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SOURCES OF ICL

SOURCES OF ICL. Dr . Maja Munivrana Vajda, LL.M . SOURCES OF ICL. International Courts. National Courts. Generally the same sources, but their application depends on national law. Sources and hierarchy of IL. Art . 38 ICJ Statute ( choice of law ).

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SOURCES OF ICL

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  1. SOURCES OF ICL Dr. Maja Munivrana Vajda, LL.M.

  2. SOURCES OF ICL InternationalCourts National Courts Generally the same sources, but their application depends on national law • Sources and hierarchy of IL

  3. Art. 38 ICJ Statute(choiceoflaw) a) international conventions, whether general or particular,establishing rules expressly recognised by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognised by civilised nations; d) subject to the provisions of Article 59, judicial decisions and theteachings of the most highly qualified publicists of the variousnations, as subsidiary means for the determination of rules of law.

  4. INTERNATIONAL CONVENTIONS 1. Statutes - Treaties/SC Resolutions establishing international courts and conferring on them jurisdiction 2. Other international treaties – to which the Statutes refer + other treaties, es evidence of the crystallization of customary rules • Vienna Convention on the Law of the Treatues, 1969. (art. 31.-3)

  5. ViennaConvention • A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be givento the terms of the treaty in their context and in the light of its object and purpose. • Recourse may be had to supplementary means of interpretation, including the preparatory work ofthe treaty and the circumstances of its conclusion…

  6. INTERNATIONAL CUSTOMARY LAW • State practice + opinioiuris • Source of incrimination, treaty interpretation filling gaps, • Problems: uniform practice is rare, different approach of common law and civil law jurists, relationship with principle of legality – identifying international customs v. legal certainty and foreseeability

  7. GENERAL PRINCIPLES OF LAW • International (criminal) law? • Criminal law of states – comparative survey of the principle legal systems of the world (common law, civil law, but other legal systems as well) • Art.7(2) ECHR/15(2) ICCPR: “This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations.”

  8. JUDICIAL TEACHINGS AND OPINION OF SCHOLARS - formallynotbinding, but mayserve as animportant to ascertainif a customaryrulehasevolvedand as a means to establishappropriateinterpretationof a treatyrule - Aleksovski - AC

  9. Čl. 21. Rome Statute – APPLICABLE LAW • The Court shall apply: • In the first place, this Statute, EOC and its RPE • In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict • Failing that, general principles of law derived by the Court from national laws of legal systems of the world, including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

  10. Art. 21. Rome Statute– APPLICABLE LAW (2) The Court may apply principles and rules of law as interpreted in its previous decisions. (3) The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender,… age, race…..

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