Sources of International Law

1. Sources of International Law

2. Sources of International Law • Lack of single legislature to create rules of international law binding upon everyone • Different concepts may be used “sources” + “causes” + “basis” + “evidence” • We can differentiate between “sources” and “causes”: • Causes are basic factors that create real rules • can be found in social and historical circumstances of the international community • These causes can be named as “material sources” (Maddi Kaynak) • Material sources can be inferred from ideology + economy + culture + religion

3. Sources of International Law • “sources” This refers to a “process” by which a rule becomes identifiable • These are called as “formal sources” (şekli kaynaklar) They are the sources from which the legal rules receive their legal validity • Formal sources enable rules of law to be identified and distinguished from other rules

4. Sources of International Law • What are the formal sources of international law? • Practices of states and international organizations (international courts) show ussources that are accepted as such • We can find some proofs within Article 38 of the statute of Permanent Court of International Justice (PCIJ) and International Court of Justice (ICJ)

5. Sources of International Law • Art. 38 does not state that it contains formal sources of int law this is usually inferred • This article cannot itself create or provide validity of sources because it belongs to one of those sources • This article is legally binding for the ICJ • Sources in this Article they are authoritative because they reflect state practice • Widely recognized as the most authoritative statement as to the sources of international law

6. Article 38 of the Statute of ICJ • Art. 38: “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. “

7. Article 38 of the Statute of ICJ • Since all member states to the UN are ipso facto[by the fact itself/by the very fact]parties to the statute of the ICJ by virtue of Art. 93 of the Charter This statement can be seen as “enumeration of sources of international law”. • Art. 93 of the Charter “All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council”

8. Article 38 of the Statute of ICJ • It seems that there are two categories of sources: • A- Primary (Basic) Sources • International treaties • Customary rules of int law • General principles of law • B- Secondary (Subsidiary/supplementary) Sources • Court decisions • Doctrine (academic writings) • Another categorization: • A- Law-creating processes first three • B- Law-determining sources last two verification

9. Sources of international law • Secondary or law-determining sources cannot directly create rules of int law • These sources help us to understand “existence”of rules and their “meaning and content”. • Whether a rule is established or what the substance of that rule is

10. international treaties • Consensus of consents/concurring wills • Criteria for a document to be seen as a “treaty” • 1- International treaties should be concluded by the actors that are entitled by int law to do this who can conclude? (states, int org, federated entities etc.,. But not contracts between states and private persons contract on license for gas and oil exploitation) • 2- It should be concluded in conformity with the rules of int law and be concluded to achieve legal consequences applicable law must be int law [Cyprus High Level Agreements]and “separate legal personalities” of public corporate bodies

11. Criteria for int treaties • 3- This action should create new rights and obligations or should put an end to the previous rights and obligations • 4- Consensus should occurat least between two or more int legal personality • Unilateral legal acts recognition, notification, renunciation • National unilateral acts • Resolutions of int organizations decision making procedure end-product is the legal action of the organization

12. Criteria for int treaties • 5- Written format is not required for an instrument to be accepted as an international treaty even “oral consensus” is considered as a treaty • 1975 Agean Continental shelf case (Joint Declaration) • Art 2 (1969 Vienna) “treaty means an international agreement concluded between states in written form..” • Art. 3 (1969 Vienna) “the fact that the present Convention does not apply to ... İnternational agreements not in written form shall not affect the legal force of such agreements” • International treaties  Gentlemen’s Agreements • Non-binding agreements soft law (OSCE)

13. Customary Rules of International Law • What is said in Art 38 “international custom, as evidence of a general practice accepted as law” • Two Basic Elementsin the creation of customary rule of international law: • 1- Objective element “state-practice” actual behavior of states/int organizations • 2- Subjective element “opinio juris” a belief that such behavior is law

14. Customary rules of int law • Customary rules are not usually written down or codified but 1947 International Law Commission “codification” • Lex lata the law as it is • De lege ferenda progressive development of int law

15. Customary Rules State-practice • What type of legal acts should be taken into consideration as state-practice? • Not only external, but also internal acts (legislation + court decisions + diplomatic correspondence + voting behavior at int conference, org + treaties + recognition) • Some conditions for an acceptable state practice: • 1-Duration: No rigid time element depend upon circumstances in certain fields rules have developed quickly normally it takes time a slow process • 2- Continuity and repetition: “does a single act form a usage/practice?” sometimes yes (“instant customary rule” which was criticized)

16. Conditions for valid practice • 3- Consistent and uniform practice: • “no interruption” in favor of other practice • Must not be uncertain and contradictory • Sufficient uniformity of practice is needed • Some inconsistent conducts should be treated as breach not a new rule • 4- Generality • Don’t have to be accepted/observed by every state an extensive practice is needed • If enough practice exist silence is acceptance • But once the rule exists it will be binding for every state except “persistent objectors”

17. Customary RulesOpinio juris • Subjective element why? • Art. 38 ICJ “accepted as law” • To separate int law from principles of morality or social usage • Distinguish between practice undertaken because of lawfrom practice undertaken because of series of other reasons (such as good will & ideological support) • Opinio juris a belief that a state activity is legally obligatory

18. Customary RulesOpinio juris • State will behave a certain way because they are convinced it is binding upon them to do so. • Opinio juris may be deduced from a) conclusion of bi-lateral and multi-lateral treaties; b) attitudes during the process of passing certain resolutions of the UN General Assembly and other int org; c) statements by state representatives

19. Other points about customary rules of international law • “Major powers of the field” no need for a rule to be accepted by every state but there is a need for such rule to be acceped by the major powers of that field. • Influence of the UK on the development of the law of the sea not practice by “land-locked states” • Impact of Soviet Union and the US on space law • Impact of certain states on law on nuclear weapons

20. Other points about customary rules of international law • “Local custom in international law”: • All states from that region must participate • Silence does not mean implied acceptance • Invoking states must prove it • “Persistent objector”: • If there is a failure to act against a customary rule/a failure to object this can be seen as an “acquiescence” (tacit acceptance) this may make customary rule binding for that state as well. • If a state objects from the very begining of the formation of that rule + persistently (determined to do so)

21. General Principles of Law • In any legal system there may arise cases where there is no law covering that point/dispute • In such cases • A rule may be deduced by analogy from existing rule • Orit may be deduce from the GPL

22. General Principles of Law • Because int law is relatively an underdeveloped system sometimes there may exist gaps that cannot be covered by the rule of int law • But a judge in int law cannot abstain from taking a decision on a dispute before it on ground of non-existence of a rule (principle of non-liquet)

23. General Principles of Law • Art. 38 ICJ: “general principles of law recognized by civilized nations” • They are inherent in any legal system • Reference in Art. 38 is made to GPL in municipal systemsin so far as they are applicable • But if rules of conventional or customary int law are sufficient to supply necessary basis for decisionno need • They have a lower position in the hierarchy of laws • But they are not listed as subsidiary means under Art. 38

24. General Principles of Law • They are common principles to different legal systems: • Examples: • PCIJ 1928 Chorzow Factory Case “every violation of an undertaking involves an obligation to make reparation” • Even if there is no such provision within a treaty a court may attribute responsibility to a wrongdoer state because this is a GPL

25. General Principles of Law • Estoppel principle: • If a state consents impliedly (acquiescence) to a specific situation or an act it shall lose its right to object to that situation in future • 1962 Temple Case • between Cambodia and Thailand ICJ awarded the ownership to Cambodia • A flag raised a visit paid by an official

26. Preah Vihear Temple • Preah Vihear Temple

27. Estoppel • One side engaged in such acts of sovereignty as "...the building of roads to the foot ofMount Preah Vihear, the collection of taxes by Siamese revenue officers on the ricefields of Mount Preah Vihear, the grant of permits to cut timber in the area, the visitsand inspections by Siamese forestry officers, the taking of an official inventory in1931 of ancient monuments which included the Temple of Preah Vihear, the visit ofthe Under-Secretary of the Ministry of the Interior in 1924-25 and the visit of PrinceDamrong in 1930, both visits including the Temple of Preah Vihear." At no timesdid the French Government lodge any protest against these activities. • Words matter

28. Other GPL • Pacta sunt servanda • Ex injuria ius non-oritur one cannot benefit of its own wrongful conduct (expCypr-necessity)

29. Secondary/subsidiary sources of international law • 1- Judicial decisions (jurisprudence) (içtihat) • 2- Legal/doctrinal writings (Doctrine) (Öğreti) • Judicial Decisions • Decisions of int courts • Decisions of domestic courts • Arbitral awards • According to Art. 38 subsidiary means for “the determination of legal rules” • Determine the existence of legal rules • Determine the substance/meaning of rules

30. Judicial Decisions • Reference to Art. 59: Decisions of ICJ; • Have no binding force for other cases (only for that particular case) • Have no binding force for other parties (only binding between the parties) • But ICJ generally prefers a kind of “rule of precedence” • These sources cannot directly create rules of international law; but: • A- Formation of customary rules of int law • B- Act of interpretation is a process of rule-making

31. Legal/doctrinal writings • Cannot create rules of int law directly • All international courts refer doctrine in support of their positions/decisions/analysis • Writings interpret the rules + suggest modifications + suggest special provisions in treaties • This has an indirect effect in the formulation of rules of international law • It includes books, articles, reports (ECHR), “separate opinions” + “dissenting opinions” of judges of inter courts.

32. Issue of Jus Cogens/Peremptrory Norms of International Law • 1969 Vienna Convention on the Law of Treaties, Art. 53: • “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of generalinternational law. For the purposes of the present Convention, a peremptory norm of generalinternational law is a norm accepted and recognized by the international community of States as a wholeas a norm from which no derogation is permitted and which can be modified only by a subsequent normof general international law having the same character.” • Hierachy of norms • Lack of international court decisions • Discussion is still continuing