PIL Sources

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Heavenly Father help me stand

through the test of time ggb
By: Gesal Marie Arnoza
Virally provides a good introduction law to Sources of International law:
He begins with saying : International law, as any other species of law, invests its
subjects with rights and duties. Such is the function of all legal systems, and the
result is that every such system, together with the rules which compose it, stands
above its subjects and has for them an obligatory character not affected by the
fact that the principal subjects of international law are sovereign political units,
namely, states. 1
According to Virally to is also true in international law the subjects of international
law is co-equal because each state is a sovereign in itself we have rights and rules
that provides duties to state. According to Virally we dont need to answer the
question how can international law be building, because,
For all practical purposes the proposition already laid down will suffice international
law exists and it is universally agreed that states are bound by it. 2 For him it is no
longer a question Whether International Law is binding on States. It is a faith
Accompli, meaning It is an accomplish fact, you dont argue, dont question the
existence, and its obligatory toward the States. To him what is important to know is:
what international law forbids, permits or requires to be done 3;
When a state claims that another states action is forbidden, what does the state
do? That state prove that the other States act is in violation of international law.
That international law require such state to do such conduct. The question really is
how can a state find a basis in international law. Because when state can find one,
then the state can enforce that rule, which forbids that states conduct. So Virally
said the solution is the doctrine of sources of international law. Unlike in municipal
law , the task of the lawyer is to invoke the proper law and apply the facts of such
law, like if criminal law you go to revised penal code, but that is not the case of
international law because you need to search for the sources. And it is a convention,
that sources of International law is provided by Article 38 of ICJ statute, the statute
that constituted the International Court of Justice.
Introduction from the Article of Professor Greenwood.

Where does international law come from and how is it made ? These are more difficult questions than one might expect and
require considerable care. In particular, it is dangerous to try to transfer ideas from national legal systems to the very different
1
2
3
Virally, The Sources of International Law. Page 118

Virally, The Sources of International Law. Page 118 page 119
Virally, The Sources of International Law. Page 119
Everything will be fine with my God , my God..Heavenly Father help me stand

context of international law. There is no Code of International Law. International law has no Parliament and nothing that can
really be described as legislation. While there is an International Court of Justice and a range of specialised international courts
and tribunals, their jurisdiction is critically dependent upon the consent of States and they lack what can properly be described
as a compulsory jurisdiction of the kind possessed by national courts.
The result is that international law is made largely on a decentralised basis by the actions of the 192 States which make up the
international community. The Statute of the ICJ, Art. 38 identifies five sources:(a) Treaties between States;
(b) Customary international law derived from the practice of States;
(c) General principles of law recognized by civilised nations; and, as subsidiary means for the determination of rules of
international law:
(d) Judicial decisions and the writings of the most highly qualified publicists.
This list is no longer thought to be complete but it provides a useful starting point.
The ICJ statute is organized according to articles, class I want you to integrate the
articles, that you make your own outline, you pick the article which you think belong
to one category, you make your own organization, and I will find out, if your
organization is a disorganization (hehe), it is a challenge, so it takes reading of the
ICJ statute, and the Center of the Statute is Article 38. But now it is a great fact that
article 38 provides for a sources of international law,
This humble writer would like to cite the argument by Professor Green wood that
strictly speaking Article 38 of the ICJ Statue is not a source of law( with the same
obligatory character with regard contracts as a source of obligation in municipal
law, since in international law a treaty is subject to those parties who gave their
consent therto),5 but only so due to the customary norm in article 26 of VCLOT
which is Pacta Sunt Servanda . While Father Bernas in his book Introduction to
Public International Law wrote that Article 38 of the ICJ is not a source of law but a
directive to the court. In his book Father Bernas explained :
It is interesting, however, that the most widely accepted statement of the sources
of international law, that is, Article 38(1) of the Statute of the International Court of
The writer of this term paper would like to insert this article Sources of International Law:
An Introduction
By:Professor Christopher Greenwood
5
Treaties
Treaties (sometimes called agreements, conventions, exchanges of notes or protocols)
between States or sometimes between States and international organizations are the
other main source of law.
Strictly speaking a treaty is not a source of law so much as a source of obligation under law.
Treaties are binding only on States which become parties to them and the choice of whether
or not to become party to a treaty is entirely one for the State there is no requirement to
sign up to a treaty. Why is a treaty binding on those States which have become parties to it ?
The answer is that there is a rule of customary international law pacta sunt servanda
which requires all States to honour their treaties. That is why treaties are more accurately
described as sources of obligation under law. The writer of this term paper would like to
insert this article Sources of International Law: An IntroductionBy:Professor Christopher
Greenwood.

Justice, does not speak of sources. Rather, Article 38 is primarily a directive to the
Court on how it should resolve conflicts brought before it. Article 38 says:
Article 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 is a declaration by States that these are the laws under which they are
willing to be bound.6
So what it is the opening phrase of article 38 , the court, which court guys? The ICJ,
where ? Hague, Netherlands
Article 38 Bernas mentioned that this article serves as a guideline
6
Bernas, Joaquin, Introduction to Public International Law. 2009 Edition. Page 8.

1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply: ( What is its function? To
decide, to adjudicate meaning when u decide there parties, a classical
example is a police man)
Boy 1: Sir . ani man ni sir (bla bla)

PoliceL: sakto ka
Boy 2: di man na pwede sir sakto xa, ako sakto sad
Police: sakto ka
(Outsider )Boy 3: ah sus, binuang sad, di man na pwede puro sila sakto ..
Police: sakto pud ka..
Whole class here laughed , hehe (^_^) hehe Sir said I have policemen as relatives,
I get those things everyday so everybody happy , hehe kinsa man malipay sato sad
ang usa
But Ok guys thats international law

The court whos function is to adjudicate conflicts, on the basis of international law
on the basis of international law, can in adjudicating disputes in accordance
international law the ICJ ought to apply A to D so you get now where these sources

come in repeat the court the function of which is to decide controversies on the
basis of international law, ought to apply, :
A. What is A? When you say international convention what is it? Answer: Treaty ,
an International Convention, give me a general international convention?
Not JPEPA because JPEPA is a particular International Convention between
Philippines and Japan.
What do you mean by contesting states? The states , the parties to the
disputes. Gets? Ok now there is a conflict between Philippines and Japan on
trade, so what will be controlling will be JPEPA, the court whos function is to
decide in accordance to treaty law shall apply A. JPEPA , since both states
ratified the treaty they are bound by it, on the basis of pact sunt servanda
Vienna Conventionon the Law of Treaties of 1969.
Article 26 Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.
Pacta sunt servanda ( latin translation) Promises must be kept, so Promises are
not meant to be broken =) so sir said: applicable to love life during courtship..
Class this is also under Article 38 of the ICJ Statue vienna , the international
convention is to be applied by the ICJ in adjudicating dispute between 2 parties or 3
parties. Why? Because of Article 26 of VCLOT. Guys when you say VCLOT it is the
one referred for the Law of treaty, because there are many Vienna Conventions.
This show the obligatory character of an international convention.
What is the underlying doctrine

Of Article 38 paragraph (1)(a) the applicability of the international convention, the
obligatory character international convention or Art 26 of VCLOT . Pacta sunt
servanda.

Article 27 Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification for its failure
to perform a treaty. This rule is without prejudice to Article 46.
So as to Article 27 example JPEPA, Philippines cannot renege its obligation by

invoking domestic law, but without prejudice to Article 46 . So in Paragraph 2 a
violation is manifest. How about if the chairman of the coconut community entered
a contract with Japan is it a manifest to a violation? Is it good faith? Yes a head of an
agency concerned with coconu
Article 46 Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its internal law of fundamental
importance.
2. A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and in good
faith..
How will you know violaitn is manifest? Par 2

How about a treaty entered by chairman of coconut authority of phils entered with
an agreement with Japan? Is it a manifest violation of JPEPA? Is that obvious to any
state conducting itself in the manner of practicing good faith? Yes..
So take not of art 26,art 27 and 46.

Article 38 now paragraph (a) was a general or particular establishing rules

expressed by consenting states,
Next international custom, or in short customary law, a treaty law, b customary law
as evidence of state practice, and opinion juris sive necessitates an opinion of
law or necessity, simply put it means this, when states practice a particular conduct
and they practice this conduct because they believe it is their legal obligation then
such practice is binding,
so anyone who do that is sanctioned by international law, so if anyone who does
not do that is ought to be punished by IL,
Q: does this result to the obligatory of such act? Yes though no due to the treaty
laws obligatory character but because of customary law.
So what is the common trend? A and B are sources of obligations,
The difference is A referring to treaty Law, mas sayun mas direct, its easier to
prove, but letter B is not any lesser, if a Normis judge to be a cusomtary norm, by
that we mean there is gen state practice and opinion juris, then that law ought not
to be infringed upon, but ought to followed by states, so that norm is obligatory,
This humble Author would like to cite the argument made by Professor Greenwood
that for those International Conventions codifying international customs binds
those who are not made party with the former,
But many treaties are also important as authoritative statements of customary
law. A treaty which is freely negotiated between a large number of States is often
regarded as writing down what were previously unwritten rules of customary law.
That is obviously the case where a treaty provision is intended to be codificatory of
the existing law. A good example is the Vienna Convention on the Law of Treaties,
1969. Less than half the States in the world are parties to it but every court which
has considered the matter has treated its main provisions as codifying customary
law and has therefore treated them as applying to all States whether they
are parties to the Convention or not.7
Next letter C,
7
Christopher Greenwood. Sources of International Law: An Introduction.

general principle of law estoppel you cannot come to court with unclean hands,
are these binding to all states? Yes. Are the embodied in treaty law? Maybe, do they
constitute customary norm? maybe
but they are generally known as general principles of law binding to states.
But Subject to article 59
So read Article 59 The decision of the Court has no binding force except between
the parties and in respect of that particular case.
Does res judicata apply to international law? No , basis? Is article 59, guys this
question has been asked several times sa BAR. But yes on what basis look art 38
1(d) subject to article :
So after all there is an opening for res judicata, which is Art 38 1(d) ,so in short the
ICJ whos function is to decide in accordance with international law, disputes
between state that are submitted to it may apply judicial decisions and the
teachings of the most highly qualified publicists of international law.
But as what? But as subsidiary means for the determination of rules of law.
The classic question in art 38 is this :
Is there a hierarchy a among the Sources of International law?


The classic question in art 38 is this :
Is there a hierarchy a among the Sources of International law?
Which mean a and b are the principal sources., this question has been reinforced by
that fact that letter b, the phrase subsidiary means, which might mean that a and c
are the principal sources, is there a hierarchy? International law experts would not
agree on an answer but agree that B and C are not subsidiary, because D is
subdiary.
Q: among the principal sources is there a hierarchy? Do we mean that c. the general
principles of law recognized by civilized nations; are lesser sources compared to
international custom, do we mean international custom is lesser as sources of law in
comparison to international conventions?
Joke from a professor secret sa name, protect lang nako
With regard to rumors like papa piolo , midas , etc..
Miss gay Question:
Contestant number 4 how do u define the men of today?
How to answer? Quick lang..
The men of today are the woman of tomorrow.
The word subsidiary in D, may indicate that A and C are the primary sources of law,
while judicial decisions in D are subsidiary means, but as to the question between A
and C as to hierarchy? There is no agreed answer, but class no, because if you can
prove if it is customary norm B then it is binding on states, when we speak of
sources of law, we are referring to norm creating mechanism, what do you mean by
norm creating? meaning these are mechanisms which result to the existence of law
International treaty or international conventions do they result into law? Yes,
because what is the essence of law? It is binding, you cannot renege on your
obligation, because you are obligated to do that ,thats international convention, it
results into law, into obligatory in nature,
Same with international custom, if you can prove that is customary law, then you
can prove that it is obligatory in nature, it is as binding as a treaty
This humble writer would like to include the claim of Professor Greenwood that
Article 38 paragraph 1 letter D is:
1. Not Subsidiary to letter A to letter C

The explanation given is as to Judicial Decisions :
Article 38(1)(d) refers to judicial decisions as a subsidiary means for the
determination of rules of law. In contrast to the position in common law countries,
there is no doctrine of binding precedent in international law. Indeed, the Statute of
the ICJ expressly provides that a decision of the Court is not binding on anyone
except the partiers to the case in which that decision is given and even then only in
respect of that particular case (Article 59). Nevertheless, the ICJ refers frequently to
its own past decisions and most international tribunals make use of past cases as a
guide to the content of international law, so it would be a mistake to assume that
subsidiary indicated a lack of importance.
Article 38(1)(d) does not distinguish between decisions of international and national
courts. The former are generally considered the more authoritative evidence of
international law on most topics (though not those which are more commonly
handled by national courts, such as the law on sovereign immunity). But decisions
of a States courts are a part of the practice of that State and can therefore
contribute directly to the formation of customary international law. 8
If we are to dissect A to D.
A to C, they are norm creating mechanisms, its there oh, A,B,C, while D we have
methods for proving or indicating the rules of law, that are already in existence.
Repeat A- C norm creating mechanisms :international treaty , international customs,
and gen principles of law, but D methods of proving or indicating the rules of law
that are already in existence, because you have judicial decisions, or the teachings
of the most highly qualified publicists.
So it could be like this in proving international custom you might refer to judicial
decisions, and writings of highly qualified publiscists,
So you cannot go to court according to the article of the Philippine daily inquirer bla
bla you cannot do that, because philipine daily inqurer is not even under mostly
highly qualified publicist
Ex aequo et bono from or through to fairness and goodness, principle of law and
principle of equity, in short the court can decide the dispute of parties on basis
of equity , but qualified by the phrase if parties agree,
So its like this:
8

Parties can come to court and say your excellencies can we do away with
custom, treaty law, with genral principles of law, and focus on equity, that is our
agreement.
The court cannot say :No no we need to apply treaty law., bec when the parties
agree, THEN SO BE IT..
Recap
Article 38 Bernas mentioned that this article serves as a guideline
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;
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.
PLEASE GOD BLESS MY WORK

IS there a hierarchy qualifty
It maybe that A to C are principal sources of law as indicated by the phrase
subsidiary means in letter d
You qualify A to C are norm creating mechanisms, while D are the mechanisms of
proving the source or root of law which are already in existence, Ia which could be
considered as pieces of evidence of existence of primary sources
But why is it that I(a) is in letter A? because on the account of its nature, it is easier
to prove,
So if 2 parties come to court, the court should ask then, did you agree on a matter
on this? So guys it is a matter of convenience.=)
And as to the issue again of hierarchy Professor Greenwood in his article on
introduction of International Law acknowledge that Article 38 1(a) and (b) are the
most important sources. While treaties and custom are the most important sources
of international law, the others mentioned in Article 38 of the ICJ Statute of the ICJ
should not be ignored. General principles of law recognized by civilised nations the
third source are seldom mentioned in judgments. They are most often employed
where the ICJ or another international tribunal wants to adopt a concept such as the
legal personality of corporations (eg in the Barcelona Traction Co. case (1970))

which is widely accepted in national legal systems. But international law seldom
adopts in its entirety a legal concept from a particular national legal
system; instead the search is for a principle which in one form or another is
recognized in a wide range of national legal systems. 9
Other Sources:
Other Sources
The list of sources in Article 38 of the Statute is frequently criticised for being
incomplete. In particular, it makes no mention of the acts of the different organs of
the United Nations. Today there can be no doubting the importance of those acts in
shaping international law, although they perhaps fit within the system of Article 38
better than is sometimes imagined.
The United Nations General Assembly has no power to legislate for the international
community; its resolutions are not legally binding. However, many of those
resolutions have an important effect on the law-making process. Some resolutions
are part of the treaty-making process, attaching a treaty text negotiated in the
framework of the United Nations and recommended to the Member States by the
Assembly (this was the case with the Convention against Torture). While it is the
treaty which creates the legal obligation and then only for the States which choose
to become party to it the importance of the United Nations in the process of
creating that treaty should not be underestimated.
In addition, as I have already mentioned, the positions which States take in the
United Nations is part of their practice and a resolution (or sequence of resolutions)
which commands a sufficiently widespread acceptance and which is regarded by the
States as embodying a rule of international law can have an important effect on the
development of customary international law, so long as it is not contradicted by
what States actually do
elsewhere (see, e.g., the discussion of the resolutions on nuclear weapons in the
Advisory Opinion on Nuclear Weapons (1996)).
The studies of international law produced by the International Law Commission for
the General Assembly, especially if adopted by the Assembly, may also have an
important effect on customary international law, even if they are not turned into
treaties (the ILC Articles on State Responsibility adopted in 2001 are a good
example).
9

The position of the Security Council is somewhat different. Decisions taken by the
Council under Chapter VII of the Charter and framed in mandatory terms are legally
binding on all States (Article 25 of the Charter). Moreover, under Article 103 of the
Charter the duty to carry out a decision of the Council prevails over obligations
under all other international agreements (see the Lockerbie cases (1992)). However,
the Council does not create new laws but rather obligations in relation to specific
issues and it is not a legislature (see the decision of the ICTY in Tadic (1995)).
Christopher
In the previous paragraphs a Discussion on Hierarchy of Sources was made. Now

This humble writer would like to borrow the Discussion on Hierarchy of Norms 10
1.
A Hierarchy of Norms ?
A controversial question is whether there is a hierarchy of norms in international

law. Article 38 makes no reference to such a hierarchy but it is possible to discern
elements of a hierarchy in certain respects. It is now generally acknowledged that a
few rules of international law are of such fundamental importance that they have
the status of jus cogens, that is peremptory norms from which no derogation is
permitted. Whereas States can always agree to depart (as between themselves)
from ordinary rules of customary international law, they are not free to depart from
or vary a rule of jus cogens. Thus, a treaty which conflicts with a jus cogens rule is
void (Vienna Convention on the Law of Treaties, 1969, Article 53) and such a rule
will prevail over inconsistent rules of customary international law.
However, it is important to bear in mind that (a) there are very few rules which
possess the status of jus cogens (e.g. the prohibitions of aggression, genocide,
torture and slavery) and the criteria for achieving such status are strict near
universal acceptance not merely as a rule but as a rule from which no derogation is
permitted; (b) cases of conflict are very rare and the suggestion that such a conflict
exists should be carefully scrutinised (see, e.g. the rejection both by the ICJ Arrest
Warrant case (2002) and the English courts Jones v. Saudi Arabia (2006) of the
suggestion that the law on sovereign immunity conflicted with the prohibition of
torture).
10

A treaty prevails over customary law as between the parties to the treaty but a
treaty will not affect the rights of States not party to that treaty. There is, therefore,
no strict sense of hierarchy between treaty and customary law, contrary to what is
sometimes alleged.

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Everything will be fine with my God , my God..

Heavenly Father help me stand

Virally provides a good introduction law to Sources of International law:

Introduction from the Article of Professor Greenwood.

Virally, The Sources of International Law. Page 118

Everything will be fine with my God , my God..Heavenly Father help me stand

Everything will be fine with my God , my God..Heavenly Father help me stand

Bernas, Joaquin, Introduction to Public International Law. 2009 Edition. Page 8.

Everything will be fine with my God , my God..Heavenly Father help me stand

Boy 1: Sir . ani man ni sir (bla bla)

a. international conventions, whether general or particular, establishing rules

Everything will be fine with my God , my God..Heavenly Father help me stand

Vienna Conventionon the Law of Treaties of 1969.

Article 26 Pacta sunt servanda

What is the underlying doctrine

Everything will be fine with my God , my God..Heavenly Father help me stand

So as to Article 27 example JPEPA, Philippines cannot renege its obligation by

Article 46 Provisions of internal law regarding competence to conclude treaties

How will you know violaitn is manifest? Par 2

Everything will be fine with my God , my God..Heavenly Father help me stand

Article 38 now paragraph (a) was a general or particular establishing rules

Christopher Greenwood. Sources of International Law: An Introduction.

Everything will be fine with my God , my God..Heavenly Father help me stand

a. international conventions, whether general or particular, establishing rules

Everything will be fine with my God , my God..Heavenly Father help me stand

Everything will be fine with my God , my God..Heavenly Father help me stand

Christopher Greenwood. Sources of International Law: An Introduction.

Everything will be fine with my God , my God..Heavenly Father help me stand

PLEASE GOD BLESS MY WORK

Everything will be fine with my God , my God..Heavenly Father help me stand

Christopher Greenwood. Sources of International Law: An Introduction.

Everything will be fine with my God , my God..Heavenly Father help me stand

In the previous paragraphs a Discussion on Hierarchy of Sources was made. Now

A controversial question is whether there is a hierarchy of norms in international

Christopher Greenwood. Sources of International Law: An Introduction.

Everything will be fine with my God , my God..Heavenly Father help me stand

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