International Law Principles and Statehood
Item 3. Positivism and Dogmatic Approaches to Law
With the Vienna School, particularly Kelsen’s Pure Theory of Law, positivism emerged. This theory views law solely as a set of technical concepts and categories used to interpret legal rules through rational and deductive reasoning.
Kelsen aimed to separate law from extra-legal considerations. He envisioned law as a pyramid of rules, with the validity of each rule stemming from a superior rule. This hierarchical structure culminates in the grundnorm, a fundamental rule above all legal norms.
Initially, Kelsen posited that domestic laws derive their basis from international law and the grundnorm of pacta sunt servanda (agreements must be kept). He later refined this, suggesting the grundnorm is pacta sunt servanda consuetudo (customary rules of agreements).
In Italy, Perassi, a follower of Kelsen, applied the Pure Theory of Law to dogmatic principles, focusing on the hierarchy of rules within a legal system rather than the broader social context. This approach emphasizes determining the premium standard from which other standards emanate.
Item 4. Formal Sources and Material Sources of International Law
The sources of international law are the means by which international legal standards are created and manifested. Unlike domestic legal systems, international law lacks a legislature. Instead, it arises from state relations and practices. These sources can be categorized as:
- Formal Sources: As outlined in Article 38 of the ICJ Statute, these include treaties, custom, and general principles of law. Subsidiary sources include judicial decisions and academic writings.
- Material Sources: These are the underlying social, economic, political, and strategic factors that influence the development of formal sources. For example, public opinion played a significant role in the creation of landmine regulations. Material sources can become formal sources when they are codified into treaties or customary law.
Treaties are written agreements between states. While treaties primarily bind signatory states, some have broader effects, influencing the behavior of non-signatory states. The UN Charter exemplifies a crucial multilateral treaty.
Custom, another primary source, develops from consistent state practice accepted as legally binding (opinio juris). It is governed by the principle of rebus sic stantibus, meaning treaties are made considering prevailing circumstances, and substantial changes in these circumstances can justify treaty modification.
General principles of law are fundamental legal concepts common to civilized societies. They serve as foundational principles for both domestic and international legal systems.
Item 5. The Binding Nature of Treaties
The principle of pacta sunt servanda, enshrined in Article 26 of the 1969 Vienna Convention on the Law of Treaties, mandates that treaties must be performed in good faith. Article 27 further emphasizes this, stating that domestic law cannot justify treaty non-compliance. In essence, treaties supersede domestic law.
Item 6. Opinio Juris and Its Significance
Opinio juris sive necessitatis is the psychological element of customary international law. It refers to the belief that a particular state practice is legally obligatory. This element distinguishes legal customs from mere usage or courtesy.
While opinio juris is essential for establishing customary law, it can be challenging to prove. The ICJ has emphasized its importance in several cases, including the Lotus case, the North Sea Continental Shelf cases, the Gulf of Maine case, and the Nicaragua case. The Nicaragua case was unique in that the ICJ based its decision on the unilateral opinio juris of the United States.
Item 7. Generality, Regional Variations, and Bilateral Customs
Customary international law is generally considered to have universal application. However, the persistent objector principle suggests that a state consistently objecting to a developing custom may not be bound by it. Furthermore, regional and bilateral customs can exist alongside general customs. These localized customs address specific issues relevant to particular regions or pairs of states.
The ICJ’s decision in the Right of Passage over Indian Territory case affirmed the validity of bilateral customs, highlighting that consistent practice and implied consent can create binding legal obligations between two states.
Item 8. International Law and Domestic Legal Systems
The relationship between international law and domestic law varies across countries. There are four main approaches to incorporating international law into domestic legal systems:
- Binding Reception: International law is directly incorporated upon ratification.
- Automatic Reception (Monism): International law automatically becomes part of domestic law.
- Dualist Transformation: International law requires legislative implementation to become domestically applicable.
- Special Transformation: Specific legislation is required to incorporate international law.
In Spain, treaties become part of domestic law upon publication in the Official State Gazette (BOE). However, a potential conflict arises between the time a treaty is ratified and its publication, as Spain is internationally bound but the treaty may not yet be applicable domestically.
Item 10. States with Diminished Capacity
Historically, various forms of states with diminished capacity existed, including vassal states, protectorates, and neutralized states. Micro-states, while possessing full sovereignty, often rely on larger states for certain functions due to their limited size and resources. States integrated into supranational structures, such as the European Union, voluntarily transfer some of their sovereign powers to the organization.
Item 12. Statehood, Effectiveness, and Recognition
The prevailing view is that statehood is a matter of fact, not law. A state emerges when it meets the four criteria of statehood: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. The declarative theory of recognition holds that recognition simply acknowledges the pre-existing factual situation of statehood.
Item 13. Rights and Duties of States
The UN Charter and various declarations and resolutions outline the fundamental rights and duties of states. These include the prohibition of the use of force, the peaceful settlement of disputes, non-interference in internal affairs, and cooperation among states. The Charter of Economic Rights and Duties of States further elaborates on economic rights and duties, emphasizing cooperation and a new international economic order.
Item 14. Decolonization and Self-Determination
The UN Charter promotes self-determination and established a trusteeship system for non-self-governing territories. Resolution 1514 (XV) of the UN General Assembly, the Declaration on the Granting of Independence to Colonial Countries and Peoples, further advanced decolonization. However, the safeguard clause in this resolution limits self-determination when it threatens the territorial integrity of existing states.
Item 15. State Succession
The Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (1983) governs the transfer of assets, archives, and debts in cases of state succession. Generally, property located within a new state’s territory remains with that state. Archives are often shared or copied. The allocation of public debt depends on the specific circumstances of the succession, such as merger, dismemberment, or independence of a former colony.