Near East University International Law School Public International Law

Main Sources Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Routledge, 7th Revised Edition, (Reprinted) 2009. Malcolm Shaw, International Law, Cambridge University, 2011 www.un.org.tr

The Main Features of Public International Law

The Main Features of Public International Law Most of the rules of public international law aim at regulating the behavior of states (not that of individuals). The relations between the states remain largely horizontal. (No vertical structure)

The Main Features of Public International Law No rules setting up special machinery for discharging the main three functions (law making; law determination; law enforcement). All three functions are decentralized. Reciprocity is the basis of international rights and obligations. Self-interest governs. International rules confers reciprocal rights or impose reciprocal obligations.

The Fundamental Principles Governing International Law No member state of the international community had enough power to impose standarts of behavior on all other members and impose any fundamental principle for regulating international dealings. The increase in the corpus of rules made it clear that States spontaneously based their lawmaking on a few fundamental postulates.

The Fundamental Principles Governing International Law The Sovereign Equality of States Sovereignty and Legal equality Non-intervention in the Internal or External Affairs of Other States Prohibition of the Threat or Use of Force Peaceful Settlement of Disputes Respect for Human Rights Self-Determination of Peoples

The Fundamental Principles Governing International Law All these fundamental principle supplement and support one other and also condition each other’s application.

SOURCES OF INTERNATIONAL LAW (INTERNATIONAL LAW MAKING) .

Article 38 of the Statute of the International Court of Justice 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.

Sources of IL.. Hierarchy? Any treaty provision existing between the parties to the dispute must be applied; If there is no treaty then a rule of international custom should be applied; If there is neither a prevailing treaty provision nor a custom then a general principles are turned to; and In the absence of any of the foregoing, look to judicial decisions and writings as a subsidiary means for determining the law

International Custom Elements of Custom: a) General state practice: Duration: The proof of the consistency and generality of a practice is provided by the duration. Uniformity, consistency of the practice: Complete uniformity is not required but substantial uniformity is.

Evidence of state practice Treaties; Diplomatic correspondence; Opinions of national/legal advisers; States’ practice within international organisations; Comments by governments on International Law Commission;

Elements of custom b) Corresponding views of States: Opinio juris sive necessitatis: (Subjective element): The conviction that such practice reflects, or amounts to law (opinion juris) or is required by social, economic or political exigencies (opinion necessitates).

International Custom The primary concern of states is to safeguard some economic, social or political interests. The gradual birth of a new international rule is the side effect of state’s conduct. Customary rules do not need to be supported or consented to by all states.

The Persistent Objector Can a state that objects to the formation of a customary rule disassociate itself from such a rule and thus remain free from the obligations it imposes? A state may contract out of a custom in the process of formation. But the evidence of objection must be clear.

General Principles of Law Elements of legal reasoning and private law analogies. General principles of law in the practice of tribunals: The International Court of Justice has used this source without any formal reference or label as a part of judicial reasoning.

Judicial Decisions and Writings of Publicists Decisions of international tribunals and arbitral tribunals. The teachings of the most highly qualified publicists of the various nations ; only constitutes evidence of the law,

The hierarchy of the sources What happens if a rule derived from one source of international law conflicts with a rule derived from another source? Which prevails over the other? Is there an order of application of the sources listed in Article 38 of the Statute of the ICJ?

JUS COGENS Article 53 of the Vienna Convention on the Law of Treaties A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general 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.