SOURCES OF INTERNATIONAL LAW

Transcription

1 SOURCES OF INTERNATIONAL LAW 1. Article 38 of the Statute of the International Court of Justice 2. International Conventions 3. International Custom 4. General Principles of Law 5. Judicial Decisions 6. Teachings of the Most Highly Qualified Publicists 7. Ex aequo et bono 8. Binding and Non-binding Acts of International Organizations 9. Unilateral Statements (acquiescence; persistent objector) 10. Soft Law 11. Codification of International Law 12. International Law Commission Literature: Malanczuk th edn., alternatively 7th edn Brownlie , /Kiviorg jt /

2 I ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 2 Pursuant to Article 38 (1) of the Statute of the International Court of Justice: primary sources of international law: 1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States, 2) international custom, as evidence of a general practice accepted as law, 3) the general principles of law recognized by civilized nations, secondary sources of international law: 4) judicial decisions, 5) the teachings of the most highly qualified publicists, Pursuant to Article 38 (2): 6) ex aequo et bono. Jan Klabbers names two potentially complementary sources: resolutions of international organizations; unilateral acts (e.g. Nuclear Tests cases).

3 3 II INTERNATIONAL CONVENTIONS The main instrument of cooperation and taking obligations in international relations. CLASSIFICATION OF INTERNATIONAL TREATIES: --bilateral and --multilateral treaties. Additionally: --private law contracts between subjects of international law (complete loss of right is possible) and --law-making treaties between subjects of international law (the limits of agreements are connected with constitutional norms binding to the parties). NB! Instead the term public international treaties is used the term law-making treaties. Why? As international law does not know exercise of public power similar to internal law. (Catherine Brölmann)

4 4 Classification of inter-state law-making treaties according to the Vienna 1969 Convention on the Law of Treaties: general international treaties and constitutional or constitutive international treaties (that form the basis for delegation / adoption of secondary measures).

5 THE TERM INTERNATIONAL TREATY 5 For the purposes of the Vienna 1969 Convention on the Law of Treaties, treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Other terms used as a synonym for treaties, or for particular types of treaties: agreement, pact, understanding, protocol, charter, statute, act, covenant, declaration, engagement, arrangement, accord, regulation, provision.) The Vienna 1986 Convention on the Law of Treaties between States and International Organizations or between International Organizations (has not entered into force yet) distinguishes among international treaties also international treaties concluded between States and international organizations and among international organizations. Examples of international treaties: - The Charter of the UN; - UN treaties; - inter-state treaties; - EU treaties; - treaties with other International organizations - Vienna conventions on the law of treaties as treaties on treaties (Outi Korhonen); - etc.

6 6 The subject-matter of international treaties? For example: - human rights; - environment; - peace and security; - economics. Two exceptions: - International treaty cannot be contrary to international custom (i.e.: one cannot conclude International treaties on commencement of war, racial discrimination, slave trade, torture, etc.), - International treaty cannot be contrary to the obligations under the UN / Charter of the UN.

7 7 III INTERNATIONAL CUSTOM International custom is unwritten law as evidence of a general practice accepted as law. Classification of international custom: general or universal and regional or particular. Two elements of custom: general and continuous practice of subjects of international law and opinio iuris sine necessitatis (accepted as law psychological element in the formation of customary law. Conviction that practice reflects a legal obligation, that certain conduct is required by international law).

8 8 What happens if one subject of international law does not wish to participate in custom any more? At birth of a customary norm, a State may free itself of bindingness of the norm (persistent objector theory). Absence of persistent protest is considered consent. Can, for example, ten states agree that torture is custom? general custom vs. particular custom (e.g. custom of three states with regard to m/s Estonia)

9 9 IUS COGENS international law norms that are so constituent that they do not allow exceptions. For example: Prohibition of: torture; genocide; slavery; aggression; racism. The 1969 Vienna Convention on the Law of Treaties words the principle of ius cogens in Article 53: Article 53. Treaties conflicting with a peremptory norm of general international law ( jus cogens ) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Both forms: ius cogens and jus cogens are correct.

10 Evidence of customary law (by Hannes Vallikivi): 1) diplomatic correspondence; 2) political declarations; 3) announcements in press; 4) opinions of official legal counsellors; 5) orders and acts of the executive power; 6) comments and remarks by the representatives of States on draft international documents; 7) internal law; 8) judgments of international and internal courts; 9) preambles of international treaties and other international documents; 10) bundles of similar international treaties; 11) practice of international organizations; 12) Resolutions of the United Nations General Assembly; 13) etc. 10

11 11 IV GENERAL PRINCIPLES OF LAW (See the materials of the I lecture!) General principles of law derived from States legal systems, and principles of international law itself: Sovereignty Equality Consent Duty of States to co-operate Non-intervention Settlement of international disputes by peaceful means Prohibition of threat or use of force Right to self-defence Respect for human rights Equal rights and self-determination of peoples Reciprocity Could the list include also the principles developed international organizations? (For example, the Court of Justice of the European Union has worded important legal principles.)

12 V JUDICIAL DECISIONS 12 Indirect effect. There is no formal stare decisis doctrine (as known in common law systems) in international law i.e., International courts are not obliged to follow previous decisions, although they almost always take previous decisions into account. Pursuant to Article 59 of the Statute of the International Court of Justice, the decisions of the Court have binding force only between the parties and in respect of that particular case. /See the slides about international courts!/

13 13 VI TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS Who are the most highly qualified publicists? What is International Law Commission? Who belong to that Commission? What does the Commission do? /See NB! Teachings of the most highly qualified publicists do not create law in itself, but explain the content of laws.

14 14 VII EX AEQUO ET BONO This is the principle of equity in international law.

15 15 VIII BINDING AND NON-BINDING ACTS OF INTERNATIONAL ORGANIZATIONS Most of the organs of international organizations are composed of representatives of member states, consequently, very often the acts of such organs are merely the acts of the states represented in those organs. For example: A resolution of the United Nations General Assembly can be: evidence of customary law, because it reflects the views of states voting for it, or if it had been passed at a conference outside the framework of the United Nations, and if many states vote against it its value as evidence of customary law is correspondingly reduced. Usually international organizations have at least one organ, which is not composed of representatives of member states, and the practice of such organs is capable of constituting a source of law. For example: the United Nations Secretariat often acts as a depositary of treaties, and its practice as depositary has already affected the law of treaties on the topic of reservations.

16 HOW ARE THE RESOLUTIONS OF THE UN ADOPTED? 16 UN GENERAL ASSEMBLY Composition All 192 UN Members. UN SECURITY COUNCIL 15 Members (incl. 5 permanent Members and 10 non-permanent members). Voting One State has not more than 5 representatives (with one vote). (Article 9) Each member of the GA has 1 vote. (Article 18 (1)) One State has 1 representative. (Article 23) Each member of the SC has 1 vote. (Article 27 (1)) FIVE PERMANENT MEMBERS HAVE THE RIGHT TO VETO. Decisions of the GA ON IMPORTANT QUESTIONS shall be made by a 2/3 majority of the members present and voting. During the recent years, Decisions of the SC on PROCEDURAL MATTERS are made by an affirmative vote of 9 members; muudes küsimustes teeb otsuseid, kui 9 riiki hääletab poolt, s.h alaliste liikmete poolthääled.

17 Procedure formal voting has been tried to replace with consensus. Regular annual sessions (Article 20). Acts on permanent basis. 17 Special sessions as occasion may require (Article 20). Periodic gatherings. Resolutions GA own rules of procedure. Not binding on the Members of the UN. SC own rules of procedure. Binding on all Members of the UN.

18 IX UNILATERAL STATEMENTS (ACQUIESCENCE; PERSISTENT OBJECTOR) 18 Acquiescence - passiveness and inaction (silence) on the part of States with respect of claims of other States can produce a binding effect creating legal obligations for the silent State under the doctrine of acquiescence.

19 19 X SOFT LAW It has been described as a grey zone between law and politics. Here belong, for instance, guidelines of conduct, treaties that have not yet enetred into force, resolutions of international conferences, etc., which are not strictly binding norms of law, nor completely irrelevant political maxims.

20 20 XI CODIFICATION OF INTERNATIONAL LAW Peter Malanczuk recognizes attempts to codify international customary law since the end of the 19th century. Codification of customary law has embraced also making of new law. Examples: - The Hague Conventions of 1899 and 1907; - The Geneva conventions; - The Vienna 1961 Convention on Diplomatic Relations; - The Vienna 1963 Convention on Consular Relations; - The Vienna 1969 Convention on the Law of Treaties; - The Vienna 1986 Convention on the Law of Treaties between States and International Organizations or between International Organizations; - The Vienna 1978 Convention on Succession of States in respect of Treaties; - The Vienna 1983 Convention on Succession of States in respect of State Property, Archives and Debts; - The UN 1982 Convention on the Law of Seas. (Source: Malanczuk, pp )

21 21 CODIFICATION OF CUSTOMARY LAW a d v a n t a g e s: - preciseness; - accessibility; - States obey better the laws in codification of what they have participated. d i s a d v a n t a g e s: - compromises; - time-consuming; - failure affects negatively the established customary law norms.

22 22 XII INTERNATIONAL LAW COMMISSION Established in 1947 by the United Nations; Carried out the preparatory work for the Geneva and Vienna conventions; Composition: originally 15 international lawyers (today more than 30) elected by the United Nations General Assembly for a five-year term under the principle that represented would be the world s principal legal systems. Deeds: - codification of international law; - progressive development of international law. In practice the distinction between codification and progressive development is often blurred. Frequently prepares a draft convention first, which may later be incorporated into a binding multilateral agreement. For example, Draft Articles on the Responsibility of States for Wrongful Acts). Sometimes the ILC only summarizes the law in a report to the General Assembly. Although such reports are not binding in the same way as treaties, they constitute valuable evidence of customary law. The ILC members work bases on extensive research and on an attempt to ascertain and reconcile the views of the UN Members (for, example, by circulating questionnaires and by inviting states to comment on their draft reports the same procedure is followed during the preliminary work on draft conventions).

23 23 Unofficial bodies who have tried to codify international law: - Harvard Law School; - Institute of International Law; - International Law Association. International Law Commission vs. Foreign Office Model as developers of international law.