State - Sources of Law.docx

5 Pages

Political Science
Course Code
Political Science 1020E
Bruce Morrison

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THE SOURCES OF INTERNATIONAL LAW –  The word source of law – first non-legal sense it refers to casual or historical influence explaining the factual existence of a given rule of law or at a given place and time  In the legal sense, the term means the criteria under which a rule is accepted as valid in the given legal system at issue. These criteria distinguish binding law from legally non-binding other social or moral norms  In the decentralized international legal system, lacking a hierarchical structure, the problem of finding the law is much more complicated. There is no authority to adopt universally binding legislation and no compulsory jurisdiction of international courts and tribunals without the consent of states  But customary law has still retained its predominance over treaty law or other sources in many other areas such as for example state immunity, or state responsibility TREATIES  The statue of the ICJ speaks of international conventions, whether general or particular, establishing rules expressly recognized by the contesting states  Treaties are of growing importance in international law  Modern technology, communications and trade have made states more interdependent than ever before, and more willing to accept rules on a vast range of problems of common concern  Treaties are the major instrument of cooperation in international relations and cooperation often involves a change in the relative positions of the states involved  Treaties, therefore, are often an instrument of change  To some extent treaties have begun to replace customary law LAW MAKING TREATIES AND CONTRACT TREATIES  Very often they resemble contracts in national systems of law, but they can also perform functions which in national systems would be carried out by statutes  In international law all treaties, including law making treaties apply only to states which agree to them  The only distinction between a law making treaty and a contract treaty is one of content  Contract treaty is more likely to be terminated by the outbreak of war between the parties than a law making treaty  Private law contracts between states are usually concluded under the national law of one of the parties CUSTOM/CUSTOMARY LAW  As confirmed by the ICJ in the Niaragua case a custom is constituted by two elements, the objective one of a general practice, and the subjective one, accepted as law the so called opinion iuris  The main evidence of customary law is to be found in the actual practice of states  Evidence of customary law may sometimes also be found in the writings of international lawyers, and in judgments of national and international tribunals which are mentioned as subsidiary means for the determination of rules of law  Treaties can e evidence of customary law  Extradition treaties almost always provide that political offenders shall not be extradited  The mere existence of identical bilateral treaties does not generally support a corresponding norm of customary law  The case of multilateral treaties is different and may definitely constitute evidence of customary law  But treaty law and customary law can exist side by side  Moreover, there is the possibility that customary law may change so as to conform with an earlier treaty  Debate on what constitutes proper evidence of customary law needs to be separated from procedural questions, such as the burden of proof or general rules on evidence before international courts and tribunals  Suggested that a single precedent is not enough to establish a customary rule  Where there is no practice which goes against an alleged rule of customary law, it seems that a small amount of practice is sufficient to create a customary rule, even though the practice involves only a small number of states and has lasted for only a short time  General practice does not require the unanimous practice of all states or other international actors WHAT STATES SAY AND STATES DO  It is sometimes suggested that state practice consists only of what states do not of what they say  Formerly was confined to diplomatic notes is now often transmitted via new forms of communication, mainly for reasons of domestic or international policy  There is a psychological element in the formation of customary law. State practice alone does not suffice, it must be shown that it is accompanied by the conviction that it reflects a legal obligation  That all rules of international law are framed in terms of duties  Opinion iuris means a conviction felt by states that a certain form of conduct is permitted by international law  Recognition of the obligatory character of particular conduct can be proved by pointing to an express acknowledgment of the obligation by the states concerned, or r by showing that failure to act in the manner required by the alleged rule has been condemned as illegal by other states whose interests were affected  Opinion iruis is sometimes interpreted to mean that states must believe that something is already law before it can become law. However, that is probably not true; what matters is not what states believe but what they say  Customary law has a built-in mechanism of change  The reduction of the time element requirement is carefully balanced with a stronger emphasis on the scope and nature of state practice  The rules of law binding upon states...emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law  Different rules of customary law can apply between different groups of states  The orthodox rule is that new states are automatically bound by generally accepted international law  The element of consent can also become fictitious when one is dealing with the emergence of new rules of customary law among existing states  But it may not be possible to find any evidence of the defendant’s attitude towards to rule, and so there is a second – and more frequently used – way of providing that the rule is binding on the defendant: by showing that the rule is accepted by other states. In these circumstances the rule in question is binding on the defendant state, unless the defendant state can show that it has expressly and consistently rejected the rule since the earliest days of the rule’s existence GENERAL PRINCIPLES OF LAW  The third source of international law listed in the Statute of the International Court of Justice is the general principles of law recognized by civilized nations  General principles of law are not so much a source of law as a method of using existing sources – extending existing rules by analogy, inferring the existence of broad principles from more sp
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