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Distinction between national and international law sources On the national plane, the formal sources of law are constitutions, legislative and administrative acts, and, in countries where the doctrine of precedent prevails (stare decisis), the decisions of judicial tribunals. On the international plane, there is no constitution or other fundamental document, no legislature with the power to promulgate laws, no administrative agencies to produce regulations and implement legislative enactments. Moreover, the ICJ lacks plenary power over international disputes, and its decisions are binding only on the states that are parties to the dispute. They have no precedential value because stare decisis is not a rule of international law. Art. 59 ICJ Statute “The decision of the Court has no binding force except between the parties and in respect to that particular case.” 2. Distinction between traditional and modern international law Traditional law - dominated by individualism, which made consent an essential part of law formation - treaties were formed through the express consent of the contracting States, while custom was said to reflect a tacit agreement. See West Rand Central Gold Mining; see also the S.S. Lotus case. Antelope Case, US Supreme Court, 1825 - The U.S. Supreme Court restated the principle of equality of nations and the principle that no state may impose its will on another. He then pointed out that the right to engage in slave trade (which was vested in all by the consent of all, can be divested only by consent; therefore, that right must remain lawful as to those (like Spain) who have not renounced to it. While this regime is still valid today, some new trends have emerged and attenuated States’ unfettered freedom. New trends - The Vienna Convention of 1969 on the Law of Treaties, followed by the 1989 Vienna Convention on the Law of Treaties between States and International Organizations establish the rules governing treaties - Emergence of jus cogens restrained States’ freedom and established a certain hierarchy in international law. Jus cogens rules prevail over other international law rules - There exists some disagreement today as to whether states can object to the formation of customary rules. 3. Custom Creation and Characteristics
the ICJ stated that the practice must be extensive and virtually uniform. the same Court stated that some instances of non-compliance with the rule do not mean that the rule has not come into being . Art. custom and treaties have equal force and when they are in conflict. The more conflicting these are. The practice must be one accepted by the world’s major powers and the states that are affected by it. 38 is silent as to hierarchical value of the three sources that are listed. but rather to safeguard their interests. US Supreme Court. their primary goal is not to create a rule of law.” So. In other words. It follows that a custom or treaty may not contradict a rule of jus cogens. the more important the element of practice becomes . As evidence for the emergence of such a rule the court pointed out to the protest and the fact that it came from the entire diplomatic corps.See De Meeus v.In the North Sea Continental Shelf case. . there are two elements to custom: • general practice (usus) . Forzano. reaffirmed the customary rule that such immunity exists with respect to private acts as well as official acts.Inaction can also be deemed a form of practice . political and social interests. However.the later law repeals the earlier one.The Paquette Habana.a) sources of international law . customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. 38 ICJ Statute Aricle 38. . which by not excluding private acts from immunity.Art.1 of the ICJ Statute b) hierarchy of international norms Art.The practice doesn’t have to be universal.The practice begins as a result of States economic.a rule of customary international law would prevail over a general principle of law. 38. 1922 – The Court held that a customary rule had evolved in the international community granting foreign diplomats immunity from foreign jurisdiction for private acts.1(b) states that “a general practice accepted as law” is an international custom. c) elements of custom The creation of custom is not a deliberate law-making process. Italian Court of Cassation. although a later law that is general in character does not derogate from an earlier one . 1900 – The Supreme Court reversed the lower courts and held that there is customary law that exempts peaceful 2 . There must not be a significant number of states that have consistently rejected it. Today peremptory norms are superior to customary and treaty laws.The practice of states means official government conduct . The Court also took into consideration several treaties. In Nicaragua. When States participate in the custom-making process.the more specific law prevails over a general law . some general law principles apply: .
would not however prevent the formation of a customary rule if the practice. but is increasingly accepted and followed. It is at that time that the state practice is dictated by opinio juris: at this stage. engage in certain conduct on the basis of their political. however short. but because of opinio juris. Under modern international law. E. the belief that an international rule requires them to do so. Opinio acquires a prominent role in the formation of jus cogens rules because it is based on inherently rational grouds. a customary rule is usually formed. 3 . It is enough for the majority of states to engage in a consistent practice and to believe in its legally binding authority. has been both extensive and virtually uniform and has occurred in such a way as to show a general recognition of a legally biding obligation. economical and social needs (opinio necessitatis). The Court arrived to this conclusion based on a historical overview as to how different countries treated the issue throughout time • opinio juris General belief that the such practice amounts to law and is binding Opinio juris may be inferred from the fact that a rule has generally and consistently been followed over a period of time. - Do the elements of general practice and opinio juris need both be present from the outset? Usually. If that practice does not meet strong objections by other states. Who is custom binding upon? Traditional international law considered custom to be an expression of tacit agreement. especially that of States that are specifically affected. i. Cassese and many others have contested this view and have argued that custom has lost its original consensual features. whereas treaties only bind the States party to it. A feature of custom that distinguishes it from treaties is that a custom is normally binding upon all members of the world community. A time period. A State would be bound by a customary rule if it was silent or indifferent as to it. states start acting in accordance with the practice not because of opinio necessitatis. Is a State that has consistently rejected a practice that amounts to custom.e. based on the fact that the international community has evolved to be much less individualistic and it is difficult for one state to resist the pressure of the majority of the world community.fishermen from capture. it follows that such state would not be bound by a customary rule which it has consistently rejected. bound by it? Since international law rests on consent.g. it is clearly established that customary rules need not be supported by all states. rules regarding the continental shelf (each coastal state has exclusive jurisdiction over the natural resources of the subsoil and the seabed of the continental shelf beneath the high sea contiguous to its coast).
including the four Geneva Conventions of 1949. 4. ICJ. political and social interests. What is more important is the opinio juris. as they result from the usages established among civilized people.customary rules tend to not be clearly defined due to their unwritten character and many countries push for their codification . 5. In other words. 6. the requirement of usus is less stringent in international humanitarian law than it is in areas where rules emerge as a result of States’ economic.criticism by socialist and developing countries that custom reflected mostly Western values . The clause has been later adopted by numerous treaties. even in the absence of State practice element required for the formation of customary international law.world community has expanded and is more diverse. Present Role of Custom What are the limitations of custom? . The expression of legal views by States as to the legal force of certain rules or principles may be sufficient for the formation of a principle or customary rule in the area of humanitarian law. it was commanded by considerations of political expediency. so state practice may not need to apply to the formation of these laws. but the prevailing view seems to be that they are bound by all rules of international law in force at the time they become subjects of international law.the changes that occurred after WWII with emergence of new states and ideologies required international law to respond faster and reflect the current world realities . Custom in International Humanitarian Law The Martens Clause . even contradictory and whenever it was present. from the laws of humanity and the dictates of the public conscience.provides that before more a more detailed code of the law of war has been issued. nor was there evidence that the purported usage was the expression of a right inuring to the State granting asylum and an obligation for the territorial state (whose national seeks asylum).How about newly formed states? There is some disagreement on the issue. difficulty to reach consensus 4 . the belligerents and the inhabitants during armed conflict. which makes the establishment of an uniform and consistent practice more difficult. remain under the protection of the rules and principles of the law of nations. The court found the alleged practice to be inconsistent. Local Customary Rules See The Asylum Case (Colombia v. The court held that Columbia failed to establish such rule as there was no evidence of a constant and uniform usage practiced by the States in question. 1950 There may exist certain customary rules that are binding only to states in a certain geographical region. What is the effect of the Martens Clause? It puts the laws of humanity and the dictates of public conscience on the same footing as the usages of States. with States’ being more economically and ideologically divided. Peru).
with regard to Art. In Legal Consequences for States of the Continued Presence of South Africa in Namibia. customary modification of Art. 52 of the Vienna Convention on the Law of Treaties regarding coercion as a ground for invalidity of a treaty a generating effect (when a treaty provision begins a practice that leads to the formation of a new customary rule) - 5 . 7. Codification of Customary Law States tend to prefer custom to treaties because of its more certain character and allows for international law to take into account the new world realities.the ICJ. Custom also play a rule in major political conflicts. In Icelandic Fisheries.However. Codification treaties may have the following effects: .3 resulted in the SC being able to adopt a decision where 9 of its members vote in the affirmative or abstain).a declaratory effect (merely restating existing law). the ICJ stated that Article 60 of the Vienna Convention on the Law of Treaties regarding the termination of a treaty on account of breach was merely declaratory a crystallizing effect – brings to completion an emerging customary rule. custom plays huge role in the area of emerging economic interest where treaties cannot respond rapidly. where reaching the agreement needed for the signing of a treaty often proves difficult (e. 27.g.
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