UiO, Public International Law

12.09.2003

Christina Voigt

Sources of Public International Law

1. General Introduction
we have become so preoccupied with jurisprudential debate about the
sources of international law that we have, I think, lost sight of the fact that it is
an admission of an uncertainty at the heart of the international legal system. I
do not mean that there are uncertainties about what particular norms provide,
but about how we identify norms. And until the answers to the question of
identification, of provenance of norms, are more settled, then we do not have
the tools for rendering more certain the content of particular norms. 1
(my emphases)
Art. 38 Statute of the International Court of Justice
Primary Sources:
o Treaties,
o Custom (Art. 38),
o Unilateral acts of states creating rules,
o general principles of international law,
o Binding decisions of international
Secondary sources:
o general principles of law recognized by civilized nations
o judicial decisions
o writings of publicists
o taken ex aequo et bono (on the strength of equitable principles)
o
2. Treaties, Art. 38 I (a)
3. International Custom, as evidence of a general practice accepted as law, Art.
38 I (b)
State practice
o State practice need not to be absolutely uniform,, individual
deviations may not lead to the conclusion that no rule has
crystallized2
o The Court does not consider that, for a rule to be established as
customary, the corresponding practice must be in absolute rigorous
conformity with the rule. In order to deduce the existence of
1
2

Rosalyn Higgins, Problems and Process International Law and How We Use It, 1994, at 17.
Nicaragua, ICJ Reports (1986) .

customary rules, the Court deems it sufficient that the conduct of

States should, in general, be consistent with such rules.3
Opinio juris
Customary law and the Environment
Present Role of Customary Law

4. General Principles of Law recognized by civilized Nations, Art. 38 I (c)

5. General Principles of International Law
6. jus cogens
Art. 53.2. Vienna Convention on the Law of Treaties
For the purpose of the present convention, a peremptory norm of general
international law is 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.
7. Unilateral acts of states
8. Binding decisions and resolutions of international organisations
9. Judicial decisions and writings of publicists, Art. 38 I (d) (subsidiary)
10. Equity Considerations
11. Soft Law ?

Nicaragua, ICJ Reports (1986) , pg 43, para 74