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    Session 3 - Sources of International Economic Law

    Uploaded by

    Juliana Chancafe Incio

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    of 8

    FACULTAD DE CIENCIAS ECONÓMICAS Y EMPRESARIALES

    ESCUELA ACADÉMICO PROFESIONAL DE ADMINISTRACIÓN DE NEGOCIOS GLOBALES

    Economic Integration and


    International Treaties
    Session 3: Sources of International Economic Law

    Professor: Jose Luis Castillo Mezarina


    Traditional Sources of International Law
    A discussion of the sources of international law typically starts
    with a key provision in the Statute of the International Court of
    Justice (ICJ).

    “Article 38

    1. The Court, whose function is to decide in accordance with


    international law such disputes as are submitted to it, shall apply:

    a. international conventions, whether general or particular, establishing


    rules expressly recognized by the contesting states;
    b. international custom, as evidence of a general practice accepted as
    law;
    c. the general principles of law recognized by civilized nations;
    d. subject to the provisions of Article 59, judicial decisions and the
    teachings of the most highly qualified publicists of the various
    nations, as subsidiary means for the determination of rules of law.

    2. This provision shall not prejudice the power of the Court to decide a
    case ex aequo et bono, if the parties agree thereto.”
    Traditional Sources of International Law
    Treaties

    Customary
    Courts
    4 2 International
    Decisions
    Law

    3
    General
    Principles of Law
    Treaties
     Most commonly, such agreements are made between
    sovereign States, although they can be concluded between
    States and international organizations.
     The former are regulated by the Vienna Convention on the
    Law of Treaties of 1969; the second, by the Vienna
    Convention on the Law of Treaties concluded between States
    and International Organizations or between International
    Organizations of 1986.
     The agreements between public companies of an State and
    States are not international Treaties. These are governed by
    the rules of private international law.
     Treaties may be given diverse names like pact, agreement,
    covenant, charter, protocol, memorandum of understanding
    and exchange of letters.
     Vienna Convention Article 2.a: “Treaty" means an
    international agreement concluded in writing between States
    and governed by international law, whether contained in a
    single instrument or in two or more related instruments and
    whatever their particular denomination”.
    Customary Law
     Custom is the oldest source of the Law.
     Emerges from patterns of behavior among states.
     These behavior patterns are called practice.
     The custom could be universal, regional or local.
     Article 38 of the ICJ Statute defined as "proof of a practice generally accepted as law“.
     Now, from this definition emerge the objective and subjective elements of custom:
    a. General practice.
    b. The practice must be repeated for an adequate period of time.
    c. Acceptance as a right.
     Characteristics of international custom:
    a. Generality: It is necessary that the majority of States participate in its formation,
    expressly or tacitly by accepting it without adopting a contrary position.
    b. Flexibility: Because it is not a written source, it lacks rigidity; and it can evolve with
    reality, adapting to new situations. In this way, a custom that no longer responds to
    current situations can gradually fall into disuse until it disappears.
     Examples: the breadth of the territorial sea (12 nautical miles), the obligation to repair
    in case of international responsibility, the prohibition of the use or threat of armed
    force.
    General Principles of Law
     Are used mostly to close gaps left by treaties and customary law.
     General principles of law are established by comparing national legal systems.
     The general principles of law are the coinciding axioms in the different legal systems.
    They can also be defined as general and fundamental legal ideas, that is, they are not
    just any normative precept but rather those that are valid for everyone.
     The general principles of law are instruments that a judge has to resolve disputes in
    the event of gaps in other sources.
     The principles of International Law (such as sovereign equality of States or non-
    aggression) should not be confused with the general principles of law (no one can be
    a judge in their own case, the special law repeals the general one, the later law
    repeals the previous one, principle of good faith, prohibition of abuse of rights).
    Decisions of Courts & Tribunals
     The decisions of courts and tribunals as well as scholarly writings clarify legal
    provisions through the Judges decisions and writings.

    Decisions of International Organizations


     Decisions of international organizations are extremely diverse , but they are just
    recommendations.
     Some decisions contain generally binding rules, like the regulations of the European
    Community, and are comparable to domestic legislation.
    Equity
     Defined as the application of justice to the specific case, equity constitutes
    an alternative means of dispute resolution in international law within the ICJ
    forum.
     The fundamental requirement consisting of the consent of the parties in the
    contest.
     According to its function, three classes of equity can be distinguished:
    a. Infra Legem: It serves to complete the Law, when a particular situation
    cannot be resolved with the help of legal norms. By resorting to equity,
    one could try to fill in the gaps in law.
    b. Extra Legem: It is applied when due to the particular circumstances of the
    case, which the strict Law cannot take into account, a certain injustice
    occurs. The law is more rigid than justice, so the first does not take into
    account individual cases, in this case the Law should not be used to
    achieve justice, because it should not be rigid.
    c. Against Legem: Equity can serve as a derogatory means of the Law.
    Actually, this function is only possible when the parties agree to it. That is,
    the judge will decide according to the basic law and form, but if he finds
    arguments to decide against them, he can do so.

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