II.

Sources of International Law

Article 38, ICJ Statute

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, whether general or particular, establishing rules expressly recognized by

the contesting states;

b) international customs, as evidence of a general practice accepted as law;

c) the general principles of lawrecognized by civilized nations;

d) subject to the provisions of Article 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;

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties
agree thereto.

Ex aequo et bono is a legal concept that confers on arbitrators the power to decide a dispute in accordance with
their sense of fairness and good conscience, instead of rigorously applying terms of a specific body of law.

Article 59, ICJ Statute

The decision of the Court has no binding force except between the parties and in respect of that particular
case.

Strictly speaking, the Court does not observe the doctrine of precedent or stare decisis but strives nevertheless
to maintain judicial consistency.

1. Primary Sources

a) International Treaties and Conventions

b) International Custom
c) General Principles of Law

International convention is often used interchangeably with terms like "international treaty," "international
agreement," "compact," or "contract between states."

Conventions may be of a general or specific nature and between two or multiple states.

-between two states are called bilateral treaties;

-between a small number of states (but more than two) are called plurilateral treaties;
-between a large number of states are called multilateral treaties.

ELEMENTS OF INTERNATIONAL CUSTOM

1. Duration
2. Uniformity, consistency of practice
3. Generality of practice, characterized by uniformity and consistency
4. Opinio Juris sive necessitatis, or “general practice accepted as law” - recognition of the practices that
are legally binding
 Repetition of practice or actions of states is necessary. A customary norm of international law arises in
consequence of the repeated action of states. The element of repetition is basic to the formation of a rule of
conduct.

In the majority of instances, the repetition of specific actions in analogous situations can lead to the
consolidation of such practice as a rule of conduct.

How is “Opinio Juris” understood?

In the formation of international law norms through custom, States create law by what they do in practice or by
their conduct.

Opinio juris means that in doing so, they must believe that the practice or conduct is OBLIGATORY. They do so
for the reason that the practice is required by law, and not merely of courtesy or political expediency.

JUS COGENS

Article 53, 1969 Vienna Convention on Treaties

-Customary international law which has the status of a peremptory (absolute, uncompromising, certain) norm of
international law.

A peremptory norm is a norm accepted and recognized by the international community of states as a rule, from
which no derogation is permitted and which can be modified only by a subsequent norm having the same
character.

e.g., slave trade, piracy, and terrorism.

It is a mandatory norm and stands on a higher category than a jus dispositivum norm (laws adopted by consent)
which States can set aside or modify by agreement.

How do norms of International Law come into being?

-They are created by States through the definite norm-creating methodsaccepted or recognized by them as
means of expressing their consent as to the binding effect of those norms. Hence, International Law is based on
their normative consent.

** Norm created by treaties/agreements is called Conventional International Law.

** Norm created by custom is Customary International Law.

2. Secondary Sources

a) Judicial decisions

-Generally, of international tribunals, the most authoritative being the International Court of Justice. They are
not really sources but “subsidiary means” for finding what the law is, and whether a norm has been accepted as
a rule of international law.

The decision of a national court may be used depending upon the prestige and perceived partiality of the
domestic court, not being in conflict with the decisions of international tribunals, and its admissibility in the
forum where it is cited.
 b) Writings of publicists

-which must be fair and unbiased representation of international law by acknowledged authorities in the field.

A publicist is an international law scholar or a scholarly organization (e.g., American Law Institute). However,
Article 38 of the ICJ Statute indicates that only teachings (writings) of "the most highly qualified publicists" are
considered to be a source of international law. Thus, not every article or book about an international law topic
would be considered a source of international law.

A. Codification of International Law

- codification of international law refers to the more precise formulation and systematization of rules of
international law on subjects that have already been extensively covered by State practice, precedent and
doctrine.
B. Conventions and Treaties

C. Resolutions and Declarations

D. International Customs

E. General Principles of Law

F. Judicial Decisions

G. Writings of Publicists

H. Unilateral Acts of State

A unilateral act of State may be defined as an expression of will emanating from one State or States which
produces legal effects in conformity with international law.
A unilateral declaration binds the State internationally only if it is made by an authority vested with the power
to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are
competent to formulate such declarations