Lecture – Week 6

Sources of Law
Culpability of individuals under international law

1
Sources of international law

Primary sources:
1.International agreements
2.Customs
3.General principles of law

Secondary sources:
1.Judicial decisions (case law) - (have no binding force)
2.Writings of jurists

2
Primary sources - International agreements
- bind only the parties to it
- established by
A)the UNITED NATIONS
- The Universal Declaration of Human Rights
- The Charter of the United Nations etc.

B)through INTERNATIONAL TREATIES

- The Geneva Conventions on the conduct of war or armed conflict
- The UNESCO Convention against Discrimination in Education
- The World Trade Organisation Framework Convention on Tobacco
Control
- Vienna Convention on the Law of Treaties etc.
3
The main types of international agreements
Treaty = an international agreement concluded between States in written
form and governed by international law, embodied in a single
instrument or in two or more related instruments; Bilateral treaties,
Multilateral treaties – (eg. Vienna Convention on the Law of Treaty
1969) - if ratified binding on the parties
Charter = constituent treaties of international organizations (an
institution or committee); they are the guiding rules and regulations for
the functioning of that institution and also might lay down certain
limitations for outsiders or participating countries (eg. UN Charter, ICJ
Charter )
Convention = 1. (broader meaning ) all international agreements
= 2. ( specific meaning) formal multilateral treaties with a
broad number of parties; open for participation by the international
community as a whole, or by a large number of states. Usually the
instruments negotiated under the auspices of an international
organization (e.g. Convention on Biological Diversity of 1992, United
Nations Convention on the Law of the Sea of 1982, Vienna Convention
on the Law of Treaties of 1969)
4
 Primary sources –
Customary international law
• comes from the usual behavior of states towards each other
• a rule is identified on the basis that states usually act in a certain way,
and do so out of a sense of obligation
• an important source of international law because it binds all nations,
and so is not limited in its application, as a treaty is, by reference to who
has ratified it or acceded to it

The elements of custom are:

• uniform and consistent and general state practice over time; and
• the belief that such practice is obligatory
Example of customary international law:
- the law of piracy
- the doctrine of non-refoulment
- granting of immunity for visiting heads of state.

5
 Primary sources –
General principles of law
• GENERAL PRINCIPLES OF LAW – general principles of fairness and justice
which are applied universally in legal systems around the world

1. Rules of international law which are of so broad a description that they

can be called principles
2. Maxims of universal application in domestic law which have to be
applied in interantional disputes as well
• (“general principles of law recognized by civilized nations” are included
in Article 38 of the International Court of Justice Statute ).

• used primarily as "gap fillers" when treaties or customary international

law do not provide a rule

6
Primary sources – General principles o law

Examples:
-The rule against bias („Nemo iudex in causa sua” – ‘No one
should be a judge in his own case’)
-The principle of reparation
-The principle of state’s responsibility for its agents
-The rule of good faith
•The doctrine of necessity and self-defence
•….

7
International law vs. Domestic law

• What are, in your opinion, differences between

domestic/national and international law?

• Refer to your readings and resources and answer the

following questions:
• What are the features of International Law
• How are the features distinguished from Domestic
Law?

8
International law vs. Domestic law

• Refer to your readings and find the features of international law which
distinguish it from international law. Consider the following aspects:

- Decentralized and based on consent

- No international legislature enacting binding rules
- No international executive enforcing international laws
- No compulsory judicial system
(acceptance of jurisdiction is voluntary)

9
Enforcement of public international law
• no compulsory judicial system; acceptance of its jurisdiction - based on
consent, voluntary
• judicial tribunals in certain areas (e.g. trade, human rights)

Name Scope Years active Subject matter

International Court of Justice (ICJ) Global 1945 - present General disputes

International Criminal Court (ICC) Global 2002 - present Criminal
prosecutions
Permanent Court of International Global 1922 - 1946 General disputes
Justice
Appelatte Body of the World Trade Global 1995 - present Trade disputes
Organization within the WTO
International Tribunal for the Law Global 1994 – present Maritime disputes
of the Sea

Etc. … ... ... ...

10
 Extracts from the Vienna Convention on the
law of treaties

Refer to the Vienna convention and answer the questions below:

•How can provisions of international law be incorporated into

national legislation?
•Why are definitions important in international agreements?
•Find the general principles of international law mentioned in the
introductory part of the Convetnion.
•Find in Section 3, Article 31 the principles that will be applied in
the interpretaion of the Convention.
•How should treaties authenticated in different languges be
interpreted?

11
Culpability of individuals under international law
• The treaty-based and customary law applicable in both international
and internal conflicts also governs the conduct of individuals –
INDIVIDUAL CRIMINAL RESPONSIBILITY
• Geneva conventions make frequent reference to the acts of individuals
(the obligation to ensure respect for the provisions of humanitarian law
requires the state not only to ensure that its agents respect the
provisions, but all the people under its jurisdiction).
• Crimes that can justifiably be prosecuted and punished by international
community:
a) GENOCIDE
b) WAR CRIMES
c) CRIMES AGAINST HUMANITY = unlawful acts committed as part of a
widespread or systematic attack against a civilian population (murder,
extermination, enslavement, deportation, arbitrary detention, torture,
rape, persecution on political, racial and religious grounds, rape and
enforced prostitution and other inhumane acts).