Sources of international law

Krzysztof J. Jankowski

Formal source of int. law Substantial source of int. law What are the sources of law in Poland?

Why? International law: lack of government, lack

of parliament, lack of courts…? So how the international law is created and applied?

Will (consent) of parties? What about new states and ius cogens?

A little bit of theory…

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

◦ a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

◦ b. international custom, as evidence of a general practice accepted as law;

◦ c. the general principles of law recognized by civilized nations; ◦ d. subject to the provisions of Article 59, judicial decisions and

the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Article 38 of the Statute of ICJ

Treaties Custom General principles of law Unilateral acts Acts of international organizatations Supportive sources: judicial decisions &

teaching of well-renowed lawyers

Sources of international law

What is the hierarchy of sources of law in the Polish legal system?

Is there such hierarchy in the international law? Article 103 of the Charter of UN: In the event of a

conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Ius cogens? Article 64 of Vienna Convention On The Law Of Treaties:

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Hierarchy of sources of law

What is a precedent? Is there a precedent in the international

law? Is there a precedent in the EU law? Ratio decidendi and obiter dicta. Precedents de iure and de facto.

Judicial decisions & teachings

… of WHAT law? What are the principles of law i.e. what is the legal

nature of principles of law? Why do we need principles of law? What is the difference between a principle and a rule? Is there a fixed catalog of principles of international

law? Resolution adopted by the General Assembly 2625

(XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations:

General principles of law

The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations,

The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered,

The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter,

The duty of States to co-operate with one another in accordance with the Charter,

The principle of equal rights and self-determination of peoples, The principle of sovereign equality of States, The principle that States shall fulfil in good faith the

obligations assumed by them in accordance with the Charter,

General principles of law

Relevant cases (their general knowledge is required on the winter session final exam):

Factory at Chorzów case (1928) German Settlers in Poland case (1923)

General principles of law

What is justice? Justice means that everyone should

receive…◦ (1) The same.◦ goods or value corresponding to his/her… ◦ (2) Merits◦ (3) Efforts◦ (4) Needs◦ (5) Positions◦ (6) What the law provides is fair and just.

Is justice a source of international law?

What is justice in ontological terms? Is justice a part of continental legal systems

/ common law? Is justice a part of international law? Case by case evaluation – is a given

situation just or not? A big difference between our legal system

and the system of international law.

Is justice a source of international law?

Theoretically, the situation is clear… (acts of int. Org. Are binding due to such will of states)

Article 25 of the UN Charter: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Kadi case (C-402/05 P - Kadi i Al Barakaat International Foundation v Council and Commission) (material required on the final test)

Practically, the situation is far less clear than it appears at glance… (non-binding acts might create a binding customary rule?)

Acts of international organizations

What kind of acts? Why they create obligations? Does each of them is the source of PIL?

Unilateral acts

Two constituing elements How do we know that a custom has

emerged?

International custom

Article 2 of the Vienna Convention: 1. For the purposes of the present Convention: (a) 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

What is a treaty?

Article 1: The present Convention applies to treaties between States.

Article 2: an international agreement concluded between States in written form

Article 3: and governed by international law The last factor…?

Scope of application of the Vienna Convention

The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect:

(a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

Scope of application of the Vienna Convention

The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.

Scope of application of the Vienna Convention

The State A concluded number of treaties1. With the State B – 05.08.19952. With the State C – 05.08.19953. With the State D – 28.04.19504. With the international organization X – 03.09.19905. With the States E,F,G,H and I – 02.08.19906. With the State J – 01.01.2015 0 oral agreement.

The VCLT entered into force on 01.08.1990 in regard to the State A.The State B is not the party to the VCLT.The State C,D and J are the parties to the VCLT since the day of its entry

into force (1980).The State E,F,G,H and I are the parties to the VCLT since 80’s

Which agreements are governed by the VCLT and which by the customary international law?

Case I

Is it possible to organize final exams (matura) in high schools which would verify students’ knowledge on religious issues (religia na maturze) in the light of the treaty concluded between Holy See and the Republic of Poland (konkordat)?

Please see: Article 25 Section 2 of the Constitution of Republic of Poland; Article 12 Sections 2 i 4 of the abovementioned treaty.

Something to think about

Who was Rafał Łemkin and what is his contribution into the development of international law?

A portarait of which famous Polish lawyer can you find in the mountain schelter „Nad Morskim Okiem” in Tatry mountains? Why?

Homework 1

According to the ruling in the East Timor case, the right of nations to the self-determination has erga omnes character. In the light of that, please comment of the situation of Catalonia and Quebec and try to answer whether these states/provinces have a right to independence from Spain and Canada accordingly.

Homework 2