Académique Documents
Professionnel Documents
Culture Documents
Instant Custom
o A spontaneous activity of a great number of states supporting a specific line of action
The Martens Clause
Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of the law of nations as they result from:
usages of civilized people, laws of humanity & public conscience
2. Psychological or subjective factorwhy they behave the way they do
Treaties
Determine the rights and duties of states just as individual rights are determined by contracts
Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior
Treaties and Custom
If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law
Adherence to treaties can be indicative also of adherence to practice as opinio juris
If treaty comes later than a particular custom, treaty should prevail
If a later treaty is contrary to a customary rile that has the status of jus cogens, custom will prevail
The later custom, being the expression of a later will, should prevail
A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law
Preemptory norm of general international law = 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
General Principles of Law Recognized by Civilized Nations
This has reference to principles of municipal law common to the legal systems of the world
Judicial Decisions
Decisions of the court have no binding force except between the parties and in respect of that particular case
Decisions do not constitute stare decisis
Decisions of the ICJ are not only regarded as highly persuasive in international circles but they have also contributed to the formulation of principles that have become
international law
Teachings of Highly Qualified Writers and Publicists
Publicists = institutions which write on international law
a. The International Commission
b. The Institut de Droit International
c. International Law Association
d. Restatement of Foreign Relations Law of the US
e. Annual publication of the Hague Academy of International Law
Equity
When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice
Where 2 parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be
permitted to take advantage of a similar non-performance of that obligation by the other party
The Courts recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case ex aequo et bono, if the
parties agree thereto
Kinds of Equity:
1. Intra legemwithin the law; the law is adapted to the facts of the case
2. Praeter legembeyond the law; used to fill the gaps within the law
3. Contra legemagainst the law; refusal to apply the law which is seen as unjust
Other Supplementary Evidence
1. UN Resolutionsgenerally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis
2. Soft LawNon-treaty Agreements; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties
o Administrative Rulesguide the practice of states in relation to international organizations