Chapter 2 Guidance on Answering the Questions in the Book

Question 1:
Why is the theory of sources tied to more basic theories about international law and basis of legal obligation?

Guidance:
The question requires the student to consider the link between the theories of international law presented in Chapter 1 and the theory of legal sources that is the topic of Chapter 2. The different theories about international law are linked to the theory of sources because the different theories do not derive the binding nature of the law from the same source. Since proponents of natural law derive the binding character of international law from what the book describes as elementary dictates of justice, this is also where they will find the relevant legal sources. Positivists, on the other hand, derive the binding nature of international law from the will of states and therefore tie legal sources to evidence of state will or consent – the consensual theory. The book notes that the existing theory of legal sources in Article 38 of the ICJ Statute is grounded in positivist theory in the sense that the three primary sources (treaty, customary international law, and general principles) are all derived from state consent, whether expressed explicitly or tacitly. The theoretical approach of the book, however, is fairly pragmatic in the sense that it finds that states are always bound by the rules required for the maintenance of peaceful co-existence in their society.   

 

Question 2:
What are the theoretical difficulties associated with the requirement of opinio juris as part of the formation of customary international law?

Guidance:
The question asks the student to adopt a critical stance towards customary international law as a source of international law. As the Chapter illustrates, customary international law consists of two elements: 1) a general practice among states and (2) acceptance by the states that the practice is legally binding. The second element – opinio juris sive necessitavis – is the subjective element required to create a legally binding customary obligation. The book notes that the requirement that a state participates in a practice in the belief that it is legally binding is theoretically challenging because it may often be hard to determine what, exactly, states believe the law to be. The book also notes that the requirement is difficult to reconcile with the fact that all practice must start at a certain point and that it is hard to see how a state that begins to adopt a certain practice – or begin to depart from an existing practice – does so believing that it is legally mandated. To that end it may be worth noting that the ILC has introduced a distinction between state behavior at a time when a rule emerges and behavior when a norm has already been established.

Question 3:
Where should one look for the practice of states for the purposes of the formation of customary international law?

Guidance:
The question concerns the first element of customary international law: the existence of a general practice. As the chapter notes, all acts of a state may as a point of departure be taken into consideration. What is important is that the act in question indicates how the state behaves. The book notes that potentially included are both physical acts – such as physical acts committed by different agents of the state – as well as various verbal acts – such as statements by state representatives, official statements and manuals, or statements made in international organizations or related fora. Verbal acts must, however, be public to qualify.

Question 4:
What is the difference between primary and secondary sources of international law? What are the primary and secondary legal sources in the national legal system in your country? 

Guidance:
The question seeks to engage the students in the different status of different legal sources. The book notes that there is a distinction between primary and secondary sources of law in Article 38 of the ICJ Statute. Primary sources are conventions or treaties, customary international law, and general principles and these sources are “primary” because they are deemed to be law-creating in the sense that they can establish new rights and obligations. Secondary sources listed in Article 38 are judicial decisions and scholarly contribution and, unlike the primary sources, these sources cannot create law but merely identify and apply the content of existing law.

 

Question 5:
In some cases, a conflict of norms may exist between the different sources of international law. Can you provide some examples of how international law tries to resolve such conflicts? 

Guidance:
The question tests the student’s ability to identify the different principles contained in international law for resolving conflicts of norms. The book notes that international law, in contrast to national law, does not contain any formal hierarchy and that conflicts of norms are not generally solved by the grating of one norm a higher normative value than the other. Instead, the international lawyer’s task is to determine which of the conflicting norms that should prevail in the particular situation. As a point of departure, though, a conflict will be resolved on the basis of certain “conflict of norms principles”, the most important being a principle of lex posterior and one of lex specialis. While the former stipulates that the norm which is later in time prevails, the latter holds that the norm which is more detailed in character should be applied over a general norm. The book also notes that international law does contain a number of exceptions to the general rule that all norms have the same value. First, under Art. 53 of the VCLT, a treaty is void if it ‘conflicts with a peremptory norm of general international law’, also known as jus cogens. Secondly, unlike most other obligations, those obligations that are of an erga omnes character are not merely owed to another state but to the ‘international community as a whole’. Third, Article 103 of the UN Charter stipulates that obligations under the Charter must prevail in the event they conflict with other international legal obligations.

Question 6:
Is a ‘soft law’ instrument legally binding?

Guidance:
The question asks the students to consider the theoretical distinction between so-called “hard” and “soft” law. A hard law norm is one that is legally binding in the sense that it creates rights and/or obligations under international law. A soft law norm, on the other hand, is one that merely seeks to create a norm of behaviour of a non-legally binding nature. The determination of whether a norm is deemed to be legally binding or not (either hard or soft) is made according to what the parties intended. Law is an inherently binary discipline and there is no such thing as a “semi-legal” norm or instrument. A norm is either legally binding or it is not. In principle, therefore, a soft law norm cannot be legally binding (on its own, see guidance to Question 7).

Question 7:
What is the legal significance of a soft law instrument?

Guidance:
The question proceeds with the legal status of soft law. The book notes that, although soft law is not in itself legally binding (see also the answer to the previous question), it may be relevant to the creation of customary international law in the sense that it may be deemed to reflect state practice and/or the relevant opinio juris. It is therefore often noted that soft law instruments may assist in the ‘crystalizing’ of customary law.