#14978 - Sources - Public International Law

‘International law’ refers to the body of rules and principles that regulate States in their relations with each other. But States are not the only subjects of international law: international organisations and, to a lesser extent, individuals can also bear rights and duties under international law.

The key organising principles of international law are Sovereignty, Territory, Non-intervention, Equality, Consent and Responsibility.

Two main theories explain the binding force of international law: natural law and positivism.

International law is a positivist system of law, in that to be binding rules must have been adopted through one of the recognized means of law creation (treaty, custom or general principles of law).

The ICJ held in South West Africa (Ethiopia v South Africa) that humanitarian considerations are not sufficient in themselves to generate legal rights and obligations. The Court can take account of moral principles only insofar as these are expressed in legal form.

In international law, positivism has taken the form of voluntarism: it is the (common) will of States which gives international law its authority as law. The sources of international law (treaties, customary law, and general principles) all derive their binding source from State consent, which can be given expressly or implicitly (Lotus(France v Turkey)).

However, voluntarism cannot explain why new States become bound by general international law even if they have not consented to it; and, second, it cannot explain why States may not withdraw, as a matter of general international law, from customary rules.

D’Amato (1984) argues that international law is enforced through a system of reciprocal entitlements, such as the entitlement of statehood. Statehood means that the nation is a geographic entity entitled to exert its own legal jurisdiction in the area within its boundaries and to claim the inviolability of those boundaries against all other states. Yet the borders remain as such only by virtue of their recognition by other states, such that this entitlement may be said to carry with it reciprocal duties. The entitlement provides that the nation must respect the borders of other states, otherwise tit-for-tat transgression of each other’s borders would endanger the existence of the states in question.

A nation is nothing more nor less than a bundle of entitlements, such as the entitlement to enter into binding treaties with other nations, to a territorial sea etc.

Further, many of the idea and principles of international law today are rooted in the notion of Natural Law and the relevance of ethical standards to the legal order, such as the principles of non-aggression and human rights.

Lack of a legislature, executive and structure of courts within international law. One is therefore faced with the problem of discovering where the law is to be found and how one can tell whether a particular proposition amounts to a legal rule. Nevertheless, there are ‘sources’ from which the rules of international law may be extracted.

A distinction is often drawn between ‘formal’ and ‘material’ sources. Formal sources are the processes through which rules of international law are created (e.g. the passage of a Bill through Parliament is a formal source of law) eg Art 38(1)(a),(b),(c)……IT IS LAW. Material sources refer to the actual document or place in which the rule is included (eg, a treaty or a United Nations resolution) eg Art 38(1)(d)……PROVIDES EVIDENCE OF LAW.

Standard point of departure: Art 38 of the Statute of the International Court of Justice (ICJ)

Is this an exhaustive statement of the sources of international law? It is arguable that Art 38 is only a direction to the court authorising it to consider various materials when deciding disputes submitted to it. It does not provide a complete list of the matters which the Court in fact considers. Art 38 makes no reference to resolutions of the UN General Assembly or to diplomatic correspondence, both of which figure prominently in the court’s judgments.

Purpose of customary law -> as the DEFAULT POSITION when there are no treaties available

Baxter paradox -> where there is a widely ratified treaty, harder to get evidence of opinio juris for state conduct because the practice follows the obligations during the treaty and not because those states think that practice should be a customary law

There are two requirements of custom: a (i) ‘general practice’ (state practice), which must be (ii) ‘accepted as law’ (opinio juris) (North Sea Continental Shelf (Germany v Denmark)).

The relative importance of the two factors is disputed by various writers. Positivists such as Anzilotti (1928) stress the paramount importance of the psychological element. States are only bound by what they have consented to, so therefore the material element is minimised to the greater value of opinio juris. If states believe that a course of action is legal and perform it, even if only once, then it is to be inferred that they have tacitly consented to the rule involved. Following on from this analysis, various positivist thinkers have tended to minimise many of the requirements of the overt manifestation, e.g. with regard to repetition and duration.

Evidence of customary law must not be searched only in the conduct of the States actively engaging in the practice. It must also take into account the reactions of other States: whether they accept the conduct or protest it. Customary law is formed in the dynamic of claim and response between States.

State practice consists of any act or statement by a State (any organ of the State) which can evidence its views about customary law. Such acts include the judgements of national courts, legislation, claims advanced by States before foreign courts and statements made by state representatives.

To generate a rule of customary law, the practice must be general, consistent, and of a certain duration.

While not all States must engage in the practice, there must be sufficient examples on the part of a sufficient number of States. In North Sea Continental Shelf (Germany v Denmark), the ICJ held that the degree of generality will vary with the subject matter, so that an onerous customary law obligation may require a more general practice than a norm which gives a state limited privileges.

In assessing whether a customary rule has come into existence, special weight may be given to the practice of those states whose interests are specifically affected by the subject matter of the rule. For example, the practice of major maritime powers will have more significance in the formation of rules on the law of the sea than landlocked states.

Overall consistency, such that instances of State conduct inconsistent with the rule should have been treated as breaches of that rule and not as indications of the recognition of a new rule, would be sufficient.

The degree of consistency required may vary according to the subject matter of the rule in dispute.

Asylum Case (Columbia v Peru) (Peru rebel granted asylum by Columbia in Peruvian Embassy. Columbia brought the case against Peru to compel Peru to grant safe passage out of Peru. Columbia argued there was a rule of unilateral and definitive qualification for asylum was a customary rule and invoked a large number of cases where diplomatic asylum was granted and respected)

• ICJ held there was no such customary law to grant asylum as:

1. Much fluctuation and discrepancy in the (a) exercise of diplomatic asylum and (b) official views expressed on varied occasions

2. Much inconsistency in the rapid succession of conventions on asylum, ratified by some states and rejected by others

3. Practice has been influenced by much political expediency

   -> Therefore it was not possible to discern any CONSISTENT or UNIFORM usage

• ICJ further held that even if such a custom could be established specific to only the Latin-American States, such a custom could not be invoked against Peru as Peru has repudiated such a custom by refraining from ratifying the Montevideo Convention of 1933 and 1939 (which was first to include a rule concerning the qualification of the offence in matters of diplomatic asylum)

  -> Shows that consistent refusal to acknowledge a position (especially since Peru has been opposing such diplomatic asylum from the onset – as Montevideo was the FIRST) can be taken to mean that even a custom (if it exists in the first place) cannot be applied to it

• Thus, if we are dealing with POSITIVE OBLIGATIONS, as where a state is obliged to protect foreign nationals in its territory,...