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Sources of international law

Sources of international law. Krzysztof J. Jankowski. A little bit of theory …. Formal source of int . law Substantial source of int . law What are the sources of law in Poland? Why ?

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Sources of international law

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  1. Sources of international law Krzysztof J. Jankowski

  2. A little bit of theory… • Formalsource of int. law • Substantialsource of int. law • Whatarethesources of law in Poland? Why? • International law: lack of government, lack of parliament, lack of courts…? So howthe international law iscreated and applied? • Will (consent) of parties? Whataboutnewstates and iuscogens?

  3. Article 38 of theStatute of ICJ • 1. 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. • 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

  4. Sources of international law • Treaties • Custom • General principles of law • Unilateralacts • Acts of international organizatations • Supportivesources: judicialdecisions & teaching of well-renowedlawyers

  5. Hierarchy of sources of law • Whatisthe hierarchy of sources of law inthePolish legal system? • Istheresuch hierarchy inthe international law? • Article 103 of the Charter of UN: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. • Iuscogens? • Article 64 of Vienna Convention On The Law Of Treaties: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

  6. Judicialdecisions & teachings • Whatis a precedent? • Isthere a precedentinthe international law? • Isthere a precedentinthe EU law? • Ratiodecidendi and obiter dicta. • Precedentsde iureand de facto.

  7. General principles of law • … of WHAT law? • Whataretheprinciples of law i.e. whatisthe legal nature of principles of law? • Why do we needprinciples of law? • Whatisthedifferencebetween a principle and a rule? • Isthere a fixedcatalog of principles of international law? • Resolution adopted by the General Assembly2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations:

  8. General principles of law • The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations, • The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered, • The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter, • The duty of States to co-operate with one another in accordance with the Charter, • The principle of equal rights and self-determination of peoples, • The principle of sovereign equality of States, • The principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter,

  9. General principles of law • Relevantcases (their general knowledgeisrequired on thewinter session finalexam): • Factoryat Chorzów case (1928) • German Settlers in Polandcase (1923)

  10. Isjustice a source of international law? • Whatisjustice? • Justicemeansthateveryoneshouldreceive… • (1) The same. • goodsorvaluecorresponding to his/her… • (2) Merits • (3) Efforts • (4) Needs • (5) Positions • (6) Whatthe law providesis fair and just.

  11. Isjustice a source of international law? • Whatisjusticeinontologicalterms? • Isjustice a part of continental legal systems / common law? • Isjustice a part of international law? • Case by caseevaluation – is a givensituationjustor not? • A big differencebetweenour legal system and the system of international law.

  12. Acts of international organizations • Theoretically, thesituationis clear… (acts of int. Org. Arebindingdue to such will of states) • Article 25 of the UN Charter: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. • Kadi case (C-402/05 P - Kadi i Al Barakaat International Foundation v Council and Commission) (materialrequired on thefinal test) • Practically, thesituationis far less clear thanitappearsatglance… (non-bindingactsmightcreate a bindingcustomaryrule?)

  13. Unilateralacts • Whatkind of acts? • Whytheycreateobligations? • Doeseach of themisthesource of PIL?

  14. International custom • Twoconstituingelements • How do we knowthat a customhasemerged?

  15. Whatis a treaty? • Article 2 of theViennaConvention: 1. For the purposes of the present Convention: (a) '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;

  16. Scope of application of theViennaConvention • Article 1: The present Convention applies to treaties between States. • Article 2: an international agreement concluded between States in written form • Article 3: and governed by international law • Thelastfactor…?

  17. Scope of application of theViennaConvention • The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: • (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

  18. Scope of application of theViennaConvention • The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.

  19. Case I The State A concludednumber of treaties • Withthe State B – 05.08.1995 • Withthe State C – 05.08.1995 • Withthe State D – 28.04.1950 • Withthe international organization X – 03.09.1990 • WiththeStatesE,F,G,H and I – 02.08.1990 • Withthe State J – 01.01.2015 0 oralagreement. The VCLT enteredintoforce on 01.08.1990 inregard to the State A. The State B is not the party to the VCLT. The State C,D and J aretheparties to the VCLT sincetheday of itsentryintoforce (1980). The State E,F,G,H and I aretheparties to the VCLT since 80’s Whichagreementsaregoverned by the VCLT and which by thecustomary international law?

  20. Something to thinkabout • Isitpossible to organizefinalexams (matura) in high schoolswhichwouldverifystudents’ knowledge on religiousissues (religia na maturze) inthelight of thetreatyconcludedbetween Holy See and the Republic of Poland (konkordat)? • Pleasesee: Article 25 Section 2 of theConstitution of Republic of Poland; Article 12 Sections 2 i 4 of theabovementionedtreaty.

  21. Homework 1 • Who was Rafał Łemkin and whatis his contributionintothe development of international law? • A portarait of whichfamousPolishlawyercanyoufindinthemountainschelter „Nad Morskim Okiem” in Tatry mountains? Why?

  22. Homework 2 • According to therulinginthe East Timor case, theright of nations to theself-determinationhas erga omnescharacter. In thelight of that, pleasecomment of thesituation of Catalonia and Quebec and try to answerwhetherthesestates/provinceshave a right to independencefromSpain and Canada accordingly.

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