Public International Law

Chapter Two
Source of International Law

Adigrat University, 2016

School of Law
Mussie M. (LL.B, LL.M)
 Sources of International Law
• Lack of single legislature to create rules of
international law binding upon everyone
• Different concepts may be used “sources” +
“causes” + “basis” + “evidence”
• We can differentiate between “sources” and
“causes”:
– Causes are basic factors that create real rules
– can be found in social and historical circumstances of the
international community
– These causes can be named as “material sources”
– Material sources can be inferred from ideology +
economy + culture + religion
 Sources of International Law
• “sources” This refers to a “process” by
which a rule becomes identifiable
• These are called as “formal sources”  They
are the sources from which the legal rules
receive their legal validity
• It identifies the criteria under which a rule is
accepted as valid in a given legal system.
• Formal sources enable rules of law to be
identified and distinguished from other rules
 Sources of International Law
• What are the formal sources of international
law?
• Practices of states and international
organizations (international courts) show
ussources that are accepted as such
• We can find some proofs within Article 38 of
the statute of Permanent Court of
International Justice (PCIJ) and International
Court of Justice (ICJ)
 Sources of International Law
• Art. 38 does not state that it contains formal
sources of int’l law this is usually inferred
• This article cannot itself create or provide
validity of sources because it belongs to one of
those sources
• This article is legally binding for the ICJ
• Sources in this Article they are authoritative
because they reflect state practice
• Widely recognized as the most authoritative
statement as to the sources of international law
 Article 38 of the Statute of ICJ
• Art. 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. “
 Article 38 of the Statute of ICJ
• Since all member states to the UN are ipso facto [by
the fact itself/by the very fact]parties to the statute
of the ICJ by virtue of Art. 93 of the Charter This
statement can be seen as “enumeration of sources
of international law”.
• Art. 93 of the Charter “All Members of the
United Nations are ipso facto parties to the Statute
of the International Court of Justice. A state which is
not a Member of the United Nations may become a
party to the Statute of the International Court of
Justice on conditions to be determined in each case
by the General Assembly upon the recommendation
of the Security Council”
 Article 38 of the Statute of ICJ
• It seems that there are two categories of sources:
– A- Primary (Basic) Sources
• International treaties
• Customary rules of int’l law
• General principles of law
– B- Secondary (Subsidiary/supplementary) Sources
• Court decisions
• Doctrine (academic writings)
• Another categorization:
– A- Law-creating processes first three
– B- Law-determining sources last two
verification
 Sources of international law
• Secondary or law-determining sources
cannot directly create rules of int’l law
• These sources help us to understand
“existence” of rules and their “meaning and
content”.
• Whether a rule is established or what the
substance of that rule is
 International Treaties
A generic term used to refer to
•convention,
•agreement,
•protocol
•exchange of notes
•others
• Generally only binding on state parties (subject
to certain exceptions)
 International Treaties
• Consensus of consents/concurring wills
• Criteria for a document to be seen as a “treaty”
1- International treaties should be concluded by
the actors that are entitled by int’l law to do
this who can conclude? (states, int’l org,
federated entities etc.,. But not contracts
between states and private persons contract
on license for gas and oil exploitation)
2- It should be concluded in conformity with the
rules of int law and be concluded to achieve legal
consequences applicable law must be int’l law
and “separate legal personalities” of public
corporate bodies
 Criteria for int’l treaties
3- This action should create new rights and obligations
or should put an end to the previous rights and
obligations
4- Consensus should occur at least between two or
more int legal personality
– Unilateral legal acts recognition, notification,
renunciation
– National unilateral acts
– Resolutions of int organizations decision
making procedure end-product is the legal
action of the organization
 Criteria for int’l treaties
5- Written format is not required for an instrument to
be accepted as an international treaty even “oral
consensus” is considered as a treaty
– 1975 Agean Continental shelf case (Joint
Declaration)
– Art 2 (1969 Vienna) “treaty means an
international agreement concluded between
states in written form..”
– Art. 3 (1969 Vienna) “the fact that the present
Convention does not apply to ... İnternational
agreements not in written form shall not affect
the legal force of such agreements”
•International treaties  Gentlemen’s Agreements
•Non-binding agreements soft law (OSCE)
 Customary Rules of International Law
• What is said in Art 38 “international
custom, as evidence of a general practice
accepted as law”
• Two Basic Elements in the creation of
customary rule of international law:
– 1- Objective element “state-practice” actual
behavior of states/int’l organizations
– 2- Subjective element “opinio juris” a belief
that such behavior is law
 Customary rules of int’l law
• Customary rules are not usually written
down or codified but 1947
International Law Commission
“codification”
– Lex lata the law as it is
– De lege ferenda progressive
development of int’l law
Customary Rules State-practice
• What type of legal acts should be taken into
consideration as state-practice?
– Not only external, but also internal acts
(legislation + court decisions + diplomatic
correspondence + voting behavior at int’l
conference, org + treaties + recognition)
– Some conditions for an acceptable state practice:
• 1- Duration: No rigid time element depend upon
circumstances in certain fields rules have developed
quickly normally it takes time a slow process
• 2- Continuity and repetition: “does a single act form a
usage/practice?” sometimes yes (“instant customary
rule” which was criticized)
 Conditions for valid practice
• 3- Consistent and uniform practice:
– “no interruption” in favor of other practice
– Must not be uncertain and contradictory
– Sufficient uniformity of practice is needed
– Some inconsistent conducts should be treated
as breach not a new rule
• 4- Generality
– Don’t have to be accepted/observed by every
state an extensive practice is needed
– If enough practice exist silence is acceptance
– But once the rule exists it will be binding for
every state except “persistent objectors”
 Customary RulesOpinio juris
• Subjective element why?
• Art. 38 ICJ “accepted as law”
• To separate int’l law from principles of
morality or social usage
• Distinguish between practice undertaken
because of law from practice undertaken
because of series of other reasons (such as
good will & ideological support)
• Opinio juris a belief that a state activity is
legally obligatory
 Customary RulesOpinio juris
• State will behave a certain way because they
are convinced it is binding upon them to do
so.
• Opinio juris may be deduced from
• a) conclusion of bi-lateral and multi-lateral
treaties;
• b) attitudes during the process of passing
certain resolutions of the UN General
Assembly and other int’l org;
• c) statements by state representatives
 Is the Universal Declaration of Human Rights
Customary International Law?
Eleanor Roosevelt:
•“In giving our approval to the declaration today, it is of
primary importance that we keep clearly in mind the
basic character of the document. It is not a treaty; it is
not an international agreement. It is not and does not
purport to be a statement of law or of legal obligation. It
is a declaration of basic principles of human rights and
freedoms, to be stamped with the approval of the
General Assembly by formal vote of its members, and to
serve as a common standard of achievement for all
peoples of all nations.”
 Is the Universal Declaration of Human Rights
Customary International Law?
Today:
•Strong argument that some or even all of the UDHR is
customary international law:
•frequent reiteration of acceptance;
•virtually universal participation of states in other
international HR agreements;
•the adoption of human rights principles by states in regional
organizations;
•general support by states for United Nations resolutions ;
•action by states to conform their national law;
•invocation of human rights principles in national policy, in
diplomatic practice, in international organization activities,
etc..
 Other points about customary rules of
international law
• “Major powers of the field” no need for a
rule to be accepted by every state but there
is a need for such rule to be acceped by the
major powers of that field.
– Influence of the UK on the development of the
law of the sea not practice by “land-locked
states”
– Impact of Soviet Union and the US on space law
– Impact of certain states on law on nuclear
weapons
 Other points about customary rules of
international law
• “Local custom in international law”:
– All states from that region must participate
– Silence does not mean implied acceptance
– Invoking states must prove it
• “Persistent objector”:
– If there is a failure to act against a customary rule/a failure
to object this can be seen as an “acquiescence” (tacit
acceptance) this may make customary rule binding for
that state as well.
– If a state objects from the very begining of the formation
of that rule + persistently (determined to do so)
 Relationship of Customary
International and Treaty Law
• Customary international law and treaty law
have equal authority
• If both exist regarding the disputed issue
treaty law takes precedence
• A treaty law will not be given precedence over
jus cogens
 General Principles of Law
• In any legal system there may arise
cases where there is no law covering that
point/dispute
• In such cases
– A rule may be deduced by analogy from
existing rule
– Orit may be deduce from the GPL
 General Principles of Law
• Because int’l law is relatively an
underdeveloped system sometimes there
may exist gaps that cannot be covered by the
rule of int’l law
• But a judge in int’l law cannot abstain from
taking a decision on a dispute before it on
ground of non-existence of a rule (principle of
non-liquet)
 General Principles of Law
• Art. 38 ICJ: “general principles of law recognized
by civilized nations”
• They are inherent in any legal system
• Reference in Art. 38 is made to GPL in municipal
systemsin so far as they are applicable
• But if rules of conventional or customary int law
are sufficient to supply necessary basis for
decisionno need
• They have a lower position in the hierarchy of
laws
• But they are not listed as subsidiary means under
Art. 38
 General Principles of Law
• They are common principles to different legal
systems:
• Examples:
– PCIJ 1928 Chorzow Factory Case
“every violation of an undertaking involves
an obligation to make reparation”
– Even if there is no such provision within a
treaty a court may attribute responsibility
to a wrongdoer state because this is a
GPL
 General Principles of Law
• Estoppel principle:
– If a state consents impliedly (acquiescence) to
a specific situation or an act it shall lose its
right to object to that situation in future
– It is a rule of evidence whereby a person is
barred from denying a fact that has already
been settled).
– 1962 Temple Case
• between Cambodia and Thailand ICJ awarded
the ownership to Cambodia
 Other GPL
• Pacta sunt servanda
• Ex injuria ius non-oritur  one cannot benefit of
its own wrongful conduct (expCypr-necessity)
• Nemo iudex in causa sua – no one should be a
judge in his own case
• The principle of reparation: the breach of an
engagement involves an obligation to make
reparations”
• The principle of a state’s responsibility for all its
agents
 Secondary/subsidiary sources of
International Law
• 1- Judicial decisions (jurisprudence) (içtihat)
• 2- Legal/doctrinal writings (Doctrine) (Öğreti)
• Judicial Decisions
– Decisions of int courts
– Decisions of domestic courts
– Arbitral awards
• According to Art. 38 subsidiary means for “the
determination of legal rules”
– Determine the existence of legal rules
– Determine the substance/meaning of rules
 Judicial Decisions
• Reference to Art. 59: Decisions of ICJ;
– Have no binding force for other cases (only for
that particular case)
– Have no binding force for other parties (only
binding between the parties)
• But ICJ generally prefers a kind of “rule of
precedence”
• These sources cannot directly create rules of
international law; but:
– A- Formation of customary rules of int’l law
– B- Act of interpretation is a process of rule-making
 Legal/doctrinal writings
• Cannot create rules of int’l law directly
– All international courts refer doctrine in support
of their positions/decisions/analysis
– Writings interpret the rules + suggest
modifications + suggest special provisions in
treaties
– This has an indirect effect in the formulation of
rules of international law
• It includes books, articles, reports (ECHR),
“separate opinions” + “dissenting opinions” of
judges of inter courts.
 Issue of Jus Cogens/Peremptrory Norms of
International Law
• 1969 Vienna Convention on the Law of Treaties, Art. 53:

“A treaty is void if, at the time of its conclusion, it

conflicts with a peremptory norm of general
international law. For the purposes of the present
Convention, a peremptory norm of general
international law is a norm accepted and recognized
by the iinternational community of States as a whole
as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of
general international law having the same
character.”
 Issue of Jus Cogens/Peremptrory Norms of
International Law
• A peremptory norm (also called jus cogens Latin for
"compelling law") is a fundamental principle of
international law that is accepted by the international
community of states as a norm from which no derogation is
permitted.
• There is no universal agreement regarding precisely which
norms are jus cogens nor how a norm reaches that status, but
it is generally accepted that jus cogens includes the
Prohibitions on:
• Waging aggressive war
• Crimes against humanity
• War crimes
• Genocide
• Maritime piracy
• Apartheid
• Slavery
• Torture
 Other possible sources of
international law
• UN Resolutions, they can show the practice of states,
for example, in the General Assembly
• International Civil Aviation Authority, can adopt
binding standards for navigation or qualifications of
flight personnel
• Security Council Resolutions
• The AU Peace and Security Council
• Regional Organisations (e.g. the Council of Europe)
• Soft law (non-legally binding international
instruments). Example, the 1992 Rio Conference on
Environment and Development
• Equity