2. The Making of International Law

Other possible sources and the renewal of sources doctrine

'Soft Law': The term soft law is used to denote agreements, principles and declarations that are not legally binding. Soft law instruments are predominantly found in the international sphere. UN General Assembly resolutions are an example of soft law. Hard law refers generally to legal obligations that are binding on the parties involved and which can be legally enforced before a court. Examples of soft law: - Agenda-setting instruments, e.g. Rio Declaration on Environment and Development (1992), followed by Agenda 21; - Political decisions, e.g. by members of G8/G20 or OPEC; - Multi-stakeholder initiatives, e.g. Roundtable of Sustainable Palm Oil (RSPO) or Voluntary Principles on Security and Human Rights; - 'Private' regulations, e.g. Equator Principles.

The Truman Proclamation 1945

- In 1945 United States sought to maximize control over its oil resources, (especially in Gulf of Mexico). - International law at the time allowed States to control only a narrow part of its coastal waters, called the territorial sea. - Technically, this was an assertion of a right which did not exist in international law at this time. - But other States did not object. In fact, they followed suit. - By 1950s most States made similar claims - enough to amount to a 'general practice.' - The consistency of the claims, as well as the absence of any significant challenges, coupled with opinio juris, meant this could become a rule of customary international law. - Influenced the decisions of the North Sea Continental Shelf cases in 1969: ICJ decided that costal state rights over the continental shelf were 'inherent'.

How is International Law Made?

- Law-making in international law, a 'horizontal' system, different from national law. - In domestic systems, sources of law are primary and secondary legislation and judicial decisions, and we do not think much more about it. - International law is primarily made by States, who are formally equal. - To be bound by international law, it is necessary that States consent to be bound. - This consent can be expressed in a number of ways. - Where do we normally look when we are discussing the 'sources' of international law?

Nicaragua Case (1984)

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Sources of International Law: Article 38(1) ICJ Statute [1]

1. Treaties and International Agreements -usually the result of conventions that draw states together for negotiation (becomes law after signature and ratification) 2. International Customs -develops slowly after repeated practice or long-standing acceptance 3. The general principles of law recognized by civilized nations 4. legal scholarship - The statute is, however, an incomplete list of the sources of IL, but became an authoritative statement that is widely accepted by international legal profession and States.

General Principles of Law: Article 38(1)(c)

Art. 38 (1)(c) allows the ICJ to import general principles of law recognized by nations. Cross-cultural principles of morality and common sense as well as actions such as theft and assault recognized in most national legal systems as crimes tend to have the same meaning in an international context. Powerful legal principles may have no basis in treaties or an insufficient basis in CIL, but play a crucial role, particularly in international adjudication. Some examples would be the principle of equity, 'clean hands', estoppel, etc. Such principles are useful for filling potential gaps in the law and problems of non liquet ('the law is not clear'). In case of lack of valid rules general principles are able to help to resolve legal dispute and help point the court in a certain direction. Most often general principles help to clarify or interpret the existing rules in treaties and or custom.

Exceptions to CIL: Consent and the Persistent Objector [1]

CIL rests on the consent of states; however, consent may be given tacitly/impliedly; If a state notices that a new rule of CIL is in the process of being created, and it feels unable to accept it, it should make its opposition known. By objecting persistently, the state can ensure that it does not become bound. What is more, if many states object persistently, together they can prevent the rule from coming into being. Leading case: Fisheries 1951 This is a natural consequence of consent-based approach, however, it is very limited in practice, as it is usually hard to maintain an objection.

Second requirement: Opinio Juris (OJ) [2]

Conclusion 10: Forms of evidence of acceptance as law (opinio juris) 1. Evidence of acceptance as law (opinio juris) may take a wide range of forms. 2. Forms of evidence of acceptance as law (opinio juris) include, but are not limited to: public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; decisions of national courts; treaty provisions; and conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference. 3. Failure to react over time to a practice may serve as evidence of acceptance as law (opinio juris), provided that States were in a position to react and the circumstances called for some reaction. In other words, the two elements are so closely related that you may not need to separate them, as they are also evidenced by legal materials

The relationship between treaty law and CIL

Conclusion 11 ICJ: 1. A rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule: (a) codified a rule of customary international law existing at the time when the treaty was concluded; (b) has led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or (c) has given rise to a general practice that is accepted as law (opinio juris), thus generating a new rule of customary international law. 2. The fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of customary international law. --- In the North Sea Continental Shelf case (1969), the ICJ set out conditions that must be established before a treaty provision can create new CIL: 1. The relevant treaty provisions should be fundamentally law creating in character 2. There must be very widespread and representative participation in the state practice which must be supported by those states whose interests would be specially affected by the treaty provisions in question; and 3. State practice must be extensive and virtually uniform in support of the new CIL rule in the period since the treaty in the issue was adopted.

Sources of International Law: Article 38(1) ICJ Statute [2]

Formally speaking, no hierarchy exists between 3 primary means. They co-exist and are capable of generating legal norms of the same weight (Nicaragua case, 1986). Treaties and customs, however, are the stronger sources. What if a conflict emerges between them? - Rules of lex specialis or lex posterior apply. Treaties are normally lex specialis over CIL. [Lex specialis is a Latin phrase which means "law governing a specific subject matter"] [Lex posterior is a doctrine that states that in the event that there are inconsistencies between domestic statutes, treaties, or customary international laws, the most recently enacted will govern.]

Peremptory Norms - jus cogens

Fundamental rules that prohibit the most serious breaches of international law. The concept of jus cogens was first introduced in Article 53 of the Vienna Convention of the Law of Treaties (VCLT). States cannot otherwise choose to derogate from these norms or to disregard them. - '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.' For example: - Prohibition of the use of armed force (Nicaragua, 1986); - Prohibition of war crimes and crimes against humanity (Jurisdictional Immunities, 2012); - Prohibition of genocide (Armed Activities, 2006), slavery, torture.

First requirement: General practice (GP) [1]

General practice doesn't have to be worldwide; regional customary law exists where only a handful of states are bound to certain CIL. This principle was confirmed in the Anglo-Norwegian Fisheries 1951 case. Therefore, complete uniformity is not required According to the ICJ: 'even without the passage of any considerable period of time, a very widespread and representative [practice] might suffice of itself' Can't specify how long it will take to create GP; many instances of a practice in a short period of time is just as powerful, even more so, as instances spread out over long periods of time. Who's practice is required to establish GP is also important; landlocked states such as Austria and Switzerland won't have much of a say over maritime issues, since they won't have any practice to begin with. In sum, what matters in particular is that those states whose interests are especially affected by a customary rule participate in its making.

Resolving Conflicts Between Sources

In case of conflict between sources, two major principles apply: - lex specialis derogat legi generali (law governing a specific subject matter overrides a law that only governs general matters); - Ex: human rights law v humanitarian law; multilateral treaty v regional cooperation agreements in the same area. - lex posterior derogate priori (a later law repeals an earlier law); Unless the opposite is specifically discussed in a relevant treaty; - Ex: Article 311(3) of the UN Convention on the Law of the Sea (UNCLOS) prevents States from concluding subsequent agreements that would derogate from obligations under UNCLOS.

Unilateral Declarations

Not all unilateral statements will have a binding effect on states. However, if a statement has been made in the context of a long-standing negotiation, the ICJ would consider it to be binding on that state. Some statements are best seen as declarations of facts or expressions of political opinions Leading case: Nuclear tests case (1974): France promised to stop nuclear tests, which was held to be binding on France by the ICJ and thus could be relied upon by Australia and New Zealand.

Exceptions to CIL: Local CIL [2]

Returning to the idea of regional or local CIL; it is possible for rules to develop that will bind only a set of groups of states. Ex: Latin American States: Asylum 1950 & Right of Passage 1960 cases --- Conclusion 16: Particular customary international law 1. A rule of particular customary international law, whether regional, local or other, is a rule of customary international law that applies only among a limited number of States. 2. To determine the existence and content of a rule of particular customary international law, it is necessary to ascertain whether there is a general practice among the States concerned that is accepted by them as law (opinio juris) among themselves.

Treaties: Art.38(1)(a)

The Vienna Convention on the Law of Treaties 1969 - a 'treaty on treaties'. What is the significance of this treaty? - Highly authoritative and has (mostly) achieved status of customary international law. Rules of what treaties are have been codified in the VCLT.

Lotus Case (1927) (France v Turkey)

The court here laid down the idea of IL as a permissive system: Behavior must be considered permitted unless and until it is prohibited

Customary law: Art.38(1)(b)

Uncodified laws based on social practices. Not necessarily a deliberate law making process. CIL is binding on all states 2 main requirements: 1. There must be a general practice 2. This general practice must be accepted as law or in other words, accompanied by opinio juris (a sense of legal obligation) Ex: The Truman Proclamation

First requirement: General practice (GP) [2]

What counts as practice though? - Material acts of states, legislative acts of states, and legal practices (generally speaking) - Whether mere statements count as GP is debatable & controversial; it will depend on the situation.

Second requirement: Opinio Juris (OJ) [1]

What is opinio juris? - ILC Conclusion 9: 1. The requirement, as a constituent element of customary international law, that the general practice be accepted as law (opinio juris) means that the practice in question must be undertaken with a sense of legal right or obligation. 2. A general practice that is accepted as law (opinio juris) is to be distinguished from mere usage or habit. evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.