PUBLIC INTERNATIONAL LAWChapter 2:SOURCES OF INTERNATIONAL LAW

When we say sources, we mean place, a person or thing from which something comes or can be obtained. My topic is all about where does intl law come from and how it is made? That is what systems allow intl law to come into being? Actually, these are quite difficult questions considering it is dangerous to transfer ideas from national legal systems to the very different context of intl law. There is no code of intl law. While there is an ICJ and range of specialized courts, their jurisdiction is critically dependent upon the consent of the States and cannot be attributed as compulsory jurisdiction. The result is that intl law is made largely on a decentralized basis by the actions of the States which make up the intl community*

Classifications of Sources

Formal SourcesMaterial Sources

Formal sources confer upon rules an obligatory character while material sources comprise the actual content of the rules.*

Formal SourcesVarious processes by which rules come into existence

Examples :

LegislationTreaty makingJudicial decision making

When we say formal sources, it means processes which result in the making of the rules. It is concerned with how the rule was made.

As an overview on the steps in the treaty making, basically there are 5 steps. negotiationSignatureRatificationExchange of the instruments of ratificationConcurrennce of the senate

*

Material Sourcesconcerned with the substance and content of the obligationExamples:State practiceUN ResolutionsTreatiesJudicial decisionsWriting of jurists

In contrary to formal which is concerned with proceeses, the material is concerned with the substance of the obligation.It is concerned with what the actual content of the rules isIdentify what the obligations are

Sometimes referred to as evidence of international law*

Article 38 (1) of Statute of the ICJ

Most widely accepted statement of the sources of international law

Does not speak of sources, rather a directive to the Court on how it should resolve conflicts before it

Read first

And as a summary, the sources of intl law are.*

Sources

CustomTreaties and other international AgreementsGenerally recognized principles of lawJudicial decisions and teachings of highly qualified and recognized publicists

These will be discussed one by one..*

Custom / Customary Law

A general and consistent practice of states followed by them from a sense of legal obligation

Customary law is not a written source.

When we say custom, it is the traditional and widely accepted way of doing something.

It is a habitual practice.Custom has played a significant part in building the present fabric of the intl legal system. Though its importance has lessened in the modern times due to the increasing use of treaties as law creating method but it remains a vital source of intl law.

From the given definition, we can deduced two basic elements of custom*

Elements of CustomMaterial factor

Subjective Factor

Material FactorHow the states behave/ the actual behavior of states

Elements :

Duration ConsistencyGenerality of the practice of states

Duration can be short, can be long.. It is not the most impt element.

Consistency means continuity and repetition

And with regard to generality of the practice of States, it need not be complete, but it must be substantial. Absolute conformity is therefore not required. *

Asylum caseFacts: There was a military rebellion wherein the parties were prosecuted

Columbian Ambassador informed the Peruvian Government of the asylum granted to the parties stating that they are qualified as political refugee

Asylum CasePeruvian refused

Issue: whether or not refusal is proper?

Ruling: Yes. Columbia had not proved the existence of a constant and uniform practice of unilateral qualification as a right of the State and obligation upon the territorial State

The next element of custom is ..*

Opinio Juris sive necessitatisOpinio of law or necessity

Belief that a certain form of behavior is obligatory

ReadSo the question is why do the States behave the way they do ? Is it because they consider it obligatory or just a matter or courtsesy? Believing that a behavior is obligatory is what makes practice an intl rule Without it, practice is not law. *

Effect of Custom for Dissenting StatesGeneral Rule: they are boundException: they had consistently objected to it while the custom was merely in the practice of formationAngloNorwegian Fisheries case coastline delimitation rule will not apply to Norway, as it has always opposed any attempt to apply it

Evidences of State PracticeTreatiesDiplomatic correspondenceStatements of national leaders and advisersConduct of states

NOTE: by themselves, not customary law unless characterized by opinio juris

Is there an Instant Custom?

Yes. A spontaneous activity of a great number of states supporting a line of action.One writer has suggested that united action may have given birth to instant customary law

The Martens ClauseUntil a more complete code of laws of war has been issued, the High Contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience

Read, in short , even without practice, there can emerge a principle of law based on laws of humanity and dictates of public conscience.

The next important source is.*

2. Treatiesmeans aninternational agreementconcludedbetween Statesinwritten formand governed by international law, whetherembodied in a single instrument or in two or more related instrumentsandwhatever its particular designation

Examples are;Phil us vfa ASEAN DeclarationHague ConventionGeneva ConventionSandugo*

TreatiesDetermine the rights and duties of states just as individual rights are determined by contracts .

Identify what the obligations areSometimes referred to as evidence of international law

*

Binding ForceGeneral Rule: only on the parties

Exception: when the number of contracting parties and the generality of acceptance of the rules can have the effect of creating a universal law.

TreatiesAll must be observed by the parties under the principle of pacta sunt servanda

Pacta sunt servanda(Latinfor "agreements must be kept")

Ininternational agreements, "everytreatyin force is binding upon the parties to it and must be performed by them ingood faith.

When treaty and custom contradict each otherTreaty comes later = treaty shall prevailIf later treaty is void = custom shall prevail (Vienna Convention)Custom comes later = not clear

logical rule = custom shall prevail ; expression of later will practice = attempt is made to keep treaty alive

General Principles of Law Recognized by Civilized Nations

Also referred to as general principles of law recognized by or common to the worlds major legal systems

The term under statute of ICJ is wide and vague.

It includes though not confined to principles of justice which have been accepted and adopted by civilized nations generally.

The Court can have recourse to this source if there is No clear rule of customary law in a case before it.

This is necessary to avoid the possibility that a court would be unable to decide a case because of gap in the law.

An intl judicial body is under a duty to adjudicate and should not tefrain from giving judgment on the ground that the law is silent or obscure.*

ExamplesEvery violation of an engagement involves an obligation to make reparationPrivate rights acquired under one regime does not cease upon the change of governmentPrinciple of estoppel

4. Judicial Decisions

Article 38 of the Statute directs the Court to apply judicial decisions as subsidiary means for the determination of the rules of law

They are called subsidiary because in the normal conduct of intl relations , it is the State practice which creates the rules and which is the primary means of determination of those rules.

However it is subject to Art 59 of ICJ which provides that decisions of Court have no binding force except between the parties and in respect of that particular case. Such decisions do not constitute stare decisis. Stare decisis means the precedent decisions are to be followed by the courts*

5. Teachings of writers and publicistsIn civil law jurisdictions, there is more ready reference to writers.

Publicists are institutions which write on international law.

Their work was based on deduction drawn mainly from natural law principles, analogies from roman law and generalization of state practice. *

6. EquityWhere two parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non performance of that obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party.

Other Supplementary Evidence

UN Resolutions Soft Law

AUnited Nations resolution(UN resolution) is a formal text adopted by aUnited Nations(UN) body.

Soft law sometimes called non treaty agreementsSources of soft law are administrative rules which guide the practice of states in relation to international organizations.

It plays an impt role because often states prefer non treaty oblifgations because they are simpler and more flexible foundation for their future relations, *

When we say sources, we mean place, a person or thing from which something comes or can be obtained. My topic is all about where does intl law come from and how it is made? That is what systems allow intl law to come into being? Actually, these are quite difficult questions considering it is dangerous to transfer ideas from national legal systems to the very different context of intl law. There is no code of intl law. While there is an ICJ and range of specialized courts, their jurisdiction is critically dependent upon the consent of the States and cannot be attributed as compulsory jurisdiction. The result is that intl law is made largely on a decentralized basis by the actions of the States which make up the intl community*Formal sources confer upon rules an obligatory character while material sources comprise the actual content of the rules.*When we say formal sources, it means processes which result in the making of the rules. It is concerned with how the rule was made.

As an overview on the steps in the treaty making, basically there are 5 steps. negotiationSignatureRatificationExchange of the instruments of ratificationConcurrennce of the senate

*In contrary to formal which is concerned with proceeses, the material is concerned with the substance of the obligation.It is concerned with what the actual content of the rules isIdentify what the obligations are

Sometimes referred to as evidence of international law*Read first

And as a summary, the sources of intl law are.*These will be discussed one by one..*Customary law is not a written source.

When we say custom, it is the traditional and widely accepted way of doing something.

It is a habitual practice.Custom has played a significant part in building the present fabric of the intl legal system. Though its importance has lessened in the modern times due to the increasing use of treaties as law creating method but it remains a vital source of intl law.

From the given definition, we can deduced two basic elements of custom*Duration can be short, can be long.. It is not the most impt element.

Consistency means continuity and repetition

And with regard to generality of the practice of States, it need not be complete, but it must be substantial. Absolute conformity is therefore not required. *The next element of custom is ..*ReadSo the question is why do the States behave the way they do ? Is it because they consider it obligatory or just a matter or courtsesy? Believing that a behavior is obligatory is what makes practice an intl rule Without it, practice is not law. *Read, in short , even without practice, there can emerge a principle of law based on laws of humanity and dictates of public conscience.

The next important source is.*Examples are;Phil us vfa ASEAN DeclarationHague ConventionGeneva ConventionSandugo*

*The term under statute of ICJ is wide and vague.

It includes though not confined to principles of justice which have been accepted and adopted by civilized nations generally.

The Court can have recourse to this source if there is No clear rule of customary law in a case before it.

This is necessary to avoid the possibility that a court would be unable to decide a case because of gap in the law.

An intl judicial body is under a duty to adjudicate and should not tefrain from giving judgment on the ground that the law is silent or obscure.*They are called subsidiary because in the normal conduct of intl relations , it is the State practice which creates the rules and which is the primary means of determination of those rules.

However it is subject to Art 59 of ICJ which provides that decisions of Court have no binding force except between the parties and in respect of that particular case. Such decisions do not constitute stare decisis. Stare decisis means the precedent decisions are to be followed by the courts*Their work was based on deduction drawn mainly from natural law principles, analogies from roman law and generalization of state practice. *AUnited Nations resolution(UN resolution) is a formal text adopted by aUnited Nations(UN) body.

Soft law sometimes called non treaty agreementsSources of soft law are administrative rules which guide the practice of states in relation to international organizations.

It plays an impt role because often states prefer non treaty oblifgations because they are simpler and more flexible foundation for their future relations, *