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Chapter 2 Sources of International Law

Classification of Sources:
1. Formal Sources refer to various processes by which
rules come into existence(ex. Legislation)
2. Material Sources (evidence of international law)concerned with the rules substance and content of the
obligation,

b. subjective factor why do they behave the


way they do
- opinio juris - belief that a certain form of
behaviour is obligatory
-this what makes the practice an international law
-GR: dissenting states are bound by customs
EXPTN: a)consistent objection and;

- identifies what the obligations are (ie. State practice, UN


resolutions)

b)while it is still in the process of


formation

Sources: (Custom,Treaties,Generally Recognized


Principle of International Law, Judicial Decisions,
Teachings of highly qualified and recognized publicists,
and Equity)

>Fisheries Case coastline delimitation rule put up by


England would be inapplicable to Norway for the latter has
always opposed to apply it to the Norweigian Coast

I. Custom

-but it only protects the dissenter and not other states

-general and consistent practice of the states followed by


them from a sense of legal obligation

-a state joining an international law system for the


first time after practice has become law is bound by
such practice

-2 Elements:

-initial factor in determining the existence of


custom

-if the practice has been accepted as a law and a


contrary practice arises, such practice can cast doubt
on the alleged law, such uncertainty had an unsettling
effect on the crystallization of a still evolving customary
law on the subject

-Elements:

Evidence of State Practice

a. material factor how states behave/usus

1. duration of practice(diuturnitas)
2. consistency of practice
3. generality of practice
-duration could be short of long
- duration is not the most important
element, continuity and generality are
more important
>Paquete Havana Case ancient usage, centuries ago
may ripen into international law
>North Sea Continental Shelf Case short duration
wont exclude the possibility of a practice maturing into
custome provided other conditions are met, practice must
be uniform and extensive as to show a general recognition
that a law is involved
>Asylum Case no showing of a constant and uniform
practice of unilateral qualification as a right
>Nicaragua v USA generality need not be complete but
must be substantial

-Treaties, diplomatic correspondence, statements of


national leaders, and political advisers, and conduct of
states BUT must be coupled with OPINIO JURIS.
-existence of opinion juris must be proved by the state
claiming it
-opinio juris may be deduced from the attitude of the
parties and of states towards certain general assembly
resolutions, consent to such is an expression of opinion
juris.(Nicaragua v USA)
Instant Custom
-refers to a spontaneous activity of a great number of
states supporting a specific line of action
Martens Clause
-even without consistent or prolonged practice there can
emerge a principle of law based on the laws of humanity
and the dictates of public conscience

II. Treaties and Other International Agreements

Res Judicata v Stare Decisis

Treaties determine the rights and duties of state just as


individual rights are determined by contracts.

Res Judicata when a final judgement has been


rendered on the merits of action and no other court may
hear an appeal/has already been judicially decided

-binding force came from the voluntary decision of


sovereign states to obligate themselves to a mode of
behaviour
-generally binding to the parties only BUT can have an
effect of creating a universal law due to the number of
contracting parties and generality of acceptance
PACT SUNT SERVANDA agreements must be kept
>Rules in case of conflict between treaties and
customs:
- if treaty comes after a custom
GR: treaty should prevail, since there is a
deliberate choice of the parties and the principle
of pacta sunt servanda must be followed
EXECEPTION: if treaty conflicts a customary rule
that has a status of jus cogens(laws which are
fundamental and cannot be ignored by any
country), customs would prevail(Art. 53, Vienna
Convention)
-if customs develop after a treaty(no clear rule)
Logical rule: custom should prevail for being an
later expression of will
Reconcillation: Anglo-French Continental Case,
reconciling a treaty with a developing custom
III. Generally Recognized Principles of Law

Stare Decisis let the precedent decision stand/abide


and adhere to decided cases, usually refers to court of
higher jurisdiction or equal level
V. Teachings of Highly Qualified and Recognized
Publicists
-ICJ is reluctant to refer to writers but often taken into
consideration
Publicists institutions which write on international law
(i.e. International Law Commission, International Law
Organization, and Restatement of Foreign Relations Law
of of the United States)
VI. Equity
-used by the Permanent Court of Justice in Diversion of
Water from the Meuse.
-Courts may decide a case ex aequo et bono(in equity
and good conscience) if the parties agree thereto.
-if accepted , is an instrument whereby conventional or
customary law may be supplemented or modified in order
to achieve justice
-Kinds of Equity
- intra legem within the law
-praeter legem beyond the law
-contra legem against the law

-general principles of law recognized by or common to the


worlds legal system

Other Supplementary Evidence

-principles of municipal law common to the legal systems


of the world

1. UN Resolutions generally considered as


recommendatory, unless supported by all states it will be
an expression of opinion juris communis

IV. Judicial Decisions


Art. 59 decisions of the Court(ICJ) has no binding force
except between the parties
-stare decisis does not apply
-but decisions are highly persuasive

2. Soft Law non treaty agreements


- includes. admin rules