国际法CHAPTER 3.ppt

CHAPTER 3CREATION AND ASCERTAINMENT OF INTERNATIONAL LAW 3.1 Sources of law Article 38 of the Statute of International Court of Justice 1. Strictly speaking, constitutes a standing directive to the court as to what to apply in deciding cases brought before it. 2. However, has exercised an enormous influence in the sources field, and frequently cited as an authoritative enumeration of the sources of international law. - not exhaustive enumeration, more practical Court shall apply 1. Three sources a. international conventions [38(1)(a)] establishing rules expressly recognized by the contesting states. b. international custom: [38(1)(b)] as evidence of a general practice accepted as law. c. general principles of law recognized by civilized nations: [38(1)(c)] 2. Subsidiary means of determining rules of law [38(1)(d)] a. judicial decisions b. writings of most highly qualified publicists (i.e. scholarly writings) 3. At the request of the parties to a dispute, Court may decide a case ex aequo et bono (“in justice and fairness”, or “according to what is just and good”): [38(2)] Relationship between the different sources 1. No hierarchy between three sources. 2. “Later in time governs” is generally the rule in case of inconsistency. 3. Principle may exist simultaneously in custom and treaty a. Treaties often codify customary law b. Treaty codification process does not destroy customary norm. 3.2 Soft Law and Jus Cogens A. Distinction between hard law and soft law 1. Rules that emanate from law-creating processes listed in Article 38 are sometimes referred to as “hard law”. Hard law is binding and enforceable. 2. The term “soft law” is used to describe instruments that are not legally binding at present, though they affect the conduct of international relations by states and may lead to the development of new international law. B. Jus Cogens 1. Jus cogens are the peremptory norms of international law. A peremptory norm is defined in the VCLT