Norms, sources and principles of IL

1. Sources of International Law

2. References

• Article 38(1) of the Statute of the
International Court of Justice
• D. J Harris, Cases and Materials on
International Law, Chapter 2
• Malcolm N. Shaw, International Law, Chapter 3
• H. Thirlway, The Sources of International Law,
in M. Evans 9Ed.) International Law
• Professor Christopher Greenwood, Sources of
International Law: An Introduction

3. Sources of Public International Law

The term “sources of Public International Law” is used
to mean two things:
- first, the actual materials determining the rules
applicable to a given international situation (the
material sources), and
- second, the legal methods creating rules of general
application (the formal sources).
However, because it is difficult to maintain this
distinction, the two meanings are used
interchangeably.

4. The Main Features of Public International Law

5. The Main Features of Public International Law

• Most of the rules of public international law
aim at regulating the behavior of states (not
that of individuals).
• The relations between the states remain
largely horizontal. (No vertical structure)

6. The Main Features of Public International Law

• No rules setting up special machinery for
discharging the main three functions (law
making; law determination; law enforcement).
All three functions are decentralized.
• Reciprocity is the basis of international rights
and obligations. Self-interest governs.
International rules confers reciprocal rights or
impose reciprocal obligations.

7.

Primary
rules:
body of
principles
and rules
that lay
down the
rights and
obligations
of the
subjects of
that
system
International
law
Material sources:
The place
(normally
document) in
which the terms
of the rule are set
out eg. Treaty,
resolution of
UNGA
Secondary rules:
rules that can be
applied to
determine what
are the primary
rules, how they
come into
existence and how
they can be
changed (sources)
Formal sources:
The question of the
authority for the rules
as a rule of law binding
on states
(Art 38 ICJ Statute)

8.

• A rule must come from somewhere, as well as
the idea that there is a flow, a process which
may take time: a rule may exist conceptually,
as a proposal or a draft, and later come to be
accepted as binding
• Where does international law comes from and
how is it made?

9. Article 38 of the 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 recognized by contesting
states;
b) International custom, as evidence of a general practice
accepted as law
c) General principle of law recognised by civilised nations
d) Subjects to the provisions of Article 59, judicial
decisions and the teachings of the mostly highly
qualified publicists of the various nations , as subsidiary
means for the determination of rules of law

10.

International
treaties and
Conventions
General
principles
of law
recognized
by civilized
nations
International
custom
Art. 38(1)
of the ICJ
Statute
Subsidiary
Sources
1.Judicial
decisions
2.Legal
teaching

11. The Paquete Habana (1900)

• The Paquete Habana case relied on edicts and
agreements as far back as 1403.
• The Paquete Habana and the Lola were Cuban fishing
boats that were seized by the U.S. during the
Spanish-American war.
• The U.S. District Court said that the Navy had acted
within its authority, under Federal statute.
• Cubans argued violation of international law
• This established rule of international law had existed
to protect peaceful fishermen from wartime
seizures.

12. Asylum Case (1950)

• Haya de la Torre, Peruvian national granted
asylum in Columbian embassy in Lima.
• Political asylum
• No match between domestic law and
international law
• Variety of conflicting and contradictory
evidence shows it is not a custom.
• Concurrence of the major powers of that field.
KDR/IIT KGP/RGSOIPL/-2008
12

13. Custom

• “States behave to each other in given
circumstances in certain ways, which are found
acceptable, and thus tacitly assented to, first as
guide to future conduct and then, little by little as
legally determining future conduct”
• Asylum Case
‘the party which relies on a custom of this kind
must prove that this custom is established in such
manner that it has become binding on the other
party’
- must prove that the rule invoked by it is in
accordance with a constant and uniform usage
practised by the states in question

14.

Customary
International
Law-elements
Established,
widespread and
consistent
practice on the
part of states
Psychological
element
(opinio juris)

15.

• No particular duration is required for practice
to become law provided that the consistency
and generality of a practice are proved-North
Sea Continental Shelf Case (1969)

16.

• Legality of Nuclear Weapon Case
‘the substance of customary law is to be found
primarily in the actual practice and opinio juris
of states’
• The mere fact of consistent international
practice in a particular sense is not enough.
Additional elements are needed:a) an established, widespread and consistent
practice on the part of states
b) psychological element known as the opinio
juris necessitatis

17.

‘not only must the acts concerned amount to 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 of law
requiring it’-opinio juris
o Opinio juris-deduced from the state’s
pronouncements and actions

18.

• If a claimed based on general customary law
sufficient to establish that the rule, there is no
need to show that the other party has
accepted it, or participated in the practice
unless:a) Rules of special/ local customary law
Case: Right of passage over India Territory
b) Persistent objector
Case: Fisheries (United Kingdom V Norway)
Case: Asylum (Colombia/Peru)

19.

• State object consistently to the application of
a rule of law while it was still in the process of
becoming such rule could ‘opt out’ before the
rules established
• The persistent objector principle allows a
State which has persistently rejected a new
rule even before it emerged as such to avoid
its application.

20. Treaties and conventions in force

• A treaty is a written agreement between
states or between states and international
organizations, operating within the field of
international law
• Governed by the Vienna Convention on the
Law of Treaties of 1969 and the Vienna
Convention on the Law of Treaties between
States and International Organizations and
between International Organizations 1986
• Maybe multilateral (bind many states) or
bilateral (binding on two states)

21.

• The binding nature of treaties is based on the
principle of pacta sunt servanda-what has
been agreed to must be respected ( Every
treaty is binding upon the parties to it and
must be performed by them in good faith [Art.
26 VCLT 1969])
• A treaty does not create obligations or rights
for third State without its consent-subject to
two apparent principles:
a) Treaty becomes and obligation of general
customary international law
b) State not a party accept obligation and
benefit from the treaty

22.

• Many treaties are authoritative statements of
customary law (writing down what were
previously unwritten rules of customary law).
• Example of a treaty provision intended to be
codificatory of the existing law is the Vienna
Convention on the Law of Treaties, 1969
(VCLT). Courts treated main provisions of VCLT
as codification customary law and applicable
to all States whether they are parties to the
Convention or not.

23. North Sea Continental Shelf cases

o Issue:-what principles and rules of international
law applicable to the delimitation as between the
parties of the areas of the continental shelf in the
North Sea
o Denmark and the Netherlands argued that the
equidistance principle as stated in Article 6(2) of
the 1958 Geneva Convention on Continental Shelf
applied (crystallised customary international law)
o Held-the provision concerned should be of a
fundamentally norm-creating character such as
could be regarded as forming the basis of a
general rule of law

24.

‘Although the passage of only a short period of time
is not necessarily, or of itself, a bar to the formation
of a new rule of customary international law on the
basis of what was originally a purely conventional
rule, an indispensable requirement would be that
within the period in question, short though it might
be, State practice, including that of States whose
interests are specially affected, should have been
both extensive and virtually uniform in the sense of
the provision invoked; - and should moreover have
occurred in such a way as to show a general
recognition that a rule of law or legal obligation is
involved.’ (ICJ Reps, 1969, p. 43)’

25.

• State practise emerge when a large number of
States ( include states that are not parties to
the treaty) agree upon a treaty provision and
subsequently apply the treaty provision
• it can become part of customary international
law, eg treaty concluded to prohibit war,
terrorism, diplomacy, treaty-making

26.

Contractual
Treaties of
contractual
nature between
states governing
matters such as
trade,
extradition, air
and landing
rights and
mutual defence
Categories
of treaties
Legislative
Treaties entered
between states
which codify
existing rules of
customary
international law
or which create
new rules of law
Constitutional
The Charter of the United Nations is a treaty to which all
member states are party and which serves as the
constitution of the United Nations

27. The general principles of law

• International tribunals may refer to the
general principles of law (common principles
of law found in municipal states) when there
are no rules of treaty or customary law
applicable.

28. The Fundamental Principles Governing International Law

• No member state of the international
community had enough power to impose
standarts of behavior on all other members
and impose any fundamental principle for
regulating international dealings.
• The increase in the corpus of rules made it
clear that States spontaneously based their
lawmaking on a few fundamental postulates.

29. The Fundamental Principles Governing International Law

• The Sovereign Equality of States
Sovereignty and Legal equality
• Non-intervention in the Internal or External
Affairs of Other States
• Prohibition of the Threat or Use of Force
• Peaceful Settlement of Disputes
• Respect for Human Rights
• Self-Determination of Peoples

30. The Fundamental Principles Governing International Law

• All these fundamental principle supplement
and support one other and also condition
each other’s application.

31. Subsidiary Sources

1. Judicial precedent
International tribunals may refer to judicial
decisions as means to determine applicable rules of
law subject to article 59 of the Statute of IJC which
stipulates that:
‘the decision of the Court has no binding force
except between the parties and in respect of that
particular case’
Include the decisions of the municipal courts
• Useful statement of international law on a
particular point
• state practice on question of customary
international law

32.

2. Text writings
• The teachings of the most highly qualified
publicists are subsidiary means of
determination of law
• Opinions of eminent legal writers such as
Vattel, Grotious, Bynkershoek, or vittoria
during the early days of development of
international law

33. The relationship between the sources of International Law

34. Relationship between treaty and custom

• Treaties may serve as acts of practice
significant for the development of custom
• North Sea Continental Shelf:1) Declaratory of existing rule
2) “Crystallizing effect” on the customary rules
3) Applied by non state parties (must be norm
creating character)

35.

• Military & Paramilitary activities in and against
Nicaragua (Nicaragua v United States of
America
Issue:-whether the customary rules on armed force
and the intervention continued to bind the parties
parallel with the obligations under the UN Charter
and other treaties they had accepted.
Held:-There are no grounds for holding that when
customary international law is comprised of rules
identical to those of treaty law, the latter supervenes
the former, so that the customary law has no further
existence of its own

36. The Hierarchy of sources

• If a treaty rule or a customary rule exists, then
there is no need to refer to general principles
of law
• Art 38 does not indicate whether there was
hierarchy of application between custom and
treaty
• If a treaty is lex specialis, it will prevail over
any inconsistent rules of customary law

37. Possible new or additional sources

38. Unilateral acts

• In the Nuclear Tests Case, the Court held that
France had assumed legally binding
obligations through unilateral declarations,
made to the world at large, to the effect that it
would not hold any further atmospheric
nuclear tests in the Pacific

39. Resolutions of the UN General Assembly

• Many resolutions of UNGA are material
sources of law
• Disputable whether tantamount to
independent source of law
• Based on decided cases, resolutions by UNGA
only declaratory of customary law or evidence
of opinio juris

40. Security Council Resolution

• Decisions taken by the Council under Chapter VII of
the Charter and framed in mandatory terms are
legally binding on all States (Article 25 of the
Charter).
• Under Article 103 of the Charter the duty to carry
out a decision of the Council prevails over obligations
under all other international agreements (see the
Lockerbie cases (1992)).
• However, the Council does not create new laws but
rather obligations in relation to specific issues and it
is not a legislature (see the decision of the ICTY in
Tadic (1995)).

41. International Law Commission

• The studies of international law produced by
the International Law Commission for the
General Assembly, especially if adopted by the
Assembly, may also have an important effect
on customary international law, even if they
are not turned into treaties (the ILC Articles on
State Responsibility adopted in 2001 are a
good example)

42. ‘superior norms’

• The concept of jus cogens-the category of
‘peremptory’legal norms, norms from which no
derogation by agreement is permitted
• The status of peremptory norm derives from the
importance of the content of the norm to the
international community
• Eg. Prohibition on genocide
• Asimilate to create ‘obligations erga omnes’obligations which are regarded as owed to the
whole international community
• The right to react to any violation of the norm is
not confined to the states directly injured by the
violation but appertains to every state

43. Barcelona Traction

‘an essential distinction should be drawn
between the obligations of a state towards the
international community as a whole and those
arising vis-avis another state in the field of
diplomatic protection. By their 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 obligation erga
omnes’

44.

• Outlawing the acts of aggression
• Genocide
• Protection from slavery
• Racial discrimination