POINTERS ON SOURCES OF INTERNATIONAL LAW

CUSTOMARY INTERNATIONAL LAW [ICJ Statute, art. 38(1)(B)]

(1) General, which is binding upon all or most states (e.g. freedom of the seas)

(2) Particular, which is binding only between two or among a few states.

Examples: The ICJ has recognized the possibility of regional custom [Asylum Case (ICJ, 1950)] and of
bilateral custom [Right of Passage over Indian Territory Case (ICJ, 1960)].

• Principle of Persistent Objector

o When a State has continuously objected to a new customary norm at the time when it is
yet in the process of formation, by such persistent objection the norm will not be
applicable as against that state.

• Duality of Norms
o It is possible for a norm of international law to exist both as a customary norm and a
conventional norm [e.g., prohibition against the use of force].
o Norms of dual character come into being when:
(1) a treaty provision simply restates a customary norm;
(2) a treaty provision constitutes evidence of custom; or
(3) a treaty provision crystallizes into a customary norm.

NOTES:
For a treaty provision to crystallize into custom, the provision must be norm-
creating or law-making, creating legal obligations which are not dissolved by their
fulfillment. [North Sea Continental Shelf Cases (ICJ, 1969)]. The customary norm retains a
separate identity even if its content is identical with that of a treaty norm. Thus, a State
that cannot hold another State responsible for a breach of a treaty obligation can still hold
the erring state responsible for the breach of the identical customary norm [Nicaragua
Case (ICJ, 1986)].

• PHILIPPINE PRACTICE: CUSTOMARY NORMS IDENTIFIED BY THE SUPREME COURT

o Rules and principles of land warfare and of humanitarian law under the Hague
Convention and the Geneva Convention [Kuroda v. Jalandoni (1949)]
o Pacta sunt servanda [La Chemise Lacoste v. Fernandez (1984)]
o Human rights as defined under the Universal Declaration of Human Rights [Reyes v.
Bagatsing (1983)]
o The principle of restrictive sovereign immunity [Sanders v. Veridiano (1988)]
o The principle in diplomatic law that the receiving state has the special duty to protect the
premises of the diplomatic mission of the sending state [Reyes v. Bagatsing (1983)]
o The right of a citizen to return to his own country [Marcos v. Manglapus (1989)]
o The principle that “a foreign army allowed to march through friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from criminal
jurisdiction of the place” [Raquiza v. Bradford (1945)]
 o The principle that judicial acts, not of a political complexion of a de facto government
established by the military occupant in an enemy territory, are valid under international
law [Montebon v. Director of Prisons (1947)]
o The principle that private property seized and used by the enemy in times of war under
circumstances not constituting valid requisition does not become enemy property and its
private ownership is retained, the enemy having acquired only its temporary use [Noceda
v. Escobar (1950)]
o The principle that a State has the right to protect itself and its revenues, a right not limited
to its own territory but extending to the high seas [Asaali v. Commissioner (1968)]

TREATY [ICJ Statute, art. 38(1)(a)]

Treaties are the most important source of obligation in international law.

• ‘Law-making’ treaties have a direct influence on the content of general international law.
• Bilateral treaties may provide evidence of customary rules. (e.g. extradition treaty).
• The expression of an obligation in universal or ‘all states’ form is an indication of an intent to create
such a general rule.
• Examples of Universal Declarations: Declaration of Paris of 1856 (on neutrality in maritime
warfare), the Hague Conventions of 1899 and of 1907 (on the law of war and neutrality), the
Geneva Protocol of 1925 (on prohibited weapons), the General Treaty for the Renunciation of War
of 1928, the Genocide Convention of 1948, and the four Geneva Conventions of 1949 (on the
protection of civilians and other groups in time of war)
• Although treaties are as such binding only on the parties, the number of parties, the explicit
acceptance of these rules by states generally, and, in some cases, the declaratory character of the
provisions in question combine to produce a powerful law-creating effect.
• Non-parties may by their conduct accept the provisions of a convention as representing customary
international law.

GENERAL PRINCIPLES OF LAW [ICJ Statute, art. 38(1)(c)]

[Note: This is not the same as General Principles of International Law which is alternately referred to as
customary international law. (e.g. consent, reciprocity, equality of states, finality of awards and
settlements, legal validity of agreements, good faith, domestic jurisdiction and freedom of the seas)]

• These refer to those general principles in municipal law (particularly those of private law) that may
be appropriated to apply to the relations of states.
o Roman law principles such as principles such as estoppel, res judicata, res inter alios acta,
and prescription.
o Other substantive principles, such as the duty to make reparations.
o Principle of reciprocity, pacta sunt servanda, separate corporate personality
o Procedural rules, such as rules governing the use of circumstantial and hearsay evidence
are likewise so considered.
- Press reports can be used to corroborate the existence of a fact. When they
demonstrate matters of public knowledge which have received extensive press
coverage, they can be used to prove a fact to the satisfaction of the court
[Nicaragua Case (ICJ, 1986)].
 - Circumstantial evidence is admitted as indirect evidence in all systems of law and
its use is recognized by international decisions. Such circumstantial evidence,
however, must consist of a series of facts or events that lead to a single conclusion.
[Corfu Channel Case (ICJ, 1949)]

o Jurisdictional principles, such as the power of a tribunal to determine the extent of its
own jurisdiction.

JUDICIAL DECISIONS AND TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS OF THE VARIOUS
NATIONS [ICJ Statute, art. 38(1)(d)]

• The subsidiary sources constitute evidence of what the law is.

• There is no stare decisis: Case law is considered only a “subsidiary means.” Even the decisions of
the ICJ itself do not create binding precedent, since it only binds the parties and in respect of the
particular case [ICJ Statute, art. 59].

OTHER MATERIAL SOURCES

• Conclusions of International Conferences

o Even if it is an instrument recording decisions not adopted unanimously, the result may
constitute cogent evidence of the state of the law on the subject.
o Even before the necessary ratifications are received, a convention embodied in a Final Act
and expressed as a codification of existing principles may be influential.

• Resolutions of the General Assembly

o General Assembly resolutions are not binding on member states except on certain UN
organizational matters.
o However, when they are concerned with general norms of international law, acceptance
by all or most members constitutes evidence of the opinions of governments in what is
the widest forum for the expression of such opinions.
o Even when resolutions are framed as general principles, they can provide a basis for the
progressive development of the law and, if substantially unanimous, for the speedy
consolidation of customary rules. (e.g. Declaration of Legal Principles Governing Activities
of States in the Exploration and Use of Outer Space; the Rio Declaration on Environment
and Development; and the UN Declaration on the Rights of Indigenous Peoples)

• The Writings of Publicists

o The teachings/writings of publicists may include the work of organizations such as the
International Law Commission (a UN body) and private institutions.
o Writings of highly qualified publicists likewise constitute evidence the state of the law.
Caveat: Some publicists may be expressing not what the law is (lex lata) but what they
think the law should be or will be (lex ferenda).
NON-SOURCES OF INTERNATIONAL LAW (may be used by the ICJ in particular to decide a case)

• Ex aequo et bono is a standard of “what is equitable and good,” which the Court may apply (in
place of the sources of international law) to decide a case when the parties to the dispute so agree.
[ICJ Stat., art. 38(2)]
• Equity refers to the application of standards of justice that are not contained in the letter of
existing law. It has often been applied in cases involving territorial disputes delimitations. and
maritime.
• Unilateral declarations concerning legal or factual situations, may have the effect of creating legal
obligations. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even
any reaction from other states is required for such unilateral declaration to take effect. Verily,
unilateral declarations bind the state that makes them. [Nuclear Test Cases (ICJ, 1974)].

MONIST VIEW

• International and municipal legal systems are fundamentally part of one legal order. This view
considers international law to be superior, with municipal law being a mere subset of international
law.
• Thus, international norms are applicable within municipal systems even without some positive act
of the state.
• Monist-naturalist view: Public international law is superior to municipal law, and both systems are
but a part of a higher system of natural law.

DUALIST VIEW

• International law and municipal law are separate systems. Only those problems affecting
international relations are within the scope of international law.
• Thus, before an international norm can have an effect within a municipal legal system, that norm
must be transformed, or adopted into the municipal system through a positive act by a state organ.
• Customary international law and general principles of international law, however, need not be
transformed or adopted.

RELATIONS OF INTERNATIONAL AND NATIONAL LAW

• A state cannot plead provisions of its own law or deficiencies in that law in answer to a claim
against it for a breach of its obligations under international law.
• This principle is reflected in Article 3 of the ILC’s Articles on Responsibility of States for
Internationally Wrongful Acts: The characterization of an act of a State as internationally wrongful
is governed by international law.
• Such characterization is not affected by the characterization of the same act as lawful by internal
law.
• The same principle applies where the provisions of a state’s constitution are relied upon.
• A State cannot adduce as against another State its own Constitution with a view to evading
obligations incumbent upon it under international law or treaties in force’.
• National laws serve as ‘facts’ before international tribunals.
• Please refer to the Pointers on the Introduction to PIL on the Doctrine of Incorporation and
Doctrine of Transformation.