II.

SOURCES OF INTERNATIONAL LAW

1) Formal Sources various processes by which rules come into existence (example: legislation) the procedures or methods by which rules become legally binding a process by which a legal rule comes into existence law creating international conventions, whether general or particular, establishing rules expressly recognized by contesting states; international customs, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations 2) Material Sources concerned with the substance and content of legal obligations identifies what the obligations are: state practice, UN Resolutions, treaties, judicial decisions and the writings of jurists sometimes referred to as evidence of international law law identifying the general principles of law recognized by civilized nations 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 A. ARTICLE 38 (1) OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

It does not speak of sources but rather it is primarily a directive to the Court on how it should resolve conflicts before it. It is a declaration by states that these are the laws under which they are willing to be bound. 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 contesting states; b) international custom. as evidence of 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 ex aeqou et bono, if the parties agree thereto. Restatement (Third) of Foreign Relations Law of the United States 1. A rule of international law is one that has been accepted as such by the international community of states:
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1) in the form of customary law; 2) by international agreement; or 3) by derivation from general principles common to the major legal systems in the world. 2. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. 3. International agreements create law for the state parties thereto and may lead to the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted. 4. General principles common to the major legal systems, even if not incorporated or reflected in customary law of international agreements, may be invoked as supplementary rules of international law where appropriate. *Article 59-the decision of the Court has no binding force except between the parties and in respect to that particular case. SOURCES OF INTERNATIONAL LAW 1) 2) 3) 4) Custom Treaties and other international agreements Generally recognized principles of law Judicial decisions

5) Teachings of highly qualified and recognized publicists CUSTOM or CUSTOMARY INTERNATIONAL LAW a general and consistent practice of states followed by then from a sense of legal obligation (Restatement) that law which has evolved from the practice or customs of states it enables international law to develop in line with the needs of the time Material Factor (practice of states or usus) how states behave includes duration, consistency, and generality of the practice of states Psychological or Subjective Factor why states behave the way they do

ELEMENTS: 1) CONSISTENCY of practice - constant and uniform - there must be continuity and repetition - it is satisfied if there is substantial rather than complete 2) GENERALITY of practice - the practice must be common to a significant number of states - what is needed is a substantial number of states - the degree of generality required will vary with the subject matter, so that an onerous customary law
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obligation may require a more general practice than a norm which gives a state limited privileges. this need not be complete, but it must be substantial

Exceptions: It is not applicable if the following circumstances are present under the concept of persistent objector: States consistently objected to it from the very start or while the custom was merely in the process of formation; One state is able to stop the formation of a customary rule. it is possible is the state/persistent objector is an important operator in a particular field that its continued objection prevents customary law developing for all states

3) DURATION of practice - the length of time needed will vary from subject to subject and, further, that the passage of any brief period of time is not necessarily a bar to the formation of customary law - duration can be either short or long - a short duration, by itself, will not exclude the possibility of a practice maturing into custom provided that other conditions are satisfied. (North Sea Continental Shelf Cases) There is no fixed duration required 4) OPINIO JURIS - state practice must be accompanied by a belief that the practice is obligatory, rather than merely convenient or habitual. - the belief that a certain form of behavior is obligatory is what makes practice an international rule. Without it, practice is not law - it is a very important element - it can be inferred from consistent state practice or repeated state activity. However, if the alleged rule places burdens in all states, clear extrinsic evidence of opinio juris might be required. General Rule: Dissenting states are bound by customs

What is the effect of subsequent contrary practice to the existing customary law? It is also possible that after a practice has been accepted as law, contrary practice might arise. Such contrary practice can cast doubt on the alleged law. It might be added that, over time, if the contrary practice should gain general acceptance, it might instead become the law (Anglo-Norwegian Fisheries Jurisdiction Case (Merits)) Evidence of State Practice and Opinio Juris Various forms of evidence may point to state practice. These can be treaties, diplomatic correspondence, statements of national leaders and political advisers, as well as the conduct of states. By themselves, however, they do not constitute customary law unless characterized by opinio juris. The existence of opinio juris is a matter of proof.

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 The burden of proving its existence falls on the state claiming it. Instant Custom is not a product of constant and prolonged practice. It comes about a spontaneous activity of a great number of states supporting specific line of action. Martens Clause formulated by the Russian publicist Fyodor Martes what the clause does is to put the laws of humanity and the dictates of public conscience on the same level as usages of states or usus (1989 Hague Peace Convention) Thus suggesting that even without practice or usus or at least without consistent practice there can emerge a principle of law based on laws of humanity and the dictates of public conscience When customs and treaties are in conflict a) Custom Treaty treaty will prevail because it represents a deliberate and conscious act of law creation, except if the custom is rule of jus cogens Rules of Jus Cogens rules of customary international law that are so fundamental that they cannot be modified by a treaty. Any treaty provisions which conflicts with this rule is VOID and this is true whether or not this rule developed before or after the treaty come into force. b) Treaty Custom - treaty will prevail

Article 53 of the Vienna Convention A treaty is VOID if, at the time of its conclusion, it conflicts with a peremptory norm of a general international law. For the purpose of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international 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. GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS this is also referred to by the Restatement as general principles of law recognized by or common to the worlds major legal systems this has reference to principles of international law but to principles of municipal law common to the legal systems of the world. it is said to belong to no particular system of law but are evidence rather of the fundamental unity of law Examples: prescription, estoppels, res judicata and pacta sunt servanda JUDICIAL DECISIONS subsidiary means for the determination of ruels of law these decisions do not constitute stare decisis. However, such decisions of the ICJ are not only regarded as highly persuasive in international law circles; they have also contributed for the formulation of principles that have become international law.
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Examples: ICJ Decision, UN Resolutions, other Resolutions of International Organizations. Who are PUBLICISTS? Institutions which write on International Law. The more significant ones are: The International Law Commission; Institut de Droit International; (Revised) Restatement of Foreign Relations Law of the United States; and the Annual Publication of the Hague Academy of International Law. B. DECISION ex aequo et bono the use of equitable principles means decision according to law, not one taken outside it by means of a set of abstract justice. according for fair dealing and good conscience. C. EQUITY When accepted is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice. It has both a procedural and substantive aspect. Procedurally, it means a mandate given to a judge to exercise discretion in order to achieve a determination that is more equitable and fair. Different Kinds of Equity: 1. Intra Legem (within the law) - law is adapted to the facts of the case. 2. Prater Legem (beyond the law) it is used to fill the gaps within the law. 3. Contra Legem (against the law) a refusal to apply the law which is seen as unjust.

D. RESOLUTIONS OF INTERNATIONAL ORGANIZATIONS UN Resolutions considered as merely recommendatory except if they are supported by all the states, they are an expression of opinion juris communis. E. SOFT LAW Non-Treaty Agreements It is the name given to those rules of international law they do not stipulate concrete rights or obligations for the legal person to whom they are addressed; A description of those values, guidelines, ideas and proposals that may develop into rules of international law but have not yet done so.

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