International Court of Justice
SOURCES OF INTERNATIONAL
LAW
Emmy Yuhassarie
1
ICJ Statute and UN Charter
• The Statute of ICJ is annexed to the Charter of UN, of which it forms an integral
part. According to Art 92 of the Charter of UN the ICJ is the principal judicial
organ of the UN. Once a State becomes a member, it automatically becomes a
member if the ICJ.
• The main object of the Statute is to organize the composition and the functioning
of Court;
WHY is Article 38 ( 1)
regarded as constituting
sources of international law?
It is a text of the highest authority, and we may fairly assume that it expresses the duty
of any tribunal which is called upon to administer international law.
2
Normative base: ICJ Statute(Art 38 Para 1)
• (1) The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply :
a)
b)
c)
d)
International conventions, whether general or particular;
International custom, as evidence of a general practice accepted as law;
The general principles of law recognized by civilized nations;
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 ( subject
to Art. 59)
(2) This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono if the parties agree thereto. ( to the fairest judgment
of the judges)
3
Are the SOURCES exhaustive ……?
ARE THEY HIERARCHICAL ?
• There are 2 aids:
a later rule normally has preference over an earlier rule; a
specific rule may derogate a general rule.
The word “source” is not used in the article,
Furthermore, that provision does not directly ask
the IJC to treat these instruments as sources,
although they are commonly referred as such.
4
• International convention.
– Law making treaties or contract treaties?
– Can ICJ extent the scope of application of a contractual
treaty into ICJ decision and apply it other states which
are not party to the said contract treaty?
A treaty is obviously not equivalent to
custom; it binds only the parties, and binds them only
according to the enforcement provisions contained
in the treaty itself .
Except it becomes state practices.. But who decides
that??
5
ICJ jurisdiction according to UN Charter
• According to Art 92 of the UN Charter , the ICJ is the principal
judicial organ of the UN. Once a state becomes a member of that
organization, it automatically becomes a member of the ICJ. Therefore,
since the job of the court is to settle disputes among the UN members
(which are its own members as well) it is important that the Court
applies the rules of international law – as found in the sources listed in
Art 3891) ICJ.
• Most international tribunals had always applied international law rules
to disputes between States.
6
INTERNATIONAL CUSTOM
• Some times International society is considered as same as
primitive society;
• Rules of conduct may refer to as “usages” or “custom”.
A situation in which an obligation stated in a
treaty is or becomes an obligation of general
customary law, in which case the non-party State
maybe bound by the same substantive obligation,
but as a matter of customary law, and not by the
effect of the treaty
VCLT Art 34; “ a treaty does
not create either obligations
or rights for a third State
without its consent”
7
• When Europe began, in the 16th century, the earliest rules
governing relations between rules should be expressed in
the form of customary rules.
• In particular in the event of war, problems of diplomatic
relations, and competing claims in respect of the high seas.
• Until the beginning of 20th century, rules of customary
international law comprised the substantial part of the Law
of nations. ( that’s international law previously called )
8
The Strength basis
• The base of effectiveness of International law:






It is not positive law;
Interdependency and state’s self interest;
The common goal, that is PEACE, STABILITY and ORDER
A self perpetuating quality of International law as a system of law
The practitioner habit of obedience;
The flexible nature
9
What are the conditions of ICL existence?
• State practices; supported by what evidence?
- State acts or Claims





How many repetition?
How long the duration?
how do we say they are constant and uniform in usage ?
How many states should have practiced it?
How relative essential to the subject matter?
• Opinio Juris sive necessitatis ( opinion as to law or
necessity) : necessitated to make pre law becomes law. Or...
• A shared mistake produces law ? ( communis error
facit jus)
10
HOW TO EXAMINE STATE
PRACTICES? and WHAT IF In A FIELD THAT THERE IS NO
PRACTICE AT ALL?
• Diplomatic practices
• Practices of OI
• Decisions of domestic courts which have impact into
international relations;
• State claims and state acts unilaterally .
Issues of satellite ? Space
exploration? Or IT development
may infringe sovereignty of state
11
• Should it be documented or may just be enough
by gesture?
• How far should it go? It is necessary until the
claim advanced as a petition in ICJ ?
• CONDUCT ALONE OR WITH ASSERTIONS
OR
• NEED TO BE CONSISTENTLY ENFORCED
12
General Principles of Law;
When Article 38 of the Statute of Permanent Court was being drafted, the
commission of Jurists was concerned that in some cases the future court might
find that the issues in dispute before it were not governed by any treaty, and that
no established rule of customary law either could be found to determine them. It
was thought undesirable, and possibly inappropriate in principle, that the Court
should be obliged to declare what is known as a non liquet– a finding that there
was no law on the point .
What the ILC was able to agree is , failing one of those sources, the Court should
apply “ the General Principle of law”. Sometimes if needed is by doing
comparative studies
• equity=sense of fairness, justice and reasonableness. Sometimes seen as an umbrella
to general principles of law.
• But equity is more value laden than is GPL
13
Judicial decisions and legal teachings( d)
The 1-3 sources are more considered as formal sources, while the
no 4 /d is more material source of International law;
• Stare decisis;
• International judicial awards: arbitration;
• Settlements;
• Domestic courts decisions.
It is in a way may processing from lex ferenda to lex lata ,
just like ICL moves toward Treaty law, or from soft law
to hard law.
14