Sources of International Law PIL Definition of Sources of International Law - Are the materials and processes out of which the rules and principle of international personalities are develop. - Rules are extracted and analyzed from the sources. - Given the wide range of possible sources of international law, the most authoritative enumeration is found in Article 38, Statute of the International Court of Justice. Article 38, Statute of the International Court of Justice 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. 5 Distinct Sources of International Law 1.International Convention/treaties 2.International Custom 3.General principles of law 4.Judicial Decision 5.Writing of Publicist International Convention/Treaties - Treaties are known by a variety of terms-conventions, agreements, pacts, general acts, charters, statues, declaration and covenants. - This is the creation of written agreement whereby the states participating binds themselves legally to act in a particular way or set up particular relations between themselves. Treaties may codify, crystallize, or create obligations. -Codification is done where the treaty merely compiles existing obligations to facilitate simplicity, as in the case of the 1982 UNCLOS. -Crystallization is done to formalize as an obligation existing State practice, as in the case of the 1958 Geneva Continental Shelf Convention. - Creation is done where the treaty itself is the first time wherein such obligation was created between the parties, as is usually the case in bilateral trade agreements. Treaties, just like domestic law, are governed by the rules on Lex Posterior and Lex Specialis. -Lex posterior provides that a later treaty overrides a prior treaty in case of incompatibility, -Lex specialis provides that a more specific treaty should be followed if in conflict with a more general treaty Treaties may be bilateral or multilateral, depending on how many parties are involved. - Multilateral treaties are usually general in nature and establish common principles of law. - Bilateral treaties (particular international treaties) are usually for the regulation of conduct such as trade. - Law between the parties. Regardless of how many States are involved, it must always be remembered that a treaty becomes the law between the parties who gave their consent thereto. Although there are instances where States who do not give their consent are bound by treaties, such as situations wherein a treaty is merely meant to codify existing practices regarding /'as coverts, general rule still stands that States are also bound to the treaties they gave their censent to, and only to the extent by which they allowed themselves to be bound. International Customs -as evidence of a general practice accepted as binding law through persistent usage over a long period of time. -It is necessary, however, that the custom be: [i] prevailing practice by a number of States; [ii] repeated over a considerable period; and [iii] attended by opinio juris or a sense of legal obligation. - constant and uniform usage, accepted as law. 2 Main elements of Customs 1. State practice a) Uniformity- although uniformity is required, absolute uniformity by all States is not. As such, substantial uniformity of a given practice among States is enough b) Generality- the practice under consideration must be widespread among the States that are particularly involved in the relevant activity. Thus, universality of a given practice is not a requirement c) Duration- the time period must be long enough to show that other requirements are satisfied 2. Opinio juris- constitutes a State’s belief that it is acting due to a legal obligation. The fact that a State is acting in accordance with opinio juris is never presumed and must always be proven. Should opinio juris precede State practice or should it already be present when the practice is performed? Answer: - Although this question has not yet been formally resolved, it must nevertheless be understood that custom can only arise once both elements concur. General Principles of Law. I. These are rules derived mainly from natural law, observed and recognized by civilized nations e.g., res judicata, prescription, pacta sunt servanda and estoppel. II. General principles of law are propositions of law that are so fundamental that they are found in almost all legal systems. Notably, general principles of law are a separate source of law from both treaty and custom. Judicial Decisions Generally, of international tribunals, the most authoritative being the International Court of Justice. They are not really sources, but “subsidiary means” for finding what the law is, and whether a norm has been accepted as a rule of international law. The decision of a national court may be used depending upon the prestige and perceived impartiality of the domestic court, not being in conflict with the decisions of international tribunals, and its admissibility in the forum where it is cited. Writings of Publicists -Which must be fair and unbiased representation of international law by acknowledged authorities in the field. - Publicists are a particular class of learned scholars whose writings are regarded as being persuasive sources of international law. Although they are merely considered as subsidiary sources of international law, they play a primary role in helping practitioners and nonpractitioners alike in better understanding various concepts of international law. -Examples of these publicists are Grotius, Vattel, Oppenheim, Rousseau, and Lauterpacht
