Public law

• Statute of the ICJ

  Annexed to the Charter of the United Nations and Art. 38 provides the sources of law before ICJ
• Sources of law before the ICJ

  • International conventions
  • International custom
  • General principles of law recognized by civilized nations
  • Judicial decisions
  • Teachings of highly qualified publicists
• Treaties


  Contracts made between subjects of international law
• Types of treaties


  • Conventions
  • Agreements
  • Pacts
  • General acts
  • Charters
  • Covenants
• Vienna Convention on Treaty Law


  Governs the law of treaties
• A state can contract any terms they wish for (except if it is contrary to jus cogens)
• Pacta Sunt Servanda


  The fundamental rule governing the law of treaties
• Examples of bilateral treaties


  • Strategic offensive reductions treaty 2002 US and Russia (Strategic Arms reduction treaty 2011)
  • Pretoria Accord 2002
• Examples of multilateral treaties

  • Kyoto Protocol 1997
  • ASEAN Agreement of Transboundary Haze Pollution 2002
  • Maastricht Treaty 1992
• Law-making treaties


  Establish new international laws or norms binding on the parties
• Contract treaties


  Regulate specific legal matters between states or individuals across borders without creating new international laws
• Customary law


  Refers to the understandings and interactions between state-based actors over time, establishing acceptable conduct in war and peace
• Evidence of customary laws

  • Media
  • Government publications
  • Treaties
  • Judgments
• The Asylum case 1950 held that Columbia could not establish a regional custom due to the lack of consistent and uniform usage by the relevant states
• Usage


  The state's practice must be constant and uniform
• Opinio juris


  Identifies states' actions and reasons for doing or not doing them, distinguishing between rules and habits
• The North Sea Continental Shelf Case 1969 defined usage as widespread & representative, but widespread & representative need not be equal
• Sources of evidence for customary international law


  • Treaties
  • Decisions of national courts
  • National legislations
  • Diplomatic Correspondence
  • Opinions of national advisers
  • Practice of international organisations
• Additional sources of evidence for customary international law

  • Policy statements
  • Press releases
  • Executive decisions and practices
  • Orders to naval forces
• The Lotus Case 1926 held that Turkey, by instituting criminal proceedings against Demons, did not violate international law
• Persistent objector rule


  The legal position of states opposing the establishment of a custom
• The Anglo-Norwegian Fisheries Case 1951 held that a persistent objector cannot prevent a customary rule from existing, but the state will not be bound by the rule if it maintains its objection throughout the formative period
• General principles of law recognized by civilized nations


  Used to avoid a situation of non-liquet
• Approaches to general principles of law

  • Broad interpretation
  • Narrow interpretation
  • General principles of municipal law as a reservoir
• The Chorzow Factory Case 1927 imported the equitable doctrine that a party cannot exploit its own wrong and that breach of an engagement necessitates reparation
• The Corfu Channel Case 1949 held that circumstantial evidence is admissible in all systems of laws in certain circumstances
• Judicial decisions


  The court's decision has no binding force, except between the parties and in the specific case
• Decisions of judges do not constitute a formal source of law, and the concept of stare decisis does not apply in International Law
• All judicial decisions are merely persuasive
• Teachings of the most highly qualified publicists (writing)

  Grotius, Vattel and Oppenheim, considered the founding fathers of international law, are now less quoted due to the increasing volume of judicial decisions in the field
• The role of writers has changed from significantly contributing by deriving from natural law, analogizing to existing legal systems, and generalizing state practices, to now being restricted to analysis of facts, judicial opinions, observing and charting changes in customs
• ICJ


  International Court of Justice
• ICJ as an international court

  • 1st international court: PCIJ (1922-1946) structural failure
  • After WWII, the UN replaced the League of Nations with the ICJ, modifying its structure
  • ICJ is governed by the Statute of ICJ which is incorporated in the UN Charter
  • The new name (ICJ) is essentially a continuation of the old PCIJ
• Contentious Jurisdiction (CJ)


  ICJ's power to listen to and solve disputes in international law
• Despite growing recognition of non-state entities as subjects of international law, the Statute of ICJ only allows states to be a party to contentious jurisdiction
• Consent


  Crucial element in international law, and ICJ's jurisdiction, like arbitration, heavily relies on states' consent
• Ways states can consent to ICJ's contentious jurisdiction


  1. Consent is given prior to dispute in a compromissory clause in a treaty

  2. Consent is given prior to dispute by Art. 36(2) Statute of ICJ [Optional Clause]

  3. Consent is given after dispute by special agreement between parties or in response to unilateral reference by 1 party to the ICJ
• Compromissory Clause


  • Multilateral treaties are generally unpopular with states and often ratified with significant reservations due to their general nature
  • The ICJ aims to promote peaceful dispute resolution across various international relations areas
• Compromissory Clause examples


  • Avena & other Mexican Nationals (Mexico v USA) [2004]
• Art. 36(2) Optional Clause


  • The method to deposit consent for contentious jurisdiction of ICJ
  • Optional Declarations grant the court automatic jurisdiction to hear a dispute if it addresses the specific issue
  • Active declarations are loaded with reservations
  • US Optional Clause declaration excludes jurisdiction over maritime boundaries