法律竞赛 国际法读书圈笔记

国际法读书圈笔记：法律渊源部分

I. Shaw 国际法第三章 source

1. Intro:
A. Domestic legal orders: act of parliament;
definite finding ways---both verify the contents and demonstrate creation;
hierarchical character of the legal order;
stability and predictability
B. International law: no Centre; anarchic
By "sources" one means those provisions operating within the legal system on a
technical level: a survey of the process whereby rules of international law emerge
C. The enumeration of international law: Article 38 of the statute of ICJ--three
exclusive law-creating processes/law-exterminating agencies (not very distinctive)
Another distinction: formal or material laws? difficult to maintain

2. Custom
A. Introduction:
An aura of historical legitimacy: an authentic expression of the needs and values of
the community
Important due to the social structure: dynamic; common acceptance reflecting shared
concern
Do not always available and difficult to identify but have instant way; mirror the
democracy; consensus change; flexibility
Two basic elements: material and actual behavior/psychological and subjective
behavior
How to distinguish from behavior of benefits
Dispute: positivism emphasis opinio juris and ignore the duration and repetition of
action; others think belief is difficult to prove and only courts can decide
B. Material fact:
factors: duration, continuity, consistency, repetition and generality
Duration: dependent on the circumstances and the nature of the usage in case
Repetition and continuity: not absolutely conformity--inconsistency are breaches--
threshold dependent on the nature of the alleged rule and the opposition it arouses
and partly to the ambiguity; the strength of the prior rule which is purportedly
overthrown; Instant customary law with strong established opinio juris ---the need
of new areas and the lack of contrary rules
Like a road across vacant land: larger and closer countries have bigger influence; law
is dependent on politics needs
Concurrence of major powers in a particular field which is more important than
How failures make sense? Two different things; long failure can be a rule? Not
negative customs
Acquiescence based on complete knowledge
C. What is state practice?

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法律竞赛 国际法读书圈笔记

Numerous sources
Different ways
Organizations
Municipal laws and claims
Different acts have different weighs and values due to nature and provenance
D. Opinio juris
They believe they are bound to do so
Doesn't mean unchanged --treat the matter in terms of a process--shared reliance on
a new rule tend to a modification of customary law
Reference to UN to see opinio juris
E. Protest, acquiescence and change in customary law
Acquiescence: be treated as accept as legitimate and can mean concurrence
Protests are needed in breaking real legitimating processes
A contrary way？
Constant protests can be an exception sometimes
Dissent from the beginning means an exception
New states should accept all
F. Regional and local custom
The local custom required more proof especially for the party they claim bound by
the rule
Local cannot use the rule of consensus and based on the opinions of all the parties

3. Treaties
A. Intro
More modern and deliberate
Oblige themselves to obey
Law-making treaties having universal and general relevance and treaty-contract
Like contracts, expansion, mean the express consent of states
Law-making rules: establish new rules; require a large number of participants
Modifying existing laws
Treaties can come into customary laws: North sea continental shelf cases
Cannot replace customary law; may have different interpretation
Making organizations under treaties
Treaty-contract: evidence of custom
B. General principles of law
Analogy or general principles
Different opinions: natural law; sub-heading of positive law---prefer to be a new
source
More in procedure evidence and machinery field
Res judicata, circumstantial evidence, private rights, make reparation for violation,
estoppel--have limitations e.g. in failure to mention cases--definition: clearly and
constantly agree to a rule and another relying on it has got detriment
damnum emergens and lucrum cessans
Of good faith: to fulfill obligations, background principle

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法律竞赛 国际法读书圈笔记

ex injuria jus non oritur

The court has discretion
i. Equity and international law ideology?
many cases; some treat as human rights sources; as a rule, derived from applicable
law but not abstract rules
May not be independent; not discretion or fair distribution
Certain or uncertain?
Always delimitation cases, like divide a pool equally, always without evidence
These principles have value-judgment and should be incorporated by the community
Elementary principles of laws lie at the base
At the heart is humanity

4. Judicial decisions
A. A subsidiary source but very important
i. A59 of the Statute of ICJ: no binding force except between the parties and
in respect the specific case.
ii. Strike to follow previous judgments and insert a certainty
iii. They are always quoted.
iv. It does not follow that a decision of the Court will be invariably accepted
in later discussions. E.g. The lotus case
v. But the Court always at least put it at the start of the analysis
B. Arbitral awards and rulings of national courts
i. Alabama Claims arbitration: mark the opening of a new era in the peaceful
settlement of international disputes
ii. The decisions of municipal courts may provide evidence of the existence
of a customary rule/ practice of the states
iii. The Supreme Court of U.S. provides material in boundary disputes

5. Other possible sources of international law

A. Each source helps develop the new law and identify existing law.
5.1 Writers___A38
A. In the early days, writers are the supreme authorities.
B. With positivism textbooks become search sources.
C. Still an important way to arrange and focus the structure and form of international
law.
D. Publicist inject coherence and question the rules.
E. Maybe national prejudice in the particular environment.

5.2 The practice of international organizations

5.2.1 Resolutions and declarations of the General Assembly of the United Nations.
i. Not legally binding but recommender
ii. Basically, a parliamentary advisory body in early days.
iii. Now provide evidence of state practice and even opinio juris.(Nicaragua

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法律竞赛 国际法读书圈笔记

case)
iv. The majority voting for the same may cause a binding rule.
v. Also, authoritative interpretations of the UN Charter
vi. Show existence or evolution of opinio juris
vii. Take care and avoid ascribing legal value to everything due to the political
factors.

5.2.2 The International Law Commission

F. Promote the development and codification of international law
G. Make many important international conventions: draft--treaty
H. Issue reports and studies, formulate documents like draft statutes which may
influence the Court.
I. Involved in two sources: drafts form bases of treaties, which may continue to form
customary law; Part of the whole range of state practice which can lead to new
rules of customary law
J. Composed of famous publicists and equal to textbooks.

5.2.3 Other bodies

K. UNCITRAL and UNCTAD are increasing the trade law.
L. Committee on the Principles of International Law: produce many declarations and
statements.
M. International Labor Org and UNESCO
N. Other independent bodies

5.3 Particular non-binding instruments or documents or non-binding provisions in treaties

A. A special category called soft law
B. The Helsinki Final Act: emphasize the human rights
C. Especially in economic and environment fields
D. Political intention to act in a certain way

5.4 Unilateral acts

E. Sometimes lead to obligations-- recognition and protests intended to have legal
consequences
F. Criteria: intention to be bound of the state; the element of the publicity or notoriety
G. A statement to limit freedom should be interpreted restrictively.

6. Hierarchy of sources and jus cogens

A. Not as clear as domestic law in listing the order of authority; and the courts and
tribunals are in a non-hierarchical authority; significant expansion of law.
B. Judicial decisions and writings are subordinate; general principles of law are
complements.
C. Treaties and customs:
i. Generally, which is later in time will have priority.
ii. The same rule may co-exist in custom and rules.

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iii. a special rule prevails over a general rule

D. Complicated: erga omnes and jus cogens
i. Different nature: the scope of application extends to general states with a
procedural focus; substantive rules recognized of higher status
ii. Erga omnes: concerning standings
iii. Jus cogens: acceptance of fundamental and superior values within the
system; natural law thinning---note the development in individual
responsibility for international crimes
iv. A two-stage creation ways: establishment of the proposition as a rule of
general international law; the acceptance of that rule as a peremptory
norm by the community as a whole--avoid foisting peremptory norms
upon a political or ideological minority; based on treaties and custom; no
retrospective effect; no state immunity

II. Nicaragua Case

MPIL
1. Overview
A. US supported the movement of opponents of the Nicaragua. Other countries
claimed that Nicaraguan engaged in military assistance of rebels in their territories.
U.S. claimed that it was acting throughout in the collective self-defense.
B. Phases of the litigation
i. Jurisdiction: no on the continuing dispute-setting process; lost
ii. U.S. refused to appear to contest the merits; EI Salvador's application to
intervene was refused. US withdrew
iii. In 1986 Nicaragua commenced related proceedings against Honduras and
Costa Rica. Both discontinued
iv. Finally, with the accession to power of the Chamorro government, the
contras were finally disarmed. Compensation suspended and discontinued.
2. El Salvador’s Intervention
A. Art. 63 Statute of the ICJ: Failure to comply with Art. 82 ICJ Rules of Court
B. Art. 62: refused at the merits phase
C. Not merely is jurisdiction intrinsically bilateral, but El Salvador’s declaration was
so vague it would have failed to get over even a less stringent threshold.
3. Jurisdiction and Admissibility
Based on the optional clause and the treaty of friendship. Without referring to Connally Reservation
A. Jurisdictional issues
i. Nicaragua’s Failure to Ratify the Statute of the Permanent Court of International
Justice: Interpretation of Art. 36 (5) ICJ Statute
1. The 1929 declaration had a potential effect
2. Actually, there was no ratification.
ii. Effect of the Shultz Letter: Modification of an Optional Clause Declaration Other
than in Accordance with Its Terms
1. Unilateral undertakings under the optional clause system were not

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inherently revocable without notice

2. Due to good faith, US was bound by its six-month notice provision
3. Reciprocity? Only apply to the terms of an optional clause declaration ---
even apply to the termination? Reasonable notice!
iii. Effect of the Vandenberg Amendment: Disputes under a Multilateral Treaty where
Not All Parties to the Treaty Are Parties to the Case
1. Until decide the merits can determine parties.
2. Return to the issue in 1986: held that El Salvador, at least, was ‘affected’
by the decision.
3. A distinction between a dispute and its cause of action. Dispute did not
cease to meet the description of a dispute arising under a multilateral
treaty because it might also be described as a dispute arising under general
international law
4. A treaty prevails over custom unless the customary rule concerned has the
status of a peremptory norm. Since the breach of the OAS Charter was a
substantial and substantive ground of Nicaragua’s complaint, that should
have been enough to exclude the Court’s jurisdiction under the
Vandenberg amendment.
5. Conclusion: the case both arise under the treaties and general international
law, and actually the treaties prevail over the customary law. So, the Court
had no jurisdiction
iv. Jurisdiction under the 1956 Treaty of Friendship
1. The court was entitled to consider additional grounds for jurisdiction,
provided that these did not alter the nature of the dispute
2. The treaty sufficiently affects the case.
3. It could be easily terminated.
B. Admissibility Issues
i. Non-Joinder of Necessary Parties: Scope of the Monetary Gold Principle
1. Restrict the Gold principle to when the subject-matter was a right or legal
interest of third state.
ii. Non-Exercise of Jurisdiction over Disputes before other Forums; Capacity of the
Court to deal with Situations involving Continuing Conflict
1. The UN security Council's authority is not exclusive.
iii. Non-Justifiability
1. ?military or political issues are not justiciable? ---as long as there are
applicable norms of law.
2. Another justice: an exception for case of continuing use of force and
where the Court cannot reach a reliable judgment.
4. Merits
A. First determine the scope of customary law about non-intervention and the use of
force (because of the Vandenberg Amendment)
i. Rely on resolutions of International organizations.
ii. The limits on the right of collective self- defense against an armed attack:
necessity, proportionality, the existence of an armed attack, the

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requirement that the State defended should have declared itself the subject
of an armed attack and have requested the other State to act in its defense.
iii. Non-intervention: also apply in assistance of democratic opposition
B. The parallel existence of customary law and treaty law
i. Coexist
C. Facts
i. Contras are not an agency of the US
ii. US was responsible for the help given to the contras but not all
iii. The provision of strictly humanitarian aid to persons or forces in another
country could not be regarded as unlawful intervention or in any way
contrary to international law; but discrimination is not humanitarian
assistance
D. Self-defense
i. Nicaragua's support for rebels do not amount an armed attack
ii. Nicaraguan junta's commitment is political but legal
E. Breach of the treaty of friendship
i. jurisdiction over which was conferred under the optional clause and not
under the treaty itself
ii. the mining and the trade embargo, were not ‘necessary’ for any of these
purposes of the treaty
F. Reserve the question of damages to a subsequent phase of the proceedings.
G. The applicable principles of evidence
i. Difficulty in non-appearance
ii. The Court is bound to satisfy itself that the applicant State’s submissions
are well-founded in fact and law
iii. Respect equality
iv. four kinds of materials submitted as evidence
1. First, many documents were supplied in the form of reports in
press articles and extracts from books. (single source needs
caution)
2. The second type of evidence discussed consisted of statements of
State officials
3. The third type of evidence was from witnesses, either in the form
of oral testimony or by affidavit (no cross-examination needs
attention)
4. a publication from the US State Department
5. Related Proceedings
A. In another two cases, Only the case against Honduras proceeded
i. Admissibility: Must negotiation first? The Court held that the Contadora
process was markedly different from direct negotiations through the usual
diplomatic channels
6. Assessment
A. Authority was shaken due to the U.S.
B. The court remained a substantial consensus which is an achievement

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C. The ‘effective control’ standard was criticized by 'overall control going beyond the
mere financing and equipping of such forces and involving also participation in
the planning and supervision of military operations.' ---actually is a different
context: the latter is to determine internationalism
D. Art. 8 ILC Articles provides that the conduct of a person or group of persons is
attributable to the State ‘if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that State in carrying out the
conduct’.
E. The leading case in the use of force

III. Case Excerpts (p172-182)

1. The law applied to the dispute
A. US: The consequences of the exclusion of the applicability of the multilateral
treaties for the definition of the content of the customary international law which
remains applicable.
1. US: The provisions of the United Nations Charter relevant here subsume
and supervene related principles of customary and general international
law. So, the treaty bars all of claims. The reservation prevents applying all
customary law which is also the subject of a treaty.
2. US: The existence of principles in the United Nations Charter precludes
the possibility that similar rules might exist independently in customary
international law, either because existing customary rules had been
incorporated into the Charter, or because the Charter influenced the later
adoption of customary rules with a corresponding content.
B. The Court: Independence!
1. It can be claimed that all the customary rules which may be invoked have
a content exactly identical to that of the rules contained in the treaties
involved. Not identical in content
1. The charter is based upon the natural right and the customary law
2. The charter does not regulate all the content of the rights
2. Even the same:
1. No ground for supervening
2. Applicability
3. the methods of interpretation and application
C. The parties are bound by customary law
1. US: pacter sunt servanda
2. The court: no marked difference

IV. Nicaragua Case (Excerpt paras. 183-225)

1. What are the rules of customary international law applicable to the present dispute?
A. Practice and opinio juris
B. Subjective element
1. Take the treaties into consideration about the content.
2. State's recognition is not enough for the Court (general practice)

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3. Do not need to be perfect

2. The substance of the customary rules
A. U.S.: embodied in the UN Charter
B. Declaration on Principles of International Law: (reflection of opinio juris)--thus
separate from the provisions in the Charter
C. US's opinio juris
D. The UN Charter: jus cogen; the declaration: cover the less grave form of the use
of force; the inter-American organization
E. Exception: (collective) self-defense (both Charter and Declaration admitted) --
only an armed attack has already occurred; observance of the criteria of the
necessity and the proportionality of the measures
1. Sometimes involve 'substantial involvement therein' but not assistance to
rebels in the form of weapons or other
2. Collective self-defense depended on the victim's declaration
3. A request addressed by that State to the third State? Inter-American
treaties: attack at all the countries, ask for a request
4. Whether needed reported to a body? The requirement of the Charter
should be respected
3. The principle of non-intervention---
A. It is customary law
1. Opinio juris easily found
2. The Charter doesn't need to cover all
3. Practice: in resolutions and treaties
B. What is the exact content?
1. The choice of the system and foreign policy should not be restricted by
coercion directly or indirectly, especially support rebels and terrorists.
C. No right to support opposition even by reason of some values (no opinio juris)
1. US here does not refer to the new right to intervene
4. If one State acts towards another State in breach of the principle of non-intervention, may
a third State lawfully take such action by way of counter-measures against the first State as
would otherwise constitute an intervention in its internal affairs?
A. Analogous to collective self-defense, less grave; no armed attack
B. When armed attack, such use of force is lawful; but only when armed attack
5. Respect for sovereignty
A. Power of territory, including air and sea
B. The mining happened in internal water, prejudicing both sovereignty and the free
access right of other ships.
6. Humanitarian law
A. The mining without precaution also violated humanitarian law
B. Nicaragua did not invoke Geneva Conventions, but the court could treat it under
the convention; and even go back to the general principles
C. Elementary considerations of humanity (not need to consider reservation). These
rules apply to international and non-international conflicts identically
7. The FCN treaty

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A. The court has jurisdiction to decide on the interpretation and application

B. The difference between "necessary" and "it considers necessary"
C. Necessary measures to protect security and peace must be what must be taken in
performance of an international commitment of which any evasion constitutes a
breach, which cannot extend to common self-defense
D. Protect essential security interests? Maybe beyond 'necessary'

V. Nicaragua Before the International Court of Justice

1. The 1986 Judgment's Legacy
A. one of the crowning achievements of the International Court of Justice
B. The contributions on the sources of law
1. Treaty and custom coexist
2. Refer to resolutions
C. the law on the use force and non-intervention
1. confirms the customary status of the general prohibition on unilateral use
of force
2. Armed attack as a threshold for self-defense
3. Specific conditions on self-defense
4. Non-intervention
D. States responsibility
1. attribution of conduct of persons or a group of persons to the state
(effective control)/overall control
E. Defects
1. Downplay the state practice
2. Set the threshold for the occurrence of an armed attack too high,
3. Unconvincing and unrealistic rules for collective self-defense
4. The non-intervention did not consider human rights
5. Fail to handle facts correctly
2. The Aftermath of the 1986 Judgment
A. Reparation Proceedings and Attempts of Enforcement
1. Fail to get reparation
2. New president discontinued the proceedings
3. Once brought under Security Council
B. The Cases against Costa Rica and Honduras
1. Settled by regional effort
3. The Interplay Between Treaty and Customary Law
A. Reservation: custom and treaty overlap; except: all parties affected
B. precedents
1. Rights of the Nationals of the U.S. of America in Morocco :U.S. declared
custom independently subsist
2. North Sea Continental Shelf: a treaty provision could reflect customary
law in three ways
3. United States Diplomatic and Consular Staff in Tehran: a breach of both
treaty and custom

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C. Principles of customary law could apply independently

D. The merits phase
1. The treaty and the custom are not identical in content
2. No grounds for supervene
1. Applicability (no termination in customary law)
2. methods of interpretation and application of the two sets of rules:
E. A multilateral treaty reservation could not preclude the Court from ruling on claims
under customary international law; criticism: circumvent the reservation but still
use treaties as evidence---response: custom survive on its own
F. Customary law binds states independently; different ways of avoiding customary
law.
G. Reservation only has effect in the context of a treaty; but affect the opinio juris
4. Customary International Law in the 1984 and 1986 Nicaragua Judgments
Support for the adoption by the ILC of its drafts Conclusions on the identification of customary
international law in August 2016
A. The North Sea Continental Shelf Cases and Customary International Law
1. Two-element approach
2. Practice: virtually uniform (Anglo-Norwegian Fisheries case: substantively
uniform)
3. Derive the subjective element from states' statements? Actually, merges two
elements.
B. The Nicaragua Case and Customary International Law
1. The Identification of Customary International Law
1. Derive from UN resolutions, departure from orthodox way
2. Emphasize practice: consistency not perfect--no states would admit their
actions violate the rule
3. The prohibition of the use of force: Opinio juris from "jus cogens" and
ILC material
4. Relying on UN resolutions for opinio juris, admitted by ICJ and others---
but the treaties are specific and limited in its context
5. Emphasize opinio juris over practice
6. Effectively deductive
7. Another view: just questions of evidence but not deduction--it is inductive
2. The Regime of Customary International Law
1. The independence of custom law; elementary considerations of humanity
C. Concluding Remarks
1. Departure from the orthodox way, do not result from general and consistent
practice
2. Theoretical reflection of the identification of customary law.

VI. The Impact of the Nicaragua Case on the Court and Its Role

Harmful, Helpful, or in Between

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Intro -US: the court departs from judicial restraint to be politicized

1. Trends concerning acceptance of compulsory jurisdiction under Art. 36(2)
A. No stampede for exits with respect to compulsory jurisdiction: otherwise increases
B. Acceptance features:
1. 4 retreat from it
2. Several added reservations, military activities exclusion rose from 8 to 12
C. New compulsory treaties? The fraction lowered
2. Trends concerning cases brought to the court
A. Increasing number of cases, especially central America
B. Clients from developed Western countries to other developing counties
C. Some studies are not serious about the truth
D. invocation of the judicial process in the midst of armed conflict, but Nicaragua was
not the first---difficult for the Court to solve?
E. Doubt about the resolution effects of this type
3. Adjustments by the Court in its Pose-Nicaragua jurisprudence
A. Not decline to solve disputes due to political backgrounds
B. But become more cautious about politics; slow the pace
C. Procedural fairness
4. Impact on compliance in other cases
A. Did not make countries refuse to accept
B. On U.S. unfavorable: fail to enforce subsequent cases-- no self-executing treaty
5. Conclusion
A. U.S. turn a little away from the Court
B. No more jurisdictional commitments

VII. The Nicaragua Case: ‘Mafiosi’s’ and ‘Veteran’s’ Approaches

Combined
1. The impact of the Nicaragua case on the Court and its role: reflections of an intentional
lawyer
A. Nicaragua and the states’ policy towards the Court
1. Not brilliant at that time
2. Burkina Faso/Mali attracted African states
B. Nicaragua or the triumph of David over Goliath?
1. Weak over the strong
2. Retrospective: reflections of a participant
A. Non-appearances
1. The judges considered the position of US
2. The US judge take the responsibility of cross-examination
B. The 1984 judgment
1. The reasoning may not be self-evident
C. The 1986 judgment
1. Much more balanced than one may in general
2. Concerns the burden of proof and the role of witnesses.

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1. Oral statement is not important

3. Attribution the US

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