Sources of international law.pptx

8/11/2019 Sources of international law.pptx

1/17


2/17

MATERIAL/HISTORICALSENSE FORMAL/LEGAL SENSE

It refers to a causal or

historical influence

explaining the factualexistence of a given rule of

law at a given place & time

The criteria under which a rule

is accepted as valid in the

given legal system at issue. These criteria distinguishing

binding law from legally-non-

binding other social or moral

norms and the law de lege lata

(the law as it currently stands)from the law de lege ferenda

(the law as it maybe in the

future)


3/17

MATERIAL/HISTORICALSENSE FORMAL/LEGAL SENSE

In this sense, terms of

sources related to

information sources,research sources or

bibliographies in

international law.

In this sense, terms of

sources related to the law-

making process.


4/17

DEVELOPED NATIONAL LEGALSYSTEM

DECENTRALIZED

INTERNATIONAL LEGAL SYSTEM

Definite methods of

identifying the law

Primarily refering to theconstitution,

legislation/statutes & judicial

case law

Lacking hierarchical

structure

The problem of finding thelaw more complicated

No authority to adopt

universally binding

legislation

No compulsary jurisdiction

of international courts &

tribunals without consent of

states


5/17

the court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall

apply :

Internat ional conventions, whether general or

particular,...

Internat ional custom, as evidence of a general practice

accepted as law;

The general prin ciples o f lawrecognized by civilized

nations Jud ic ial decis ions & the teachings of the most highly

qualified publicist of the various nations, as subsidiary

means for the determination of rules of law.


6/17

To some extent treaties have begun to

replace customary law, they are codified

by treaty. Where there is disagreementor

uncertainty, states tend to settle disputes

by ad hoc compromises which also take

the form of treaties.


7/17

LAW-MAKING TREATIES CONTRACT TREATIES

Treaty bisa disebut sumberhukum internasional

bilamana treaty miripdengan konstitusi dasarnegara dalam suatu sistimhukum nasional negaratertentu.

Isi treaty (content) harussama dengan ini konstitusidasar & harus memilikistruktur anatomi yang sama.

Treaty which resemble

contracts (agreement

between to states to lendthe money)

Not sources of law but

merely legal transactions


8/17

LAW-MAKING TREATIES CONTRACT TREATY

Treatiess purposes is to

conclude an agreement on

universal substantive legalprinciples.

The parties to a law-making

treaty are more numerous

Treaty constitute

boderlinecase which are

hard to classify

The law of treaties applies to

both types of treaties

Contract treaty could be

terminated by the outbreak

of war between the partiesthan a law-making treaty

Sometimes contract treaty

consist of states provision

which are contractual.

Particularly in a single treaty.


9/17

INTERNATIONAL TREATYINTERNATIONALIZEDCONTRACTS

Only the subjects of

international law can

conclude the treaty (alsotraditionally recognized

entities)

Usually adopted national law

system

In particular contract, theparties between state &

powerful Multinational

Companies adopted

international law, general

principles of law or underthe provisions of the

contract itself.


10/17

As confirmed by the ICJ in the Nicaraguacase, cus tom

is constitued by two elements, the objective one of a

general pract ice, & the subjective one accepted as law

the so-called opin io jur is.

In the Continental Shelf (Libya v. Malta) case, the court

stated that the substance of customary international law

must be looked for primarily in the actual pract ice and

opin io jur is of States.


11/17

From newspaper reports of action taken by states

From statements made by the government spokesmen to

parliament, to the press, at international conferences & at

meeting of international organizations.

From states laws & judicial decisions.

At times the Foreign Ministry of state publish extracts

from its archives (for example : when a state go to war

or becomes involved in a particular dispute)

From the documentary sources produced by the United

nations


12/17

From writings of international lawyers.

In judgements of national & international tribunals as

subsidiary means for the determination of rules of law.


13/17

What is the difference the

customary international law in

bilateral treaties and multilateral

treaties ?


14/17

In bilateral treaty the content does not

generally support a corresponding norm of

customary law.

In multilateral treaty the content definitely

constitute evidence of customary law.


15/17

A single precedent is not enough to establish a

customary rule, and that there must be a degree

of repetition overperiod of time.

Thus in the Asy lum case, the InternationalCourt of Justice suggested that customary rule

must be based on a constant & uniform usage.


16/17

In the Asy lumcase, Victor Raul Haya de la Torre, the

leader of unsuccessful rebellion in Peru in 1948, obtained

asylum in the Colombian Embassy in Lima. Peru &

Colombia referred to the court (ICJ) the question whether

Colombia had the right to grant asylum & whether heshould be handed over to the Peruvian authorities or be

granted safe-conduct out of the country.

In other words, what prevented the formation of a

customary rule in the Asy lumcase was no t theabsence of repeti t ion , bu t the presence of major

inconsistenc ies in the pract ice.


17/17

Documents

Sources of international law.pptx