SOURCES OF INTERNATIONAL LAW

1. Article 38 of the Statute of the International

Court of Justice

2. International Conventions

3. International Custom

4. General Principles of Law

5. Judicial Decisions

6. Teachings of the Most Highly Qualified

Publicists

7. Ex aequo et bono

8. Binding and Non-binding Acts of International

Organizations

9. Unilateral Statements (acquiescence; persistent

objector)

10. „Soft“ Law

11. Codification of International Law

12. International Law Commission

Literature:

Malanczuk 2010 8th edn., alternatively 7th edn. 35-62

Brownlie 2008 3-15, 19-27

/Kiviorg jt 2010 30-47/

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I ARTICLE 38 OF THE STATUTE OF THE

INTERNATIONAL COURT OF JUSTICE

Pursuant to Article 38 (1) of the Statute of the International Court of

Justice:

• primary sources of international law:

1) international conventions, whether general or particular,

establishing rules expressly recognized by the contesting States,

2) international custom, as evidence of a general practice accepted as

law,

3) the general principles of law recognized by civilized nations,

• secondary sources of international law:

4) judicial decisions,

5) the teachings of the most highly qualified publicists,

Pursuant to Article 38 (2):

6) ex aequo et bono.

Jan Klabbers names two potentially complementary

sources:

● resolutions of international organizations;

● unilateral acts (e.g. Nuclear Tests cases).

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II INTERNATIONAL CONVENTIONS

The main instrument of cooperation and taking obligations in

international relations.

CLASSIFICATION OF INTERNATIONAL TREATIES:

--bilateral and

--multilateral treaties.

Additionally:

--private law contracts between subjects of international law

(complete loss of right is possible) and

--law-making treaties between subjects of international law (the

limits of agreements are connected with constitutional norms binding

to the parties).

NB ! Instead the term „public international treaties“ is used the

term „law-making treaties“.

Why?

• As international law does not know exercise of public power

similar to internal law.

(Catherine Brölmann)

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Classification of inter-state law-making treaties according to the

Vienna 1969 Convention on the Law of Treaties:

• „general“ international treaties and

• constitutional or constitutive international treaties (that form

the basis for delegation / adoption of secondary measures).

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THE TERM „INTERNATIONAL TREATY“

● For the purposes of the Vienna 1969 Convention on the Law of

Treaties, “treaty” means 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 particular designation. (Other terms used as

a synonym for treaties, or for particular types of treaties:

agreement, pact, understanding, protocol, charter, statute, act,

covenant, declaration, engagement, arrangement, accord,

regulation, provision.)

● The Vienna 1986 Convention on the Law of Treaties between

States and International Organizations or between

International Organizations (has not entered into force yet)

distinguishes among international treaties also international

treaties concluded between States and international organizations

and among international organizations.

Examples of international treaties:

- The Charter of the UN;

- UN treaties;

- inter-State treaties;

- EU treaties;

- treaties with other International organizations

- Vienna conventions on the law of treaties as treaties on treaties

(Outi Korhonen);

- etc.

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● The subject-matter of international treaties?

For example:

- human rights;

- environment;

- peace and security;

- economics.

Two exceptions:

- International treaty cannot be contrary to international

custom (i.e.: one cannot conclude International treaties on

commencement of war, racial discrimination, slave trade,

torture, etc.),

- International treaty cannot be contrary to the obligations under

the UN / Charter of the UN.

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III INTERNATIONAL CUSTOM

International custom is unwritten law as evidence of a general practice

accepted as law.

Classification of international custom:

● general or universal and

● regional or particular.

Two elements of custom:

● general and continuous practice of subjects of international law

and

● opinio iuris sine necessitatis (accepted as law – psychological

element in the formation of customary law. Conviction that practice

reflects a legal obligation, that certain conduct is required by

international law).

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● What happens if one subject of international law

does not wish to participate in custom any more?

At birth of a customary norm, a State may free itself of

bindingness of the norm (persistent objector – theory).

Absence of persistent protest is considered consent.

● Can, for example, ten states agree that torture is

custom?

general custom

vs.

particular custom (e.g. custom of three states with regard to m/s

Estonia)

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IUS COGENS – international law norms that are so constituent

that they do not allow exceptions.

For example:

Prohibition of:

● torture;

● genocide;

● slavery;

● aggression;

● racism.

The 1969 Vienna Convention on the Law of Treaties words the

principle of ius cogens in Article 53:

„Article 53. Treaties conflicting with a peremptory norm of general

international law (“jus cogens”)

A treaty is void if, at the time of its conclusion, it conflicts with a

peremptory norm of general international law. For the purposes of the

present Convention, a peremptory norm of general international law is

a norm accepted and recognized by the international community of

States as a whole as a norm from which no derogation is permitted

and which can be modified only by a subsequent norm of general

international law having the same character.“

● Both forms: „ius cogens“ and „jus cogens“ are correct.

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Evidence of customary law (by Hannes Vallikivi):

1) diplomatic correspondence;

2) political declarations;

3) announcements in press;

4) opinions of official legal counsellors;

5) orders and acts of the executive power;

6) comments and remarks by the representatives of

States on draft international documents;

7) internal law;

8) judgments of international and internal courts;

9) preambles of international treaties and other

international documents;

10) bundles of similar international treaties;

11) practice of international organizations;

12) Resolutions of the United Nations General

Assembly;

13) etc.

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IV GENERAL PRINCIPLES OF LAW

(See the materials of the I lecture!)

● General principles of law derived from States’ legal systems,

and

● principles of international law itself:

• Sovereignty

• Equality

• Consent

• Duty of States to co-operate

• Non-intervention

• Settlement of international disputes by peaceful means

• Prohibition of threat or use of force

• Right to self-defence

• Respect for human rights

• Equal rights and self-determination of peoples

• Reciprocity

Could the list include also the principles developed

international organizations? (For example, the Court of Justice

of the European Union has worded important legal principles.)

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V JUDICIAL DECISIONS

Indirect effect.

There is no formal stare decisis doctrine (as known in

common law systems) in international law – i.e., International

courts are not obliged to follow previous decisions, although

they almost always take previous decisions into account.

Pursuant to Article 59 of the Statute of the International Court

of Justice, the decisions of the Court have binding force only

between the parties and in respect of that particular case.

/See the slides about international courts!/

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VI TEACHINGS OF THE MOST HIGHLY QUALIFIED

PUBLICISTS

● Who are „the most highly qualified publicists“?

● What is International Law Commission? Who belong to that

Commission? What does the Commission do?

/See http://www.un.org/law/ilc/

● NB! Teachings of the most highly qualified publicists do not

create law in itself, but explain the content of laws.

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VII EX AEQUO ET BONO

This is the principle of equity in international law.

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VIII BINDING AND NON-BINDING ACTS OF

INTERNATIONAL ORGANIZATIONS

Most of the organs of international organizations are composed of

representatives of member states, consequently, very often the acts of

such organs are merely the acts of the states represented in those

organs.

For example: A resolution of the United Nations General Assembly

can be:

● evidence of customary law, because it reflects the views of states

voting for it, or

● if it had been passed at a conference outside the framework of the

United Nations, and if many states vote against it – its value as

evidence of customary law is correspondingly reduced.

Usually international organizations have at least one organ, which is

not composed of representatives of member states, and the practice of

such organs is capable of constituting a source of law. For example:

the United Nations Secretariat often acts as a depositary of treaties,

and its practice as depositary has already affected the law of treaties

on the topic of reservations.

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16 HOW ARE THE RESOLUTIONS OF THE UN ADOPTED?

UN GENERAL

ASSEMBLY

UN SECURITY COUNCIL

Composition All 192 UN Members.

One State has not

more than 5

representatives (with

one vote).

(Article 9)

15 Members (incl. 5

permanent Members and

10 non-permanent

members).

One State has 1

representative.

(Article 23)

Voting ● Each member of the

GA has 1 vote.

(Article 18 (1))

● Decisions of the GA

ON IMPORTANT

QUESTIONS shall be

made by a 2/3 majority of

the members present and

voting.

● During the recent years,

● Each member of the SC

has 1 vote.

(Article 27 (1))

● FIVE PERMANENT

MEMBERS HAVE THE

RIGHT TO VETO.

● Decisions of the SC on

PROCEDURAL

MATTERS are made by an

affirmative vote of 9

members;

● muudes küsimustes teeb

otsuseid, kui 9 riiki hääletab

poolt, s.h alaliste liikmete

poolthääled.

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tried to replace with

consensus.

Procedure ● Regular annual sessions

(Article 20).

● Special sessions as

occasion may require

(Article 20).

● GA own rules of

procedure.

● Acts on permanent basis.

● Periodic gatherings.

● SC own rules of procedure.

Resolutions Not binding on the

Members of the UN.

Binding on all Members

of the UN.

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IX UNILATERAL STATEMENTS (ACQUIESCENCE;

PERSISTENT OBJECTOR)

Acquiescence - passiveness and inaction (silence) on the part of

States with respect of claims of other States can produce a binding

effect creating legal obligations for the silent State under the doctrine

of acquiescence.

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X „SOFT“ LAW

It has been described as a „grey zone“ between law and politics.

Here belong, for instance, guidelines of conduct, treaties that have

not yet enetred into force, resolutions of international conferences,

etc., which are not strictly binding norms of law, nor completely

irrelevant political maxims.

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XI CODIFICATION OF INTERNATIONAL LAW

Peter Malanczuk recognizes attempts to codify international

customary law since the end of the 19th century.

Codification of customary law has embraced also making of new

law.

Examples:

- The Hague Conventions of 1899 and 1907;

- The Geneva conventions;

- The Vienna 1961 Convention on Diplomatic Relations;

- The Vienna 1963 Convention on Consular Relations;

- The Vienna 1969 Convention on the Law of Treaties;

- The Vienna 1986 Convention on the Law of Treaties between

States and International Organizations or between

International Organizations;

- The Vienna 1978 Convention on Succession of States in

respect of Treaties;

- The Vienna 1983 Convention on Succession of States in

respect of State Property, Archives and Debts;

- The UN 1982 Convention on the Law of Seas.

(Source: Malanczuk, pp. 60-61.)

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CODIFICATION OF CUSTOMARY LAW

● a d v a n t a g e s:

- preciseness;

- accessibility;

- States obey better the laws in codification of what they have

participated.

● d i s a d v a n t a g e s:

- compromises;

- time-consuming;

- failure affects negatively the established customary law norms.

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XII INTERNATIONAL LAW COMMISSION

● Established in 1947 by the United Nations;

● Carried out the preparatory work for the Geneva and Vienna

conventions;

● Composition: originally 15 international lawyers (today more

than 30) elected by the United Nations General Assembly for a

five-year term under the principle that represented would be the

world’s principal legal systems.

● Deeds:

- codification of international law;

- progressive development of international law.

In practice the distinction between codification and progressive

development is often blurred.

● Frequently prepares a draft convention first, which may later

be incorporated into a binding multilateral agreement. For

example, Draft Articles on the Responsibility of States for

Wrongful Acts). Sometimes the ILC only summarizes the law in a

report to the General Assembly. Although such reports are not

binding in the same way as treaties, they constitute valuable

evidence of customary law.

The ILC members’ work bases on extensive research and on an

attempt to ascertain and reconcile the views of the UN Members

(for, example, by circulating questionnaires and by inviting states

to comment on their draft reports – the same procedure is

followed during the preliminary work on draft conventions).

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Unofficial bodies who have tried to codify international law:

- Harvard Law School;

- Institute of International Law;

- International Law Association.

International Law Commission vs. Foreign Office Model

as developers of international law.