Sources of Int l Law

Statute of the international Court of Justice, 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.

I. Types of sources of Int’l Law
International treaties
2. International customs
main
3. General principles of law
4. Decisions of Int’l organizations
5. Doctrines
subsidiary
6. Courts’ decisions

International customs
Elements:
I. state practice
general
uniform
consistent
II. opinio juris

Formation of a custom
Acquiescence
Protests
Persistent objector
Duration
Regional or local customs
The burden of prove

General principles of law
Examples:
res judicata
nullum crimen sine lege
non bis in idem
error
circumstantial evidence
litispendence
…etc.

Courts’ decisions
A subsidiary source
Precedents in Int’l Law:
Art. 59 of the Statute of the ICJ:
“The decision of the Court has no binding force
except between the parties and in respect of that
particular case”.
International or national courts’ decisions?

II. Special types of norms
1) jus cogens norms
Art. 53 of the VCLT:
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 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.
Art. 64 of the VCLT:
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

II. Special types of norms
jus cogens norms give rise to erga omnes obligations:
ICJ, Barcelona Traction Case (Belgium v Spain), 1964:
Para. 33.
[An] essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

II. Special types of norms
2) Soft law
principles, rules and standards governing international relations which have no binding character
- Examples:
Resolutions of int’l organizations
Programs of action
Texts of treaties which are not yet in force
Reports
Codes of Conduct
Recommendations …

III. Hierarchy of sources & hierarchy of norms
Hierarchy of sources
Main and subsidiary sources
Art. 103 of the UN Charter
Resolution of collisions
Hierarchy of norms
Jus cogens norms
Art. 103 of the UN Charter:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.