2024 PIL Week 2 Sources PDF

Public International Law Fall 2024 Week 2 : Sources of International Law Anna Schmitt Nagelbach, LLM A permissive system nullum crimen sine lege - Lotus case Lecture 1 Anna Schmitt Nagelbach  What is a ‘source’ of IL? Domestic la...

Public International Law Fall 2024 Week 2 : Sources of International Law Anna Schmitt Nagelbach, LLM A permissive system nullum crimen sine lege - Lotus case Lecture 1 Anna Schmitt Nagelbach  What is a ‘source’ of IL? Domestic law has : International Law has : - Constitution - Treaties - Legislation and legislative authority - Customary international law - Civil codes - General principles of law - Executive Branch Lecture 1 - Judicial decisions and legal scholarship Anna Schmitt - Clear enforcement Nagelbach mechanisms : - Soft law police force; judicial systems - Jus cogens - Sovereignty Founded on consensus; made through practice and agreements  Art. 38 ICJ 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 Lecture 1 to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified Anna Schmitt publicists Nagelbach of the various nations, as subsidiary means for the determination of rules of law.  Custom Not written down States adhere to unwritten rules or customs habit → consistent pattern → tradition, expectation → obligation Lecture 1 Anna Schmitt Nagelbach Custom: Art. 38 (1) (b) ICJ Statute ‘international custom, as evidence of a general practive accepted as law’ “Constant and uniform usage, accepted as law” Customary International Law requires : 1. State practice: Behavior should be general / widespread / settled and Consistent / Lecture uniform 1 Anna 2. Opinio jurisSchmitt Nagelbach A sense of legal obligation A widespread practice → inferred opinio juris from state acts or omissions Often demonstrated by pointing to official statements, diplomatic correspondence, government press releases, votes of the UNGA, speeches North Sea Continental Shelf cases Germany v. Denmark / Netherlands ICJ, 1969 State Practice: - dispute about the delimitation of the continental shelf in the North Sea (oil and gas) - Ct considered the actions and policies of the states involved, including their submission to and recognition of certain principles Opinio juris: - looked into opinion juris sive necessitates - beliefLecture that states1engage in a particular practice under legal obligation - Here the Court considered whether the actions of the states evidenced a sense of AnnalegalSchmitt obligation.Nagelbach State practice needs to be extensive and virtually uniform (consistent) Motivated out of a sense of legal duty, not a sense of tradition  Is CIL always binding? - publicly objects to the CIL at the time of its formation; Binds all states, regardless of whether they gave their consent (tacit/implied) - continues to object in a sustained However… manner; A persistent objector is not bound by the (developing) customary international law that it objects to - adopts a contrary example: Turkey and the Agean Sea practice, even after the customary law comes into force. - A sufficient number Lecture 1 of persistent Anna Schmitt Nagelbach objectors, made up of affected states, can prevent the formation of the CIL  Art. 38 ICJ Primary Formal Sources : Primary Material Sources : - Treaties - State Practice - Custom - opinio juris - General Principles - less authoritative judicial decisions - (jus cogens) - (jus cogens) Secondary Material Sources : Secondary Formal Sources : - scholarly writing - authoritative Judicial Decisions Lecture 1 Anna Schmitt Nagelbach Formal sources are recognized methods by which international legal rules are created and expressed. Material sources concern underlying factors and considerations that contribute to the substance of international law. They help to contextualize legal rules. Which sources are formal or material can depend on the context.  Summarizing Custom - consistent practice of States - engaged in out of a sense of legal obligation - widespread pattern repeated by states over long periods of time - significant number or states Disadvantage of CIL : - often not specific and difficult to prove Lecture 1 Anna Schmitt Nagelbach  General Principles - Fundamental legal principles recognized by the majority of legal systems around the world. - not necessarily codified - ICJ may apply general principles of law when deciding cases, especially in the absence of a specific treaty of CIL that directly applies to the case at hand - Supplementary role – can be derived from judicial decisions, legal scholarship Lecture 1 - when legal thinkers and judges consistently uphold a principle, it may become Anna Schmitt Nagelbach a general principle of law  General Principles Corfu Channel case (UK v Albania, 1949) British naval vessels damaged by underwater mines in the Corfu Channel UK alleged Albania was responsible for the mines The ICJ applied the general principle of due diligence in its decision – held Albania was Lecture responsible and had violated1its obligations under CIL Anna Schmitt Nagelbach - obligation to exercise reasonable care and take appropriate measures to prevent, address, and rectify actions that may cause harm to other states or their nationals