DEFINING INTERNATIONAL LAW: Binding regime of principles/rules that regulate relations among states, individuals, other non-state entities

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1 (1) THE NATURE OF PUBLIC INTERNATIONAL LAW (PIL) DEFINING INTERNATIONAL LAW: Binding regime f principles/rules that regulate relatins amng states, individuals, ther nn-state entities Public internatinal law Law agreed t by states t gvern relatinships between states Private internatinal law Dmestic law that regulates dealings by individuals/rganisatins acrss brders Charter f the United Natins, Art 2(1): - f svereign equality f states: N state can cmpel anther t submit t judicial settlement f a dispute between them N state is bund by a new internatinal rule withut the state s cnsent Grwth f internatinal law (pst-wwii): - Actrs: states (traditinally nly applied t states), internatinal rganisatins, individuals - Rise f psitivism (stressed ntin f state cnsent): what states agreed expressly/thrugh nn-rejectin - e.g. use f frce (jus ad bellum, jus in bell); acquisitin f territry; state jurisdictin; diplmatic/ther immunities; law f treaties; state respnsibility; law f the sea; use f uter space; internatinal criminal/human rights/envirnment/investment/trade law (WTO law) There is nw n aspect f wrld plitics that can be fully understd withut sme knwledge in internatinal law (Sctt) IS INTERNATIONAL LAW REALLY LAW? Answer depends n what is meant by law (Aust): Austin HLA Hart Enfrceability is an essential characteristic f Law derives its strength frm scietal acceptance (rules any system f law, prperly s called binding), nt enfrceability Nt law prperly s called Internatinal law is law (states recgnised internatinal law as binding), but nt a legal system Enfrcement argument (Brierly, Hall, Henkin, Jessup, Mrgenthau): Argument Cunter-argument Fails t cnstrain states Mst states cmply with internatinal bligatins at mst times (interest in behaviur (n centralised cmplying, cnvenient t cmply), withut any cmpulsin (law habit) enfrcement mechanism t cmpel cmpliance) e.g. infringing upn rights f freign diplmats residing in wn state/disregarding bligatins under cmmercial treaty may cmprmise the prtectin f wn diplmatic representatives in freign capitals/ability t frm beneficial cmmercial treaties in the future States can usually flut internatinal law when desired and get away with it Therefre, the issue f enfrcement becmes acute Vilatins are mre cmmn in dmestic law than in internatinal law Enfrcement in the frm f self-help (Fitzmaurice): 1. Cuntermeasure: act nt invlving use f armed frce that is cntrary t internatinal law, but is rendered lawful as a prprtinate respnse t anther state s previus illegal act 2. Acts f restratin: unfriendly acts in respnse t lawful but unfriendly acts/unlawful acts Verbal/disclsure argument (D Amat, Waldck): - Arguments dealing with internatinal law are dne expressly in language f law (legal reasning, terms) - Freign fficers treat questins f internatinal law as legal questins - Diplmatic cntrversies, judicial/arbitrarily prceedings make use f legal frms/methds - Precedents/authrities are referenced in arguments

2 INTERNATIONAL LEGAL PERSONS: - An actr s capacity t exercise rights, duties, pwers n the internatinal plane - Nt an abslute cncept, persnality f internatinal actrs varies - Expansin in internatinal legal persnality in UN charter era (individual capacity, respnsibility) States: Dminant subjects f internatinal law, despite recent develpments in internatinal law (Triggs) Statute f ICJ, Art 34(1) Dctrine f diplmatic prtectin Only states can be parties in cases befre the curt States can prtect their natinals in cases f mistreatment by anther state in breach f PIL What is a state Mntevide Cnventin n the Rights and Duties f States, Art 1: (a) Permanent ppulatin N lwer limit t size f ppulatin (b) Defined territry N lwer limit t size f territry Need sufficient cnsistency f territry (nt defined/undisputed bundaries) (c) Gvernment Effective gvernment, independent frm influence/cntrl f ther states (d) Capacity t enter int Operate as a (factually + legally) independent entity glbally, engage in legal relatins with ther states relatins with ther entities under internatinal law State is still independent: restrictins upn state s liberty d nt place it under anther s legal authrity (Anziltti J in Austr-German Custms Unin case) - An entity is nt a state if it declines t be ne (e.g. Taiwan pre-2000) - New states are autmatically bund by internatinal law upn attaining statehd (accepted view) Can states lst statehd? Legally, failed states retain legal capacity, but, fr all practical purpses, have lst the ability t exercise it: 1. Internal/endgenus issues (territrial aspect) 2. Internal cllapse f law and rder 3. Absence f bdies capable f representing state internatinally/being influenced by ther states Failed states Submerged states Smalia is ungverned, lawless (still a state) Cntinuatin f statehd: statehd is permanent fr the mst part Climate change threatens t deprive sme states f criterin f territry (Crawfrd) e.g. Pacific micrstates (unclear if they are still states) Permanently submerged territry: ptential fr the state t still maintain a claim t statehd State svereignty ver territry, maritime znes, airspace: Svereignty in relatin t territry: Right t exercise therein, t the exclusin f any ther state, the functins f a state (Palmas case) Acquiring title t new territry: 1. Cessin: vluntary transfer f territry between states 2. Occupatin: territry must be uninhabited/terra nullius (Western Sahara case) a. Terra nullius: n scial, plitical rganisatin in territry 3. Prescriptin: lngstanding psitin (stay at land fr perid f time), title prevails ver title f riginal - Territry cannt be acquired by mere discvery/by cnquest - Individuals withut state jurisdictin cannt ccupy land (must be acting n behalf f the state) Western Sahara Case: Decisin W culd nt be acquired by ccupatin (W was nt terra nullius) Claim t svereignty based upn cntinued display f authrity (acquisitin by prescriptin): - Intentin, will t act as svereign + actual exercise/display f authrity 2

3 Island f Palmas (Miangas) Case: Facts Spain discvered Palmas, transferred title t US Decisin Maritime space: Palmas is a part f Netherlands' territry (acquired by cntinuus, pen/public, peaceful display f State authrity ver a lng perid f time) Mere discvery is insufficient: - Territrial svereignty displayed at the time (e.g. placing flag) must cntinue t exist Subsequent act f authrity that is pen, public - Title f peaceful, cntinuus display f state authrity ver land will prevail ver title f acquisitin f svereignty nt fllwed by actual display f state authrity Remte islands: - Need nt prve that gvernment is n island fr a certain perid f time - Lw level f activities ver a perid f time is sufficient fr ccupatin, t give title 1982 UN Cnventin n the Law f the Sea 1. Territrial sea: all castal states entitled t a territrial sea (same rights ver this as they d fr land) 2. Cntiguus zne 3. Exclusive ecnmic zne: n svereignty, resurce rights ver resurces in EEZ 4. High seas: pen t use by all states, unregulated, wned by mankind 5. Cntinental shelf 6. Deep seabed: managed by internatinal sea bed rganisatin, regulated, wned by mankind Airspace and uter space: 1967 Treaty n the s Gverning the Activities f States in the Explratin and Use f Outer Space, including the Mn and ther Celestial Bdies Art 1 Art 2 States have svereignty ver airspace abve their territry Outer space (mn, celestial bdies) is nt subject t natinal apprpriatin by claim f svereignty Cntemprary ideas (cmmn heritage, jint management f resurces, sustainable develpment): Antarctica: - Claimed by 7 states (Australia is the largest claimer at 42%) 1959 Antarctic Treaty Art 1 Antarctica shall be used fr peaceful purpses nly, measures f a military nature are prhibited Art 2 Use f military persnnel/equipment fr scientific research/ther peaceful purpses is permitted Art 4 Art 6 Freezes territrial claims t Antarctica (neither endrses nr rejects existing claims) Prevents acts/activities by claimant states cnstituting a basis fr asserting/supprting/denying a claim t territrial svereignty ver Antarctica Treaty des nt affect the rights f any state under internatinal law with regard t the high seas within the area t which the treaty applies States shuld cperate in their research endeavurs 1991 Envirnmental Prtcl Art 2 A natural reserve, devted t peace, science Arctic: - 8 States have clearly recgnised territries within Arctic - N slidary, verarching legal architecture fr management f land/sea areas within Arctic regin - N fundamental disputes ver Arctic svereignty, n strng traditin f Arctic cperatin 3

4 Self-determinatin (ius cgens rule highest law): UN Charter Art 1(2), 1966 ICCPR Art 1, 1966 ICESCR Art 1 All peples have the right f self-determinatin East Timr Case - ius cgens rule: highest law - erga mnes right: bligatins wed t all states, all peples Western Sahara Case: Free, genuine expressin f will - Des nt extend t claims fr independence by minrity grups in a nn-clnial cntext - Right t determine freely the plitical status, freely pursue ecnmic, scial, cultural develpment - Immediate steps in nn-independent territries, t transfer all pwers t the inhabitants, withut any cnditins, in accrdance with their freely expressed will, desire (enjy independence, freedm) Ksv Advisry Opinin - N prhibitin f declaratins f independence (in internatinal law) - Many new states have cme int existence upn exercising the right t self-determinatin Availability f the right des nt mandate a particular/defined utcme: - Need nt invlve creatin f new/independent state, can invlve lesser frms f increased autnmy Free assciatin/integratin with independent state, successin Recgnitin f states and gvernments: - Willingness t engage with the state as a member f the internatinal cmmunity States (internatinal issue): Declaratry thery (largely prevails) Internatinal recgnitin is irrelevant (recgnitin is a mere statement f fact, lk at Mntevide criteria) Cnstituent thery Recgnitin cnstitutes a new state Stimsn Dctrine f nn-recgnitin: - N recgnitin f the acquisitin f territry/establishment f a new state if brught abut by unlawful means (e.g. illegal use f frce) Australia rejected this, recgnised that East Timr in fact belnged t Indnesia (after Indnesia illegally invaded East Timr) Gvernments (dmestic issue): - Uncnstitutinal change in gvernment in a freign state (e.g. ppular revlutin/military cup) - Australia n lnger affrds frmal recgnitin t gvernments Avid giving seal f apprval t undemcratic regimes Relatins with new gvernments are determined n a case t case basis (Ablished frmer plicy f rutinely recgnising new gvernments) Sierra Lene Telecmm v Barclays Bank Facts S whlly wned by gvernment (verthrwn by cup), S had accunt with B, B refused t make payments requested as new gvernment nminated different signatries Issue Decisin Whether it is the new gvernment is the cnstitutinal gvernment f the state N, had n cntrl ver natin utside capital (administrative affairs), civil unrest Recgnitin depends n: - Is it the cnstitutinal gvernment f the state? - Degree, natural, stability f administrative cntrl by new gvernment ver territry - Dealings f new gvernment with ther gvernments - Extent f internatinal recgnitin f new gvernment 4

5 Luther v Sagr UK curts wuld nt recgnize/enfrce the laws/ther public acts f an unrecgnized gvernment Internatinal rganisatins: - States vluntarily agree thrugh a treaty with its wn internatinal legal persnalities frm the states themselves UN Charter: Creates a system f cllective security, cntrl activities f all states threatening internatinal peace/security Art 1 Art 43 Maintain internatinal peace/security, develp friendly relatins amng states, achieve internatinal cperatin in slving internatinal issues, crdinate/harmnise actins t achieve such ends Members must make armed frce available t security cuncil (mnplise the use f frce) Svereign equality f members Nn-interventin in dmestic jurisdictin, prhibitin n threat/use f frce, states must fulfil their bligatins in gd faith/reslve disputes peacefully Gillian Triggs: - Catalyst fr cllective actin, identify/prmte wrld values, cllective interests - Means f prblem slving where a glbal respnse is required UN Institutins: Security Cuncil (UNSC): - 15 members, 10 nn-permanent members (elected every 2 years, Australia is a current member) 5 permanent members with right f vet (Russia, China, USA, UK, France) - Respnsible fr maintaining internatinal peace/security [Art 24(1)] - Decisins are binding n all UN members General Assembly (UNGA): - All UN members represented - Cnsider, discuss, recmmend [Arts 10, 11] Cnsider threats t internatinal peace/security (nt make recmmendatins fr disputes under cnsideratin by UNSC unless requested t d s by UNSC) - Develp internatinal law (spnsr, prmte imprtant treaties) Sixth Cmmittee (legal): aids UN s mandate f prgressive develpment f internatinal law Internatinal Curt f Justice (ICJ): - 15 permanent members (elected every 9 years) - Statue f the ICJ part f UN Charter (all members f UN are parties t Statue f ICJ) Secretariat: - Headed by UN Secretary General (appinted by UNGA n recmmendatin f UNSC) Trusteeship Cuncil: - Supervise administratin f ther natins f nn-self gverning territries - Largely unused bdy (prcess f self-determinatin) Ecnmic and Scial Cuncil (ECOSOC): - 54 members elected (n basis f equitable gegraphic distributin) by UNGA - Crdinate many activities f special activities 5

6 UN s legal persnality: - Internatinal legal persnality, rights under internatinal law UN has capacities, immunities within the territry f members as is necessary t exercise its functins/fulfil its duties Separate legal persn, but it cannt exist in islatin f its members (cperatin f members is critical) Reparatins fr Injuries Suffered in the Service f the UN Case: Facts Issue Whether UN culd pursue a claim against Israel regarding Israel s negligent failure t prtect a UN fficial frm being killed by a private terrrist grup Organisatin s legal persnality depends n purpses/functins specified/implied in cnstituent dcs 1. Achieving the aims f UN Charter requires UN t have an internatinal legal persnality 2. UN Charter des nt expressly prvide that UN has capacity t include in claim, damage caused t agent (prtectin ensures agent s efficient/independent perfrmance fr UN) UN des have legal persnality 1. Bring claims against members fr breach f internatinal bligatins twards it 2. Claims can include reparatins frm injury caused t it/agent a. UN des nt represent the agent in claims fr reparatins fr injury t an agent (asserting wn right t demand members t fulfil bligatins twards UN) b. It is irrelevant if the agent pssess the natinality f the defendant state UN has a different legal persnality (internatinal rights/duties) t states - (e.g. UN des nt have the right t acquire territry) Respnsibility f internatinal rganisatins fr intentinally wrngful acts: Behrami v France: Facts - Children killed/injured by bmb drpped, nt cleared by NATO frces (UN s negligence) - UN utsurces respnsibility t member states (culd be held respnsible fr negligence) Decisin UN is respnsible, as they had effective cntrl ver individuals (wh were placed at the dispsal f the UN by their gvernments) Internatinal rganisatins may be respnsible fr wrngful acts, even when they are cmmitted by the agents f the internatinal rganisatins wh are attached t states Crpratins: - Persnality under dmestic law Kibel v Ryal Dutch Petrleum: Issue Whether a crpratin can be a persn (Can yu sue a crpratin under the Act? Can a crpratin ever cmmit a vilatin f internatinal law?) - Crpratins are nt persns under internatinal law - Crpratins (unlike individuals) cannt be made liable fr vilatins f internatinal law Internatinal crimes are cmmitted by individuals (nt abstract entities/crpratins) 6

7 Individuals: Traditinally nly regarded as mere bjects f internatinal law (with n independent legal existence) - States respnsible fr actins their actins/entitled t prtect them frm - Develpment f the individual legal persnality under internatinal law: Individual persnality is different frm state persnality (nly states can bring actin in ICJ) 1. Advent f internatinal human rights law (rights) Individuals can acquire directly rights under treaties (if intended by the cntracting parties) 1966 ICCPR Prtect persns frm mistreatment by wn natinal state/ther state which exercises jurisdictin ver them 2. Internatinal criminal law (respnsibilities) Obligatins f internatinal law bind individuals directly regardless f the law f their state - Crimes against humanity = ffence even if cmmitted in line with their state s law 1998 Rme Statute f the Internatinal Criminal Curt Individual criminal respnsibility fr crimes against PIL (e.g. war crimes, crimes against humanity, gencide) Other nn-state entities: Nn-gvernmental rganisatins: 1987 Mntreal Prtcl n Any bdy/agency (internatinal/natinal, gvernmental/nn-gvernmental), Substances that Deplete the qualified in fields relating t prtecting the zne layer may be represented, Ozne Layer, Art 11(5) participate in a meeting f the parties (unless ver 1/3 f the parties bject) Indigenus grups: 2007 Declaratin n the Rights f Indigenus Peples, Art 3 Right t self-determinatin (right t freely determine their plitical status, freely pursue their ecnmic, scial, cultural develpment) 7

8 (2) SOURCES OF PUBLIC INTERNATIONAL LAW - Every legal rder must have sme mechanism t determine legal rules HLA Hart: rules f recgnitin (what d we recgnise as legally relevant/irrelevant?) Define hw legal nrms are created, changed/abrgated Dmestic law Frmal, material surces f law Cnstitutin, Acts f Parliament, Regulatins, judgment f curts Frmal surce f law One frm which a rule f law derives its frce, validity Rule is legally binding if it meets the requirements f a custm (frmal surce) Internatinal law N frmal law-making, nly material surces f law Treaties, custmary internatinal law, general principles, judicial decisins, academic writings Material surce f law One frm which is derived the matter f law (substance f the rule) Substance f the rule is indicated by state practice (material surce) Accepted surces f PIL: - N glbal legislature/curt with jurisdictin ver all states Statue f the ICJ, Art 38(1): - Generally regarded as a cmplete statement f the surces f IL (Brennan J in Plyukhvich case) (a) Internatinal cnventins (treaties) recgnised by the disputing state (b) Internatinal custmary law (c) General principles f law recgnised by civilised states (d) Judicial decisins, writings f publicists (subsidiary means) SS Ltus (France v Turkey) Facts F gvt tried t prve existence f a rule that the flag state has exclusive jurisdictin ver incidents n bard its vessels n the high seas (writings f publicists; curt decisins; cnventins) Decisin N such rule existed, T entitled t exercise criminal jurisdictin Territrial svereignty: - State cannt exercise pwers in anther state s territry (need permissive rule t the cntrary) - States can exercise jurisdictin in its wn territry, in respect f cases relating t acts taken place abrad Vessels n the high seas are subject t n authrity except that f the state whse flag they fly: - But, states can in their wn territry exercise jurisdictin ver acts ccurred n bard a freign ship n the high seas - States can regard cllisins that have effected their ship as having been cmmitted in its territry, prsecute accrdingly, the delinquent

9 TREATIES: - Agreement between states/internatinal rganisatins that is gverned by law Multi-lateral (multiple states)/bi-lateral (tw states) - Prliferatin in mdern internatinal law: treaties are the mst imprtant/main surce f PIL - Surce f mere bligatin (treaty cntracts) vs. brader impact, establishing general standards (develp new custmary internatinal law) 1969 Vienna Cnventin n the Law f Treaties (VCLT), Art 2 Written agreement between states that is gverned by internatinal law 1969 Vienna Cnventin n the Law f Treaties (VCLT), Art 34: Binding nly upn parties t treaties, create n rights/bligatins fr third states withut their cnsent Effect f signing, but nt ratifying a treaty (VCLT, Art 18): States under the bligatin t refrain frm acts which wuld defeat the bject, purpse f the treaty Material surce f law (nt frmal surce f law): - Act f svereign will in cncluding a treaty des nt create a legally binding bligatin - Treaties indicate what legal bligatin requires in a certain case (n legally binding bligatin exists) Legal bligatins exist independently - Only law that enters int treaty rights/bligatins is derived frm the principle f pacta sunt servanada (an antecedent general principle f law) Law is that the bligatin must be carried ut, but the bligatin is nt, in itself, law Treaty my reflect/lead t law, but in its inceptin, is nt law CUSTOMARY INTERNATIONAL LAW: - Internatinal custm, as evidence f a general practice accepted as law [Statute f ICJ, Art 38(1)(b)] State practice (bjective element) Widespread practice by a sizeable number f states Opini juris (subjective element) Accepted as law, belief that practice is bligatry Binds all states: - Even thse states that never expressly/impliedly cnsented t the custmary rule - Even thse states whse practice/pini juris did nt cntribute t the custmary rule s emergence Nrth Sea Cntinental Shelf Cases (Germany v Denmark) (Germany v Netherlands) A State s silence/absence f bjectin regarding a custmary internatinal rule is seen as acceptance Angl-Nrwegian Fisheries case Acquiescence cannt be established unless state has actual/cnstructive knwledge f the claim being made Persistent bjectr state (narrw exceptin): - State must bject t the rule frm its very emergence t its existence, maintain this bjectin cnsistently thereafter (e.g. cntinue issuing statements ppsing the rule fr a perid f time) Angl-Nrwegian Fisheries Case (UK v Nrway) Facts Sme states adpted 10 mile rule, ther states adpted different limit Issue Is there a rule f custm prhibiting straight base lines ver 10nm in length? Decisin N custmary nrm, even if there was a custmary nrm, Nrway was a persistent bjectr Ius cgens: - Prscribes cnduct that is fundamentally unacceptable t the internatinal cmmunity States cannt make a treaty cntrary t the rule f ius cgens 2

10 Lcal/reginal custm: - Custmary nrm emerges as between a small grup/tw states Establishment f reginal custmary law: Asylum Case (Clumbia v Peru) Facts - C granted de la Trre asylum in its Embassy in Lima, Peru - P refused C s request t allw de la Trre t leave Peru - C invked American internatinal law in general t allw C t qualify ffence as plitical Decisin N such reginal custmary nrm existed Party relying n alleged reginal custm must prve that the custm: - Is established in a manner that has becme binding n the ther party - Has cnstant, unifrm usage as practiced by, accepted as law by the States in questin Usage: treaties, internatinal/natinal curt decisins, natinal legislatin, diplmatic crrespndence, pinins f natinal legal advisers, practice f internatinal rganisatins Lcal/reginal custms: - Amngst a grup f states/2 states in their relatins inter se, general custms can be binding upn the entire internatinal cmmunity [Art 38(1)(b)] - May supplement/dergate frm general custmary internatinal law (subject t rules f ius cgens) R (n the applicatin f Al-Saadn) v Secretary f State fr Defence Facts - UK frces arrested Iraqi natinals in Iraq, transferred int custdy f Iraqi gvernment - Iraqi natinals cntended there is an evlving practice acrss Eurpe (N EU state returns a persn t a natin in which they are at risk f death penalty) Decisin Material in this case was nt strng enugh t establish a rule f reginal custm Reginal custmary internatinal law can exist (meet high threshld t establish rule as custm): - All states in regin accept the rule - Cnstant, unifrm usage practiced by the states in questin Requirements fr establishing custmary internatinal law: (1) Evidence f state practice: - Any material which demnstrates chices, cnduct f persns acting in their capacities as state fficials/under instructins r cntrl f state fficials Speeches by state fficials/diplmatic, transcripts f parliamentary prceedings, dmestic legislatin, decisins f dmestic curts/tribunals, diplmatic crrespndence, histrical recrds, press releases, cmmuniqués, plicy statements, reprts f military/naval activities, cmments by gvernments n the wrk f internatinal bdies, vting recrds in internatinal frums (e.g. UN General Assembly), fficial manuals issued t diplmats/armed frces, treaties Nrth Sea Cntinental Shelf Cases (Germany v Denmark) (Germany v Netherlands) Facts - Disagreement ver drawing lines delineating the Nrth Sea Cntinental Shelves - N/D argued Geneva Cnventin n the Cntinental Shelf, Art 6 set ut custm (G nt a party) Decisin Art 6 did nt establish a custmary rule (nt f a fundamentally nr-creating character, limited widespread/representative participatin in cnventin) Nicaragua case: Facts - N claimed US unlawfully engaged in military activities against it - US cntended ICJ did nt have jurisdictin Decisin (ICJ) Nrms relied upn by N (prhibitin n use f frce, state interventin) are part f custmary internatinal law, UN charter and custm have separate applicability 3

11 1. Prvisin is f a fundamentally nrm-creating character Nrth Sea Cntinental Shelf Cases 2. Cnsistency f practice ver time Nicaragua case Set ut a clear rule in clear terms (n uncertainty/vagueness) State cnduct incnsistent with a rule is treated as a breach f the rule (nt as an indicatin f the recgnitin f a new rule) If a state acts in a way prima facie incmpatible with rule but defends cnduct (exceptins/justificatins within rule), the cnduct cnfirms rule (nt weakens) 3. Very widespread, representative participatin in cnventin (reasnable number f the 194 states) a. Custm cannt be slely practiced by develped/develping states b. Reasnably representative gegraphically (e.g. wealthy/less-wealthy states) Nrth Sea Cntinental Shelf Cases Including states whse interests are specially affected Nicaragua case Refer t the practice f states as a whle - It is nt sufficient that nly parties t the case share that view f what the law is 4. N precise length f time during which a practice must exist a. Nrmally the practice needs t be ver a lengthy perid i. Need nt be entirely unifrm: can have sme defectins/apparent breaches Nrth Sea Cntinental Shelf Cases Practice can be established as a nrm very quickly/instantly - State practice must be virtually extensive, unifrm - Including states whse interests are specially affected Nrth Sea Cntinental Shelf Cases Treaty (multi-lateral) prvisin relates t custm, as the prvisin may: 1. Declare/cdify custm at the time the prvisin is adpted; 2. Crystallise custm, states agree n prvisin t be adpted during treaty drafting prcess; 3. Becme accepted, fllwed by states as custm in their practice after treaty s adptin (lead t prgressive develpment f custm) There are n grunds fr hlding that: Custmary internatinal law is cmprised f rules identical t thse f treaty law, the latter supervenes the frmer, s that custmary internatinal law has n further existence f its wn Nicaragua case: Separate treatment/applicability f tw rules f the same cntent (rule cntained in a treaty parallels with rule f custmary internatinal law) (2) Opini juris: Nrth Sea Cntinental Shelf Cases (Germany v Denmark) (Germany v Netherlands) - Cnsistent practice accmpanied by a belief that the state practice is bligatry Frequency/habitual character f the acts ins nt in itself enugh Difficult t establish: reasn underlying state s adptin/acceptance f practice is unclear Nicaragua case: - Opini juris is presumed t exist if practice is unifrm Stricter apprach (Nuclear Weapns case): cnstant, unifrm practice, feeling f bligatin 4

12 Ntinally as imprtant as state practice? - Opini juris is less imprtant where there is extensive state practice Gives rise t rebuttable presumptin that there is sufficient pini juris - Opni juris is mre imprtant where there is limited state practice UN General Assembly reslutins as evidence f custmary internatinal law: - Recmmendatry, nt in an f themselves legally binding Exceptins (legally binding n UN members): UN Charter, Art 4(2) Admissin f new members UN Charter, Art 4(5) Suspensin frm membership UN Charter, Art 4(6) Expulsin frm membership UN Charter, Art 4(17) UN budget Influence n internatinal law, develpment f custmary internatinal law: - Affirm existing recgnised custmary nrms - Create new custmary nrms (evidence state practice, pinin juris) - Authritative interpretatin f UN Charter Flres v Suthern Peru Cpper Cperatin Reslutins/declaratins f internatinal rganisatins are nt prper surces f custmary internatinal law - Merely aspiratinal, never intended t be binding n member states f UN OTHER SOURCES OF INTERNATIONAL LAW: General principles f law recgnised by civilised natins: - Use general principles t reslve a dispute where treaties/custm cannt be used (avid nn liquet) General principles recgnised in legal systems f independent s f equity: Chrzw Factry case: A party cannt take advantage f its wn wrng River Meuse case When tw parties have assumed an identical bligatin, ne party that has nt perfrmed the bligatin cannt take advantage f the ther party s similar nn-perfrmance f the bligatin Estppel: ARA Libertad (Argentina v Ghana): Decisin G estpped frm denying immunity f A s vessel, G freely accepted the vessel in its prt + that it wuld have immunity in its prt, reliance by A t its detriment Estpped is an accepted principle in internatinal law: 1. Prcedural: cnsequences as t the pssibility fr a party t bject t prceedings 2. Substantive: barring cntradictry legal psitins taken by a party t the dispute 5