PINTL_muji.docx

7/29/2019 PINTL_muji.docx

1/5

Public International Law | Atty. Ganchoon | Copy of Muji Jaafar 1

II. SOURCES OF INTERNATIONAL LAW

1) Formal Sources

various processes by which rules come into

existence (example: legislation) the procedures or methods by which rules become

legally binding

a process by which a legal rule comes intoexistence

law creating international conventions, whethergeneral or particular, establishing rules expresslyrecognized by contesting states; internationalcustoms, as evidence of a general practiceaccepted as law; the general principles of law

recognized by civilized nations

2) Material Sources

concerned with the substance and content of legalobligations

identifies what the obligations are: state practice,UN Resolutions, treaties, judicial decisions and thewritings of jurists

sometimes referred to as evidence of internationallaw

law identifying the general principles of lawrecognized by civilized nations

judicial decisions and the teachings of the mosthighly qualified publicists of the various nations, assubsidiary means for the determination of rules oflaw

A. ARTICLE 38 (1) OF THE STATUTE OF THE

INTERNATIONAL COURT OF JUSTICE

It does not speak of sources but rather it is primarily adirective to the Court on how it should resolveconflicts before it.

It is a declaration by states that these are the lawsunder which they are willing to be bound.

1) The Court, whose function is to decide inaccordance with international law suchdisputes as are submitted to it, shall apply:

a) international conventions, whether generalor particular, establishing rules expresslyrecognized by contesting states;

b) international custom. as evidence ofgeneral practice accepted as law;c) the general principles of law recognized by

civilized nations;d) subject to the provisions of Article 59,

judicial decisions and the teachings of themost highly qualified publicists of thevarious nations, as subsidiary means forthe determination of rules of law.

2) This provision shall not prejudice the power ofthe Court to decide ex aeqou et bono, if theparties agree thereto.

Restatement (Third) of Foreign Relat ions L aw of th e

United States

1. A rule of international law is one that has beenaccepted as such by the internationalcommunity of states:


2/5


1) in the form of customary law;2) by international agreement; or3) by derivation from general principles

common to the major legal systems in the

world.

2. Customary international law results from ageneral and consistent practice of statesfollowed by them from a sense of legalobligation.

3. International agreements create law for thestate parties thereto and may lead to thecreation of customary international law which

such agreements are intended for adherenceby states generally and are in fact widelyaccepted.

4. General principles common to the major legalsystems, even if not incorporated or reflectedin customary law of international agreements,may be invoked as supplementary rules ofinternational law where appropriate.

*Article 59-the decision of the Court has no binding forceexcept between the parties and in respect to thatparticular case.

SOURCES OF INTERNATIONAL LAW

1) Custom2) Treaties and other international agreements3) Generally recognized principles of law4) Judicial decisions

5) Teachings of highly qualified and recognizedpublicists

CUSTOM or CUSTOMARY INTERNATIONAL LAW

a general and consistent practice of states followed by thenfrom a sense of legal obligation (Restatement)

that law which has evolved from the practice or customs ofstates

it enables international law to develop in line with theneeds of the time

Material Factor (practice of states or usus)

how states behave

includes duration, consistency, and generality ofthe practice of states

Psychological or Subjective Factor

why states behave the way they do

ELEMENTS:

1) CONSISTENCY of practice- constant and uniform

- there must be continuity and repetition- it is satisfied if there is substantial rather than

complete

2) GENERALITY of practice- the practice must be common to a significant

number of states- what is needed is a substantial number of states- the degree of generality required will vary with the

subject matter, so that an onerous customary law


3/5


obligation may require a more general practicethan a norm which gives a state limited privileges.

- this need not be complete, but it must besubstantial

3) DURATION of practice- the length of time needed will vary from subject to

subject and, further, that the passage of any briefperiod of time is not necessarily a bar to theformation of customary law

- duration can be either short or long- a short duration, by itself, will not exclude the

possibility of a practice maturing into customprovided that other conditions are satisfied. (North

Sea Continental Shelf Cases) There is no fixedduration required

4) OPINIO JURIS- state practice must be accompanied by a belief

that the practice is obligatory, rather than merelyconvenient or habitual.

- the belief that a certain form of behavior isobligatory is what makes practice an internationalrule. Without it, practice is not law

- it is a very important element- it can be inferred from consistent state practice or

repeated state activity. However, if the alleged ruleplaces burdens in all states, clear extrinsicevidence of opinio juris might be required.

General Rule:Dissenting states are bound bycustoms

Except ions :It is not applicable if the followingcircumstances are present under the concept ofpersistent objector:

States consistently objected to it from the verystart or while the custom was merely in theprocess of formation;

One state is able to stop the formation of acustomary rule. it is possible is thestate/persistent objector is an importantoperator in a particular field that its continuedobjection prevents customary law developingfor all states

What is the effect of subsequent contrary practice to theexisting customary law?

It is also possible that after a practice has been acceptedas law, contrary practice might arise. Such contrarypractice can cast doubt on the alleged law. It might beadded that, over time, if the contrary practice should gaingeneral acceptance, it might instead become the law(Anglo-Norwegian Fisheries Jurisdiction Case (Merits))

Evidence of State Practice and Opinio Juris

Various forms of evidence may point to state practice.These can be treaties, diplomatic correspondence,statements of national leaders and political advisers, aswell as the conduct of states.

By themselves, however, they do not constitutecustomary law unless characterized by opinio juris.

The existence of opinio juris is a matter of proof.


4/5


The burden of proving its existence falls on the stateclaiming it.

Instant Custom

is not a product of constant and prolonged practice.

It comes about a spontaneous activity of a great numberof states supporting specific line of action.

Martens Clause formulated by the Russian publicist Fyodor Martes what the clause does is to put the laws of humanity

and the dictates of public conscience on the samelevel as usages of states or usus (1989 HaguePeace Convention)

Thus suggesting that even without practice or usus orat least without consistent practice there can emergea principle of law based on laws of humanity and thedictates of public conscience

When customs and treaties are in conflict

a) Custom Treaty treaty will prevail because it represents a

deliberate and conscious act of law creation,

except if the custom is rule of jus cogens

Rules of Jus Cogens rules of customary international law that are so

fundamental that they cannot be modified by a treaty.Any treaty provisions which conflicts with this rule isVOID and this is true whether or not this ruledeveloped before or after the treaty come into force.

b) Treaty Custom - treaty will prevail

Article 53 of the Vienna Convention A treaty is VOID if, at the time of its conclusion, it

conflicts with a peremptory norm of a generalinternational law.

For the purpose of the present convention, a peremptorynorm of general international law is a norm accepted andrecognized by the international community of States as awhole ,as a norm from which no derogation is permittedand which can be modified only by a subsequent norm ofgeneral international law having the same character.

GENERAL PRINCIPLES OF LAW RECOGNIZED BYCIVILIZED NATIONS

this is also referred to by the Restatement as generalprinciples of law recognized by or common to the

worlds majorlegal systems this has reference to principles of international law but

to principles of municipal law common to the legalsystems of the world.

it is said to belong to no particular system of law butare evidence rather of the fundamental unity of law

Examples: prescription, estoppels, res judicata andpacta sunt servanda

JUDICIAL DECISIONS

subsidiary means for the determination of ruels of law these decisions do not constitute stare decisis.

However, such decisions of the ICJ are not onlyregarded as highly persuasive in international lawcircles; they have also contributed for the formulationof principles that have become international law.


5/5


Examples: ICJ Decision, UN Resolutions, otherResolutions of International Organizations.

Who are PUBLICISTS?

Institutions which write on International Law. The more significant ones are: The International LawCommission; Institut de Droit International; (Revised)Restatement of Foreign Relations Law of the UnitedStates; and the Annual Publication of the HagueAcademy of International Law.

B. DECISION ex aequo et bono

the use of equitable principles means decisionaccording to law, not one taken outside it by means of

a set of abstract justice. according for fair dealing and good conscience.

C. EQUITY

When accepted is an instrument wherebyconventional or customary law may be supplementedor modified in order to achieve justice.

It has both a procedural and substantive aspect. Procedurally, it means a mandate given to a judge to

exercise discretion in order to achieve a determinationthat is more equitable and fair.

Different Kinds of Equity:1. Intra Legem (within the law) - law is adapted to the

facts of the case.2. Prater Legem (beyond the law) it is used to fill the

gaps within the law.3. Contra Legem (against the law) a refusal to apply

the law which is seen as unjust.

D. RESOLUTIONS OF INTERNATIONAL ORGANIZATIONS

UN Resolutions considered as merelyrecommendatory except if they are supported by allthe states, they are an expression of opinion juris

communis.

E. SOFT LAW

Non-Treaty Agreements It is the name given to those rules of international law

they do not stipulate concrete rights or obligations forthe legal person to whom they are addressed;

A description of those values, guidelines, ideas andproposals that may develop into rules of internationallaw but have not yet done so.

PINTL_muji.docx

Documents

Transcript of PINTL_muji.docx