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Sources of international law

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Shree Silwal
Shree Silwal

The document discusses the sources of international law that the International Court of Justice (ICJ) applies in deciding disputes. There are five main sources according to Article 38(1) of the ICJ Statute: 1) international conventions and treaties, 2) international customs, 3) general principles of law, 4) judicial decisions and writings of publicists, and 5) reason and equity. Treaties can be either law-making or contractual. Customary international law requires consistent state practice and opinio juris. General principles fill gaps where no treaty or custom applies. Judicial decisions and writings are subsidiary sources. The ICJ can decide cases ex aequo et bono if parties agree.

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Presenter: Shree Krishna Silwal MIRD,T.U 2ND SEMESTER What law does the ICJ(International Court of Justice) apply in deciding disputes submitted to it? (confused???)
Definition of sources of international law • Sources of international law are the materials and processes out of which the rules and principles regulating the international personalities are developed. • Rules are extracted and analyzed from the sources. • According to Lawrence and Oppenheim there is only one source of IL i.e. the consent of nation. • But Brierly considers customs and reasons as the main sources of IL.
• Article 38(1) of the statute of the International Court of Justice is widely recognized as the most authoritative statement as to the sources of International law.
The law applicable in ICJ, sec 38(1 and 2) On the basis of Article 38 of ICJ Statute, 5 distinct sources can be identified: 1. International conventions/treaties 2. International customs 3. General principles of law 4. Judicial decisions and writings of the publicists 5. Reason and equity
1. International Conventions/ Treaties  Treaties are known by a variety of terms-conventions, agreements, pacts, general acts, charters, statutes, declarations and covenants.  The creation of written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves.
Types of international treaties.  International treaties can be broadly divided into two types: i. Law making treaties (L)-Universal or general relevance. ii. Treaty contracts (T)- between two or small number of countries.
i. Law making treaties  It is conducted between many states and creates general rules binding the states  Lawmaking treaties or conventions are the main source of international law since, the basis of all international law is consent.  Examples: a. The Hague Convention of 1899 and 1907 (on law of war and neutrality), b. The Geneva Protocol of 1925 (on prohibited weapons), c. The Genocide Convention of 1948,
ii. Treaty Contracts  Deals with a special matter between contracting states only Example: Indo Nepal treaty on trade and transit, Indo Nepal treaty on Peace and Friendship.  Create particular law between the signatories.  But is also source of universal rule also. Example: . Briand Kellogg Pact 1928 (a treaty for the renunciation of war between USA and France became so attractive that other states also subscribe to its principle of non use of force, so if more and more states consent to the rule of treaty contract universal rule is established.
2. Customs as a source of IL  The article 38 (1) of the statute of the International Court of Justice recognises “International Customs”, as a source of international law.  The ICJ’s statute refers to international customs, as “evidence of a general practice accepted as law”.
Elements for making custom as international law 1.Duration of state practice 2. Uniformity and consistency in practice 3. Generality in practice 4. Opinio juris – (Acceptance of practice as law)
Some views regarding customary laws  Can customary law be significant in present world? 1)Opinion 1: customs can’t be significant today as source of international law because it is too clumsy and slow moving to accommodate the evolution of International law. 2)Opinion 2: custom is relevant in present day also as it is the dynamic process of law creation and more important than treaties since it is of universal application.
3.General Principles of Law  The general principles of law are those principles which have got recognition from all the states and by all the legal systems of the world.  The general principles of law are based on justice and equity.  They include basic principles of law which are indisputable.  They provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules.
Why general principles of law are included?  The main reason why this source is included in ICJ because a situation may arise when there is absence of law relating exactly to the point.  International law has no method of legislating to provide rules to regulate new situations  neither it follows principle of past precedents. Hence, the provision of general principle was established as a source of law to fill the gap and solve the problem of non liquet (a situation when the court refuses to settle disputes on the ground that rules are not available).
Case involving general principle of law  Permanent Court of International Justice (PCIJ) in Mosul Boundary Case (1925) applied the principle of natural justice that No one can be judge in his own suit
4.Judicial decisions (subsidary source)  Article 38 recognises a judicial decisions as a subsidiary source of international law but not an actual source.  Article 59 of the Statute of ICJ provides that: The decision of the court haves no binding force except between the parties in respect of that particular case.  While the doctrine of precedent does not exist in international law, one still finds that states in disputes and textbook writer quote judgments of the permanent court and the ICJ as authoritative decisions.
Judicial decisions of the municipal courts  The laws of a specific state and decisions of the municipal courts are not in general, source of international law, since, they do not create legally binding obligations for other state.
5. Writings of the publicists (subsidiary source)  Article 38 of statute of ICJ recognises ‘ the teachings of the most highly qualified publicists of the various nations’ as a subsidiary means for the determination of rules of international law.  Writers such as Gentilli, Grotius,Vatted etc, were the supreme authorities of the 16th and 18th centuries and determined the scope, form and content of international law.  The various international judicial and arbitral bodies in considering their decisions consult and quote the writings of the teaching juristic authorities, when need arises.
Other sources  Draft conventions  Ex aequo et bono  Equity and justice  GA Resolutions  Consideration of human  International comity  Legally binding resolution of the international organisation  State practices  Soft laws
EX-AEQUO ET BONO  Can ICJ give a decision on grounds of fairness and justice or not?
 Can ICJ give a decision on grounds of fairness and justice or not?
 It is a term often used in international law when a matter is to be decided according to principles of equity rather than by points of law.  Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto. Example: In 1984 the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada
Sources of international law

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Sources of international law

  • 1. Presenter: Shree Krishna Silwal MIRD,T.U 2ND SEMESTER What law does the ICJ(International Court of Justice) apply in deciding disputes submitted to it? (confused???)
  • 2. Definition of sources of international law • Sources of international law are the materials and processes out of which the rules and principles regulating the international personalities are developed. • Rules are extracted and analyzed from the sources. • According to Lawrence and Oppenheim there is only one source of IL i.e. the consent of nation. • But Brierly considers customs and reasons as the main sources of IL.
  • 3. • Article 38(1) of the statute of the International Court of Justice is widely recognized as the most authoritative statement as to the sources of International law.
  • 4. The law applicable in ICJ, sec 38(1 and 2) On the basis of Article 38 of ICJ Statute, 5 distinct sources can be identified: 1. International conventions/treaties 2. International customs 3. General principles of law 4. Judicial decisions and writings of the publicists 5. Reason and equity
  • 5. 1. International Conventions/ Treaties  Treaties are known by a variety of terms-conventions, agreements, pacts, general acts, charters, statutes, declarations and covenants.  The creation of written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves.
  • 6. Types of international treaties.  International treaties can be broadly divided into two types: i. Law making treaties (L)-Universal or general relevance. ii. Treaty contracts (T)- between two or small number of countries.
  • 7. i. Law making treaties  It is conducted between many states and creates general rules binding the states  Lawmaking treaties or conventions are the main source of international law since, the basis of all international law is consent.  Examples: a. The Hague Convention of 1899 and 1907 (on law of war and neutrality), b. The Geneva Protocol of 1925 (on prohibited weapons), c. The Genocide Convention of 1948,
  • 8. ii. Treaty Contracts  Deals with a special matter between contracting states only Example: Indo Nepal treaty on trade and transit, Indo Nepal treaty on Peace and Friendship.  Create particular law between the signatories.  But is also source of universal rule also. Example: . Briand Kellogg Pact 1928 (a treaty for the renunciation of war between USA and France became so attractive that other states also subscribe to its principle of non use of force, so if more and more states consent to the rule of treaty contract universal rule is established.
  • 9. 2. Customs as a source of IL  The article 38 (1) of the statute of the International Court of Justice recognises “International Customs”, as a source of international law.  The ICJ’s statute refers to international customs, as “evidence of a general practice accepted as law”.
  • 10. Elements for making custom as international law 1.Duration of state practice 2. Uniformity and consistency in practice 3. Generality in practice 4. Opinio juris – (Acceptance of practice as law)
  • 11. Some views regarding customary laws  Can customary law be significant in present world? 1)Opinion 1: customs can’t be significant today as source of international law because it is too clumsy and slow moving to accommodate the evolution of International law. 2)Opinion 2: custom is relevant in present day also as it is the dynamic process of law creation and more important than treaties since it is of universal application.
  • 12. 3.General Principles of Law  The general principles of law are those principles which have got recognition from all the states and by all the legal systems of the world.  The general principles of law are based on justice and equity.  They include basic principles of law which are indisputable.  They provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules.
  • 13. Why general principles of law are included?  The main reason why this source is included in ICJ because a situation may arise when there is absence of law relating exactly to the point.  International law has no method of legislating to provide rules to regulate new situations  neither it follows principle of past precedents. Hence, the provision of general principle was established as a source of law to fill the gap and solve the problem of non liquet (a situation when the court refuses to settle disputes on the ground that rules are not available).
  • 14. Case involving general principle of law  Permanent Court of International Justice (PCIJ) in Mosul Boundary Case (1925) applied the principle of natural justice that No one can be judge in his own suit
  • 15. 4.Judicial decisions (subsidary source)  Article 38 recognises a judicial decisions as a subsidiary source of international law but not an actual source.  Article 59 of the Statute of ICJ provides that: The decision of the court haves no binding force except between the parties in respect of that particular case.  While the doctrine of precedent does not exist in international law, one still finds that states in disputes and textbook writer quote judgments of the permanent court and the ICJ as authoritative decisions.
  • 16. Judicial decisions of the municipal courts  The laws of a specific state and decisions of the municipal courts are not in general, source of international law, since, they do not create legally binding obligations for other state.
  • 17. 5. Writings of the publicists (subsidiary source)  Article 38 of statute of ICJ recognises ‘ the teachings of the most highly qualified publicists of the various nations’ as a subsidiary means for the determination of rules of international law.  Writers such as Gentilli, Grotius,Vatted etc, were the supreme authorities of the 16th and 18th centuries and determined the scope, form and content of international law.  The various international judicial and arbitral bodies in considering their decisions consult and quote the writings of the teaching juristic authorities, when need arises.
  • 18. Other sources  Draft conventions  Ex aequo et bono  Equity and justice  GA Resolutions  Consideration of human  International comity  Legally binding resolution of the international organisation  State practices  Soft laws
  • 19. EX-AEQUO ET BONO  Can ICJ give a decision on grounds of fairness and justice or not?
  • 20.  Can ICJ give a decision on grounds of fairness and justice or not?
  • 21.  It is a term often used in international law when a matter is to be decided according to principles of equity rather than by points of law.  Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto. Example: In 1984 the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada

Editor's Notes

  1. ICU GP REDEW
  2. DU GO
  3. Subsidiary:less important than but related or supplementary to something.
  4. yese koyat bono