see Hernandez and article 38 ICJ)
Terrorism is defined as a crime in many treaties, which states are obliged to enact and enforce
laws against terrorism and exercise jurisdiction against terrorism. This can all be done
through consent making counterterrorism highly dependent on state cooperation. This bring
in the concept of state sovereignty, which means that states are independent and have the
right to govern themselves without outside interference. There is internal sovereignty where
the state has the exclusive power to exercise public functions over individuals and territory
under it’s jurisdiction and external sovereignty where the sovereign of a state requires that no
other state seek to undermine the sovereignty of another state. International law is
decentralized because there is no central authority to enforce rules uniformly. Instead, states
voluntarily enter into agreements and follow customs. This right to sovereign equality is
represented in the UN as they have equal vote.
Sovereign equality is defined in article 2(1) Un charter and it is based on two point equality
and sovereignty. Equality is formal as whatever the economic status, population, military
power states enjoy equal weight in international legal subjects. They have the same rights and
obligation as one another, they are subject to limitations that they themselves will accept over
their freedom of manoeuvre.
Understand how the decentralized nature of international law manifests itself in the sources
of international law.
The decentralized nature of international law manifests itself because the sources of IL are
based on consent, state practice and legal reasoning. All states make laws through treaties,
and enforcement is up to the states themselves. Enforcement can only occur if states gave
consent. Exceptions to this rule UNSC resolutions. There is a horizontal legal order with no
superior authority meaning that states come together to create new legal obligations. The
basis of obligation in international law is that multilateral instruments and Un charter limit
states freedom in relation to use of force. The rise on peremptory norms has created some
non-derogable obligations to states.
1
,Know the sources of international law.
International law sources are two folded, they are based on expressed consent, signature, and
tact consent, implied consent by conduct.
Article 38 ICJ statue lays down categories of sources of applicable law used in the ICJ, so the
lex albitri. It is an authoritative statement as to the sources of international law and has been
accepted by all states. The sources are: international treaties, international customs, general
principles of law and subsidiary means for the determination of rules of law.
Customary international law, doesn’t have to be written as it entails the recognition that the
practices of states can create new legal rules. There are two elements for this source, material
element which related to the actual practice of states and a subjective element of states that
such behavior is law(opinio juris).
Material element/state practice: The North Sea Continental Shelf Case showed
that customary law can crystallize from treaties or consistent practice, but only when enough
states follow the rule because they believe they are legally required to not just out of
convenience or treaty obligation. The notion of state practice encompasses both action and
inaction. In the Nicaragua case the existence of customary rules on the use of force was
considered by the ICJ, that state conduct which is inconsistent with a given rule should
generally be treated as breaches of that rule and not as indication of the recognition of new
rules. This is crucial because the notion of practice is a dynamic phoenomenon where actions
of one actor may be accepted, tolerated, or rejected by other actors which may adopt a similar
course of action.
Opinio juris: abstention alone is insufficient to determine the existence of an
international custom. Therefore, it is through combined interactions of all the involved states
that the development of a new rule proceeds. A new rule of customary international law will
bind all states, there are three situations where the application of a customary rule is not
universal. The first one is persistent objectors in relation to a new rule. In this case there
needs to be persistent objection towards the rule. Then there is subsequent objection in
relation to a change in an existing rule, where one has adhered to the rule but refuses to the
proposed changes to that rule. The final is the possibility of regional, bilateral, or otherwise
localized forms of custom. These are customs which apply to a sub-set of states, so will not
be binding to others.
Treaties, have a basic principle of pacta-sunt servanda where a treaty only creates laws as
between states which are parties to it. Thus, binding only, the parties and not thirds. Must be
performed in good faith. An existing customary rule will continue to exist irrespective of the
adoption of the treaty rule, as two rules with the same content may be subjected to different
principles of interpretation and application. A treaty can only bind third parties, pacta tetriis
rule, under article 38 VCLT if the rules set forth in a treaty provision have entered into
customary law. They are written agreements, concluded between international legal subjects
and governed by international law.
2
, General principles of law, these principles are not derived by state consent but by principles
applied within a state’s municipal law and of general notions which are necessary or inherent
in the concept of law. They are logically necessary and derive from universal principles, they
fill in the gaps and aid the interpretation of primary sources. Eg. Pacta sunt servanda.
Subsidiary means, rest on the idea that a judge or publicist will create a legal argument based
on the sources of the law. They do not create new legal rules, but they clarify, confirm,
explain, and interpret law.
Other sources of international law are unilateral acts of the state, which may have effect of
creating legal obligations. Then resolutions from general assembly which are non-binding but
can provide evidence of opinion juris as to the existence of a rule. Resolutions from security
council are binding so may be characterized as coming close to legislating. Soft law, although
non-binding, it is invoked when states have not found the consensus necessary to enter an
obligation.
Know how treaties are created, interpreted, and suspended or terminated.
Treaties start from negotiations, then the adoption takes place, entry into force, operation, and
termination. When the adoption takes place states apply the “consent to be bound” principle,
stated in articles 11-17 VCLT. This consent to be bound does not limit sovereignty. During
the adoption two steps take place: signature or exchange of instruments and ratification.
Signature is a symbolic act, shows the intent to be bound and the finishing of the negotiation
process. This is seen through article 19-23 where reservations can be creates during the
signatures. Where the signature is subject to ratification, acceptance or approval, the
signature does not establish the consent to be bound. qualifies the signatory state to proceed
to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith,
from acts that would defeat the object and the purpose of the treaty.
Ratifications is seen in article 18 VCLT shows the obligation not to defeat the object and
purpose of the treaty prior to its entry into force. This means that if a state signed the
genocide convention and takes a long time to ratify, in the meantime that state cannot commit
genocide over a minority as it goes against article 18, even if it was not ratified yet the intent
to be bound was shown with the signature. If a treaty is in breach of any jus cogens norms
that it is automatically void. The first element is approval under domestic law and then the
second element is that parties formally exchange or deposit their respective instruments of
ratification.
Interpretation, Treaties need to be interpreted in light ordinary meaning of terms in their
context and in light of the treaty’s object and purpose. The obligations which arise from
treaties also need to be performed in good faith- pacta sunt servanda. (Article 2(2)Un charter
& Article 26, 31 VCLT) Primary means of interpretation: There is an objective approach
which aims to discern the objective meaning and emphasize the analysis of the words used. A
3
