Sources of International Law

Statue of the ICJ

Article 38

1. The court whose function is to decide in accordance with international law......

Sources of identified in Article 38

Law Creating

Sources of international Law  Custom, general principles of law, judicial decisions, Eminent
publicists, treaties

The definition of a Treaty

VLCT article 2

- It must be:
1. ‘concluded between states’
2. In ‘written form’ and
3. ‘Governed by international law’

International Custom

- Article 38(1)(b) of the ICJ statue refers to ‘international custom, as evidence of a general
practice accepted as law’
- Requires:
1. The custom is a general practice among states; and
2. The suctom is accepted as law by those states

General Practie

1. Constant and Uniform Practice

o Asylum case
o Fisheries case
2. Generality
3. Duration

Opinio juris

- If state practice is motivated solely by politeness, habit, convenience, or any other reason
aside from a sense of legal obligation, it cannot constitute custom
- Required evidence ‘of a belief that (the) practice is rendered obligatory by the existence of
arule of law requiring it’: Nicaragua case

Bilateral or Local Customs

- It is possible for a binding custom to exist between just two states, or between a group of
states
 - These sorts o......

Treates and custom

- North Sea continental Shelf case

- Nicaragua case

General Principles of law

- Article 38(1)(c) of the ICJ statue refers to ‘the general principles of law recognized by
civilized nations’.

-Domestic legal principles?

-General principles of international law?

-Principles intrinsic to any legal system?

- Chorzow Factory case

- Examples of applied principles:

- Good faith, estoppel, preclusion, etc
- Evidental, procedural and jurisdictional issues

Subsidiary Sources

Judicial Decisions

- Decisions of the PCIJ and ICJ

- Other International Awards and Decisions
a. International criminal tribunals for the former yugoslavia (ICTY) and Rwanda (ICTR)
- Decisions of Domestic Courts
a. May provide evidence of the practice and views of that state
b. May deal directly with International law

Teachings of High Qualified Publicists

- Eg Grotius, Vattel and Oppenheim

- Positivist Approach reduced relevance as a source of laaw
- Reports of the ILC

Three Types of Jurisdiction

1. Subject-matter jurisdiction (the claims and proceedings that may be brought before a court
or tribunal)
2. Applicable law (the law that a court or tribunal may interpret and apply)
3. Inherent jurisdiction (the court or tribunal’s intrinsic powers, derived from its nature as a
judicial body)