Chapter 2 Audio podcast

All legal systems are essentially closed systems, in a sense that they have their own logic and their own rules. In fact, to non-lawyers, a legal system often appears to be a very different thing from the real world. For one thing, in a legal system, you cannot win a case with any sort of argument. You cannot, for example, prevail by arguing that the solution you prefer, somehow is, all things considered, the most fair one. The solution you think is the right one must be the right one because it is backed up by legal arguments. In a legal system, you win your cases and you win your arguments by using arguments that are found in the legal sources. In that sense, we can say that it is the legal sources of a system that limit, and also define, the arguments that are available to the lawyers who practice in that system. All legal systems have their own legal rules, and they are found in what we call the sources of law. And that is also the case with the international system. So, when we look for the content of international Law, the rules that define what is allowed and what is not allowed in international Law, we consult the sources of international Law.This episode of the International Law Podcast, episode two, focuses on those sources and I'll make three separate points.

The first point I'll make is that it can sometimes be anything but easy to actually find the legal rules that apply to a particular dispute in international Law. Now in national Law, it is generally quite simple to find the legal rules that apply in any given case. In most of the cases, the legal rules are found in national legislation that areenacted by the domestic legislature, often a parliament. On particular and often very principled issues, the relevant rules may also be found and applied directly through a national constitution. And to help clarify what a particular provision in a constitution or in a piece of national legislation actually means, one can often find relevant court cases from national courts. Here, in such cases, one can see how a particular provision is interpreted in practice.

In national law, usually, another other option, if there is any doubt, is to consult the preparatory work to the legislation in question. Here, the national lawyer can usually see what the legislator wanted to accomplish, when it drafted a particular provision in a particular piece of legislation.

It is very different in international law. As I mentioned, in the first episode of this podcast, there is no world parliament that functions as the legislator in the international legal system. Just like there are no courts that more or less automatically have the final say on the interpretation of the law. And since international law is adecentralized legal system, the content of the law is sometimes found in different types of legal sources.

Now, the obvious place to begin when one looks for the legal sources in international law is Article 38 of the Statute of the International Court of Justice. We will return to the court, the ICJ, in more detail in a later episode of the podcast. Here, I merely want to focus on the legal sources that are enumerated in Article 38. The article lists the following three legal sources as primary sources: International Conventions, International Custom, and General Principles of Law recognized by civilized nations. The article also mentions two other sources that are listed as subsidiary, or secondary, sources of law: judicial decisions, and the teachings of the most highly qualified publicist of the various nations. Essentially, that is academic contributions, scholarly interpretations, such as my textbook. The distinction between primary and secondary legal sources is one that is often overlooked. That, I think, is a shame, because I think it is actually quite important.

Primary legal sources are law creating. It is in those sources that one finds the substantial rules that contain the rights and obligations of a particular legal system. That is, the concrete expression of what is allowed and what is not allowed.Secondary legal sources,on the other hand, are merely law identifying. They clarify the content of what one finds in the primary sources, the distinction between primary and secondary legal sourcesis not just relevant in international Law. It can also be applied to most national legal systems. Here,a constitution and legislation are primary sources of law, while case law from courts and various academic interpretations are secondary sources. And here I have to stress that I'm aware that decisions from the highest national courts, such as Supreme Courts, are sometimes referred to as primary sources of law. And that is theparticular case in common law countries. But since judges will generally not say that they somehow invent or create new law, they will usually say they merely apply the law as it exists. I still think that case law is best conceived of as a secondary source of law. Anyway, that was a bit of a sideshow.So just to recap, under Article 38 of the ICJ statute and international law, the primary sources are conventions (also what we call treaties), customary law, and general principles.And the secondary sources of law are judicial decisions and scholarly contribution.

The second point I want to mention in this episode concerns the hierarchy of the different sources. Again, if we look at national legal systems, we are used to there being a clear hierarchy of the legal norms. Simply put, in national law, constitution rules carry more legal weight than legislation and administrative regulation. And for that reasonadministers of regulation must comply with legislation, just like legislation must comply with a constitution. For the most part, however, the primary norms and international law, the conventions, customer legal rules, and general principles of law all have an equal status. And are inherently of a higher hierarchy than the other norms. But what I want to focus on here is that there are a couple of exceptions to this main rule. The first exception is what we call peremptory norms.Peremptory norms, also known with a more fancy Latin expression jus cogens. A jus cogens norm expresses a fundamental value and it therefore cannot be delegated from by the states.

So states cannot simply just contract their way out of a jus cogensnorm, or otherwise limit the jus cogens norm. The International Court of Justice has found as an example that the prohibition of genocide and the probation against torture, arejus cogens norms. There are other jus cogens norms. Examples include the ban on slavery, the probation of aggression, the ban on crimes against humanity, and great breaches of the laws of armed conflict.

The second type of legal obligations in international law that can be said to be somehow more important than other obligations inInternational Law are what we call ergaomnes obligations.Again,another Latin expression. So to understand what an ergaomnes obligation is,one needs to understand that most obligations in International Law is usually just owed to a state that is the immediate beneficiary. Ergaomnesobligations,however,are owedto other states, as well. And what this means in practice, is that those other states may also invoke a breach of an ergaomnes obligation. In practice,there is substantial, if not complete, overlap between the norms that are deemed to jus cogens and an ergaomnescharacter. However, they serve different purposesand that is important to understand. Jus cogensrefers to certain obligations that a state cannot derivate from. Ergaomnesobligations are procedurally important because they are obligations that all states can invoke.

The third form of legal obligations that one can say are somehow of greater importance than other obligations,are obligations under the United Nations Charter.Here,one has to read Article 103 of the Charter. And what this means in practice is the resolutions that are adopted by the United Nations Security Council under chapter seven of the Charter must be complied with, even if it requires the states violate other international legal obligations. The exceptionto this is jus cogens norms. In a later episode of the podcast, we'll return to the competencies of the security council.

The third and final point I want to make here in this episode, concerns, so-called,soft law. Now, the legal sources we've gone over so far; they all create an expectation of behavior that is what we call a norm, that is binding on the international law. One should understand that the states often create other forms of expectations, too. In most cases, states actually only make political pledges. And here I want to be clear, breaching a political pledge or political commitment cannot result in any legal consequences. The unfortunate thing is that it can sometimes be quite difficult for a lawyer to determine when states intend to make it legally binding, or merely a politically binding commitment. To resolve those issues,it is usually required for the lawyer to try to determine what the states intended.

Did the states intend to make a political pledge or a legal pledge? The point I want to stress here is that when a political commitment begins to play a role in the creation of a legally binding commitment, we can refer to that political commitment as soft law. Again, soft law instruments do not, in themselves, create anything that is legally binding, but they can be relevant when it comes to creating customary international law.And practice, they can be evidence of state practice, or opinion juris, and therefore on that basis, help create binding international law.

There are many types of soft law instruments. The category involves various instruments that are adopted by international organizations, agencies, and committees; usually organizations that do not have the competence to adopt legally binding instruments in themselves. One of the best examples here are resolutions and declarations that are adopted by United Nations general assembly, because the general assembly cannot adopt legally binding instruments in themselves. But the resolutions and declarations the general assembly will adopt may sometimes be relevant for identifying state practice, as well as opinion jus.And to reiterate, it is on that basis that such resolutions and declarations can be soft law instruments that may help in the creation of legally binding obligations.