Introduction to the Types and Sources of International Law – Steinhardt – Fall 2011
I. Sources of International Law
a. Statute of the International Court of Justice – Article 38(1)
i. International Conventions, whether general or particular, establishing rules expressly recognized by the contesting states (treaties, etc)
ii. International Custom (As evidence of a General Practice Accepted as Law)
1. Two Elements to Establish GENERAL PRACTICE
a. Objective or Material Element
i. How do states actually behave? Is there a general practice?
1. General practice has to be prominent and historically valid
b. Subjective Element
i. Opinio Juris à “Accepted as Law”
1. It must appear that the States follow the practice from a sense of legal obligation
iii. General Principles of Law Recognized by “civilized” nations
iv. Judicial Decisions and the Teachings of the most highly qualified publicists (as subsidiary means for the determination of rules of law)
1. Can look at decisions of different nation-states and academic publications
II. Rules of Customary International Law and “General Principles”
a. Customary International Law (A general State practice accepted as law)
i. Requires (1) a general state practice and (2) opinio juris (Sense of Legal Obligation)
1. THE THRESHOLD FOR PROVING THE GENERAL PRACTICE OF STATES AND OPINIO JURIS IS SET HIGH!
ii. There is no “legislative moment” when Customary International Law suddenly takes effect
iii. How can the content of custom be proved? What evidence is needed?
1. Starting Point à State Practices and Diplomatic Exchanges
a. LOOK AT HISTORY OF CLAIMS AND DEFENSES MADE BY A COUNTRY
i. Failure to Object to Practice à Source of Intl’ Law
1. Example
a. No pattern of protest when courts take criminal jurisdiction for crimes committed by aliens in other States with effects in its State claiming jurisdiction (Lotus Case)
2. Treaties in Consistent Form
a. Sometimes an ungratified treaty will be given evidentiary status
i. Filartiga à Court turns to treaties in consistent form as evidence of customary international law
b. Treaty v. Custom
i. Treaty will preempt Customary International Law if it was done at a later time
1. However, a new customary norm will supersede inconsistent treaty obligations
3. Laws, Constitutions, and High Court Decisions in Various Countries
4. Writing of Publicists
5. Resolutions and Declarations in consistent form in Intergovernmental Organizations
a. May be Evidentiary even for those States that did not sign
b. Rationale for Use
i. Not binding but formative influence in development of Intl’ Law
ii. Often the first stage before formal treaties
iii. Often purports to express ALREADY created Customary Law
iv. Are Official Expressions of governments and are relevant and entitled to weight in determination of Customary Intl’ Law
6. Decisions of International Tribunals
7. Authoritative Compedia or Restatements of Customary Law
a. Collected Resources of Relevant Norms (Rest. Foreign Relations Law)
iv. Can Customary International Law be Sub-Grouped?
1. Yes à Regional Customs
a. Latin American states have a customary norm that a person can get asylum if they enter the embassy of another country
v. Sources of Customary International Law
1. Lotus Case
a. Facts à Accident b/w a French flagged ship and a Turkish flagged ship
i. Turkey instituted domestic criminal proceedings against French Watchman
b. Issue
i. Whether the principles of Customary Intl’ Law prevented Turkey from instituting criminal proceedings against M. Demons under Turkish Law
c. Holding à Turkey has criminal jurisdiction under M. Demons
i. Intl’ Law recognizes that if effects are felt in Turkey with respect to an extra-territorial jurisdiction, they should be able to institute domestic criminal proceedings
1. Vessels in the high seas are pieces of territory of the flags they wave
ii. Numerous domestic cases in which extraterritoriality jurisdiction was allowed without protest by the other State involved
2. Texaco/Libya Arbitration
a. Facts à Ghadafi came to power and decided to appropriate and nationalize the operations of TOPCO
i. Libyan government denied compensation to TOPCO which then initiated arbitrations proceedings
b. Issues
i. What limitations, if any, does Intl’ Law place on the power of States to expropriate foreign private investment?
ii. Is Libya free to exercise their domestic law or do they need to meet Intl’ Standards?
c. Holding à Libya has to meet Intl’ Law standards
i. Resolution 1803 (1962) – Pro “North”
1. In cases where authorization is granted, the capital imported and earnings of that capital shall be governed by the terms by the national legislation force and by international force
ii. Resolution establishing the New International Economic Order (Resolution 3201) – Pro “South”
1. States have a right to nationalize industries and shall have sovereignty over natural resources and all economic activities.
a. This would give developing countries complete control over their development and the direction of their governments
iii. Resolution 3281 & Resolution 3171 (Pro “South”) preserved the right of States to sovereignty over their natural resources and industries (Allowed right to nationalize)
iv. Arbitration Panel DID NOT look at Resolution in Plain Value
1. Consulted the quantitative and qualitative voting of each of the resolutions by the General Assembly
a. Resolution 1803
i. Major and Third World Countries voted for the resolution (Mix of States of all economic systems and geographical systems)
b. All other resolutions mentioned above were NOT supported by the major developed powers with market economies
d. RULE!!
i. Factors to Consider when giving resolution legal effect?
1. Does it address a LEGAL SUBJECT?
2. Is it CONSISTENT with State practice outside of the organization?
3. Was the resolution drafter by CONSENSUS?
3. Explaining difference b/w Lotus & TOPCO
a. Evidence of International Law Support
i. Uti Possedetis à “State Responsibility to Aliens”
1. Could explain the reason why Turkey was successful in their claim and Libya was not
vi. Can States opt out of Customary International Law? What do they have to do if they want to opt out?
1. Temple of Preah Vihear (PV)
a. Facts à Cambodia and Thailand are in a border dispute over the Temple which has been violently disputed by labeled as World Heritage Sight
i. France and Cambodia asked Thailand repeatedly for clarification on the border but were ignored
b. Issue
i. Does the lack of protest by Thailand allow Cambodia to get the Temple? (Adverse Possession)
ii. What does the court make of the military and guard efforts by Thailand? Do administrating acts convey sovereign authority?
c. Holding à Territory awarded to Cambodia
i. Acquiescence
1. Thailand did not respond to French and Cambodian officials about clarification of border
2. Thailand did not object to Thai map showing temple in Cambodian territory
a. Accepted the map for decades
ii. Inference of acquiescence trumped the explicit term of treaty stating Watershed Line as the Boundary
d. RULE!!
i. In a boundary dispute a State must raise objection and argue, it should not stay silent (acquiescence)
2. UK v. Norway (Norway’s Fisheries Case)
a. Facts à UK began exploiting Norwegian waters and Norway answered by drawing straight lines connecting pieces of territory in the coastline
b. Issue
i. Is UK’s argument that Intl’ law requires maritime boundaries to follow the coastline valid?
1. As a matter of Customary Intl’ Law, the lines should follow the low water mark and not the straight base line
c. Holding à Intl’ law does NOT prohibit Norway’s straight line technique
i. Guidelines for legal lengths of baselines
1. Lines have to follow the general direction of coastline
2. Areas joint by straight line base have to be linked to actual territory of State
ii. Acquiescence
1. When Norway issued a Treaty about maritime law stating that they were going to use the straight base line technique to define their maritime territory UK never argued against it
3. Legal significance of Temple of PV and Norwegian Fisheries
a. Under Intl’ law, a government’s acquiescence in a state of affairs can CREATE enforceable rights and obligations! (PV)
b. It is possible in principle for a State to opt out of Customary Intl’ Law, but there must be a limit (Norwegian Fisheries)
4. “Opting Out” à Virtue v. Vice
a. Virtue à “Opting Out” preserves the power of a State’s consent in creating its legal obligations
b. Vice à “Opting Out” means that NO Customary Norm could be enforceable
5. TEST Distinguishing LEGITIMATE from ILEGITIMATE Exercises of Opting Out
a. TIMING IS EVERYTHING!!!!
i. Persistent
1. If you opt out when the norm is being created then you will successfully opt out
a. Valid exercise and the rest of the world would have to accept it
ii. Subsequent
1. State goes along with the norm for a little while and THEN decides to opt out
a. This would be a violation and the opting out would ONLY be valid if
i. Other States acquiescence to it
vii. Do NEW INDEPENDENT States start anew with a Clean Record, free of any Treaty or Customary International Law obligations?
1. When it comes to treaties?
a. There is a CLEAN SLATE Notion (Nyerere)
i. When newly independent States emerge, they can Pick and Choose which treaties stand and which ones do not!
2. When it comes to custom?
a. At the moment we have NOT decided whether newly independent States can choose to adopt or ignore Customary Intl’ Law
i. Why have we not chosen?
1. Customary Intl’ Law can change
2. Customary Intl’ Law is modest
b. Relationship b/w Treaties and Customary International Law
i. N. Sea Continental Shelf Cases: Germany v. Denmark & Netherlands
1. Facts à Boundary dispute for territory in the Continental Shelf
2. Issue
a. Does the treaty of EQUIDISTANCE stand (Article 6 of the Geneva Convention of 1958 – On the Continental Shelf)?
i. Danes and Dutch argued for the principle to stand, BUT Germany DID NOT RATIFY
1. However!! The treaty had crystallized Customary Intl’ Law and EQUIDISTANCE had become part of International Practice
a. Treaty crystallizing a Custom (Article 38)
i. A treaty can bind non-signatures by becoming Customary Intl’ Law
3. Holding à Danes & Dutch lose on their claim
a. Principle of Proportionality
i. Parties have to go by agreement that takes into account the general configuration of the coast
b. Article 6 was NOT norm-creating
i. States were allowed to opt out at the time of signing and to have reservations when signing it
ii. EQUIDISTANCE PRINCIPLE was a “Secondary Obligation”
1. Comes after a primary obligation to effect delimitation by agreement
4. RULE!
a. When can a Treaty Norm become Customary International Law?
i. Treaty provision must be “Norm Creating”
ii. There has to be Widespread and Representative participation in the treaty (especially by “Specially Affected States”)
iii. The passage of time
1. State practice including that of States whose interests were specially-affected should have been both extensively and uniform in the sense of provision involved
ii. Legality of Threats of Use of Nuclear Weapons
1. Issue
a. Is the threat or use of nuclear weapons permitted under Customary Intl’ Law
2. Holding à General Practice accepted to forbid the use of Nuclear Weapons, but we are not yet at a point of making this Customary Intl’ Law
a. There are other reasons why States would NOT use Nuclear Weapons such as (deterrence)
i. Therefore it is not certain whether Opinio Juris exists
1. Do states refuse to use nuclear weapons as a sense of legal obligation?
b. Resolutions are NOT ALWAYS binding (may carry a lot of negative votes)
i. You may use Resolutions as evidence if they do not show Custom
c. Threat of use of Nuclear Weapons would generally be contrary to the rules of Intl’ law applicable in armed conflict because it provokes unnecessary suffering BUT
i. In the current State of Intl’ Law, the court cannot conclude whether the use of nuclear weapons is lawful or unlawful in extreme circumstances of self-defense where survival of Statehood is at stake
c. Customary International Law in Domestic Courts
i. Two Interesting Questions
1. To what evidence will the Domestic Courts turn to determine the content of Customary Intl’ Law?
a. If there is NO TREATY à Look at the Customs and Usages of Civilized Nations
i. Look at the works of jurists and commentators
2. By what authorization do Domestic Courts have the right to apply Customary Intl’ Law?
a. International law is part of our law and must be ascertained and administered in Domestic Courts of appropriate jurisdiction
i. If there is NO controlling Executive or Legislative statute then Customary Intl’ Law may set a standard
ii. Paquete Habana Case
1. Facts à Spanish fishing vessels had been seized during a blockade and sold for profit by the US government
2. Issue
a. Whether fishing vessels were subject to capture by the US during the recent war with Spain?
i. Treaties of Intl’ Law stated that fishing vessels were exempt from seizure at times of war
3. Holding à Capture was unlawful because exception against the seizure of fishing vessels at the time of war had become Customary Intl’ Law
a. NORMS AGAINST FISHING VESSEL SEIZURE
i. By ancient usage among civilized nations, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crew, from capture as prize of war!
b. There is a sense of general practice with a sense of legal obligation against the seizure of fishing vessels
i. Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat.
c. There was NO controlling executive act in this case
iii. President retains the Domestic Authority to trump Customary Intl’ Law in the courts of the US