PUBLIC INTERNATIONAL LAW

Chapter 2 (Sources of International Law) Harris

Art 38(1) Statute of the International Court of Justice

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall
apply:
a) international conventions, general or particular, establishing rules expressly recognized by the contesting
states
b) international custom (evidence of a general practice)
c) general principles of law (recognized by civilized nations)
d) judicial decisions and teachings of the most highly qualified publicists of the various nations (as subsidiary
means; subject to the provisions of Article 59 of the Statute)

The Advisory Committee of Jurists considered a proposal that the sources listed should be considered by the Court in
the undermentioned order.
(The statement was omitted though.)

Schwarzenberger, International Law

In order to be applicable, any asserted international rule must be shown to be the product of any of these 3
law-creating processes.
The list is exclusive, thus, ruling out other potential law-creating processes
Sub paragraph (d) of the ICJ Statute are just subsidiary means
o For this to be applied, the principal means for determination of rules of law must exist

Classification of Sources
Formal gives the law force and validity
o Example: Requirements of a custom which will make a rule legally binding
Material Supplies the substance of the rule.
o Example: The substance of a custom will be indicated by state practice

CUSTOM
Constant and uniform usage, accepted as law
Substance is to be found in actual practice and opinio juris of states

Asylum Case (Columbia v. Peru)

Following an unsuccessful rebellion and the issuance of a warrant for the arrest of Haya de la Torre (leader of
the rebellion). Haya was granted asylum by Colombia. Colombia sought a safe conduct to allow Haya out of
the country but Peru refused.
COLOMBIA: Filed the case and claimed that it is competent to qualify the offense for the purpose of the asylum
o Colombia invoked American international law in general, and relied on an alleged regional or local
custom peculiar to Latin-American States.
COURT: Colombia has not proven the existence of such a custom
o Colombia has not shown that the alleged rule of unilateral and definitive qualification was invoked
or that it was exercised by the States granting asylum as a right appertaining to them and respected
by the territorial State as a duty incumbent on them and not merely for reasons of political
expediency.

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North Sea Continental Shelf Cases (Germany v. Denmark and The Netherlands)
ISSUE: What principles and rules of international law are applicable to
the delimitation as between the Parties of the areas of the continental
shelf between the Netherlands and Germany, and Denmark and
Germany
DENMARK and NETHERLANDS: Apply the equidistance-special
circumstances principle (Art. 6(2) of the 1958 Geneva Convention on
the Continental Shelf)
GERMANY: Doctrine of Just and Equitable Share
o The equidistance-special circumstances principle has the effect
on a concave coastline. Germany, being the state in the middle,
has a smaller continental shelf than it might otherwise obtain.
COURT: Both arguments were rejected. Court Decision:
o Neither of the approaches argued by the parties was a part of 1. The use of the equidistance
international law method of delimitation not
o Why the Equidistance Method is not to be regarded as a rule being obligatory as between
of law: If it were to be compulsory applied in all situations, this the Parties;
would not be consonant with certain basic legal notions which 2. There being no other single
reflected the opinio juris in the matter of delimitation (that method of delimitation the use
delimitation must be the object of agreement between the of which is in all circumstances
States concerned, and that such agreement must be arrived in obligatory;
accordance with equitable principles 3. The principles and rules of
The equidistance method failed to prove opinio juris international law applicable:
sive necessitatis Delimitation shall be effected
o Why not Ex Aequo et Bono: Equity does not necessarily imply by agreement in accordance
equality. No one method of delimitation can prevent inequality with equitable principles; As
and that all can lead to relative injustices. for areas that overlap, these
Tanaka Dissent are to be divided between
o Opinio juris sive necessitates is extremely difficult to get them in agreed proportions or
evidence of its existence in concrete cases equally, unless they decide on
o What is important in the matter at issue is not the number or a regime of joint jurisdiction
figure of ratifications of and accessions to the Convention or
of examples of subsequent State practice, but the meaning Factors to be considered:
which they would imply in the particular circumstances. 1. The general configuration of
Lachs Dissent the coasts of the Parties
o The number of ratifications and accessions cannot, in itself, be 2. Physical and geological
considered conclusive with regard to the general acceptance structure, and natural
of a given instrument resources of the continental
o To become binding, a rule or principle of international law shelf
need not pass the test of universal acceptance. Not all States 3. The element of a reasonable
have an opportunity or possibility of applying a given rule. degree of proportionality
o The evidence should be sought in the behavior of a great
number of States, possibly the majority of States, in any case
the great majority of the interested States.
Judge Ad Hoc Sorensen Dissent
o It is not necessary to go into the question of opinio juris.
o As a result of a continuous process over a quarter of a century,
the rules embodied in the Geneva Convention on the
Continental Shelf have now attained the status of generally
accepted rules of international law.

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Cassesse, International Law
The Present Role of Custom
Custom is not the most suitable instrument for achieving change.
The insecurity inherent in its unwritten character and its protracted process of development rendered it
disadvantageous to the 3rd world.
o The majority of States accordingly turned to the codification and progressive development of
international law through treaties.

TREATIES

Fitzmaurice,
Some Problems regarding the Formal Sources of International Law
Treaties are a source of obligation rather than a source of law
Contractual aspect simply creates rights and obligations; a treaty may reflect, or lead to, law but, particularly
in its inception, is not, as such, law
If the treaty reflects or codifies existing law, then, in applying it, the parties merely conform to general law
obligations already valid for them

GENERAL PRINCIPLES OF LAW

Wadlock,
General Course on Public International Law
The phrase civilized nations now has an antiquated look. It is safe to construe as the general principles
recognized in the legal systems of independent States.
Does a principle need to pass the test of hundred legal systems in order to qualify for application under
paragraph (c)? Two considerations:
o By the accidents of history, most of international law has most readily borrowed from domestic law.
There is a much larger unity in the fundamental concepts of the legal systems of the world today than
there might otherwise have been
o It was never intended under paragraph (c) that proof should be furnished of the manifestation of a
principle in every known legal system considered to be civilized.

Cases Applying General Principles:

Chorzow Factory Case - Principle applied: Every violation of an engagement involves an obligation to make
reparation
Sea-Land Service v. Iran - It was stated that the concept of unjust enrichment is widely accepted as having
been assimilated into the catalogue of general principles of law available to be applied by international tribunal
Barcelona Traction Case - ICJ relied upon the lifting the veil principle, which it found admitted by municipal
law generally, when deciding that, in exceptional circumstances, the national state of the shareholders of a
company could act to protect them in place of the national state of the company.

The Diversion of Water from the Meuse Case (Netherlands v. Belgium)

Netherlands claimed that Belgium had infringed a treaty obligation by building canals that altered the flow of
water in the River Meuse.
JUDGE HUDSON Art. 38 of the Statute expressly directs the application of general principles of law
recognized by civilized nations, and in more than one nation principles of equity have an established place in
the legal system.

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JUDICIAL DECISIONS

Schwarzenberger,
International Law
Persuasive character depends on the fullness and cogency of the reasoning effect
Article 59 of the Statute of the ICJ The decision of the Court has no binding force except between the parties
and in respect of that particular case (hence, it follows the civil law tradition).
International courts and tribunals not only do not make law, they are also no bound by their previous decisions
as to the law which they apply. Despite this, the World Court does tend to follow or feel the need to distinguish
its own jurisprudence.

WRITERS

Parry,
The Sources and Evidences of International Law
Assigned the same subsidiary status as judicial decisions.
National Bias international lawyers are inevitably municipal lawyers first of all. The writers of one country thus
reflect their national legal tradition and technique rather than any national political viewpoint.
Current role of writers consists in the analysis of facts and opinions and in drawing conclusions binding
customary rules and on trends of their evolution
Earlier role They were largely responsible for establishing the basic idea that there was such a thing as law
governing the relations between states. Their statements of law were derived by deduction from natural law
principles.

UNILATERAL ACTS OF STATES

Acts making claims or renouncing them, acts of recognition, or protest, and the ratification of treaties.
A state may accept a legal obligation by a public unilateral act made, either orally or in writing, by a person
competent to act for the state.

Legal Status of Eastern Greenland Case (Denmark v. Norway)

Denmark argued that Norway had recognized Danish sovereignty over the island by the Ihlen Declaration
(Ihlen was the Norwegian Foreign Minister)
Ihlen declared that the Norwegian Government would not make any difficult concerning the Danish claim.
Denmark: Ihlens declaration is binding upon Norway.
ISSUE: W/N the Ihlen declaration did not constitute an engagement obliging Norway to refrain from occupying
any part of Greenland
COURT: As a result of the undertaking involved in the Ihlen declaration, Norway is under an obligation to
refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying
a part of Greenland

Nuclear Test Cases (Australia v. France)

France indicated its intention not to hold any further tests in the atmosphere in the South Pacific after its 1974
series of tests. The statement is contained in the Communique issued by the Office of the President of the
French Republic
COURT: Declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect
of creating legal obligations. When it is the intention of the State making the declaration that it should become
bound according to its terms, that intention confers on the declaration the character of a legal undertaking.
Even though not made within the context of international negotiations, it is binding.
o Not all unilateral acts imply obligation. The intention is to be ascertaining by interpretation of the act.

Guiding Principles on Unilateral Acts (International Law Commission)

Declarations publicly made and manifesting the will to be bound may have the effect of creating legal
obligations. When conditions for this are met, the binding character is based on good faith.
Any State possesses capacity to undertake legal obligations through unilateral declarations

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 To determine the legal effects, it is necessary to take account of their content, of all the factual circumstances
in which they are made, and of the reactions to which they gave rise.
It is binding only if it is made by an authority vested with the power to do so (Heads of States/Government,
ministers for foreign affairs)
May be orally or in writing
May be addressed to the international community as a whole, to one or several States or to other entities
Must be stated in clear and specific terms; interpreted in a restrictive manner.
If it is in conflict with a peremptory norm, the declaration is void.
No obligation may result for other States from the unilateral declaration of a State. Other States may incur
obligations to the extent that they clearly accepted such a declaration.
Cannot be revoked arbitrarily. In assessing, consideration should be given to:
o Any specific terms of the declaration relating to revocation
o The extent to which those to whom the obligations are owed and have relied on such obligations
o The extent to which there has been a fundamental change in the circumstances

GENERAL ASSEMBLY RESOLUTIONS

Sloan,
United Nations General Assembly Resolutions in Our Changing World
Resolutions are collective pronouncements of States
May be evidence of state practice
May serve as a convenient statement of a custom already established by state practice of a more traditional
kind. But it may also contribute to the formation of custom as a kind of collective state practice.

SOFT LAW

Van Hoof,
Rethinking the Sources of International Law
Started to map out the legal implications of legally non-binding instruments
Consists of written instruments that spell out rules of conduct that are not intended to be legally binding.
They cannot be enforced in court
May later harden into custom or become the basis of a treaty
A device to overcome a deadlock in relations between states pursuing conflicting ideological and/or economic
aims

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