LAW731 - Lecture 2
LAW731 - Lecture 2
LAW731 - Lecture 2
PRINCIPLES OF PUBLIC
INTERNATIONAL LAW
• Holds that international law based entirely on treaty and customs, rather than human nature, reason and
justice.
• Views IL as the aggregate of positive rules by which States consent to be bound, exclusive of natural law
concepts such as reason and justice. Therefore only those international law principles consented to by the
State are “real” law.
• Aleberuco Gentilis (1552-1608) and Ricahrd Zouche (1590-1660) said to be originators o this school.
• Bynkershoek (1673-1743) another leader, particularly emphasized the “principle of Bona Fides” as being the
theoretical foundation of all agreements between States. In “Quaestionum juris publici”, he emphasized the
practice of modern States, custom and treaties, completely ignored the “law of nature” and held:
1. That the rules of IL were established through the consent of the States; and
2. That all agreements between States were the products of their sovereign wills.
THEORIES/SCHOOLS OF INTERNATIONAL LAW
2. Criticism of Positivist School
• Not all IL rules were derived from Customs and Treaties. Some were acceded to or derived
from the general principles of law recognised by “civilized” nations.
• The premise of the State as a metaphysical reality and existence of its will, is purely
metamorphic. The will is not that of the State but rather the will of the individuals forming
that State.
• Regardless of consent, States are still bound by certain peremptory norms. In practice, it
depends not so much on the consent of particular state, but the principles generally
recognised by the community or society of states.
• States are sometimes bound by International Law against their will.
THEORIES/SCHOOLS OF INTERNATIONAL LAW
3. Eclectic or Grotian Theory
• . Between the classical naturalists and classical positivists stood ecelcticists or Grotians,
who, like Grotius, attempted to harmonise the extreme positions of naturalism and
positivism.
• Depending on the jurist, they could tend more to naturalism or more to positivism,
although more of them tended to the naturalist school. Representative eclectic jurists such
as Wolff and Vattel were essentially naturalists.
• Vattel accepted the simultaneous acceptance of two tiers of law – one natural and one
positivist. Thus according to this theory, International Law does derive from natural law
and consent. Consent is the basis, but not the sole basis of International law.
SOURCES OF INTERNATIONAL LAW
• As we have seen in the preceding slides, sources of international law have been influenced by a range of
political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign
state could limit its authority to act by consenting to an agreement according to the contractual principle of
pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the
Permanent Court of International Justice, and remains preserved in Article 7 of the ICJ Statute.
• The sources of international law applied by the community of nations are listed under Article 38 of the
Statute of the International Court of Justice, which is considered authoritative in this regard:
1. International treaties and conventions;
2. International custom as derived from the "general practice" of states; and
3. General legal principles "recognized by civilized nations".
• Additionally, judicial decisions and the teachings of prominent international law scholars may be applied as
"subsidiary means for the determination of rules of law".
• Many scholars agree that the fact that the sources are arranged sequentially suggests an implicit hierarchy of
sources. However, the language of Article 38 does not explicitly hold such a hierarchy, and the decisions of
the international courts and tribunals do not support such a strict hierarchy. By contrast, Article 21 of the
Rome Statute of the International Criminal Court clearly defines a hierarchy of applicable law (or sources of
international law).
SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
International treaty law comprises obligations expressly and voluntarily
accepted by states between themselves in treaties. The Vienna Convention on
the Law of Treaties (‘VCLOT’) defines a treaty as follows:
• "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.
SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
• The definition from the VCLOT, has led case-law to define a treaty as an international agreement that
meets the following criteria:
1. Criterion 1: Requirement of an agreement, meetings of wills (concours de volonté)
2. Criterion 2: Requirement of being concluded between subjects of international law: this criterion excludes
agreements signed between States and private corporations, such as Production Sharing Agreements. In the 1952
United Kingdom v Iran case, the ICJ did not have jurisdiction for a dispute over the Anglo-Iranian Oil Company
being nationalized as the dispute emerged from an alleged breach of contract between a private company and a State.
3. Criterion 3: Requirement to be governed by international law: any agreement governed by any domestic law will not
be considered a treaty.
4. Criterion 4: No requirement of instrument: A treaty can be embodied in a single instrument or in two or more related
instruments. This is best exemplified in exchange of letters - (échange de lettres). For example, if France sends a
letter to the United States to say, increase their contribution in the budget of the North Atlantic Alliance, and the US
accepts the commitment, a treaty can be said to have emerged from the exchange.
5. Criterion 5: No requirement of designation: the designation of the treaty, whether it is a "convention", "pact" or
"agreement" has no impact on the qualification of said agreement as being a treaty.
6. Unwritten Criterion: requirement for the agreement to produce legal effects: this unwritten criterion is meant to
exclude agreements which fulfill the above-listed conditions, but are not meant to produce legal effects, such as
Memoranda of Understanding.
SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
• Where there are disputes about the exact meaning and application of national laws, it is the
responsibility of the courts to decide what the law means.
• In international law, interpretation is within the domain of the states concerned, but may
also be conferred on judicial bodies such as the International Court of Justice, by the terms
of the treaties or by consent of the parties.
• Thus, while it is generally the responsibility of states to interpret the law for themselves,
the processes of diplomacy and availability of supra-national judicial organs routinely
provide assistance to that end.
SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
The Vienna Convention on the Law of Treaties, which codifies several bedrock principles of
treaty interpretation, holds 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 the light of
its object and purpose." This represents a compromise between three different theories of
interpretation:
• The textual approach, a restrictive interpretation that looks to the "ordinary meaning" of
the text, assigning considerable weight to the actual text.
• The subjective approach, which takes into consideration factors such as the ideas behind
the treaty, the context of the treaty's creation, and what the drafters intended.
• The effective approach, which interprets a treaty "in the light of its object and purpose",
i.e. based on what best suits the goal of the treaty.
SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
The rules on the previous slide are general rules of interpretation, and do no preclude the
application of specific rules for particular areas of international law, see the cases below:
• Greece v United Kingdom [1952] ICJ 1, ICJ had no jurisdiction to hear a dispute between
the UK government and a private Greek businessman under the terms of a treaty.
http://www.worldlii.org/int/cases/ICJ/1952/1.html
• United Kingdom v Iran [1952] ICJ 2, the ICJ did not have jurisdiction for a dispute over
the Anglo-Iranian Oil Company being nationalized.
http://www.worldlii.org/int/cases/ICJ/1952/2.html
• Oil Platforms case (Islamic Republic of Iran v United States of America) [2003] ICJ 4,
rejected dispute over damage to ships which hit a mine.
http://www.worldlii.org/int/cases/ICJ/2003/4.html
SOURCES OF INTERNATIONAL LAW
2. International custom
• Customary international law is derived from the consistent practice of States accompanied by opinio juris,
i.e. the conviction of states that the consistent practice is required by a legal obligation.
• Judgments of international tribunals as well as scholarly works have traditionally been looked to as
persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify
customary international law picked up momentum after the Second World War with the formation of the
International Law Commission (‘ILC’) under the aegis of the UN.
• Codified customary law is basically the codification of the underlying custom by agreement through
treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to
those states. General principles of law are those commonly recognized by the major legal systems of the
world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as
to include all states with no permissible derogations.
• Colombia v Perú (1950), recognizing custom as a source of international law, but a practice of giving asylum was not part of
it.
• Belgium v Spain (1970), finding that only the state where a corporation is incorporated (not where its major shareholders
reside) has standing to bring an action for damages for economic loss.
SOURCES OF INTERNATIONAL LAW
3. General Principles of Law
• The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers,
is unclear and controversial but may include such legal principles that are common to a large
number of systems of domestic law. Given the limits of treaties or custom as sources of
international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap
in the law and prevent a nonliquet situation by reference to the general principles.
• The significance of general principles has undoubtedly been lessened by the increased
intensity of treaty and institutional relations between states. Nevertheless, the concepts of
estoppel and equity have been employed in the adjudication of international disputes.
• However, the principles of estoppel and equity in the international context do not retain all the
connotations they do under common law. The reference to the principles as "general" signify
that, if rules were to be adapted from domestic law, they should be at a sufficient level of
generality to encompass similar rules existing in many legal systems. Principles of national
law should be regarded as sources of inspiration rather than as sources of rules of direct
application.
TUTORIAL QUESTIONS