[MODECAI] TOPIC TWO
SAINT
AUGUSTINE
UNIVERSITY
OF
TANZANIA
FACULTY OF LAW
PUBLIC INTERNATIONAL LAW 1 SLW 104
COURSE NOTES
ON
MODULE 2
SOURCES OF INTERNATIONAL LAW
PREPARED BY MODECAI MWITA; ASSISTANT LECTURER OF PUBLIC
INTERNATIONAL LAW, SAUT MWANZA.
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2.1 Introduction
The term source may normally mean the original place where an object emanates or created from
or comes from or obtained from. For example the source of water may be oxygen and hydrogen
or wells, rivers, lakes etc and the source of tea may be water, tea leaves and sugar. In this context,
when dealing with the aspect of sources of international law we tend to ask two questions; Firstly,
where is international law obtained? And Secondly, what makes up international law?. These
questions are difficult as they deal with international law and not domestic law. In the question of
where does international law come from, we confine on the mode of obtaining it and in the question
of what makes international law, we confine on the components building up international law as a
whole.
The first definition of the sources of international law is; the various pieces of rules and authorities
that once combined together form international law. This definition answers the question what
makes up international law, due to the fact that international law is a general term made into
existence through a combination of various rules and authorities. The second definition of sources
of International law is; binding references that are used to dissolve international disputes between
states. The second definition answers the question where is international law obtained. That, the
presence of international law is made into existence due to various rules that can be referred in
case of a dispute either documented or non documented.
It is easier to deal with the sources of domestic law as they are well established rather than the
international law as there is no established international legislature that may enact conventions.
There is no single body able to create laws internationally binding upon everyone, nor a proper
system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law.
In the domestic level sources might be the Constitution, the parliamentary statute, Customs, Case
laws and international conventions. In validity, international law does exist and is ascertainable.
There are ‘sources’ available from which international law can be attainable.
The exact codification of the sources of International law can be obtained from The Statute of
International Court of Justice. Article 38(1) of the Statute of the International Court of Justice is
widely recognized as the most authoritative and complete statement as to the sources of
international law. The provision of the Article establishes the guidelines to be applied by the ICJ
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when resolving the disputes brought before it by states and these guidelines are what we term as
sources of international law. The provision identifies the following as sources of international law;
(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) 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. Therefore, by analysis Article 38(1)
establishes that, conventions, international customs, general principles of the law and two
subsidiary sources, judicial decisions by international courts and the writings of scholars with
expertise in international law.
2.1 Classification of Sources
The classification of international law is basically confined into four groups which are soft laws,
hard laws, material source and formal source.
a. Formal source of international law
This can be termed as the primary source, they are the sources that establish rules and norms to be
applied in international law. Therefore, material source is such source which gives a particular
international rule its validity. It can be termed as a source imparting to a given rule the force of
law. Examples of formal sources are such as treaties or international conventions, custom, or
general principles of law recognized by civilized nations.
b. Material Source of International law.
These can be termed as secondary source, they don’t have force of law but establish the existence
of international law. The term material source means a source which provides for evidence that
international law exists. Examples of material sources are such as judicial decisions by
international courts and writings of scholars in international law.
c. Soft laws.
The term soft law refers to legal instruments which do not have any legally binding force. Soft
law contains nonbinding or voluntary resolutions, recommendations, codes of conduct, and
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standards. The term soft law is used to denote agreements, principles and declarations that are not
legally binding. For example UN General Assembly resolutions are an example of soft law.
d. Hard laws
Hard law refers generally to legal obligations that are binding on the parties involved and which
can be legally enforced before an International court. In contrast with soft law, hard law
gives States and international actors actual binding responsibilities as well as rights. Hard law
means binding rules that are authoritative. For example, Treaties and International customs.
2.3 The Sources
The following are sources of international law as provided by Article 38 (1) of the Statute of the
International Court of Justice. (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) judicial decisions and the teachings of the most highly qualified publicists of
the various nations.
a. Treaties (international conventions) Under Article 38 (1) a
Treaties can be termed as international agreements between states which are legally binding.
Treaties between States or sometimes between States and international organizations are one of
the main and formidable sources of International law. This is to say that, international law gains
its international status due to the presence of international convention or treaties. Treaties possess
different names, ranging from Conventions, International Agreements, Pacts, General Acts,
Charters, through to Statutes, Declarations and Covenants. Essentially, treaties imply the
conclusion of written agreements whereby the state parties agree to bind themselves in relation to
the rules and obligations codified in the treaty. As examples of important treaties one may mention
the Charter of the United Nations, the Geneva Conventions on the treatment of prisoners and the
protection of civilians and the Vienna Convention on Diplomatic Relations and the Geneva
Convention on the law of Treaties.
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.
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A treaty becomes binding to state parties due to an established rule of pacta sunt servanda. This
is an international customary rule which requires all States parties to a treaty to honor their treaties.
The International Court of Justice applied the UN Charter as an International Treaty in providing
an opinion the use or threat of nuclear weapons. In the case of the LEGALITY OF THE THREAT
OF THE USE OF NUCLEAR WEAPON CASE (ADVISORY OPINION) 1996 ICJ Reports P.
226. In this case the United Nations sought an advisory opinion on whether the use of nuclear
weapons in war was permitted by international law. Although the court established that there was
no treaty nor custom that prohibited the use of nuclear weapons, it was on the opinion that; A threat
or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of
the United Nations Charter and that fails to meet all the requirements of Article 51 of the UN
Charter, is unlawful;[
That is why treaties are more accurately described as reliable sources of obligation under
international 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 international 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.
There are certain elements that the treaty should possess so as to qualify as a source of international
law.
i. Should be that intending to create legal relations.
Intention to create legal relations is an important legal principle in international treaties or
agreements between states. This is because the creation of legal relations makes the treaty
enforceable before international judicial organs. A treaty which is to be a source of law should be
that treaty which establishes legal relations between state parties. Article 2 (1) a of the Vienna
Convention on the law of Treaties of 1969, adopted on 23rd April 1969 and entered into force on
27th January 1980. Legally defines a Treaty as, an international agreement concluded between
states in written form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its designation. By the above definition the
central theme therein, is that a treaty should be that which is governed by international law. This
means the treaty should be taken as legal instrument enforceable before the Courts. Thus, it can be
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stated that a treaty without the intention to create legal relations is not a treaty by law but a mere
social agreement between states.
The above element was well established in the case of LEGAL STATUS OF EASTERN
GREENLAND (DENMARK v NORWAY) 1933, PCIJ, Series B No 53 p.69. The case was
brought before the Permanent Court of International Justice. The main issue of the case was
whether Norway had entered into a treaty with Denmark through the Ihlen Declaration. The facts
where that, On 14th July 1919, the Danish Diplomatic representative proposed to the Norwegian
foreign Minister Mr Ihlen, that if Norway did not oppose Denmark’s claim to Eastern Greenland
at Paris Peace Conference, then Denmark would not object to Norway’s claims on Spitzbergen. In
a subsequent conversation, the Norwegian Foreign Minister declared that the Norway government
would not make any objection to the claims by Denmark. In this regards, the two states had created
a bilateral treaty where Norway agreed not to occupy Eastern Greenland. In determining the
dispute, the PCIJ held that, it was beyond all disputes that, the reply by the Norwegian Minister of
foreign affairs on behalf of the government of Norway in response to a request by the diplomatic
representative of Denmark, is binding upon the state of Norway and that it can be dully established
that a treaty had been concluded between Denmark and Norway.
ii.
Consent of state parties
The term consent can be defined to mean a voluntary action or willingness to abide by the
established terms of a treaty by a state party. Thus, in order for a treaty to qualify to be a source of
international law, then the state parties should agree on their own self to be party to the treaty. The
Vienna Convention on the Law of Treaties of 1969 establishes the circumstances under which
consent is obtained by state parties to an international treaty. The provisions of Article 11 of the
Convention expressly provides that, the consent of a state to be bound by a treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession or by any other means if so agreed. In light of this provision it can be established that
consent is said to be attained if a state agrees to sign the treaty, agrees to exchange instruments,
agree to incorporate the terms of the treaty to their internal laws through the parliament, accept the
treaty or approve the treaty. It is important to note that the Vienna Convention under Article 9 (1)
requires a treaty to be adopted unanimously or by consent of two third majority of all state parties
to the state parties, save for certain exceptions.
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iii.
Treaty should be binding
The binding nature of a treaty makes it qualified to be a source of international law. This means
that, the treaty should be at a capacity of establishing responsibility among state parties once on
breach of any provision. Thus, a treaty becomes binding upon the state parties from the date it
comes into force. Under Article 26 of the Vienna Convention of the Law of Treaties of 1969,
clearly provides that, every treaty in force is binding upon the parties to it and must be performed
by them in good faith. Thus, the provision is of the wording that, once a treaty is in force or in
action all state parties become bound by it and are required to exercise the international custom of
pacta sunt servanda which means that every state party to the treaty must perform the provisions
or rules within the treaty which he is party to in good faith. In certain circumstances a state may
approve a treaty when it is already in force. This circumstance has been accommodated by the
provisions of Article 24 (3) of the Vienna Convention which establishes that if a state member
consents to a treaty which is already in force, the state party becomes bound by the treaty on the
day the consent was obtained and the treaty comes into force into that particular state on that
particular date.
iv.
The reservations not affect root of the Treaty
A treaty qualifies to be source international law if reservations to it do not affect or touch its
purpose or root. A reservation can be termed as a statement of exclusion to be bound by some
provisions of the treaty by a state party. The provisions of Article 2 (1) d of the Vienna Convention
on the Law of Treaties provides a more elaborative meaning of reservation to mean a unilateral
(single) statement however phrased or named, made by a state, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their applications to that state.
A exemplary case can be obtained from the ICJ in the RESERVATIONS TO THE
CONVENTION ON THE PREVENTION AND PUNISHMENT TO THE CRIME OF
GENOCIDE (advisory opinion) 1951, ICJ Reports pg 15; The facts where that, the Soviet states
invoked certain reservations regarding to the provisions on the jurisdiction of the ICJ in relation to
the Genocide Convention and the provisions regarding immunity from prosecution in respect to
genocide crimes. The United Nations General Assembly asked the ICJ for an opinion on the effect
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of the reservations by states. The court was at the opinion that, a state party to the Genocide
Convention was welcomed for reservations on the Convention, but the reservations are subject to
limitations as they are only applicable on matters that don’t destroy the root and purpose of the
Genocide Convention.
b. International Customs under Article 38 (1) b
International customs refers to the uncodified or undocumented or unwritten rules and norms that
have been agreed to be binding upon states. It should be noted that International Custom is not a
written source. This source emanates from natural law which basically advocates for human
reasoning and that nature determines what is wrong and what is right. The international customs
are not written down or codified but survive ultimately because of historical legitimacy. But in
order for an international custom to be a source of international law, it should comprise certain
ingredients opinion juris and state practice. This was established by the ICJ in the case of As the
ICJ provided the following statement in the case of NORTH SEA CONTINENTAL SHELF
CASES,(FEDERAL REPUBLIC OF GERMANY v DENMARK and NORWAY) ICJ Reps,
1969, p. 3:- Germany's North Sea coast is concave, while the Netherlands' and Denmark's coasts
are convex. If the allocation of boundaries had been determined by the equidistance rule Germany
would have received a smaller portion of the resource-rich shelf relative to the two other states.
Thus Germany argued that the length of the coastlines be used to determine the delimitation.
Germany wanted the ICJ to apportion the Continental Shelf to the proportion of the size of the
state's adjacent land, and not by the rule of equidistance. Relevant is that Denmark and The
Netherlands, having ratified the 1958 Geneva Continental Shelf Convention, whereas the Federal
Republic of Germany did not, wished that Article 6 on equidistance principle were to be applied.
The court held that; ‘Not only must the acts concerned be a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule requiring it. The States concerned must feel that they are
conforming to what amounts to a legal obligation.’
Also in the case of LIBYA ARAB JAMAHIRIYA v MALTA (1983), ICJ Reports pg 13 need for
opinion juris and state practice to establish a binding custom was supported; This case, which was
submitted to the Court in 1982 by Special Agreement between Libya and Malta, related to the
delimitation of the areas of continental shelf appertaining to each of these two States. In support
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of its argument, Libya relied on the principle of natural prolongation and the concept of
proportionality. Malta maintained that States’ rights over areas of continental shelf were now
governed by the concept of distance from the coast, which was held to confer a primacy on the
equidistance method of defining boundaries between areas of continental shelf, particularly when
these appertained to States lying directly opposite each other, as in the case of Malta and Libya.
The Court found that, in view of developments in the law relating to the rights of States over areas
of continental shelf, there was no reason to assign a role to geographical or geophysical factors
when the distance between the two States was less than 400 miles (as in the instant case). It also
considered that the equidistance method did not have to be used and was not the only appropriate
delimitation technique. The Court was on the holding that; in order for international custom to
suffice, the substance of such customary law must be ‘looked for primarily in the actual practice
and opinio juris of states.
A new rule of custom international law cannot be created unless both of these elements are present.
Practice alone is not enough nor can a rule be created by opinio juris without actual practice. A
good example of international custom that contains state practice and opinion juris is that requiring
States to grant immunity to a visiting Head of State. First, there must be widespread and consistent
State practice, states must, in general, have a practice of according immunity to a visiting Head of
State. Secondly, there has to be what is called “opinio juris”, usually translated as “a belief in legal
obligation; ie States must accord immunity because they believe they have a legal duty to do so.
The ingredients that establish an international custom are elaborated as follows.
i.
Opinion juris;
This is that part of the International custom that deals with belief or psychology of states that they
are bound by a certain international rule or norm. Opinion juris can be taken as a belief which
forms the basis for the respect and recognition of an established rule. This means states will behave
a certain way because they are convinced that the custom is binding upon them to do so. In the
absence of a belief to be bound by a certain custom, then it is difficult to enforce customary law.
For example in the International case of MILLITARY AND PARAMILLITARY ACTIVITIES
IN AND AGAINST NICARAGUA (NICARAGUA v UNITED STATES) 1986 ICJ Report pg
14: On 9 April 1984 Nicaragua filed an Application instituting proceedings against the United
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States of America, together with a request for the indication of provisional measures concerning a
dispute relating to responsibility for military and paramilitary activities in and against Nicaragua.
The case was filed against the United States concerning the military or paramilitary activities in or
against Nicaragua, and that the United States had violated the obligations imposed by customary
international law not to intervene in the affairs of another State, not to use force against another
State, not to infringe the sovereignty of another State, and not to interrupt peaceful maritime
commerce. The Court decided that the United States was under a duty immediately to cease and
to refrain from all acts constituting breaches of its legal obligations, and that it must make
reparation for all injury caused to Nicaragua by the breaches of obligations under customary
international law and that for a new customary rule to be formed, it must be accompanied by
opinio juris, which establishes the evidence of a belief by the state that the custom is obligatory
before it. This holding is on the reasoning that, a custom will only bind a state which believes that
particular custom is binding upon it and not otherwise.
The element of opinion juris was well established by The Permanent Court of International Justice
in the International case of LOTUS CASE (TURKEY v FRANCE) PCIJ SERIES A No 10 of
1927. The facts at hand concerned a collision on the high seas (where international law applies)
between the Lotus, a French ship, and the Boz-Kourt, a Turkish ship. Several people aboard the
latter ship were drowned and Turkey alleged negligence by the French officer of the watch. When
the Lotus reached Istanbul, the French officer was arrested on a charge of manslaughter and the
case turned on whether Turkey had jurisdiction to try him. The matter was taken before the ICJ for
determination.
Among the various arguments adduced, the French maintained that there existed a custom to the
effect that the flag state of the accused (France) had exclusive jurisdiction in such cases and that
accordingly the national state of the victim (Turkey) was barred from trying him. To justify this,
France referred to the absence of previous criminal prosecutions by such states in similar situations
and from this deduced tacit consent in the practice which therefore became a legal custom. The
Court rejected this and declared that even if such a practice of abstention from instituting criminal
proceedings could be proved infact, it would not amount to a custom. It held that ‘only if such
abstention were based on the two states belief of a duty to abstain would it be possible to speak of
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an international custom’. Under this holding the essential ingredient of opnio juris was lacking
thus a custom could not be established.
Also in the International case of NORTH SEA CONTINENTAL SHELF CASE (FEDERAL
REPUBLIC OF GERMANY v DENMARK and THE NETHERLANDS) (1969) ICJ Reports p.3
. The facts were, in the general process of allocating the continental shelf of the North Sea in
pursuance of oil and gas exploration, lines were drawn dividing the whole area into national
spheres. However, Germany could not agree with either Holland or Denmark over the respective
boundary lines. Article 6 of the Geneva Convention on the Continental Shelf of 1958 provided that
where agreement could not be reached, and unless special circumstances justified a different
approach, the boundary line was to be determined in accordance with the principle of equidistance
from the nearest points of the baselines. from which the breadth of the territorial sea of each state
is measured. This would mean a series of lines drawn at the point where Germany met Holland on
the one side and Denmark on the other and projected outwards into the North Sea.
However, because Germany’s coastline is concave, such equidistant lines would converge and
enclose a relatively small triangle of the North Sea. The Federal Republic had signed but not
ratified the 1958 Geneva Convention and was therefore not bound by its terms. The issue was
whether a case could be made out that the ‘equidistance–special circumstances principle’ had been
absorbed into customary law and was accordingly binding upon Germany. The matter came before
the International Court of Justice. The International Court of Justice held that, states whose
interests are specially affect in the allocation of the northern continental shelf should have behaved
in such a way as to show a general recognition that a custom or legal obligation is binding upon
them, and thus the equidistance provision did not apply to Germany has it did not recognize such
a rule.. This holding implies that a custom will only be applicable if it is recognized by a state.
ii.
State Practice
The term state practice implies on the undertaking and acting upon an established legal rule by
States. It is how states behave in repetition that forms the basis of an international custom and that
due to the course of dealing it becomes binding upon them. Thus State practice can be obtained
from numerous sources. The sources of state practice can be obtained from executive acts,
legislative acts and Judicial acts. In order for state practice to stand and amount to an international
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custom, the state practice must be consistent. This means it should be continuous and repeated by
the particular state members.
In order for a practice to be a state practice it should be continuous practice and not a one term
practice. The basic rule as regards continuity and repetition Judicial was laid down in the Asylum
case decided by the International Court of Justice (ICJ) in 1950. The Court declared that a
customary rule must be ‘in accordance with a constant and uniform usage practiced by the States
in question’.
The facts of the ASYLUM CASE (COLOMBIA v PERU) 1950 ICJ Reports pg 266. The case
concerned Haya de la Torre, a Peruvian, who was sought by his government after an unsuccessful
revolt. He was granted asylum by Colombia in its embassy in Lima, but Peru refused to issue a
safe conduct to permit Torre to leave the country. Colombia brought the matter before the
International Court of Justice and requested a decision recognizing that it (Colombia) was
competent to define Torre’s offence, as to whether it was criminal as Peru maintained, or political,
in which case asylum and a safe conduct could be allowed. The Court, in characterizing the nature
of a customary rule, held that it had to constitute the expression of a right appertaining to one state
(Colombia) and a duty incumbent upon another (Peru). However, the Court felt that in the Asylum
litigation, state practices had been so uncertain and contradictory as not to amount to a ‘constant
and uniform usage’ regarding the unilateral qualification of the offence in question.
The ICJ emphasized its view that some degree of uniformity amongst state practices was essential
before a custom could come into existence in THE ANGLO-NORWEGIAN FISHERIES CASE.
(UNITED KINGDOM v NORWAY) (1951) ICJ Reports pg 116. In this case the facts were; The
United Kingdom, in its arguments against the Norwegian method of measuring the breadth of the
territorial sea, referred to an alleged rule of custom whereby a straight line may be drawn across
bays of less than ten miles from one projection to the other, which could then be regarded as the
baseline for the measurement of the territorial sea. The Court dismissed this by pointing out that
the actual practice of states did not justify the creation of any such custom. In other words, there
had been insufficient uniformity of behavior.
c. General Principles of law Under Article 38 (1) c
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General principles of law recognized by civilised nations are the third source of international law.
These principles of law are most often employed where the ICJ or another international tribunal
wants to adopt a concept to resolve an international dispute. The general principles of law were
put in place to assist the ICJ in filling gaps that may not be covered in international conventions
and international customs. This was put in place to avoid a non liquet situation which means the
law is not clear, as occurred in the the LEGALITY OF THE THREAT OF THE USE OF
NUCLEAR WEAPON CASE (ADVISORY OPINION) 1996 ICJ Reports P. 226. In this case the
United Nations sought an advisory opinion on whether the use of nuclear weapons in war was
permitted by international law. The court established that there was no treaty nor custom that
prohibited the use of nuclear weapons.
In any system of law, a situation may very well arise where the court in considering a case before
it realizes that there is no law covering exactly that point, neither parliamentary statute nor judicial
precedent. In such instances the judge will proceed to deduce a rule that will be relevant, by
analogy from already existing rules or directly from the general principles that guide the legal
system, whether they be referred to as emanating from justice, equity or considerations of public
policy. Such a situation is perhaps even more likely to arise in international law because of the
relative underdevelopment of the system in relation to the needs with which it is faced.
For example in the BARCELONA TRACTION CASE (BELGIUM v SPAIN) 1970 ICJ REPORT
3, in this case the ICJ applied the principle of locus standi. The facts were; BTLP was
a corporation incorporated in Canada, with Toronto as its headquarters that made and supplied
electricity in Spain. It had issued bonds to non-Spanish investors, but during the Spanish Civil
War (1936-9) the Spanish government refused to allow BTLP to transfer currency to pay
bondholders the interest they were due. In 1948 a group of bondholders sued in Spain to declare
that BTLP had defaulted on the ground it had failed to pay the interest. The Spanish court allowed
their claim. The business was sold, the surplus distributed to the bondholders, and a small amount
was paid to shareholders. However, Canada eventually accepted that Spain had the right to prevent
BTLP from transferring currency and declaring BTLP bankrupt. Of the shares, 88 per cent were
owned by Belgians, and the Belgian government complained, insisting the Spanish government
had not acted properly.
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The International Court of Justice held that Belgium had no legal interest in the matter to justify
it bringing a claim. Although Belgian shareholders suffered if a wrong was done to the company,
it was only the company's rights that could have been infringed by Spain's actions. It would only
be if direct shareholder rights (such as to dividends) were affected, that the state of the shareholders
would have an independent right of action. It was a general rule of international law that when an
unlawful act was committed against a company, only the state of incorporation of the company
could sue, and because Canada had chosen not to, this was the end.
The provision of ‘the general principles of law recognized by civilized nations’ was inserted into
article 38 of the ICJ Statute as a source of law, to close the gap that might be uncovered in
international law. The filling of gap was well elaborated in the case of TEXACO OVERSEARS
PETROLEUM COMPANY v LIBYA (1977) 53 ILR P.389; The facts were, a decree to nationalize
all Texaco’s rights, interest and property in Libya was promulgated by Libya . This action of the
Libyan Government led Texaco to request for arbitration, but it was refused by Libya. A sole
arbitrator was however appointed by the International Court of Justice on Texaco’s request, and
Libya was found to have breached its obligations under the Deeds of Concessions and was also
legally bound to perform in accordance with their terms. The Arbitration Court held that; whenever
reference is been made to general principles of law in the international arbitration context, it is
always held to be a sufficient criterion for the internationalization of a contract. The lack of
adequate law in the state considered and the need to protect the private contracting party against
unilateral and abrupt modifications of law in the contracting state is a justification to the recourse
to general principles.
Examples of principles that have been applied by the International Court of Justice.
i.
Principle of reparation and indemnity.
The principle of reparation and indemnity refers to the responsibility to repair and compensate for
the damages caused. This principle was applied in the CHORZ´OW FACTORY CASE
(GERMANY v POLAND) PCIJ Series A, No 17 1928 pg 29. After the First World War due to
a bipartite agreement between Germany and Poland; Germany agreed to transfer the control of
Upper Silesia area to Poland. On an agreement that Poland would not forfeit any property of
Germany, but thereafter Poland forfeited two of German Companies situated at that area. The
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Permanent Court of International Justice declared that ‘it is a general conception of law that every
violation of an engagement involves an obligation to make reparation’. The Court also regarded
it as: a principle of international law that the reparation of a wrong may consist in an indemnity
corresponding to the damage which the nationals of the injured state have suffered as a result of
the act which is contrary to international law.
ii.
Principle of Indirect evidence.
This implies to the circumstantial evidence that can be used to prove the wrongdoing of a party to
an international case. The International Court of Justice applied this principle in the CORFU
CHANNEL CASE (UNITED KINGDOM v ALBANIA), ICJ REPORTS 1949 P.4. The
international court when referring to circumstantial evidence, pointed out that ‘ indirect evidence
is admitted in all systems of law and its use is recognized by international decisions’.
iii.
Res judicata.
This principle implies to the finality of litigations. That once a dispute has been determined by a
competent court or tribunal or body, with the same facts, parties and court it cannot be instituted
again. This principle of res judicata was well elaborated in the case of GENOCIDE
CONVENTION CASE (BOSNIA AND HERZEGOVINA V. SERBIA AND MONTENEGRO)
CASE, ICJ REPORTS 1996 P. 595 .The Court emphasized that the principle ‘signifies that the
decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot
be reopened by the parties as regards the issues that have been determined, save by procedures, of
an exceptional nature, specially laid down for that purpose.
iv.
Principle of Good faith.
This principle implies that states should practice international law by good will and mutual trust
to each other. The International Court declared in the NUCLEAR TESTS CASE (AUSTRALIA
and NEW ZEALAND v FRANCE) CASES ICJ REPORTS 1974 P. 253 that: One of the basic
principles governing the creation and performance of legal obligations, whatever their source, is
the principle of good faith. Trust and confidence are inherent in international co-operation, in
particular in an age when this co-operation in many fields is becoming increasingly essential. Just
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as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the
binding character of an international obligation assumed by unilateral obligation.
v.
Principle of locus standi
This principle means that a state or person cannot possess a legal right to institute a claim before
the courts if he has no connection with the subject matter in dispute. This principle was applied in
the international case of SOUTH WEST AFRICAN CASE (LIBERIA and ETHIOPIA v SOUTH
AFRICA) 1966 ICJ Reports P.6; On 4 November 1960, Ethiopia and Liberia, as former States
Members of the League of Nations, instituted separate proceedings against South Africa in a case
concerning the continued existence of the League of Nations Mandate for South West Africa and
the duties and performance of South Africa as mandatory Power. The Court was requested to make
declarations to the effect that South West Africa remained a territory under a Mandate, that South
Africa had been in breach of its obligations under that Mandate, and hence the mandatory authority
were subject to the supervision of the United Nations. The Court found that Ethiopia and Liberia
could not be considered to have established any legal right or interest appertaining to them in the
subject-matter of their claims, and accordingly decided to reject those claims.
d. Judicial Decisions under Article 38 (1) d
These are decisions by international courts that may be used to dissolve the various international
disputes before the courts. Article 38(1) (d) of the ICJ Statute 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 of the ICJ STATUTE of 1945 expressly provides that; the decision of the Court has no binding
force except between the parties and in respect of that particular case. 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.
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f. Writings of scholars Under Article 38 (1) d
The writings of international lawyers may also be a persuasive guide to the content of international
law but they are not themselves creative of law and there is a danger in taking an isolated passage
from a book or article and assuming without more that it accurately reflects the content of
international law. Article 38 includes as a subsidiary means for the determination of rules of law,
‘the teachings of the most highly qualified publicists of the various nations’. Historically, of
course, the influence of academic writers on the development of international law has been marked.
In the heyday of Natural Law it was analyses and juristic opinions that were crucial, while the role
of state practice and court decisions was of less value. Writers such as Gentili, Grotius, Pufendorf,
Bynkershoek and Vattel were the supreme authorities of the sixteenth to eighteenth centuries and
determined the scope, form and content of international law.
2.4 Jus Cogens
Jus Cogens can be defined as the Rules of in International law that have to be adhered by all states
of the world regardless they are party to an international Convention or not party to an international
convention. Jus Cogens was well elaborated in the International Criminal Case at International
Criminal Tribunal for Yugoslavia at PROSECUTOR v ANTO FURUDZIJA; 1998
10th
December; were the tribunal ruled that jus cogens is a prohibitive rule, that informs all states of
the international community that a prohibition is absolute from which no state can oppose or
deviate. Therefore Jus Cogens forms the norms of international law that cannot be set aside. It is
proper to state that Jus Cogens contains rules that are fundamental to the international
community and that cannot be neglected and done away with.
The first example of jus cogens is genocide. This was established by the International Court of
Justice in the Case of ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (
CONGO v RWANDA) 2005 ICJ Reports 168, established that genocide was a peremptory norm
that any state or state government which engages in genocide shall be mandatory responsible
in international law. For instance in 2008, the International Criminal Court at the Hague charged
the then president of Sudan El Bashir for Genocide in Darful area. El Bashir rejected the charge
on the grounds that Sudan was not a member of the Rome Statute of 1998 establishing the
International Criminal Court. The International Criminal Court proceeded with the indictment
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of EL Bashir regardless his Country was not a member of the Court on the ground that genocide
was a prohibited matter to all states of the world, Sudan included. Jus cogens is there to protect
and uphold human dignity and rights. The aspect of jus cogens (also known as peremptory norm)
is a rule or principle which is so fundamental that it binds all states and does not allow any
exceptions.
The second example of a jus cogens is the use of force of one state against the other state in its
territory. The use of force was held by the International Court of Justice in NICARAGUA V USA
1986 ICJ Reports 14 as wrongful act under the jus cogens rules. Slave trade, genocide, racial
discrimination and apartheid are also categorized as wrongful acts within
jus
cogens. International Conventions are forbidden to include provisions which conflict with jus
cogens or peremptory norm. For example, Article 53 of the Vienna Convention on the Law of
Treaties of 1969 states that, ‘a treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law’. Thus the above provision of the Convention
clearly invalidates a treaty which conflicts a rule of jus Cogens. Also Article 64 of the Vienna
Convention of the Laws of Treaties of 1969 further supports jus cogens by establishing that, an
existing treaty which is in conflict with a peremptory norm becomes void and is terminated.
Other prohibitions that amount to jus cogens.
a. Piracy
b. Use of force
c. Crimes against humanity
d. Slavely
e. Torture
f. Apartheid
g. International terrorism
2.5 Erga omnes
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Also the concept of Jus Cogens has given rise to the principle of erga omnes. The principle of erga
omnes basically establishes that a state has a mandatory obligation that it has to perform under
international law. This means a duty imposed to all states to perform and failure to perform may
lead to sanctions. In the BARCELONA TRACTION, LIGHT AND POWER COMPANY
LIMITED ( BELGIUM v SPAIN), 1970 ICJ Reports P. 3 the International Court of justice held
that; erga omnes is an obligation of a state towards the whole international community and all
those rights that are important to all states must be protected.
Examples of obligations that amount to erga omnes in international law.
a. Obligation to Protect foreigners in economic damages
b. Obligation to Protect the environment
c. Obligation to protect human rights
d. Obligation to protect against genocide
e. Obligation to protect against racial discrimination
f. Obligation to protect against use of force.
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