o Sources of law determine the rules of legal society
o Sources of international law contain the legal answers to the questions that cannot be answered in national law o In domestic law, identification of relevant legal sources is rarely a problem because domestic legal order is hierarchical in nature o In international law the lack of a unversal legislature and a system of courts with compulsory jurisdiction make it difficult to find the law o International is a decentralized legal system where legal obligations may derive from more than one source o Law exists to servev a social need but it needs to be expressed in a legal form o All international legal obligations are derived from the consent of the state o But not all answers to international law can be found in freely undertaken obligations, but are bound to those behavioral rules that are required for the maintenance of peaceful coexistence Article 38 of the ICJ o Classic attemptp of listing sources of international law International conventions establishing rules International custom, a general practice accepted as law General principles of law recognized by civilized nations Subject to article 59, judicial decisions and the teachings of the most highly qualified publicists as subsidiary means for determination of rules of law o These sources shall not prejudice the power of court to decide ex aqueo et bono, on what they consider to be fair and equitable o ICJ has relied on sources not mentioned in article 38 o Primary source/creating law - treaties, international customary law, general principles - they create o Secondary source/identifying law - judicial decisions and scholarly contributions - merely apply Convention/ treaties as a legal source o Is the most formal way for states to create rights and obligations under international law o It's legal basis is state consent o Mistake to assume that all international obligations derive from consent (except in treaties) o Pacta sunt sesrvanda, bound to honor treaty based obligations o Bilateral treaties cover a particular issue of mutual interest and resembles a contract o Multilateral treaties often have general application and law making features o Constituent treaties create international organizations A state party to a constituent treaty consents to be bound by subequent legal instruments adopted pursuant thereto Customs as a source of international law o The things that have always been done becomes the thing that mut be done o Arises when a particular way of behaving is Followed ass a general practice among states Belief by those states as legally binding o Customary rule binds all states unless it is a persistent objector o Customary legal norms need not be universal in scope Long continued practive between two states can form the basis of mutual rights and obligations between those two states Could create a local custom binding only on the regional states o To be binding a custom must be: Constant and uniform practice Includes physical acts and public verbal acts Does not need to be completely consistent so long as it is generally consistent with the rule and that inconsistencies are treated as a breach of the rule Duration Passage of short time is not necessarily a bar to the formation of a new customary law Consistency and representation are of more importance Generality How widespread participation in the practice must be Unanimity not required but practice should include the majority of states States which are particularly active in one area are more likely to be devoted to developing applicable practices than other states o Persistent objector rule will only apply to: new and emerging customary rules NON-peremptory norms/ Jus cogens o Opinio juris sive necessitatis - state practic no matter how general or representative, only legally binding when it is accepted as law The objective element/ general and representative practice is USUALLY enough to create a binding custom Only look for opinio juris if there is reason to believe that it stems from non-legal motivations like good neighbor relations Breach of a custom may lead to a new custom but will depend on the justification offered Appealing a breach based on its exception contained in the rule itself will only confirm the rule As l ong as opiniojuris of their status continues to exist o Relationship between custom and treaty law When a treaty codifies international law, parties will be bound by both, while non-parties will only be bound by the custom, bu all will still have the same substantial obligation Treaty can become a customary law when its contents crystallize Like provisions of the hague relations Must attempt to reconcile the two sources if possible If one of the two sources has Jus Cogens character then it prevails Since treaty is a deliberate act of law creation it usually prevails Less clear when a custom develops due to inconsistent treaty based rule Usually that which is later in time prevails Lex Specialis also prevails A customary norm may also modify the contents of the treaty based rule CASES 1. Paquete Habana Case a. Facts i. 2 spanish fishing vessels at the cuba coast but was commanded by a subject of spain living in havana ii. It was stopped by a blockading squadron iii. The spanish vessels had no ammunition and made no attempt to run the blockade after knowing f its existence iv. US condemned the fishing vessels and their cargos as prizes of war b. Issue and ruling i. WON court can look at established rules of other nations when they have no treaty or legislation that fits a particular matter 1. Centuries ago, fishing vessels and their cargos are recognized as exempt from capture a prize of war 2. For fishermen who had no other means of livelihood a. Not armed b. Not intelligence for enemies 2. Made reference to another law where villages in unfortified towns whoe occupation is for subsistence shall be allowed to continue 3. Yes, a court can go to established rules of other nations when their own is lacking. Resort must be had to the customs and usages of civilized nations ii. Harlan and Mckenna hold that: 1. Exempt from seizure not because a treaty, legislation, or instruction granting it BUT because the vessels were exempt by reason of an established rule of international law applicable to them, which is the duty of the court to enforce 2. Asylum Case (columbia v. Peru) a. Facts i. A rebellion broke out in Peru and proceedings were instituted against Haya de la Torre for the instigation and direction of that rebellion ii. after asylum had been granted to the refugee, the Colombian Ambassador in Lima requested a safe-conduct to enable Haya de la Tom, w:hom he qualified as a political offender, to leave the country iii. The Government of Peru refused, claiming that Haya de la Tom had committed common crimes and was not entitled to enjoy the benefits of asylum iv. it declared ;that the Govemment of Peru was not bound to deliver a safe-conduct to the refugee. On the other hand, the Court rejected by fifteen votes to one the Peruvian contention that Elaya de la Torre was accused of common crimes; the Court noted that the only count against Haya de la Torre was that of military rebellion and military rebellion was not, in itself, a common crime. b. Issues and ruling i. Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law 1. The Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect customary international law 2. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation 3. “[T]he Colombian Government has referred to a large number of particular cases
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