Sources of International Law PDF

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Notes from my International Law Lectures...

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Sources of International Law Formal Sources 1 .There is no constitutional norm listing formal sources of international law; 2 .Instead, there’s one universal treaty, 1945 Statute of International Court of Justice (ICJ), which provides a list of accepted sources. 3 .Formal sources of international law: those acts and facts to which the international legal system gives authority to create valid and binding rules; 4 .Material sources: the actual content of the rule; General principles of law; 5 .Treaties (Conventions, Charters, Agreements, Covenants, Protocols); 6 .Customs (also Customary law, customary international law).

Art. 38(1) of ICJ Statue 1 .The Court, function 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 provisions of Art. 59, judicial decisions and teachings of most highly qualified publicists of various nations, as subsidiary means for the determination of rules of law. 2 .This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Treaties 1 .1969 Vienna Convention on Law of Treaties, Article 2.1(a) ‘[…] an international agreement concluded between States in written form and governed by international law […]’ 2 .Treaties are binding only to States that are parties to them; States must

express their consent to be bound in order to form a treaty.

Customs 1. International custom, as evidence of a general practice accepted as law; 2. The way things have always been done becomes way things must be done. 3. Customary international rules derive from State consent; 4. Once a customary norm is established it applies to all States; 5. Only the ‘generality of States’ is sufficient to qualify as consent to the formation of a customary norm. No unanimous consent.

General Principles of Law 1. A source of international law used by international courts when neither treaties nor customs provide for rules on a certain issue; 2. General principles of national laws that are adapted in international context; 3. PCIJ, Chorzów Factory Case (1928): Principle of ‘general conception of law’ that any breach entails a reparation (p. 29); 4. ICJ, Nuclear Test Case (1973): Principle of good faith in creation and performance of obligations (para 46); 5. Principles of international law are different from general principles of law; 6. Principles of international law can stem from treaties, customs and general principles of law.

The International Law Commission 1 .A Commission under the UN General Assembly, meets regularly with the aim of codifying existing international law and formulating new rules; 2 .ILC’s produced ‘draft articles’ on topics of international law; 3 .At times, these have been adopted as treaties....