SOURCES OF INTERNATIONAL LAW
Article 38 (1) of the Statute of the International Court of Justice is the most authoritative and complete statement of the sources of International Law
International Conventions
International Customs
General Principles of Law recognized by civilized nations
subject to the provision of Article 59, judicial decisions and teachings of most highly qualified publicists
International Conventions, International Customs and General Principles are the three exclusive law creating processes, while the other three are law determining agencies.
In reality it's not so easy to make such distinction
Formal Sources embody the constitutional mechanism for identifying law, while Material Sources incorporate the essence of the regulations properly.
CUSTOMS
Usually defined in terms of a behaviour repeated along time, through means of material facts, with a subjective expectation, through practice, protest against it or even the decision of not to protest agains some practices (acquiescence).
The Libya/Malta case said one must look primarily in the actual practice and opinio juris of the states
DeVisscher makes a comparition of those aspects settling a custom the same way footprints settle a path, what accounts for the different roles of each variable and of the states pushing each of them to have more or less relevance according to their capacity to do so.
Quotes the influence of the U.K on developing the Law of the Sea in the XIX Century.
Similarly, there's the U.S. And the URSS preeminence regarding space law in the Cold War.
Those elements are manifestations of practices but not obligatory laws in theirselves.
International organizations in fact may be instrumental in the creation of customary law.
The International Law Comission supported that, stressing the role of the UNSC and of the General Assembly.
Time
sometimes its flexibilized for what is called Instant Customary Law;
Exclusive Economic Zone in the law of the seas.
Regulation customs on sovereignty of air space developed very quickly after the WW – I, and Bin Cheng argued that opinio juris was way more relevant than time, material facts and repetition.
Material Facts
Refers to the actual behavior of states
1950 Colombia vs Peru/ Haya de La Torre – the Colombian claim of its right to give Asylum to Haya de La Torre were not accepted for there was no constant and uniform usage of this mechanism among the countries.
Anglo-Norwegian Fisheries case – the British claim against the Norwegian measure of its waters was dismissed for it referred to an alternative approach without sufficient uniformity to be considered custom.
North Sea Continental Shelf cases – German against Holland and Denmark for delimitating its sea since it signed but not ratified the Geneva Convention providing the delimitation as claimed by Holland and Denmark. It ended up emiting a German favorable decision.
The court pointed out that the state practice had to be uniform to create a custom, but at the Nicaragua case, they went on said that the practice in question didn't had to be in absolutely rigorous conformity with the purpoted customary law.
Subjective Expectations
Is the opinio juris, the psychological belief that such behaviour is law
opinio juris sive necessitatis was first formulated by François Gény
Positivists emphasis on state sovereignty stress the importance of opinio juris
Some non-positivists states that opinio juris is impossible to prove
Kelsen defends that its ultimately the Court which give the final veredict on whether a set of aspects constitute custom or not.
North Sea Continental Shelf case mentioned that the Geneva Agreement didn't reflected the German opinio juris.
Nicaragua Case – The U.S. Was judged guilt by the ICJ for supporting the contras in Nicaragua since it was understood that they broke the Managua Agreement of Friendship it had with Nicaragua since 1956. However, U.S. said ICJ had no jurisdiction and further used the veto in the UNSC not to be punished.
It made a direct reference to the North Sea Continental Shelf case regarding the importance of opinio juris.
Opinio Juris can lead to changes once it doesn't simply express the believe in the existing law, but refers to the existence of a law to become, or in the process of becoming.
Usually it depends on how other react to see if the new law believed to exist will really come to exist or be rejected as a one state plan only.
The behavior within international organizations is revelaing of opinio juris.
Failure to act (acquiescence)
Can arise from legal obligation not to act, from incapacity or from unwillingness.
Unwillingness and repetition may lead to the formation of a formal rule.
Was positively describled in the case of Gulf of Maine
Lotus Case – A French ship collided with a Turkish one in international waters and further Turkey charged the French comander but the issue was raised of rather they had authority to do so. At the end it was recognized that Turkey was on its right since they were not against any International Law.
Despite the main decision, a jurisprudence was created regarding the fact that abstention could only give rise to the recognition of a custom if it was based on a conscious duty to abstain.
This because France alleged that the nonexistence of previous actions like that carried out by Turkey would means acquiescence.
Anglo-Norwegian Fisheries case show that when a state acts contrary to an established customary rule and other acquiesce in this, then that state is to be treated as not bound by the original rule.
Acquiescence feature a form of protest in this case since Norway suceeded on refusing to acceept a delimitation of the country waters by quoting its historical acquiescence.
Customary rules are binding upon all states exept for those that dissented from the start of that custom.
This raises the issue of new states and customs, for which the mainstream approach is that they inherit the colonial customs.
Example is the Right of Passage over Indian Territory case, between Portugal and India.
TREATIES
Written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves.
Law Making Treaties (of universal or general relevance) and Treaty Contracts (applying to two or small groups only)
Only Law Making Treaties can create law, however Treaty Contracts may provide evidence of customary law.
Some writers consider it to be the most important sources of international law since they require the express of consent of its signatories.
Instead of creating laws, some treaties only declare existing laws and customary rules
Vienna Convention on Diplomatic Relations 1961.
Treaties apply only to its members, as shown in the North Sea Continental Shelf Case, but eventually non ratifiers can be implied for the treaty also reflect a custom, and sometimes a treaty can even create a custom.
The North Sea Continental Shelf case mentioned all that, and highlighted that it was not the case mostly because the opinio juriswas absent to declare a custom out of the Geneva Treaty.
The Nicaragua Case make it clear that there's no absorption of a treaty in cases where the mentioned law also refers to a custom.
They had to state it since the US imposed reeservations on the use of the Managua Friendship Agreement.
Some treaties may even extend their scope to non signatories, like the Article 2 (6) of the UN Charter and the 1947 GATT.
GENERAL PRINCIPLES OF LAW
Much less used in international law than in the domestic one, and was basically included to reduce gaps in the international law (non liquet).
It's not clear if it refers to general principles appearing in many municipal laws or something purely from the international law.
Libya/Malta case states that the justice is seek according to the rule of law so that it can have predictability and consistency, even though it looks beyond it to principles of more general application.
Also in the Tunisia/Libya Cntinental Shelf case.
Some examples of cases which resorted to such general principles:
Chorzow Factory – obligation to make reparation
German settlers in Polland – private laws persist to sovereign transitions
Corfu Channel case – regarding the value of using circumstantial evidences
Administrative Tribunal case – the principle of res judicata (what makes a decision to be final, binding and without appeal) was defended
Also refered in the Genocide Convention (Bosnia and Herzegovina vs Serbia and Montenegro) and in the Passage case.
Arbitration Tribunal in the AMCO vs Republic of Indonesia case – compensation of prejudice in light of the damnum emergens and lucrun cessans, and respect for acquired rights
The most important is the good faith principle: UN Charter article 2(2); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970.
Barcelona Traction case - ex injuria jus non oritur (facts conducts flowing from wrongful conduct cannot determine the law)
Equity principle is also very common , as expressed in the cases of: Diversion of Waters from the Meuse case (1937); Rann of Kutch Arbitration (1968); North Sea Continental Shelf; Law of the Sea Convention (1982) articles 59, 74 and 83; Convention on the Law of the Non-Navigational Uses of International Watercourses (1977) article 5;
In the terrestrial contest between Burkina Farso and Republic of Mali, on which the Court also emphacised that equity cannot be raised to modify an established frontier.
JUDICIAL DECISIONS
Article 38 provides it to be used only as subsidiary and article 59 say that previous decisions of the Court have no binding force toward future ones.
Some unusual cases where previous judgements served to create law:
The early Anglo-Norwegian Fisheries cases which settled the bases for the Geneva Convention on the Territorial Sea and Continuous Zone of 1958.
The Reparation case recognised the legal personality of international institutions in certain cases
Genocide case dealt with reservation to treaties
Nottebohm case considered the role and characteristicc of nationality
Lotus case was considered and latter abandoned in the Geneva Conventions on the Law of the Sea
Some cases in which the debate of why not to take pervious cases into considertion served to structure the current judgement:
Cameroon vs Nigeria
Uses in cases of Arbitration: Iran-US Claim Tribunal; Alabama Claims arbitration; Island of Palmas case (very important reference to previous arbitrations which is still a paradigm on the issue of territorial sovereignty)
Ad hoc cases like the International Criminal Tribunal for the Former Yuguslavia and the Criminal Tribunal for Rwanda.
Even municipal decisions can become important since they can be quoted as evidences of customary law.
Federal states municipal management of federative problems can also serve to inspire international mechanisms to handle sovereign claims among different states.
WRITERS
Only subsidiary.
Historically it has been of great importance in the heyday of Natural Law
Writers like Gentili, Grotius, Pufendorf, Bunkershoek and Vattel (from the XVI to the XVIII).
Play a great role on giving coherence to the whole produced by international law since it lacks a centralized judicial body.
OTHER POSSIBLE SOURCES
Classic position of the General Assembly as a paliamentary advisory body with the binding decisions being taken by the UNSC.
If not the vote itself, the importance of how to vote may constitute evidence of state practice and state understanding as to the law.
Nicaragua case stressed the opinio jurisof the US on how it voted in the General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states in accordance with the UN Charter.
The way states voted in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples determined the shift of self-determination from a political and moral principle to a legal right, further recalled in the 1970 Declaration on Principles of International Law.
General Assembly many votes on Nuclear issues, however, was not consistently enough to express an opinio juris to be quoted in the ICJ advisory opinion on the Legality of the Threat or Use of Nuclear Weapons.
Other organs and international institutions also account for possible sources of law, or at least sources of soft laws or law inspiring movements, as is admited regarding the importance of the Helsinki Final Act (1975) to the further human rights agreements which emerged in a more classic way, even though this was not a binding agreement.
Similar cases happened in the International Law Comission in the following conventions:
On the law of the sea (1958); On Diplomatic Relations (1961); On Consular Relations (1963); On special Missions (1969); On the Law of Treaties (1969)
The drafts of the ILC are often referred to in the judgements of the International Court of Justice
Some other bodies:
United Nations Commission on International Trade Law (UNICTRAL)
United Nations Conference on Trade and Development (UNCTAD)
Some temporary bodies:
Commitee on the Principles of International Law
Specialized agencies:
ILO; UNESCO
Independent bodies:
International Law Association
Institut de Droit Internacional
Unilateral acts
Article 38(1) of the ICJ says that, despite not being sources of international law, they may constitute sources of obligations
HIERARCHY OF SOURCES AND JUS COGENS
Traditionally judicial decisions and writings are the least important and the customs and treaties struggle for the first position, being a general rule that the newest will have priority.
Other deciding principle among them is the lex specialis derogat legi generali (specific laws have priority over general ones), but not if the general rule is one of jus cogens (inalienable right).
Jus cogens is the most important criteria for evaluating the hierarchy of a source of law, followed closely by the erga omnes obligations (which extend to all the members or subjects).
Actually those two principles – jus cogens and erga omnes are most time overlaping.
In the Barcelona Traction case it was pointed that the obligation of a state towards all states is more important than the obligations of the state towards specific states (erga omnes)
Erga omnes character of the right to self-determination mentioned in the East Timor case
In Bosnia vs Serbia the Genocide Convention was considered an erga omnes obligation
Examples of jus cogens in international law
The outlawing of aggression and of genocide and the protection from slavery and racial discrimination, as well as the prohibition of torture
Article 53 of the Vienna Convention on the Law of Treaties (1969) provides that treaties will be void if they threat jus cogens and article 64 provides that jus cogens should also be observed in the case of customary laws.
Jus cogens is claimed to reflect the influence of Natural Law.
Individual responsibility for international crimes is seen as a new jus cogens created, what calls the attention for the process envolved in this since those principles, once raised, cannot be derrogated.
The steps of proposition and acceptance are describled in the article 53 of the Statute of the ICJ.
Only rules based on custom and treaties may form the foundation of jus cogens
Article 53 of the Vienna Convention says that a treaty contrary to jus cogens is void ab initio, whereas article 64 impose the termination of a treaty in case jus cogens against it come to emerge.
Article 41(2) of the ILC Articles on State Responsability (2001) provides that no state shall recognise as lawful a 'serious breach' of a peremptory norm.
The Bosnia case mentioned that article 103 of the UN Charter claiming precedence of UN obligations under other agreements cannot be extended to conflicts between the UNSC and jus cogens.
