1). What is state? In
term of Actors
v What
is actor? Actors are all legal system that must comply with
the rule of that system or face some from of sanction. In international law
actors are simply the individuals and collective entities such as state and international
organizations, which make behavioral choices, whether lawful or unlawful. Actors shall be process rights and duties in
its manner, enjoys legal personality, and can be the object or subject of
international law.
v What
is state? States refer to the nation. State shall be having
sovereignty, population, territory, and independence. State shall have right
and duties such as:
-
To obey treaties and international
law in general
-
To compensate other states and
their citizens in case of material harms
-
To protect foreign nationals and
their property and treat them as well as their own citizen without regarding
matter of voting an holding political office
-
To self-preservation include
self-defense
-
To enjoy a right to legal equality
and sovereign independence including control over their domestic affairs
-
To recognize and participate in
diplomatic intercourse including joining international organizations
-
To sue other states in the ICJ and
other course if they have ratified the treaty creating their countries
-
Not intervene the other state
affairs or attack them by military
-
Not allow their territory to be
used to harm other countries that may cause pollution to reach another
territory
What is state in term
of actor? A state is a sovereign actor with a central
government that rule over a permanent population and territory,
protects, and prevents that population, government, and independence
in international policies, process right and duties in it manner as above, What
is State, then enjoy legal personality such as carries out diplomatic
intercourse, or exchange the ambassadors…etc. specially the can be the Subject
or Object of international law. The object of international law: the
actors receive the effect of international law including benefits and sanctions,
an official order, such
as the stopping of trade, which is taken against a country in order to make it
obey international law. The subject of international law shall have
duties and rights including capacity to appear before a penal of arbiter or
international court.
Example: USA
and Cambodia, UAS is the Subject because they provide the Exporters to develop
Cambodia, and Cambodia is the Object because they receive the Exporters from
USA by any international organization or any NGO.
2). What is the Subject
of international law?
A Subject of
international law also called an international legal person or actors,
is a body or entity recognized or accepted as being capable of exercising
international right and duties. There are two define of subject of international
law, namely, States and international organization.
v States
and international organizations are the main subject of international law which
has all capacities such as legal personality, their obligation and rights need
not be the same as a state.
Example: ICJ has recognize some
international organizations as proper subject of international law where are
they
-
Are
a permanent association of state, with lawful objective
-
Has
distinct legal powers and purpose from the member states
-
Can
exercise powers internationally, not only within a domestic system
In this types of
international organization are the EU, UN, WHO…etc. Like The International
Committee of the Red Cross, base Switzerland, has a unique status in international
law as inter-governmental organization
as guardian of the Geneva Conventions of 1949 for the protection of victims of
armed conflict. It is neither an international organization nor
non-governmental organization, but has a special legal stats under treaty law
by virtue of important functions in upholding legal protections i situation of
armed conflict.
3). What is the sources
of International law of ICJ?
It
is generally accepted that Article 38 of the Statute of the International Court
of Justice is a complete statement of the sources of international law. Article
38 describes the following four sources:
1.
international conventions and treaties that
establish rules that States expressly recognize;
2.
international custom as evidence of
general practice(s) accepted by States as law;
3.
general principles of law; and
4.
Judicial decisions and the teachings of
highly qualified publicists of various nations
v International
conventions and treaty:
Treaties, or international conventions,
can be bilateral (between two States) or multilateral (between
many States). A treaty is a written legal document (instrument) agreed
between States and governed by international law. It may be in the form of a
single instrument, or two or more related instruments. Although often used
interchangeably, the term ‘convention’ is usually reserved for multilateral
agreements, such as The Hague, Geneva, and Vienna Conventions. Treaties can also
be called agreements, protocols, or instruments. So the processes for
concluding a treaty generally include some steps such as: adoption, signature,
ratification, accession, entry into force, treat are binding, and reservations
to treaties.
v International
Custom
Customary
international law describes general practices accepted as law by States. The
development of customary international law is an ongoing process, making it
more flexible than law contained in treaties. The task of identifying or
describing customary international law, involves consideration of the following
elements:
-
the degree of consistency and uniformity of
the practice;
-
the generality and duration of the
practice;
-
the interests of specially affected
States; and
-
The degree to which the States who adopt
the practice do so from recognition that the practice is required by, or
consistent with prevailing international law,
The
shorthand for the belief that the practices required by law are opinio juris
et necessitates, a Latin phrase, in English is a legal rule that is
necessary to obey. A brief definition is that a customary rule is a general
practices accept as law, it still importance today especially in the area of
state duties and rights, state immunity, and state succession.
Example: Jus
Cogens: The principles of international law, which included the prohibition of
slavery and torture, genocide, the use of armed forced, and piracy on the high
sea, and more positively, the principle of racial non-discrimination, and the
right to self-determination, we called it compelling law and referred to
so-called peremptory norms of general international law. Not every principle of
international has the status of Jus Congens. To being understand how compelling
principle or rules of international law are and how they become so, it is
importance to make sense of how international law is found.
v General
Principle of Law
v Another
source of international law is ‘general principles of law’. The ICJ is directed
to consider ‘the general principles of law recognized by civilized nations’ in
its decision making: see Statute of the International Court of Justice,
Article 38(1)(c).
What are ‘general principles of law’?
Does it mean that the ICJ should search for what the legal systems of the world
have in common and apply those principles? Or rather, should the ICJ use
methods and doctrines of domestic legal decision making to the extent that they
are useful in addressing the questions before the Court, to develop an
international judicial method? The preferable view seems to be that
international tribunals use domestic law selectively where situations are
comparable to make the administration of international law work.8
Another good example
is the use by the ICJ of the principles of estoppel or acquiescence to the
relations between States. ‘Estoppel’ is a doctrine that comes from an equitable
tradition in legal reasoning that concerns itself with fairness,
conscionability and justice. Estoppel works like this. ‘State A’ acts or says
something to encourage ‘State Z’ to believe in a particular legal or factual
situation. State Z relies on what State A did or said. Now State A wants to go
back on its word or its representation and State Z will suffer as a result.
State Z can estop State A from changing it tune.
v Judicial
ad decisions and writing of publicists
The
Statute of the International Court of Justice says that the Court shall apply
judicial decisions and the teachings of the most highly qualified publicists as
subsidiary means for the determination of rules of law’: Article 38(1)(d).
Traditionally, judicial decisions and writing of publicists do not themselves
form a source of international law, but help the Court to identify the scope of
customary law, proper interpretation of a treaty, or existence of general
principles. According to a leading academic, the idea of a hierarchy of sources
of international law with judicial decisions and academics at the bottom is
misplaced.11 The International Court of Justice (ICJ) is the main court of the
UN and its decisions identify and articulate international law rules based on
treaty, custom, general principles of law, judicial decisions of international
and national courts and tribunals, and the writings of jurists.
-
Judicial decisions
1. The
decisions of the ICJ have no binding force, except for between the parties in a
particular case: Statute of the ICJ, Article 59. While this means that there is
no formal and consistent system of binding precedent, the ICJ does have regard
to its previous decisions and advisory opinions and to the law that it has applied
in previous cases. It is also concerned to ensure procedural consistency.
2. Some
ICJ decisions have been influential in developing new rules of international
law. For example the Reparations case, which established the legal
personality of the UN;12 the Nuclear Tests cases, which concerned the
circumstances in which a unilateral declaration is binding on the State that
made it;13 and the Anglo- Norwegian Fisheries case concerning how the
territorial sea is to be measured along a deeply indented coastline or coastal
fringe of islands
3. Decisions
of other bodies, including arbitration panels, specialist tribunals and
regional courts such as the European Court of Justice and the European Court of
Human Rights, assist in application of particular aspects of the law. Decisions
of domestic courts, which interpret rules of international law can provide
guidance as to the law, and provide evidence of the practice of that State in the
development of customary international law.
-
Writing of Publicists and jurists
The
writings of publicists and jurists (that is, academics of international public
law) are important in the ongoing refinement and development of international
law. They inform the shape of legal advice given to governments and therefore
inform State practice; they are used in pleadings and in argument before the
ICJ by States.
Other
sources treated similarly to the writings of eminent publicists, and at least
as authoritative15 are:
-
the reports, research and draft articles
produced by the International Law Commission (a subsidiary organ of the UN
General Assembly responsible for the progressive development and codification
of international law: UN Charter, Article 13(1)(a));
-
resolutions and working papers of expert
bodies
-
the workings of secretariats providing
the legal basis for conferences and working groups such as theHague
Codification Conference.
