Class presentation

by Boldizsár Nagy

Sources of
International Law

2008
 Issues of classes 3-4
• The meaning and importance of art 38 of the ICJ
Statute
– is it exhaustive?
– how many types of sources are identified?
– is there a hierarchy among them?

• Customary international law – its building blocks

• General principles of law – their nature, reason for
inclusion into the Statute, origin, examples
• The role of the judicial decisions and the teachings of
the „most highly qualified publicists”
• Other types of sources, not mentioned in the Statute
 ICJ Statute 38 §
Article 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.

Article 59
The decision of the Court has no binding force except between the
parties and in respect of that particular case.
 Treaty
• Designation – does not matter
(Agreement. convention, charter, covenant, protocol, etc- AJIL: 38
type)

• Definition: “treaty” means an international agreement concluded

between States [or other subjects of international law] in written form [or
orally] and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation; /Adapted from Art 2 of the 1969 Vienna Conv. on
the Law of Treaties/

or:
Paul Reuter:
„A Treaty is an expression of the concurring wills, attributable to
two or more subjects of international law, and intended to have
legal effects under rules of international law”

Introduction to the Law of Treaties,

1989, p. 22
 Treaty

• Classification – notions
– bilateral - multilateral (universal –regional-particular)
– open – closed
– treaty-making – executive

• The sociological meaning of a treaty

(compromise or consensus)

• Reasons for its binging nature (see treaty law

class)
 Customary law

• Not dead – still developing! (space law, humanitarian

intervention, state responsibility e.g.)

• Not equal with precedents!

Building blocks:

State practice + opinio juris

• Time factor: instant – 100 years?

• General international law (custom) v.
regional/bilateral (+ persistent objector /see next page/)
 Customary law – state practice

• silence = acquiescence?
• consequent resistance = persistent objector (Norway)
• new states: are they bound?

How to identify customary international law?

• state judicial scholarly resolutions

practice practice writings of international
organisations
• State practice to be found in:
digests, records of international organisations, scholarly journals (e.g
RGDI, AJIL)
 Customary Law - opinio juris

• Expressions of opinion juris:

– Heads of states, of governments, MFA
statements,
– statements at codifications,
– national court decisions,
– diplomatic notes

– Lack of practice and/or silence?

• non-use of nuclear weapons since 1945 = ???? (See ICJ
Advisory opinion on the Legality of Nuclear Weapons, 8
July 1996!)
Customary law and treaties: their dialectical relationship
over time, and the efforts to codify

Treaty conclusion – driving forces

• New fields to be regulated – complicated technical matters

• Overarching ideological cleavages: East – West, North – South

• Developing nations’ will to participate in the creation of the law

• Certainty and precision of the written text

Dialectical relationship

Treaties may codify or change earlier customary law

but
new customary law rules may override treaties!
(e.g. law of the sea developments)

see also: hierarchy

 General principles of law
• „civilised”- codification history (1920!)
– goal: to supplement existing international law and enable
smooth operation of PCIJ „Peaceful change through law”
• Not: „fundamental principles” (sovereignty, etc.)

• Fields of application

– judicial procedure
• nobody should be a judge in her own case
• res iudicata
• prescription
• evidence –witness
– responsibility
• duty to compensate
• clean hands (?)
– substantive law
• unjust enrichment
• prohibition of abuse of rights
 Judicial decisions and teachings

• Not sources!

• „ subsidiary means for the determination of

rules of law” (Statute)

• Nevertheless: „abbreviations” (especially ICJ,

ECHR, and arbitral awards)
• instead of review of state practice (and opinio
juris) court findings – assuming the
court/tribunal or the parties) did
 Hierarchy?
None,
but
Charter Art 103.
• In the event of a conflict
between the obligations of • a peremptory norm of general
the Members of the United
Nations under the present
Charter and their obligations
under any other international
agreement, their obligations
under the present Charter
shall prevail.
Ius cogens
(Vienna, 69 LoT) § 53:
international law is a norm
accepted and recognized by
the international community of
States as a whole as a norm
from which no derogation is
permitted and which can be
modified only by a subsequent
norm of general international
law having the same character.
 Hierarchy treaty - custom
• From villain of the international community to
harbinger of the future!

Precarious balance:
When does new customary law start to
emerge?
Can a (regional) subgroup deviate from
general (customary) international law?

Principles of law aimed at consistency:

lex specialis
lex posterior
 Further sources not mentioned in Art. 38.
• Decisions/resolutions of international
organisations
• generally not, but
– internal organisatory matters (budget, elections)
– law making - if entitled to ~ (WHO, EC)
– sanctions ordered by the Security Council
– treaties concluded by the organisation

• Unilateral statements / (in)actions

– questions: was it meant to be?
• who „said”
• to whom
• in what form
• context
• if inaction /silence = acquiescence?
 Thanks!

Boldizsár Nagy
Eötvös Loránd University and Central European
University
Budapest

nagyboldi@ajk.elte.hu

www.nagyboldizsar.hu