Sources of International Law for 3rd year students-2013

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Sources of International Law for 3rd year students-2013

  1. 1. Sources of International Law C.L. Akurugoda Lecturer (Probationary) Faculty of Law
  2. 2. Article 38 of ICJ statute • (a) International Conventions • (b) International Customs • (c) General Principles of law recognized by civilized nations • (d) Judicial decisions and teaching of highly qualified publicists (subject to Article 59)
  3. 3. Exclusive law creating processes  International Conventions  International Customs  General principles • • -G. SchwanzenbergerBut this is not a hard and fast rule Verification of alleged rules  Judicial Decisions  Academic writing
  4. 4. Customary International Law • CIL is considered as a dynamic source of International law. • Nature of IL system • Lack of centralized government organs
  5. 5. Elements of CIL • Physical element (State Practice) • Mental element (Opinio juris)
  6. 6. Different opinions on value of CIL • It is too clumsy and slow-moving to accommodate the evolution of international law any more. (W. Friedmann) So it is not significant as a source of law today. • It is activated by the spontaneous bahaviour and thus mirrors the conteporary concerns of society.
  7. 7. The material fact/State practice • Duration • Consistency • Repetition • Generality
  8. 8. Duration • There is no rigid time element • Depend upon the circumstances of the case and usage • Does not the most important component
  9. 9. Continuity and Repetition • Asylum Case(Columbia v. Peru) …that a customary rule must ‘in accordance with a constant and uniform usage practiced by the State in question’
  10. 10. Anglo-Norwegian Fisheries Case • Some degree of uniformity amongst state practices was essential before custom could come into existence. http://www.worldcourts.com/icj/eng/decisions/ 1951.12.18_fisheries.htm
  11. 11. North Sea Continental Shelf case • Dispute between Germany, Holland and Demark. • Delimitation of the continental shelf • State practice had to be ‘both extensive and virtually uniform in the sense of the provision invoked.’ http://www.icjcij.org/docket/index.php?sum=295&code=cs2&p1=3&p2=3&case=52&k=cc& p3=5
  12. 12. Nicaragua v. US • It was not necessary that the practice in question had to be ‘in absolutely rigorous conformity’ with the purported customary rule
  13. 13. • In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of state should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule • ICJ Reports, 1986, p. 98; 76 ILR,p.432.
  14. 14. Can only few states create a custom? • Yes • They are intimately connected with the issue in hand Power Wealth special relationship with the subject matter
  15. 15. Examples • UK Law of the sea/Prize law • Soviet Union & USA Space Law
  16. 16. • For a custom to be accepted and recognized it must have the concurrence of the major powers of that particular field • Duration and generality takes second place • Universality is not required • Depending on the context some degree of continuity must be maintained..
  17. 17. Whether failure to act create a custom not to act? • Legal obligation not to act • Incapacity or unwillingness
  18. 18. Lotus case PCIJ, series A, No.10,1927, p18 • ‘abstention could only give rise to the recognition of a custom if it was based on a conscious duty to abstain ’
  19. 19. State Practice State’s Legal officers Legislative institutions STATE Courts Diplomatic agents Political leaders
  20. 20. How to find actual state practice? • News papers • Historical records • Statements/speeches of governmental authorities • Official publications • Memoirs of past leaders • Official manuals • Diplomatic interchanges • Opinions of national legal advisors • Comments made by governments on draft international instruments
  21. 21. Lotus case
  22. 22. • …the French maintained that there are existed a rule of customary law to the effect that the flag state of the accused(France) had exclusive jurisdiction in such cases and that accordingly the national state of victim (Turkey) was barred from trying him. • Justifications: absence of previous criminal prosecutions by such states in similar situations
  23. 23. • Held: ‘only if such abstention were based on their [the state] being conscious of a duty to abstain would it be possible to speak of an international custom. ’
  24. 24. North Sea Continental Shelf case
  25. 25. • ‘… state practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked, and should moreover have occurred in such a way as to a general recognition that a rule of law or legal obligation is involved’
  26. 26. Anglo-Norwegian Fisheries case • A state opposing the existence of a custom from its inception would not be bound by it…
  27. 27. Reference • Shaw,M.N, International Law, 5th Edition, Cambridge University Press • http://anthonydamato.law.northwestern.edu/ Adobefiles/A69b-spec-cust.pdf

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