SOURCES OF INTERNATIONAL LAW- Bài giảng môn Công pháp quốc tế | Trường Đại học Kinh Tế - Tài Chính Thành phố Hồ Chí Minh

SOURCES OF INTERNATIONAL LAW LLM. TRAN LE THIEN NGAN FACULTY OF LAW CONTENT • Introduction
• Sources of International Law: Treaties and Customs • Categories of Treaties
• Formation and Termination of Treaties •What does the Statute of the International Court of Justice (ICJ) identify as the leading sources of IL?
Article 38(1) of the SICJ
1. International conventions, establishing rules expressly
recognised by the contesting States;
2. International custom, as evidence of a general practice accepted as law;
3. General principles of law recognised by civilised nations;
4. 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. Treaties
• Treaties/conventions now constitute
the major source of international law
• A treaty is an international agreement
concluded b/w states, in written form,
and governed by international law
Treaties will apply ONLY to those states that have
signed and ratified, or deposited an instrument of
accession to, a particular convention Customs
• Customary law is evidence of a general practice/normal habit accepted as law.
• Jurisdiction over territory • Freedom of the high seas
• Privileges and immunities of states and diplomats • The rights of alien Customs
• Failing to fol ow custom raises punishment, sanctions, or retaliation
• Custom is constituted by two elements: the objective
element of ’general practice’, and the subjective element
of being ‘accepted as law’. Judicial decisions Judicial decisions as subsidiary In international law, international courts means for the are not obliged to determination of follow the previous rules of law (Article decisions. 38(1)(d)).
Learned writers (publicists)
• Article 38 also directs the court to apply the teachings of
the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law. International Agreements – Law of Treaties Categories of treaties
Bilateral treaties
Multilateral treaties - CANNOT bind a third state - Create new principles of IL without its formal consent
- Codify existing customary law - Create alliances and international governmental organizations: NATO, UN, WTO, etc. Categories of treaties
Law-making treaties Treaty contracts
- Require the participation of a
- Between only small numbers of large number of states to states and on a limited topic
emphasize the effect, including
human rights treaties, boundaries - Resemble a contract treaty treaties, ect. such as agreements where one state lends money to another, are NOT considered sources of law but are simply legal transactions." Law-making treaties? • The 1969 Vienna Convention on the Law of Treaties (VCLT) • The Vienna Convention on Diplomatic Relations 1961 Formation of treaties Ratification
• In some cases, a treaty does not become binding until it is ratified by the head of State.
• Both customary international law and the VCLT leave it
completely up to States which procedure they want to fol ow.
Termination of Treaties • By mutual consent
• Treaties that contain provisions permitting withdrawal from the treaty • End after a certain time Reservation
• A State may be wil ing to accept most of the provisions of
a treaty, but it may object to other provisions of the treaty.
• States often make reservations when they become parties to a treaty.
• Some treaties, such as the UNCLOS 1982, prohibit reservations (Article 309).
Document Outline

• Slide 1: SOURCES OF INTERNATIONAL LAW
• Slide 2
• Slide 3
• Slide 4: Article 38(1) of the SICJ
• Slide 5: Treaties
• Slide 6
• Slide 7: Customs
• Slide 8: Customs
• Slide 9: Judicial decisions
• Slide 10: Learned writers (publicists)
• Slide 11: International Agreements – Law of Treaties
• Slide 12: Categories of treaties
• Slide 13: Categories of treaties
• Slide 14: Law-making treaties?
• Slide 15: Formation of treaties
• Slide 16: Ratification
• Slide 17: Termination of Treaties
• Slide 18: Reservation