Sources of International Law
Sources of International Law
Content
- Purpose of this Article
- Definition of International Law
- Lotus Case [ PCIJ Series A {1927}];
- International legal personality
- Sovereignty of States over Territory
- International Obligations (Sources of International Law)
- Treaties
- Custom
- The Asylum Case [ I.C.J REP. 266 {1950} ]
- General Principles of Law
- Subsidiary means for determination of rules of law
- Role of the International Law Commission (ILC)
- Conclusion
PURPOSE OF THIS
Article
This document is
intended to provide students an overview of international law and the structure
of the international legal system. In many cases it oversimplifies the law by
summarizing key principles in less than one page in order to provide the
student with an overview that will enhance further study of the topic.
DEFINITION OF INTERNATIONAL LAW
International Law
consists of the rules and principles of general application dealing with the
conduct of States and of international organizations in their international
relations with one another and with private individuals, minority groups and
transnational companies.
Lotus Case [ PCIJ
Series A {1927} ]
Lotus Case [ PCIJ Series A {1927} ]
- S. S Lotus a French steamship collided with a Turkish steamer, ss.Bozkourt. As a result of collusion in Mytilene (Greece), a turkey member of Turkish steamer died and 50 were injured and the vessel (steamship) was form apart by lotus.
- Turkey wanted the jurisdiction to trail, Mr.Deman a French leffnant for the collusion. France. Claimed that the state whose flag when the matter came to ICJ, in 1927 basing on the high case (general) convention the court opined that turkey did not violate the international law.
- Lotus principle is the foundation for the international law.
- The sovereign states may act in any way according to the treaty. 5. Article 11 of the High case convention act says a flag state seen first had got the jurisdiction.
INTERNATIONAL LEGAL PERSONALITY
International
legal personality refers to the entities or legal persons that can have rights
and obligations under international law.
1. States
A State has the
following characteristics:
1) a permanent population
2)
a defined territory
3)
a government and
4) the capacity to enter into relations with other
States.
Some writers also
argue that a State must be fully independent and be recognized as a State by
other States. The international legal system is a horizontal system dominated
by States which are, in principle, considered sovereign and equal.
International law is predominately made and implemented by States. Only States
can have sovereignty over territory. Only States can become members of the
United Nations and other international organizations. Only States have access
to the International Court of Justice.
2. International Organizations
International
Organizations are established by States through international agreements and
their powers are limited to those conferred on them in their constituent
document. International organizations have a limited degree of international
personality, especially vis-à-vis member States. They can enter into
international agreements and their representatives have certain privileges and
immunities. The constituent document may also provide that member States area
legally bound to comply with decisions on particular matters.
The powers of the
United Nations are set out in the United Nations Charter of 1945. The main
political organ is the General Assembly and its authority on most matters (such
as human rights and economic and social issues) is limited to discussing issues
and making recommendations.
The Security
Council has the authority to make decisions that are binding on all member
States when it is performing its primary responsibility of maintaining
international peace and security.
The main UN
judicial organ is International Court of Justice (ICJ), which has the power to
make binding decisions on questions of international law that have been
referred to it by States or give advisory opinions to the U.N.
3. Nationality of individuals,
companies, etc.
Individuals are
generally not regarded as legal persons under international law. Their link to
State is through the concept of nationality, which may or may not require
citizenship. Nationality is the status of being treated as a national of a
State for particular purposes. Each State has wide discretion to determine who
is a national. The most common methods of acquiring nationality at birth are
through one or both parents and/or by the place of birth. Nationality can also
be acquired by adoption and naturalization.
Companies, ships,
aircraft and space craft are usually considered as having the nationality of
the State in whose territory they are registered. This is important because in
many circumstances States may have international obligations to regulate the
conduct of their nationals, especially if they are carrying out act activities
outside their territory.
Under the
principle of nationality of claims, if a national of State A is injured by
State B through internationally unlawful conduct, State A may make a claim
against State B on behalf of its injured national. This is known as the
doctrine of diplomatic protection.
SOVEREIGNTY OF STATES OVER
TERRITORY
Sovereignty is the
exclusive right to exercise supreme political authority over a defined
territory (land, airspace and certain maritime areas such as the territorial
sea) and the people within that territory. No other State can have formal
political authority within that State. Therefore, sovereignty is closely
associated with the concept of political independence.
Classical
international law developed doctrines by which States could make a valid claim
of sovereignty over territory. The doctrines included discovery and occupation
and prescription.
During the period
of Western colonial expansion new territories and islands were subject to
claims of sovereignty by discovery and occupation. Sovereignty could also be
transferred to another State by conquest (use of force) or by cession where the
sovereignty over the territory would be ceded by treaty from one State to
another.
Since a State has
sovereignty over its territory, the entry into its territory by the armed
forces of another State without consent is a prima facie breach of
international law. Among the attributes of sovereignty is the right to exclude
foreigners from entering the territory, which is traditionally referred to as
the right to exclude aliens.
Since a State has
sovereignty within its territorial sea (with some exceptions such as the right
of innocent passage), it has the exclusive authority to exercise police power
within its territory sea. For example, if foreign ships are attacked by
“pirates” in the territorial sea of a State, the only State that can exercise
police power and arrest the pirates in the territorial sea is the coastal
State.
INTERNATIONAL
OBLIGATIONS (SOURCES OF INTERNATIONAL LAW)
It is generally
accepted that the sources of international law are listed in the Article 38(1)
of the Statute of the International Court of Justice, which provides that the
Court 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.
1. Treaties
International
conventions are generally referred to as treaties. Treaties are written
agreements between States that are governed by international law. Treaties are
referred to by different names, including agreements, conventions, covenants,
protocols and exchanges of notes. If States want to enter into a written
agreement that is not intended to be a treaty, they often refer to it as a
Memorandum of Understanding and provide that it is not governed by
international law.
Treaties can be
bilateral, multilateral, regional and global.
The law of
treaties is now set out in the 1969 Vienna Convention on the Law of Treaties
which contains the basic principles of treaty law, the procedures for how
treaties becoming binding and enter into force, the consequences of a breach of
treaty, and principles for interpreting treaties.
The basic principle
underlying the law of treaties is pacta sunt
servanda which means every treaty in force is binding upon
the parties to it and must be performed by them in good faith. The other
important principle is that treaties are binding only on States parties. They
are not binding on third States without their consent. However, it may be
possible for some or even most of the provisions of a multilateral, regional or
global treaty to become binding on all States as rules of customary
international law.
There are now
global conventions covering most major topics of international law. They are
usually adopted at an international conference and opened for signature.
Treaties are sometimes referred to by the place and year of adoption, e.g. the
1969 Vienna Convention. If a State becomes a signatory to such a treaty, it is
not bound by the treaty, but it undertakes an obligation to refrain from acts
which would defeat the object and purpose of the treaty.
A State expresses
its consent to be bound by the provisions of a treaty when it deposits an
instrument of accession or ratification to the official depository of the
treaty. If a State is a signatory to an international convention it sends an
instrument of ratification. If a State is not a signatory to an international convention
but decides to become a party, it sends an instrument of accession. The legal
effect of the two documents is the same. A treaty usually enters into force after
a certain number of States have expressed their consent to be bound through
accession or ratification. Once a State has expressed its consent to be bound
and the treaty is in force, it is referred to as a party to the treaty.
The general rule
is that a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in
light of its object and purpose. The preparatory work of the treaty and the
circumstances of its conclusion, often called the travaux preparatoires,
are a supplementary means of interpretation in the event of ambiguity.
2. Custom
International
custom – or customary law – is evidence of a general practice accepted as law through a constant and virtually uniform usage
among States over a period of time. Rules of customary international law bind
all States. The State alleging the existence of a rule of customary law has the
burden of proving its existence by showing a consistent and virtually uniform
practice among States, including those States specially affected by the rule or
having the greatest interest in the matter. For example, to examine the
practice of States on military uses of outer space, one would look in
particular at the practice of States that have activities in space.
Most ICJ cases also
require that the States who engage in the alleged customary practice do so out
of a sense of legal obligation or opinio juris rather than out of comity or for
political reasons.
In theory, opinio
juris is a serious obstacle to establishing a rule as custom because it is
extremely difficult to find evidence of the reason why a State followed a
particular practice. In practice, however, if a particular practice or usage is
widespread, and there is no contrary State practice proven by the other side,
the Court often finds the existence of a rule of customary law. It sometimes
seems to assume that opinio juris was satisfied, and it sometimes fails to
mention it.
Therefore, it
would appear that finding consistent State practice, especially among the
States with the most interest in the issue, with minimal or no State practice
to the contrary, is most important.
Undisputed
examples of rules of customary law are
1) giving foreign diplomats criminal immunity;
2)
treating foreign
diplomatic premises as inviolable;
3)
recognizing the right
of innocent passage of foreign ships in the territorial sea;
4)
recognizing the
exclusive jurisdiction of the flag State on the high seas;
5)
ordering military
authorities to respect the territorial boundaries of neighboring States; and
6) protecting non-combatants such as civilians and
sick or wounded soldiers during international armed conflict.
The Asylum Case [ I.C.J
REP. 266 {1950} ]
Haya de la Torre
was a Peruvian national. He led an unsuccessful rebellion against Peru in 1948.
The Peruvian government issued a warrant for his arrest on criminal charges
related to this political uprising. He fled to the Colombian embassy in Lima.
He therein requested, and was granted, diplomatic asylum by the Colombian
ambassador on behalf of the government of Colombia. Colombia then requested
permission from Peru for de la Torre’s safe passage from the Colombian embassy,
through Peru, and into Colombia. Peru refused.
Colombia then
brought this suit against Peru in the ICJ, asking the Court to declare that
Colombia had properly granted asylum, pursuant to a recognized regional
practice of granting asylum in such political cases. Peru’s lawyers responded
that Colombia could not unilaterally grant asylum over Peru’s objection. De la
Torre had committed a common crime, subjecting him to prosecution by Peru, just
like any other criminal. Colombia had no right to employ asylum as a means of
avoiding Peru’s criminal laws.
3. General Principles of Law
General principles
of law recognized by civilized nations are often cited as a third source of
law.
These are general
principles that apply in all major legal systems. An example is the principle that
persons who intentionally harm others should have to pay compensation or make
reparation.
General principles
of law are usually used when no treaty provision or clear rule of customary law
exists.
4. Subsidiary means for the
determination of rules of law
Subsidiary means
are not sources of law, instead they are subsidiary means or evidence that can
be used to prove the existence of a rule of custom or a general principle of
law. Article 38 lists only two subsidiary means - the teaching (writings) of
the most highly qualified publicists (international law scholars) and judicial
decisions of both international and national tribunals if they are ruling on
issues of international law. Writings of highly qualified publicists do not
include law student articles or notes or doctoral theses.
Resolutions of the
UN General Assembly or resolutions adopted at major international conferences
are only recommendations and are not legally binding. However, in some cases,
although not specifically listed in article 38, they may be subsidiary means
for determining custom. If the resolution purports to declare a set of legal
principles governing a particular area, if it is worded in norm creating
language, and if is adopted without any negative votes, it can be evidence of
rules of custom, especially if States have in practice acted in compliance with
its terms. Examples of UN General Assembly Resolutions which have been treated
as strong evidence of rules of customary international law include the
following:
o
GAR 217A Universal
Declaration of Human Rights (1948)
o
GAR 2131 Declaration on
the Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of their Sovereignty (1965) [Declaration on Non-Intervention]
o
GAR 2625 Declaration on
Principles of International Law Concerning Friendly Relations and Cooperation
among States in Accordance with the Charter of the United Nations (1970)
[Declaration on Friendly Relations]
o
GAR 3314 Resolution on
the Definition of Aggression
Some of these
resolutions have also been treated as subsequent agreement or practice of
States on how the principles and provisions of the UN Charter should be
interpreted.
In addition,
Article 38 fails to take into account the norm-creating effect of modern global
conventions. Once the international community has spent several years drafting
a major international convention, States often begin in practice to refer to
that convention when a problem arises which is governed by the convention - in
effect treating the rules in the Convention as customary. Furthermore, if the
Convention becomes universally accepted the provisions in the Convention may
become very strong evidence of the rules of custom, especially if States which
are not parties have also acted in conformity with the Convention. Examples of
such conventions would be the 1959 Vienna Convention on Diplomatic Relations
and the 1969 Vienna Convention on the Law of Treaties.
5. Role of the International Law
Commission (ILC)
The ILC was
established by the UN in 1948. The 34 members of the ILC are elected by the
General Assembly after being nominated by member States. They possess
recognized competence and qualifications in both doctrinal and practical
aspects of international law and the ILC reflects a broad spectrum of expertise
and practical experience.
The mandate of the
ILC is the progressive development and codification of international law. The
ILC usually spends many years studying areas of international law before
presenting draft articles to the General Assembly for adoption as a draft
convention. The primary written products of the ILC aside from the draft
articles themselves are the detailed periodic reports prepared by the Special
Rapporteurs on each subject and the official commentary for each draft article.
Sometimes the
official commentary to an ILC draft article or the Rapporteur’s report will
indicate whether that draft article is intended to codify a rule of customary
law or is intended to progressively develop the law on that point. When the ILC
Draft Articles are approved, they are approved together with the official
commentaries.
The official
commentaries to ILC draft articles and the reports of the ILC and its
rapporteurs can be considered for two purposes. First, they are part of the
travaux préparatoires when interpreting a treaty related to the subject of the
draft article. Second, they are the writings of 34 highly qualified publicists
speaking in unanimity and therefore serve as a subsidiary means for determining
rules of customary law.
Conclusion
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