Transcript Document
The Sources of International law Lecturer: Jiang he What are sources of international law Rules and norms of any legal system derive authority from their source The “sources” articulate what the law is and where it can be found. The way to decide the sources of law in domestic community. The way to decide the sources of law in international community. Categories of the sources of int’ law A pragmatic to assess the sources of international law has been found in the Article 38 of the statute of the I CJ. “(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. Categories of the sources of int’ law (d) subject to the provision of the Article 59, judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means for the determination of rules of law.” Sources may be characterized as formal or material. Briefly, formal sources constitute what the law is whereas material sources only identify where the law may be found. Hence Article 38(1)(a)—(c)(treaties, custom and general principles) are formal sources whereas Article 38(1)(d) (judicial decisions and juristic teachings) are material sources. Treaties as international law Article 38 does not mention the term “treaties”, but refers to “any international conventions, whether general or particular establishing rules expressly recognized by the contesting parties.” A treaty, although it may be identified as comparable in some degree to a parliamentary statute within municipal law, differs from the latter in that it only applies to those states which have agreed to its terms, and normally a treaty does not have universal application. Treaties as international law Treaties, as Article 38 infers, may be between two states(bipartie) or between several states (multipartie). A distinction is sometimes drawn between law making treaties and “ treaty contract”. Treaties represent the most tangible and most reliable method of identifying what has been agreed between states. Treaties, accordingly, regulate diverse and extensive subject matters in international law. Treaties as international law Customary law and law made by treaty have equal authority as international law, but if a treaty and a customary rule exist simultaneously on the issue in dispute, then the treaty provisions take precedence. Treaties are not intended to derogate from customary law, and a treaty which seemingly modifies or alters established custom should be construed so as to best conform to, rather than derogate from, accepted principles of international law, of course, the treaty in question is clearly intended to alter the existing rules of custom. A treaty will not however prevail over prior customary law if the latter is jus cogens. Treaties as international law Whatever their legislative effect, treaties generally do not, unlike municipal legislation, have universal application. This statement must be qualified. There are two types of treaties which, because of their purpose, do produce consequence which nonsignatories cannot ignore, viz. those establishing a special international regime and the those establishing an international organization. Custom as international law (the art, evidences and inelegance) In any society rules of “acceptable” behavior develop at an early stage and the international community was no exception. In times of globalization, certain norms of behavior crystallized into rules of customary international law. Definition of custom: custom in international law is a practice followed by those concerned because they feel legally obliged to behave in such a way. A rule of customary international law derives its law hallmark through the possession of two elements: (ⅰ) a material and (ⅱ) a psychological element. Custom as international law Material element: The material element refers to the behavior of states, but does that behavior itself have to satisfy certain criteria? Subject (who and how many), frequency and time or duration of practice, consistence The length of time required to establish a rule of customary international law will depend upon other factors pertinent to the alleged rule. Time has also become less important as international communication has improved. Custom as international law Extent of state practice The existence of diverging practice proved to be the stumbling block in that particular practice’s evolution into law. Inconsistency per se, however, is not sufficient to negate the crystallization of a rule into customary international law. How many states must be involved in a particular activity before the practice is accepted as law? Universal practice is fortunately not necessary. Thus it transpires that the number of states is less consequential than is the identity of the states involved. If an alleged rule is to attain legitimacy, a favorable response from “leading” state is pre-requisite. Custom as international law Numbers are more important when the custom is a local, regional one and involving fewer states than general customary law. Opposition to a rule of customary international law must be demonstrated from the outset. The question of how customary international law may be amended or modified : If support for the rule is wide and consistent, then the acceptance of it as law will be relatively smooth and rapid. Similarly if there is substantial opposition to the “new rule”, the established rule will retain its law character. However, if the numbers in favor of the established rule and the new rule are evenly divided. Custom as international law International customary law can accommodate change, but how quickly that change will occur is dependent upon the response of states to the proposed alteration of the law. Finally, what, for the purposes of establishing customary international law, constitutes evidence of state practice? Treaties, diplomatic correspondence, statements by national legal advisers in domestic and international fora are amongst the indicators of state practice. Practice in itself does not establish custom. An alleged rule of customary international law has to manifest not only a material element, but also a psychological element, otherwise known as opinio juris.