SOURCES OF LAW

Article 38(1) says: The Court, whose function it 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 expressly recognized by the contesting States; b) International custom, as evidence of a general practice accepted as law; c) The general principles of law recognized by civilized nations; d) Subject to the provisions of art. 59 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. Article 59 says that: The decision of the Court has no binding course except between the parties and in respect of that particular case. This establishes that there is no star decisis. Ranking of the Sources: There has been a debate as to whether a hierarchy exists or not among the sources of law LEX LATA the law as it currently stands (codification of law) LEX FERENDA the law as it may be, or should be, in the future LACUNAE the gaps in the law NON LIQUET - where no applicable law exist Nuclear Weapons Case (court voted 77) In view of the current state of intl law, and of the elements of fact at its disposal, the court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence in which the very survival of a State will be at stake. Judge Higgins dissenting it is exactly the judicial function to take principles of general application to elaborate their meaning and apply them to specific situations. This is precisely the role of the ICJ whether in its contentious proceedings or advisory functions. She argues that the Court failed to engage in the task that is at the heart of the matter the systematic operation of relevant law to the threat of nuclear weapons. It reaches its conclusions without the benefit of detailed analysis an essential step in the judicial process legal reasoning. TREATIES A treaty is a direct source of obligation for the party. The binding force of the treaty comes from the consent of the parties, not from the subject matter or form of the treaty Law-making vs Contract Treaties Law-making Lay down rules of general or universal application and are intended for future use by continuing observers They have increased since the 19th century due to the inadequacy of custom in meeting the demands of States for rules regulating the industrial and economic changes that have occurred. Contract Treaties resemble contracts in that they are concluded to perform contractual rather than norm making functions They are entered into by 2 or a few States They deal with a particular matter concerning those States conclusively

 They expire once the parties have performed their obligations Characteristics of Treaties Treaties may also be unwritten and may be agreements between States and intl organizations and between intl organizations themselves. Many treaties particularly multi-lateral ones designed to establish general rules of common application exhibit a mixture of legislative characteristics. So, a provision of a treaty may: a) Purport to declare or codify existing rules of customary intl law b) Crystallize (makes it officially known for all) a developing rule of law firmly establishing on a legal footing a situation which has previously been part of a practice of a limited number of States c) Generates rules of law independently of the previous practice of States CUSTOM Formation Two key ingredients are necessary for the creation of CIL, an objective element which is a relatively uniform and constant state practice and a subjective element which is the subjective conviction of a state that it is legally bound to behave in a particular way in respect of a particular type of situation opinion juris NSCSC - ICJ noted CIL should not only amount to settled practice but should be executed in a manner that evinces the belief that there is a rule of law requiring that this practice is obligatory. State practice Normally Constitutes by repetition of certain behaviour on the parts of States for a certain length of time which manifests a certain attitude w/o ambiguity to a particular matter NSCSC Three factors are important in assessing the strength of a given practice: 1. The duration of the practice 2. Its uniformity 3. Its generality Duration no particular duration is required for practice to become law provided that the consistency and generality of the practice is proved. An indispensible requirement would be that within the period in question, State practice including the States whose interest are specially affected should have been both extensive and virtually uniform in the sense of the provision invoked and moreover have occurred in a way to show a recognition that a rule of law or legal obligation is involved. (Note Asylum Case) Uniformity major inconsistencies of a practice will prevent the creation of a rule of CIL. Asylum case Based on the facts presented, due to the fluctuation and discrepancy in the State practice of diplomatic asylum, it is not possible to discern any constant and uniform usage accepted as law. Complete uniformity is not required and minor inconsistencies will not prevent the creation of a customary provided that there is substantial uniformity NSCSC State practice should be both extensive and virtually uniform. Nicaragua ICJ indicated that rigorously consistent State practice is not necessary to establish a rule of custom. It is sufficient that conduct in general was consistent with the

rule and that instances of practices inconsistent be trewated as breaches of that rule rather than recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the States conduct is justifiable on that basis and the significance of that attitude is to confirm rather than weaken the rule. (para 186) Generality of practice NSCSC State practice must be extensive to create a customary rule. The actual practice must be widespread but universality not required. Customary rule may come into existence despite dissent of some states. Here a State which has persistently objected to the developing new customary rule from its early stage of formation wont be bound by it.(persistent objector) Intl Law recognizes local and regional custom Asylum Case Colombian Govt relied on an alleged regional/local custom particular to latin American States. The Court held that parties relying on this kind of custom must prove that it was established in such a manner so as to be binding. Due to the uncertainties and contradictions disclosed by the practice of States involved, the courts couldnt find that such a custom existed. Right of Passage Case ICJ accepted that a rule of regional custom existed between India and Portugal. The Court held that long continued practice between two States, accepted by them as regulating their relations, can form the basis of neutral rights and obligations between them. NSCSC State must show that the relevant practice has been accepted by a State whose interest are particularly affected by it. Opinio Juris States must feel they are under a legal obligation to obey rules in question The subjective element makes a distinction between customary rule and rules of customary intl committee. Lotus Case Issue: Whether Turkey had the jurisdiction to try the French officer of a French merchant ship, which, through its alleged negligence, collided with a Turkish merchant ship on the high seas causing loss of life?

SOURCES OF LAW
Article 38(1) says: The Court, whose function it 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 expressly recognized by the contesting States; b) International custom, as evidence of a general practice accepted as law; c) The general principles of law recognized by civilized nations; d) Subject to the provisions of art. 59 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. Article 59 says that: The decision of the Court has no binding course except between the parties and in respect of that particular case. This establishes that there is no star decisis.

Ranking of the Sources: There has been a debate as to whether a hierarchy exists or not among the sources of law LEX LATA the law as it currently stands (codification of law) LEX FERENDA the law as it may be, or should be, in the future LACUNAE the gaps in the law NON LIQUET - where no applicable law exist Nuclear Weapons Case (court voted 77) In view of the current state of intl law, and of the elements of fact at its disposal, the court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence in which the very survival of a State will be at stake. Judge Higgins dissenting it is exactly the judicial function to take principles of general application to elaborate their meaning and apply them to specific situations. This is precisely the role of the ICJ whether in its contentious proceedings or advisory functions. She argues that the Court failed to engage in the task that is at the heart of the matter the systematic operation of relevant law to the threat of nuclear weapons. It reaches its conclusions without the benefit of detailed analysis an essential step in the judicial process legal reasoning. TREATIES A treaty is a direct source of obligation for the party. The binding force of the treaty comes from the consent of the parties, not from the subject matter or form of the treaty Law-making vs Contract Treaties Law-making Lay down rules of general or universal application and are intended for future use by continuing observers They have increased since the 19th century due to the inadequacy of custom in meeting the demands of States for rules regulating the industrial and economic changes that have occurred. Contract Treaties resemble contracts in that they are concluded to perform contractual rather than norm making functions They are entered into by 2 or a few States They deal with a particular matter concerning those States conclusively They expire once the parties have performed their obligations Characteristics of Treaties Treaties may also be unwritten and may be agreements between States and intl organizations and between intl organizations themselves. Many treaties particularly multi-lateral ones designed to establish general rules of common application exhibit a mixture of legislative characteristics. So, a provision of a treaty may: a) Purport to declare or codify existing rules of customary intl law b) Crystallize (makes it officially known for all) a developing rule of law firmly establishing on a legal footing a situation which has previously been part of a practice of a limited number of States c) Generates rules of law independently of the previous practice of States CUSTOM Formation

Two key ingredients are necessary for the creation of CIL, an objective element which is a relatively uniform and constant state practice and a subjective element which is the subjective conviction of a state that it is legally bound to behave in a particular way in respect of a particular type of situation opinion juris NSCSC - ICJ noted CIL should not only amount to settled practice but should be executed in a manner that evinces the belief that there is a rule of law requiring that this practice is obligatory. State practice Normally Constitutes by repetition of certain behaviour on the parts of States for a certain length of time which manifests a certain attitude w/o ambiguity to a particular matter NSCSC Three factors are important in assessing the strength of a given practice: 1. The duration of the practice 2. Its uniformity 3. Its generality Duration no particular duration is required for practice to become law provided that the consistency and generality of the practice is proved. An indispensible requirement would be that within the period in question, State practice including the States whose interest are specially affected should have been both extensive and virtually uniform in the sense of the provision invoked and moreover have occurred in a way to show a recognition that a rule of law or legal obligation is involved. (Note Asylum Case) Uniformity major inconsistencies of a practice will prevent the creation of a rule of CIL. Asylum case Based on the facts presented, due to the fluctuation and discrepancy in the State practice of diplomatic asylum, it is not possible to discern any constant and uniform usage accepted as law. Complete uniformity is not required and minor inconsistencies will not prevent the creation of a customary provided that there is substantial uniformity NSCSC State practice should be both extensive and virtually uniform. Nicaragua ICJ indicated that rigorously consistent State practice is not necessary to establish a rule of custom. It is sufficient that conduct in general was consistent with the rule and that instances of practices inconsistent be trewated as breaches of that rule rather than recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the States conduct is justifiable on that basis and the significance of that attitude is to confirm rather than weaken the rule. (para 186) Generality of practice NSCSC State practice must be extensive to create a customary rule. The actual practice must be widespread but universality not required. Customary rule may come into existence despite dissent of some states. Here a State which has persistently objected to the developing new customary rule from its early stage of formation wont be bound by it.(persistent objector) Intl Law recognizes local and regional custom Asylum Case Colombian Govt relied on an alleged regional/local custom particular to latin American States. The Court held that parties relying on this kind of custom must

prove that it was established in such a manner so as to be binding. Due to the uncertainties and contradictions disclosed by the practice of States involved, the courts couldnt find that such a custom existed. Right of Passage Case ICJ accepted that a rule of regional custom existed between India and Portugal. The Court held that long continued practice between two States, accepted by them as regulating their relations, can form the basis of neutral rights and obligations between them. NSCSC State must show that the relevant practice has been accepted by a State whose interest are particularly affected by it. Opinio Juris States must feel they are under a legal obligation to obey rules in question The subjective element makes a distinction between customary rule and rules of customary intl committee. Lotus Case Issue: Whether Turkey had the jurisdiction to try the French officer of a French merchant ship, which, through its alleged negligence, collided with a Turkish merchant ship on the high seas causing loss of life? The court rejected the French argument that there is a customary rule which says that only the flag state can try the offending party. Even if the rarity of judicial decisions to be found among the reported cases were sufficient in point of fact the circumstances alleged by the French, it would merely show that states abstained from instituting criminal proceedings and not that they recognized themselves as being obliged to do so. There must be recognized a conscious duty to abstain for one to speak of the existence of a international custom. NSCSC- Opinio Juris must be strictly proved. It cannot be presumed from the general practice of states. The states must feel they are conforming to what amounts to a legal obligation. Nuclear Weapons- Court declined to find a rule prohibiting the use of nuclear weapons from the fact that no recourse had been had to them for 50yrs. It was necessary also to show that the constant and uniformed non-use resulted from a feeling of obligation on the part of states generally- not so in this case as many states reserved the right to use them as part of a policy of deterrence. Nicaragua Case- Majority accepted that in cases where a rule of customary law existed alongside a rule of treaty law with similar content, opinio juris could be deduced by examining the attitude of the parties to the particular convention, The persistent objector rule When a state persistently objects to a rule of CIL during the formative stages of that rule, it will not be bound by it. The greater the number of objecting states, the less likely that the rule would acquire the status of customary law. Fisheries Case (UK v Norway)- The court rejected the UK argument that the ten mile closing line for bays was a rule of CIL and that even if it were it would be inapplicable against Norway inasmuch as she always opposed any attempt to apply it to its coast. Conditions for relying on The Persistent Objector Rule

1. Objection must be raised during the formative stages of the rule- states should object as early as possible and react to unwelcomed developments not only when it will affect its interests but also when such development has no relevance to its interests. Otherwise, a state will be bound by a new customary rule. 2. The Objection must be expressed- objecting state must inform other states of its objection. This is particularly important with regard to rules which are gaining universal acceptance. Silence = acquiescence. 3. The Objection must be consistent- when a state objects to a new rule on some occasions and objects on others it cannot benefit from the rule. 4. The Burden of Proof is on the objecting State- states often prefer to claim that a rule doesnt exist rather than to prove that they never accepted it. Nuclear Weapons Case- France, UK and US argued that the use of nuclear weapons has never acquired the status of a customary rule although the 3 states have often made declarations objecting to the prohibition. Two Issues of interest: i. Whether a state is an objector to a jus cogens rule- the majority view on this is that due to the special status of this rule, the persistent objector rue does not apply. ii. Whether the new states which did not participate in the formation of a rule can objectthey have to accept customary rules which existed prior to their becoming states. This is justified on the premise that new states by entering into relations without reservations with other states show their acceptance of all international law including customs. Relationship between Treaties and Customary Law They have a relationship of coexistence and mutual development - flows in both directions- treaties may give rise to CIL and treaties may reflect preexisting/evolving rules of CIL. NSCSC- Court accepted that a provision in a treaty could indeed generate a rule of CIL which would become binding on third parties. But for a treaty provision to become binding as CIL, the party invoking the rule must meet all the general requirements for the creation of customary law and the third party has consented to it. Treaties may reflect custom in 3 ways: 1. Declaration of custom- the process of codification will alter the content of the customary rule. The very act of writing down what had previously been flexible and unwritten influences it. So does the process of interpreting and amending a rule of treaty law. Codification does not mean that the contents wont change. 2. Crystallization- the act of concluding a treaty. The treaty making process with discussions of the content of the rule compromises between the parties may see content change. the objectivity of certainty of a treaty is achieved at the expense of customs flexibility. 3. Generative- it may serve to generate a rule of CIL in the future (lex ferenda). NSCSCprovides an example of treaty provisions which have generated a customary rule. (read para 76 NSCSC)
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Interpretation of Treaties in Relation to Custom Nicaragua Case- A customary rule and treaty norms retain a separate existence and exist side by side even if their content is identical. This is because; 1. A customary rule and a treaty rule have different applicability, interpretation and organs competent to verify their implementation. 2. A customary rule may change under the influence of practice and thus the content of a treaty norm and a customary rule identical at the same time when a treaty was adopted may diverge with the passage of time. The Court decided that CIL and treaties are co-applicable. NSCSC- treaties can become custom provided that: i. The treaty provision is of a fundamentally norm creating character. ii. Passage of considerable time- short period not necessarily a bar-must have extensive and uniformed practice. iii. Widespread and representative participation of the treaty including specially affected states. Evidence of State Practice tailored to the situation-important questions to consider: 1. How many states have signed on? 2. Have specially affected states signed on? 3. What cases have been decided under the treaty? 4. What are the number of ratifications and ascensions? Jus Cogens Art 53 VCLT- a peremptory norm is a norm accepted and recognized by the intl 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. Thus, States cant deviate from a jus cogens rule. A new state must accept it and it cant be changed without the approval of the intl community as a whole. Art 53 VCLT- A treaty is void if at the time of its conclusion, it conflicts with a jus cogens rule. Art 64- if a new rule of jus cogens emerges and a treaty conflicts with it, the treaty becomes void and terminates. Art 65 & 66- outlines procedures to be followed if a party tp a treaty claims that it breaches a new rule of jus cogens whilst a State or IGO not party to a treaty is not required to follow these procedures but may claim that a particular treaty is invalid on the ground that it clashes with a jus cogens rule. The rules are evolutionary in nature- examples include- prohibition on use of force, torture, racial discrimination, apartheid, genocide, slavery and the slave trade.

Erga Omnes Obligations These refer to fundamental common values example, prohibition of genocide. Others include, right to fair trial, right to respect private and family life Relationship between Jus Cogens and Erga Omnes Obligations A jus cogens rule has the higher status in the informal hierarchy of sources of PIL. The main difference between a rule of jus cogens and a rule that creates an obligation erga omnes is that all jus cogens rules create erga omnes obligations but only some rules creating erga omnes are rules of jus cogens Jus Cogen obligations emphasize their recognition by the international community as a whole while erga omnes emphasize their nature. They are binding because they express moral absolutes from which no State can claim an exemption whatever its socioeconmic and political status.
Aloebotoe Case- the IACHR ruled that a 1762 treaty that imposed an obligation to sell prisoners as slave would today be null and void because it contradicts the norm of jus cogens.

GENERAL PRINCIPLES Art 38(1)(c)- The general priciples of international law recognized by civilized nations The provision was first introduced into the statute of the ICJ to avoid the problem of a a non liquet, ie the court could not decide the matter b/c there was no law on the subject. The result of finding of non-liquet is that the court decide the case b/c of a gap in the law. The general view supported by many scholars and intl courts is that a non liquet finding should be prohibited. Nuclear Weapons Case- by refusing to decide whether the threat/use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence in which thevery survival of the state would be at stake gave a non liquet judgment. Judge Higgins- argued that the purpose of general principles is to lacunae in the law thus there should be no non-liquet.

Meaning & Scope of Art 38 (1)(c) The court has had recourse to both principles of municipal law and from the intl community. General principles in the statute affirmed the naturalist doctrine that where gaps exist in rules of intl law, recourse could be had to general principles, ie natural law. How are principles from municipal law to be applied? The court has shown restraint in its recourse to general principles of national law as authority for its pronouncements although individual judges have been less reluctant to invoke them as support for their own pronouncements. South West Africa Case- this case concerned S/As obligations under the mandate to govern Nambia on behalf of the League of Nations. Lord McNair indicated that intl law could not import lock, stock and barrel principles found in municipal systems. It is a matter of finding legal

principles appropriate to the case in issue and applying them in a manner consistent with intl law Examples of principles of general intl law The Principle that a breach of an intl oblilgation entails an obligation to make reparation Charzow Factory Case ( Germany v Poland) - PCIJ stated that the courts observes that it is a principle of intl law and even a general concept of law that anybreach of an engagement involves an obligation to make reparartion. The principle that a party cannot take advantage of its own wrong was described as generally accepted in the jurisprudence on intl arbitration as well as municipal courts The principle of unjust enrichmentSea Land Svc. Inc v Iran- the concept of unjust enrichment is widely accepted as being assimilated into the catalogue of general principles available to be applied by intl tribunals. The principle of res judicata Effect of Award of Compensation made by the UN admin tribunal-the ICJ referred to the well established and generally recognized principle of law that a judgement rendered by a judicial body is res judicata (final judgement of the court on the merits of the suit are conclusive to the parties of that suit) and has binding force to the parties to the dispute. The Principle of Estoppel Temple Case (Cambodia v Thailand)- The ICJ was asked to rule Cambodia and not Thailand had sovereignty over a temple at Preah Vihear. The court held that in light of Siams acceptance of the map in 1908 and the subsequent course of events, Thialand is now precluding from her conduct that she did not accept Cambodias sovereignty. Principles Relevant only to intl law which derive from the specific nature of intl law In order to exist they must be recognized by civilized nations ie by the intl community, expressly or by implication as applicable to interstate relation. example the principle of freedom of maritime navigation-Corfu Channel Case. The principle of self determination- Western Sahara case. General Principls may become rules of customary law, but at a stage where they do not fit into the narrow definition of a customary rule, they are just general principles- Case Concerning the Frontier Dispute. Equity This concept general refers to what is fair and reasonable. Equity under art 38(1)(c) is understood as a general principle of intl law- as a way of infusing elements of reasonableness and individualised justice whenever law leaves a margin of discretion to a court by deciding a case. Diversion of Water from the Meuse Case-

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Judge Hudson (dissenting opinion)- referred to equity as general principles of law recognised by civilised nations. He stated that maxims such as equality is equity and he who seeks equity must do equity would compel a judge to ensure that where two parties have assumed an identical or reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to advantage of a similar non-performance by the other party Here the ICJ rejected Netherlands claim that construction by Belgium of certain canals which would divert water from the River Meuse was in breach of an 1863 agreement in a situation where Netherlands had prior to the dispute constructed a lock affecting the rivers water level and flow. Resort to principles of equity may be more easily equated with resort to fairness and justice. Equity under 38(2) Allows the ICJ, if both parties to a dispute agree, to decide a case ex aequo et bono i.e. the court should decide the case not on legal considerations but solely on what is fair and equitable in the circumstances of the case. Gulf of Maine Case (Canada vs US) Court held that while a decision ex aequo et bono would permit a court or tribunal to examine socioeconomic and political considerations, equity within the meaning of Art 38(1)(c) as a component of a legal decision would involve the Court in taking a decision on the basis of legal reasoning. JUDICIAL DECISIONS & WRITINGS Art 38 (1)(d) - The Court may look at judicial decisions and teachings of the most highly qualified publicists of various nations, as subsidiary means for the determination of rules of law. Art 59 - The decision of the Court has no binding force except between the parties and in respect of that particular case. Art 94(1) UN Charter- Each Member of the UN undertakes to comply with the decision of the ICJ in any case to which it is a party. 94(2)- If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. May consider Privy Council, CCJ, US Supreme Court etc. Not bound by the decisions of any court at all- simply use courts for their persuasive value. Why? 1. Because they are applying intl law 2. Because they are the highest court of intl law 3. Because their ambit is intl and to avoid political criticism they dont say that they are following the ruling of any one court. Writings of publicistsEarly Writings 17th -19th century- Hugo Grotius- father of Intl law Modern Writers- Court doesnt quote modern writers..why?

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1. The Court doesnt have the tradition of citing writers. 2. Some of these writers argue before the Courts. 3. Potential of writers to change their minds. In some concurrent/independent opinions, writers may be cited but the majority opinion will not cite writers. Intl Law Commission- made up of 34 lawyers who put together the draft articles for treaties which represent evidence of CIL. ICJ will refer to decisions/ approaches taken by ILC.

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