a. An article in the American Journal of International Law written by an eminent jurist;
b. Draft articles prepared by the International Law Commission;
c. A decision of the Supreme Court of one of the parties to the dispute;
d. A United Nations General Assembly Resolution;
e. A Treaty to which only one of the parties to the dispute is a party;
f. A statement by the foreign minister of one of the parties; and
g. A previous decision of the ICJ.
Draw up a detailed memorandum for George explaining the sources of modern international law and advising him in particular as to the weight he should attach to the above-mentioned materials as sources and evidence of international law, drawing upon doctrinal aspects, relevant court judgments and opinions of authors.
The raison d’être of the following memorandum is to advise Chief Justice George of Ruretania about the most important material of international law. Seven materials are analysed: an article in the American Journal of International Law; Draft articles prepared by the International Commission; a decision of the Supreme Court; a UN General Assembly Resolution; a Treaty to which only one of the parties to the dispute is a party; a statement by the foreign minister of one of the parties; and a previous decision of the ICJ.
In the conclusion of the memorandum we will point out the most important materials which would help the Chief Justice in his sitting on the ICJ.
An article in the American Journal of International Law written by an eminent jurist
Professor Jochen Abr. Frowein believes that: ‘Nobody working in international law can do so without the American Journal of International Law’ (American Society of International Law, 2010a). The American Journal of International Law (AJIL) is now quite distinguished because it has been published every three months since 1907. The Journal’s articles and comments, written by eminent jurists tackle most of the recent developments both in international law and in international relations (Ibid). Therefore, Chief Justice George of Ruretania must give this source great consideration.
The American Society of International Law (ASIL) ‘supports more than 20 Interest Groups that explore related international law topics’ (American Society of International Law, 2010c). This Society which published the AJIL has a mission ‘to foster the study of international law and to promote the establishment and maintenance of international relations on the basis of law and justice’ (American Society of International Law, 2010b). It has 4,000 members from almost 100 nations; these include judges, academics, international civil servants and students interested in international law amongst others (Ibid).
The summaries and analyses of decisions taken by national and international courts are included in the AJIL. This makes it a fundamental resource for any judge around the world. Amongst the themes which are given prominence by the AJIL are: International Institutions; Human Rights and Humanitarian Law; Trade and Investment; Development and International Law; International Security; Women and International Law; Transnational Litigation and Arbitration; and Environmental, Science and Technology (American Society of International Law, 2010c).
Every issue of the AJIL shows a list of the recent books on international law. It also has plenty of articles which review the current issues in the international law arena. In the issue of July 2010, there were several articles on Piracy Prosecutions in Africa namely in Kenya and Somalia (American Journal of International Law, 2010). The international decisions taken in several cases around the world; like the ‘Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)’ where the International Court of Justice took a judgment on free navigation and fishing on a boundary river (Ibid); are presented. There were also articles on the ‘Contemporary Practice of the United States Relating to International Law’. The ‘US Delegation Active in ICC Negotiations to Define Crime of Aggression’ was one of the titles in this section (Ibid).
Eminent Jurists have a very important role in international law. For example: the Eminent Jurists Panel is examining ‘the compatibility of laws, policies and practices’ (International Commission of Jurists, n.d.) which are necessary to counter terrorism. This shows that eminent jurists are more than able to tackle issues worldwide. Their reputation is widely respected and hence their articles in the AJIL are an essential tool for anyone active in the application of international law.
Eminent jurists are part of the International Commission of Jurists (ICJ) which also includes lawyers and human rights defenders that are ‘united by international law and rule of law principles that advance human rights’ (ICJ Eminent Jurists Panel, 2004). Having the world’s most prominent judges and other persons active in international law, the ICJ ‘can command attention at the highest levels of the judiciary, legislature and executive’ (Ibid).
Draft articles prepared by the International Law Commission (by Maria Portelli)
Laws of State responsibility are principles which govern when and how a state is held responsible when an international obligation is breached. Thus the purpose of draft articles isn’t to define rules described as “primary” but in opposite maybe described “secondary” as they actuate the legal aftermath of failure in accomplishing accountability authorized by the so called “primary” rules. Secondary rules fall within the sphere for internationally wrongful acts.
Up till recently theory of law of state responsibility wasn’t well developed but things changed with adoption of “Draft Articles on the Responsibility of States for Internationally Wrongful Acts” by the International Law Commission held in August 2001. What draft articles are all about are an amalgamation of codification and continuous development. Since draft articles are general they don’t necessarily cater for all cases such as treaty regimes like the General Agreement on Tariffs and Trade and the European Convention on Human Rights who established their own explicit rules of accountability. Draft articles are important as they should be elaborated into a convention which is ultimately recommended by the International Law Commission.
The International Law Commission was established in 21 November 1947 by the United Nations General Assembly resolution 174(II) mainly with the primary purpose of “promotion of the progressive development of international law and its codification” (United Nations Documentation: Research Guide, International Law Commission). In fact the Commission meets in the United Nations Office at Geneva for one annual session and thus reports back to the General Assembly. The Commission; 34 members all expert on international law are elected by the General Assembly from a list of candidates whom are nominated by governments of member states within the UN.
Their role is vital since International Law Commissioners capture the Governments’ attention about their perspectives on the several aspects incorporated in the subject matter such as their operation, bilateral or regional, relating to the allocation of groundwaters from transboundary aquifer systems and the management of non-renewable transboundary aquifer systems relating to the topic entitled “Shared natural resources” (International Law Commission, Shared natural resources (Law of Transboundary aquifers).
State responsibility was always one of the matters which the Commission selected for regulation since its 1st session in 1949 but it was only during the 6th session when the Commission remarked resolution 799 of the General Assembly (7th November 1953) “Request for the Codification of the Principles of International Law governing State Responsibility” (United Nations, Resolutions adopted by the General Assembly during its Eighth Session) to endeavour the principles of international law ruling state responsibility. This in turn dealt with important issues like injuries to persons and for foreigners’ property.
By concluding, Dr. George you know that International Law is a primary concern of the UN, therefore if illegal acts continue taking place, make sure that you bring the attention of Governments without prejudice bringing in mind the question of future implementation or appropriate action to hold on to.
A decision of the Supreme Court of one of the parties to the dispute
The Supreme Court was established on February 2, 1790 and it the highest institutional body in the U.S. which runs the federal judiciary. This high power of the Supreme court can be seen in Article III, §1, of the Constitution as it states that the ‘judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish’ (Supreme Court of the United States 2009) Its power can be also seen as it has rule-making power. In fact, Congress, relies on the Supreme Court in order to set out rules to be followed by lower Courts. (Supreme Court of the United states 2009)
The Constitution itself establishes that the Court as both ‘original and appellate jurisdiction’. When stating that it has Original jurisdiction; it means that court has been the first and the only court to hear the case. Through constitutional measures, these cases are usually dispute states, ambassadors and other influential ‘high-ranking’ ministers. Hence according to Article 28 §1251:
The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens. (Legal Information Institute 2010)
On the other hand, appellate jurisdiction means that the Court can review decisions that were taken by minor courts. However, the Court is not obliged to take such cases, and most of the time, it would accept the appeal when it has national significance. (United States Courts)
It is composed of the Chief Justice, and a number of Associate Justices. These justice are nominated by the Presentiment with the help of the Senate. Currently there are eight Associate Justices. In order to hold this office, Article III, §1, of the Constitution stipulates that ‘Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.’(Supreme Court of the United states 2009)
In order to aid in it works there are the Court Officers. These include the; the Counsellor to the Chief Justice, appointed by the latter himself. The court then appoints; the Clerk, the Librarian, the Marshal and the Reporter of Decisions. The remaining court officers composed of; the Court Counsel, the Curator, the Director of Information Technology, and the Public Information Officer and appointed by the Chief Justice in consultation with the Court. (Supreme Court of the United states 2009)
The importance and power of the Supreme Court can be seen in the decision taken in the Texas V.Johnson Case (1989). The issue was that Gregory Lee Johnson burned an American flag in a demonstration at the Republican National Convention in Texas. Although no one was hurting, the civil society was quite offence by such a deed thus he was ‘charged and convicted with the desecration of a venerated object, in violation of the Texas Penal Code’ (Landmark Cases of the Supreme Court 2010). One might say the decision was to be taken in favour of the Civil society, however there is ‘a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable’ (Landmark Cases of the Supreme Court 2010). Here we see how decisions of the Supreme Court are strictly bound to the Constitution, in order to ensure fair judgement.
A United Nations General Assembly Resolution
Resolutions from the United Nations are important sources of modern international law. This is especially true when it comes to the International Court of Justice. Most important international laws emanated from the United Nations. Therefore it is important for any Chief Justice to attach importance to General Assembly resolutions. The following is a list of United Nations General Assembly Resolutions which can be important for the international jurist and which prove that UN General Assembly Resolutions are an important source of modern international law.
A General Assembly Resolution which has importance is Resolution 177 (II) – Formulation of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal (United Nations website). Resolution 177 (II) made a list of actions which are deemed as crimes against peace. This makes it an important source of international law.
Resolution 375 (IV) Draft Resolution on Rights and Duties of States which was written by the International Law Commission in 1949 and was brought before the UN General Assembly (UN). In this draft resolution, the International Law Commission emphasized on principles such as respect for the national sovereignty of a state, making states equal before international law and states’ duties such as not to interfere in other states’ internal affairs. This can be considered as another important source of international law which serves as a means to prevent aggression.
Resolution 217 (III) [A-E] International Bill of Human Rights, passed by the UN General Assembly on the 10th December 1948 is another source of international law, especially customary international law (United Nations website). This means that the principles found in this Bill create pressure points for states to be more respectful towards human rights. Also within the Resolution on the International Bill of Human Rights, there is another important document approved by the UN General Assembly and this is the Universal Declaration of Human Rights, Resolution 217 (III) [A] (UN website). The Universal Declaration of Human Rights contains thirty articles which established human rights as we know them today. This was drafted and approved by the UN General Assembly after the carnage and horrific war crimes and crimes against humanity that were committed by the Axis powers during the Second World War. So, as a result, the International has become one of the major sources of international law as well as a pressure point on states.
Another UN Resolution which is an important source of international law is Resolution 260 (III) Prevention and Punishment of the Crime of Genocide which was approved by the UN General Assembly on the 9th December 1948 (UN website). This resolution adopted the Convention on the Prevention and Punishment of the Crime of Genocide. This has to be seen in the context of the revelations of the cruelties of the Holocaust. This UN General Assembly Resolution remains a very important source of international law since genocides have taken place since the end of World War Two.
These resolutions (along with others) have been mentioned and analysed in order to prove that UN General Assembly Resolutions are important sources of modern international law as well as pressure points on states.
A Treaty to which Only One of the Parties to the Dispute is a Party.
As stated within Article 34 of the Vienna Convention on the Law of Treaties (1969) “a treaty does not create either obligations or rights for a third state without its consent” (UN Doc). The aphorism pacta tertiis nec nocent nec prosunt conveys the elementary notion that it is only the parties to a treaty that fall under an obligation to adhere in their actions to that treaty’s provisions. Article 34 of the Vienna Convention denotes this as a “general rule regarding third states” (UN Doc). This general rule is a “corollary of the principle of consent and of the sovereignty and independence of states” (Brownlie 627).
In drafting the Law of Treaties in 1969, the International Law Commission (ILC) had collectively accorded that obligations for non-parties to a treaty cannot be fashioned by means of the treaty itself. Article 35 of the Vienna Convention clearly provides that for an obligation for a non-party state to arise out of a treaty, that non-party state must explicitly agree to that obligation: “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing” (UN Doc). Furthermore, Article 26 of the Vienna Convention states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith” (UN Doc). This is stated under the caption ‘Pacta sunt servanda’ which generally means that any agreement entered into must be kept and respected. Thus, if it is clear that any party to a treaty, by virtue of its status as a party, must conform to the rules set by that treaty, then it must be equally clear that a non-party state is not required to do the same. According to Thirlway, “the principle res inter alios acta nec nocet nec prodest (a transaction between others effects neither disadvantage nor benefit) is as valid as pacta sunt servanda and can in fact be regarded as a corollary of that principle” (100).
From all of the above, one might conclude that in assessing the material submitted to the Court in the form of a treaty to which only one of the parties to the dispute is a party, Chief Justice George of Ruretania should not attribute much value to the material in question. This is due to the fact that one of the parties to the dispute in the case before the Court is not a party to the treaty which in turn means that the treaty is not binding on that party to the dispute. Additionally, Article 38 (1) (a) of the Statute of the International Court of Justice (ICJ) states that “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states” (3 Bevans). Since only one of the parties to the dispute is a party to the treaty in question, then the treaty does not qualify as valid material under the ICJ Statute since it establishes rules which are not “expressly recognized” (3 Bevans) by one of the parties to the dispute.
However, prior to dismissing the material in question altogether, Chief Justice George of Ruretania must be advised to properly scrutinize the treaty in order to determine whether any obligations stated within it are, or have become obligations of international custom. In such a case, those specific obligations within the treaty in question would have to be allocated much weight as valid sources and evidence of international law since “it is generally recognized that… a rule of general customary international law is binding on all states, whether or not they have participated in the practice from which it sprang” (Thirlway 102). Nevertheless, in such a case, the formal source of the rules which bind the non-party state would be international custom, even though the material source of the same rules would be the treaty. In other words, in such a case, the non-party state becomes bound by virtue of international custom and not by the treaty as such.
A Statement by the Foreign Minister of One of the Parties.
What is essentially being questioned here is the extent to which a unilateral act – a statement by the Foreign Minister of one of the parties in this particular case – on behalf of a state may or may not qualify as a valid source and evidence of international law. Prior to discussing the particular relevance of Foreign Ministers in international law, it would be appropriate to examine concisely, the significance of unilateral acts in general. In international law, pertinent unilateral acts may come in two distinct forms. Firstly, there are those acts, the effects of which are clearly regulated by international law. The act of ratifying a treaty for instance, would fall under this category. Secondly, there are those acts “which are defined, not by pre-existing legal rules, but by the simple intention of the state performing them” (Thirlway 116). A statement made on behalf of a state would fall under this category, which is why a discussion of this type of unilateral act should take place herein.
Prior to the ICJ judgement within the nuclear tests cases in 1974, unilateral acts of this type were not regarded as valid and important sources of international law. In effect, in comparison with unilateral acts the effects of which are clearly regulated by international law, such unilateral acts were deemed to be rather subsidiary. The above mentioned ICJ judgment of 1974 served to alter this general perception, even though the scope of this alteration is somewhat ambiguous. In the nuclear tests cases, the ICJ ruled that France, through its unilateral declarations that it would no longer test its nuclear capabilities in the Pacific, had in fact created for itself obligations of a legally binding nature. In its reports on the case in question, the ICJ established the following: “It is well recognised that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations… When it is the intention of the state making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking” (I.C.J. 253).
From all of this, one may conclude that in the case now before the Court, Chief Justice George of Ruretania should determine whether the state whose Foreign Minister made the statement intended to become bound according to its terms. If this is confirmatory, the Chief Justice should indeed attribute significant weight to the statement in question as a viable source of international law. After all, it is clear that the formal source of France’s obligation in the Nuclear Tests case was its unilateral declaration. The fact that it was neither a treaty nor a customary law that served as the formal source of France’s obligation in this particular case was unambiguous. However, some would argue that the Nuclear Tests cases were somewhat abnormal or extraordinary within this context and that “to base a theory of sources on a decision in a case the special facts of which are very unlikely to be repeated, does not appear a sound approach” (Thirlway 116).
There is also something to be said with regards to the fact that the material in question consists of a statement made, in particular, by a Foreign Minister. Chief Justice George of Ruretania may in fact also be advised not to take this material lightly by virtue of the fact that it was a Foreign Minister who made the statement. A Foreign Minister is generally responsible for his / her government’s international relations and commonly acts as his / her state’s leading representative in any cross-state dialogue, conference, convention or negotiation. According to Brownlie, “his or her acts may bind the state represented, and there is a presumption that a Minister of Foreign Affairs, simply by virtue of that office, has full powers to act on behalf of the state” (Brownlie 603).
In conclusion, supplying Chief Justice George of Ruretania with a categorical piece of advice as to the weight he should allocate to the material in question (a statement made by a Foreign Minister of one of the parties to the dispute) is not a simple feat. On one hand, the ICJ’s 1974 ruling that “declarations made by way of unilateral acts… may have the effect of creating legal obligations” (I.C.J. 253) as well as the fact that the declaration under consideration was made by a Foreign Minister seem to suggest that Chief Justice George of Ruretania must be advised to consider the material a viable source and evidence of international law. On the other hand, Chief Justice George has been invited to sit as an ad hoc judge on the ICJ and Article 38 of the Statute of the ICJ does not include statements made by way of unilateral acts as one of the means it shall apply “to decide in accordance with international law such disputes as are submitted to it” (3 Bevans). With regards to the material in question, it may be sensible for Chief Justice George to abstain from dismissing the Foreign Minister’s statement as a viable source of international law or even to take it lightly. However, since the ICJ Statute is clear in conveying alternative sources which the Chief Justice should be investigating, it may be equally sensible for the Chief Justice to attribute less weight to the Foreign Minister’s statement than he would to other materials explicitly listed within the statute.
A Previous Decision of the ICJ
“While every part of the Organization has a role to play in the promotion of the rule of law, the Court, as the principal judicial organ of the United Nations, is expected to play a central role in this area” stated the President of the International Court of Justice, H.E Judge Hisashi Owada on the 29th of October 2010 when addressing the United Nations General Assembly at The Hague. (International Court of Justice, 2010) The ICJ has developed from what was known as the Permanent Court of International Justice of which the statute was signed in 1920 and came into force in 1921. Even though the ICJ is not the PCIJ’s direct successor the continuation and similarity is quite evident especially in the amount of influence they hold. In fact, the ICJ is considered as one of the six main organs which make up the United Nations but is unique and different from the others as it may act as an independent court “and is not integrated into the hierarchical structure of the other five organs” (Malanczuk, 1997, pgs 281-282).
The United Nations Charter clearly states that the International Court of Justice is the main player in the settling of disputes by peaceful means and, therefore, it must be consulted and given much importance in any law issue especially when different parties are involved. Therefore, the ICJ and any previous decisions that it has taken must be taken into account when dealing with cases in Court. This, however, does not mean that a previous decision of the ICJ should be the only material assessed or that it should be given the most importance. One must not forget that states or parties may consult or resort to other means for dispute resolution meaning that the ICJ “is no longer seen solely as the last resort in the resolution of disputes” (Report of the International Court of Justice, 1999). Moreover, it is important to note that the ICJ may involve itself in two types of cases (International Court of Justice, ‘The Court’). One of these is of an advisory nature and, therefore, decisions taken in this instance are non-binding and, hence, if the Chief Justice of Ruretania is analysing a previous decision of the ICJ which was of an advisory nature, this would not carry with it much weight (Ibid). If, on the other hand, the material assessed involved a decision of the ICJ which was legally binding then a lot of importance must be given to it and it would be wise if the Chief Justice was to give it top priority (Ibid). In fact, if any party decides to go against such binding decisions, then harsh sanctions might be implemented upon it further stressing the fact that what is decided by the ICJ should not be taken lightly and any judge must consult it and priortise it when assessing different cases and materials.
As pointed out in the memorandum, all the seven materials analysed are important sources of international law for Chief Justice George of Ruretania. Here, the most important of sources will be given prominence. The first three, American Journal of International Law (AJIL), International Law Commission, Resolutions passed by the United Nations General Assembly and decisions of the ICJ are the most significant in importance.
The American Journal of International Law (AJIL) is very helpful for the jurist because it has a long-known reputation of analysing the latest cases of international law as well tackling many important themes of international law. The American Society of International Law (ASIL) publishes this journal and is consulted by judges and students from all over the world. This demonstrates its strong credibility and influence. This source is certainly one of the most important of all sources of international law.
The International Law Commission, which consists of 34 members – all experts on international law – are elected by the General Assembly. The Commission tackles state responsibility in the international community as it promotes international law and its principles and makes states responsible for their actions. This also ranks highest in importance since the basis of international law is the rights and duties of states.
A Resolution passed by the United Nations General Assembly is a very important source for Chief Justice George and since the establishment of the UN some important resolutions have been passed against genocides, the International Bill of Human Rights, and the Draft Resolution on Rights and Duties of States. The United Nations, with all its institutions has been the prime force in establishing international law and this is due to the lessons learnt after the bitter human tragedies of the World War Two. So, resolutions passed by the UN General Assembly rank very high in importance
A previous decision of the ICJ has to be given its due importance since it is the UN institution which deals with disputes between states and has the authority to do so by the UN Charter. The UN Charter gives the ICJ independence compared to the other UN institutions and this shows its importance. So Chief Justice George has to take a serious look into the decisions of the ICJ.
A Treaty to which Only One of the Parties to the Dispute is a Party is not that relevant because it only applies to a state which commits itself to a Treaty and has to live up to the obligations. But a jurist should still have look to see which states are members to Treaty and what the Treaty says.
A Statement by the Foreign Minister to One of the Parties is about unilateral acts and how relevant they are to international law. It is not that relevant but Chief Justice George should still give it proper consideration.
A decision by the Supreme Court of the United States of America (USA) is not that important for the Judge because it only covers the US, and does not have a lot of influence on the other countries of the World.
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