Sources of International Law

LECTU R E # 2 , 2 8 T H S EPT / 5 T H O CT. 2 0 1 5

(SHARAFAT ALI)

Sources of International Law – A complex Phenomena

Ascertainment of the law in domestic legal order – not difficult on processHierarchical character of national legal order Act of Parliamentarians – Statutes The Law reports to interpretation – Court cases

Situation in International Law – Strikingly in contrast to domestic law Lack of legislatures Absence of formal executives Non- hierarchical structure of courts

Anarchic nature of world affairs

Clash of competing sovereignties

1- International Court of Justice

Sources of International LawArticle 38 (1) Statute of the International Court of Justice.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general 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 the

most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

ICJ – Cont..Article 59.

The decision of the Court has no binding force except between the parties and in respect of that particular case.

Article 93 of UN Charter

All member states of UN are ipso facto parties to the Statue (Non- members can specifically become parties to the Statue of the Court) – Case of Switzerland that joined UN in 2002

Classification of Sources of IL

Formal vs Material sources Formal confer upon the rules of obligatory character Material are the actual content of the rules.

Substantive vs Procedural

2. Law of Treaties International Conventions

Law of Treaties

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

Art. 2 (1) (a) Vienna Convention on the Law of Treaties, 1969.

2- Law of Treaties – Cont…

Multilateral Treaty◦ Existence of more than two parties

Bilateral Treaty◦ Between two parties

Regional Treaty◦ Between parties in the same region

2- Law of Treaties – Cont…

Variety of Designations◦ Treaties, Agreements, Acts, Conventions, Declarations, Protocols.◦ The designation alone does not affect the binding force of the instruments or its characterization as a

treaty.◦ Convention on Biological Diversity◦ Cartagena Protocol on Biosafety◦ United Nations Framework Convention on Climate Change◦ Kyoto Protocol

2- Law of Treaties – Cont… Adoption of a treaty

The states draw up a textThe expression of agreement with the text is known as adoption of a treaty.

1.The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2.

2.The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule (Art. 9 Vienna Convention)

2- Law of Treaties – Cont…

Signature

Expresses the consent of the state to be bound by the treaty.

It may be subject to ratification

2- Law of Treaties – Cont…

Ratification “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so

named whereby a State establishes on the international plane its consent to be bound by a treaty

2- Law of Treaties – Cont…

Reasons for ratification

States need time before they feel able to commit themselves to it.

The constitutions may provide for a mechanism for undertaking international obligations

Needs time to enact the enabling legislations.

2- Law of Treaties – Cont… Refusal of ratification

The ultimate right to refuse to ratify is not impaired

A sate cannot sign a treaty and subsequently conduct itself as if it had no connection with it or as if its signature were a mere act of authentication.

2- Law of Treaties – Cont…

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Art. 18 Vienna Convention.

3- International Customs

Any primitive society prescribes rules of behavior – what’s permitted and what’s not. They are usually not Written down or codified. Custom is an authentic expression of the needs and values of the community any given time.

International Custom Within contemporary legal systems (esp. in developed world) is relatively unimportant at domestic level. It is one of the primary sources of international law

Due to nature of international system and its lack of centralized government.

Two elements State practice and behavior Acceptance of the practice as obligatory

Opinio juris

3- International Customs – Cont…. State Practice

◦ Common and consistent ◦ Uniform practice is not necessary◦ Sufficient degree of participation◦ No substantial dissent◦ Persistent objector

4- Opinio jurisin International Law

Feeling of obligationState’s activity is legally obligatory.

Lotus Case (between France and Turkey)

States will behave a certain way because they are convinced it is binding upon themChild Protection related legislation (JJS Bill 2015)

5- General Principals of Law When the point is neither covered by parliamentary statute nor by judicial precedent

In such instances, the Judge will relay on Principals that guide legal system Consider public policy and Principals of equity. Legal acumen

6- Other sources

Judicial decisions

Writings of eminent and well acknowledged jurists

International Law Commission