國際法課件二

1、“The most difficult thing about international law is finding it.”,Geoffrey R. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (2000),CHAPTER II: SOURCES OF INTERNATIONAL LAW,A.

2、 Sources of law:,Article 38 of the ICJ: The Court shall apply (a) international conventions…establishing rules expressly recognized by the contesting states, (b) International custom as evidence of a general practice a

3、ccepted as law,(c) the general principles of law recognized by civilized nations,(d) subject to the provisions of Article 59, judicial decision and the teachings of the most highly qualified publicists of the various n

4、ations, as subsidiary means for the determination of rules of law.,B. International Conventions (Treaties),Multilateral (binding more than 2 nations)Bilateral (binding 2 nations),Treaty Process,countries negotiate a tre

5、atytreaty text is signedcountries approve treaty in accordance with domestic law,1.Definition of Treaty,“An international agreement concluded between States in written form and governed by international law, whether em

6、bodied in a single instrument or in two or more related instruments and whatever its particular designation.”Vienna Convention on the Law of Treaties, Article 2Include conventions, agreements, covenants, charters, prot

7、ocols, pacts, accords, statutes, etc (synonyms of treaty ),The Essential Elements of “Treaty",it must be international agreements which create binding obligations for the parties.it can only be concluded between or

8、 among subjects possessing international personality with exception for individuals.,C. Customary Law (“Custom”),1.Defined: a general practice accepted as law ------- The Statute Rules results from a

9、 general and consistent practice of states followed by them from a sense of legal obligation ------The Restatement,2. Establishing the Existence of a Customary Law:,a. material element: Usus (Latin f

10、or: usage): Is the consistent and recurring action by states. b. psychological element: Opinio juris (Latin for: “of the opinion that it is a necessary law.”,3. Exceptions to the Application of Custom,Persistent obje

11、ctor: A state which persistently objects to a practice during its forming does not become a party to it.,C. Customary Law (“Custom”),Binding on all members of the international communityComprised of rules of law derived

12、 from the consistent conduct of statesStates must believe that the law requires them to act in a certain way,D. GENERAL PRINCIPLES,1. Defined: General principles of law common to the international community, or

13、some principles recognized by world’s major legal system,Examples of General Principles a. A state must consent before being bound to an international agreement. b. States must be treated equally regardless of their

14、size or strength. c. The awards and judgments of international tribunals are to be respected as final.,d. Good faithe. Equityf. Pacta sunt servandag. Estoppel Note: Modern international law relies less on general

15、principles of law as a source of law.,E. SUBSIDIARY SOURCES OF INTERNATIONAL LAW,Judicial decision 2. Teachings (or Writings) of Publicists,Court Decisions,Subsidiary source of international lawICJ doesn’t recognize

16、stare decisis, although it does follow its own prior decisions.Decisions of domestic and international tribunals are given weight.,Hierarchy of sources,a.Treaty and custom are of equal authorityb.General principles of

17、law are usually subordinate to treaties and custom. c. Generally, when a treaty comes into force, it overrides customary international law between the parties to the treaty. But treaties can come to an end if consistent

18、ly ignored by one or more parties, which often ends up with the emergence of a new rule of customary international law in contrast with the treaty.d.Judicial decisions and learned writings, in the wording of article 38,

19、 are subsidiary means, which suggests that they are subordinate to the other 3 sources listed. Generally, judicial decisions carry more weight than learned writings.,International law has three primary sourcescustomint

20、ernational treatiesgeneral principles of law.Subsidiary sources (i.e. means to ascertain the content of law created by the primary sources)Rulings of courts (mostly international)The writings of international scholar

21、s,F. Other Possible Sources?,1, Resolutions of UN General Assembly have acquired a very significant status as the evidence of int’l law but not as the sources of int’l law coz it is not an int’l legislature.Some writer

22、s hold the view that Resolutions of UN General Assembly can be seen as soft law (gradually evolve into hard law),2, Security Council’s resolutions legally binding upon the member states of UN, but they are not rule-

23、making. The council deals with violation of world or regional peace on a case-by-case basis.,G. Soft law,The term soft law is used in two different situations. 1. Many legally binding international law instruments ex

24、press obligations in vague or flexible terms, rather than clear and concrete terms. For example, the Convention on Biological Diversity 1992 states that each party is to ‘as far as possible and as appropriate, cooperate

25、with other Contracting Parties’ (Article 5).,2. The other sense in which the term ‘soft law’ is used is to cover principles or guidelines that are not legally binding. Principles of this kind can develop from internation

26、al conferences, or be formulated in nonbinding agreements. An example of such an agreement is Agenda 21, an 800 page action plan relating to the environment and development, which was formulated at the 1992 Ri