Sources of international law
Encyclopedia
Sources of international law are the materials and processes out of which the rules and principles regulating the international community
are developed. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positivists
that a sovereign
could limit its authority to act by consenting to an agreement
according to the principle pacta sunt servanda
. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice
, and preserved in Article 38(1) of the 1946 Statute of the International Court of Justice
.
Article 38(1) is generally recognised as a definitive statement of the sources of international law. It requires the Court to apply, among other things, (a) international conventions "expressly recognized by the contesting states", and (b) "international custom, as evidence of a general practice accepted as law". To avoid the possibility of non liquet
, sub-paragraph (c) added the requirement that the general principles applied by the Court were those that had been "the general principles of the law recognized by civilized nations". As it is states that by consent determine the content of international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to "judicial decisions
" and the most highly qualified jurist
ic writings "as subsidiary means for the determination of rules of law".
On the question of preference between sources of international law, rules established by treaty
will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law.
It may be argued that the practice of international organizations, most notably that of the United Nations
, as it appears in the resolutions of the Security Council
and the General Assembly
, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice
. Article 38(1) is closely based on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice
, thus predating the role that international organizations have come to play in the international plane. That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint after the decolonization process that took place in the early 1960s and the participation of nearly all nations of the world in the United Nations
.
It is also possible, though less common, for a treaty to be modified by practices arising between the parties to that treaty. The other situation in which a rule would take precedence over a treaty provision would be where the rule has the special status of being part of the jus cogens.
(usually abbreviated as opinio juris).
Derived from the consistent practice of (originally) Western states accompanied by opinio juris (the conviction of States that the consistent practice is required by a legal obligation), customary international law
is differentiated from acts of comity
by the presence of opinio juris (although in some instances, acts of comity have developed into customary international law, i.e. diplomatic immunity
). Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law.
The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant". Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely be most affected, and an absence of substantial dissent. There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention.
Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies.
A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its persistent objection to that rule, either as a member of a regional group or by virtue of its membership of the international community. It is not easy for a single state to maintain its dissent. Also, rules of the jus cogens have a universal character and apply to all states, irrespective of their wishes.
Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the formation of a new rule. Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.
In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary opinio juris was lacking.
Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice, the role of the psychological element in the creation of customary law is uncertain.
or jus cogens (Latin
for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations
. The principle of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of Treaties
:
Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offences which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as waging aggressive war
, war crimes, crimes against humanity, piracy, genocide
, apartheid, slavery
and torture
.
The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that required to establish the creation of a new rule of customary international law. Indeed, jus cogens could be thought of as a special principle of custom with a superadded opinio juris. The European Court of Human Rights
has stressed the international public policy aspect of the jus cogens.
s between two or more parties, such as an extradition
treaty or a defence pact. Treaties can also be legislation
to regulate a particular aspect of international relations, or form the constitutions of international organisations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a), which uses the term "international conventions", concentrates upon treaties as a source of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party.
For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting non-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself.
. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of War Victims
.
Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:
. Given the limits of treaties or custom as sources of international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent a non liquet
by reference to the general principles.
In earlier stages of the development of international law, rules were frequently drawn from municipal law. In the 19th century, legal positivists rejected the idea that international law could come from any source that did not involve state will or consent, but were prepared to allow for the application of general principles of law, provided that they had in some way been accepted by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general principles "recognised" by states. An area that demonstrates the adoption of municipal approaches is the law applied to the relationship between international officials and their employing organisations, although today the principles are regarded as established international law.
The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppel
and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation in its dealings. The principle of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation and performance of legal obligations". Similarly, there have been frequent references to equity. It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem). This "equity as law" perception is reinforced by references to equitable principles in the text of the United Nations Convention on the Law of the Sea
1982, though this may be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator.
However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law
. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.
and to legal literature.
does not refer to domestic decisions although it does invoke its previous case-law.
There is no rule of stare decisis
in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.
Often the International Court of Justice will consider General Assembly resolutions as indicative of customary international law.
International community
The international community is a term used in international relations to refer to all peoples, cultures and governments of the world or to a group of them. The term is used to imply the existence of common duties and obligations between them...
are developed. They have been influenced by a range of political and legal theories. During the 19th century, it was recognised by legal positivists
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
that a sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
could limit its authority to act by consenting to an agreement
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
according to the principle pacta sunt servanda
Pacta sunt servanda
Pacta sunt servanda , is a brocard, a basic principle of civil law and of international law.In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that nonfulfilment of respective obligations is a breach of the...
. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, was an international court attached to the League of Nations. Created in 1922 , the Court was initially met with a good reaction from states and academics alike, with many cases submitted to it for its first decade of...
, and preserved in Article 38(1) of the 1946 Statute of the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
.
Article 38(1) is generally recognised as a definitive statement of the sources of international law. It requires the Court to apply, among other things, (a) international conventions "expressly recognized by the contesting states", and (b) "international custom, as evidence of a general practice accepted as law". To avoid the possibility of non liquet
Non liquet
In law, a non liquet is a situation where there is no applicable law. Non liquet translates into English from Latin as "it is not clear." According to Cicero, the term was applied during the Roman Republic to a verdict of "not proven" where the guilt or innocence of the accused was "not clear." ...
, sub-paragraph (c) added the requirement that the general principles applied by the Court were those that had been "the general principles of the law recognized by civilized nations". As it is states that by consent determine the content of international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to "judicial decisions
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
" and the most highly qualified jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
ic writings "as subsidiary means for the determination of rules of law".
On the question of preference between sources of international law, rules established by treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law.
It may be argued that the practice of international organizations, most notably that of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
, as it appears in the resolutions of the Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
and the General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
. Article 38(1) is closely based on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, was an international court attached to the League of Nations. Created in 1922 , the Court was initially met with a good reaction from states and academics alike, with many cases submitted to it for its first decade of...
, thus predating the role that international organizations have come to play in the international plane. That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint after the decolonization process that took place in the early 1960s and the participation of nearly all nations of the world in the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
.
It is also possible, though less common, for a treaty to be modified by practices arising between the parties to that treaty. The other situation in which a rule would take precedence over a treaty provision would be where the rule has the special status of being part of the jus cogens.
International custom
Article 38.1(b) of the ICJ Statute refers to "international custom" as a source of international law, specifically emphasizing the two requirements of state practice plus acceptance of the practice as obligatory or opinio juris sive necessitatisOpinio juris sive necessitatis
Opinio juris sive necessitatis or simply opinio juris is the belief that an action was carried out because it was a legal obligation. This is in contrast to an action being the result of different cognitive reaction, or behaviors that were habitual to the individual...
(usually abbreviated as opinio juris).
Derived from the consistent practice of (originally) Western states accompanied by opinio juris (the conviction of States that the consistent practice is required by a legal obligation), customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
is differentiated from acts of comity
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
by the presence of opinio juris (although in some instances, acts of comity have developed into customary international law, i.e. diplomatic immunity
Diplomatic immunity
Diplomatic immunity is a form of legal immunity and a policy held between governments that ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws...
). Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law.
State practice
When examining state practice to determine relevant rules of international law, it is necessary to take into account every activity of the organs and officials of states that relate to that purpose. There has been continuing debate over where a distinction should be drawn as to the weight that should be attributed to what states do, rather than what they say represents the law. In its most extreme form, this would involve rejecting what states say as practice and relegating it to the status of evidence of opinio juris. A more moderate version would evaluate what a state says by reference to the occasion on which the statement was made. It is only relatively powerful countries with extensive international contacts and interests that have regular opportunities of contributing by deed to the practice of international law. The principal means of contribution to state practice for the majority of states will be at meetings of international organisations, particularly the UN General Assembly, by voting and otherwise expressing their view on matters under consideration. Moreover, there are circumstances in which what states say may be the only evidence of their view as to what conduct is required in a particular situation.The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant". Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely be most affected, and an absence of substantial dissent. There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention.
Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies.
A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its persistent objection to that rule, either as a member of a regional group or by virtue of its membership of the international community. It is not easy for a single state to maintain its dissent. Also, rules of the jus cogens have a universal character and apply to all states, irrespective of their wishes.
Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the formation of a new rule. Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.
Opinio juris
A wealth of state practice does not usually carry with it a presumption that opinio juris exists. “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary opinio juris was lacking.
Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice, the role of the psychological element in the creation of customary law is uncertain.
Jus cogens
A peremptory normPeremptory norm
A peremptory norm is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but...
or jus cogens (Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
. The principle of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of Treaties
Vienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...
:
- For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised 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.
Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offences which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as waging aggressive war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
, war crimes, crimes against humanity, piracy, genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
, apartheid, slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
and torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
.
The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that required to establish the creation of a new rule of customary international law. Indeed, jus cogens could be thought of as a special principle of custom with a superadded opinio juris. The European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
has stressed the international public policy aspect of the jus cogens.
Treaties as law
Treaties can play the role of contractContract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s between two or more parties, such as an extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
treaty or a defence pact. Treaties can also be legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
to regulate a particular aspect of international relations, or form the constitutions of international organisations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a), which uses the term "international conventions", concentrates upon treaties as a source of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party.
For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting non-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself.
Treaties as custom
Some treaties are the result of codifying existing customary law, such as laws governing the global commons, and jus ad bellumJus ad bellum
Jus ad bellum is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war....
. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of War Victims
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
.
Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:
- When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in terms of the treaty provision. A notable example is the Vienna Convention on the Law of TreatiesVienna Convention on the Law of TreatiesThe Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...
1969, which was considered by the ICJ to be law even before it had been brought into force. - When a customary rule is in the process of development, its incorporation in a multilateral treaty may have the effect of consolidating or crystallising the law in the form of that rule. It is not always easy to identify when this occurs. Where the practice is less developed, the treaty provision may not be enough to crystallise the rule as part of customary international law.
- Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption in the practice of states, and it is the subsequent acceptance of the rule by states that renders it effective as part of customary law. If a broad definition is adopted of state practice, the making of a treaty would fall within the definition. Alternatively, it is possible to regard the treaty as the final act of state practice required to establish the rule in question, or as the necessary articulation of the rule to give it the opinio juris of customary international law.
- Convention-based "instant custom" has been identified by the ICJ on several occasions as representing customary law without explanation of whether the provision in question was supported by state practice. This has happened with respect to a number of provisions of the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it could deny to third parties the normal consequences of non-accession to the treaty.
General principles of law
The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and controversial but may include such legal principles that are common to a large number of systems of municipal lawMunicipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
. Given the limits of treaties or custom as sources of international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent a non liquet
Non liquet
In law, a non liquet is a situation where there is no applicable law. Non liquet translates into English from Latin as "it is not clear." According to Cicero, the term was applied during the Roman Republic to a verdict of "not proven" where the guilt or innocence of the accused was "not clear." ...
by reference to the general principles.
In earlier stages of the development of international law, rules were frequently drawn from municipal law. In the 19th century, legal positivists rejected the idea that international law could come from any source that did not involve state will or consent, but were prepared to allow for the application of general principles of law, provided that they had in some way been accepted by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general principles "recognised" by states. An area that demonstrates the adoption of municipal approaches is the law applied to the relationship between international officials and their employing organisations, although today the principles are regarded as established international law.
The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation in its dealings. The principle of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation and performance of legal obligations". Similarly, there have been frequent references to equity. It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem). This "equity as law" perception is reinforced by references to equitable principles in the text of the United Nations Convention on the Law of the Sea
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
1982, though this may be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator.
However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.
Judicial decisions and juristic writings
According to Article 38(1)(d) of its Statute, the ICJ is also to apply "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". It is difficult to tell what influence these materials have on the development of the law. Pleadings in cases before the ICJ are often replete with references to case lawCase law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
and to legal literature.
Judicial decisions
The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources. In practice the International Court of JusticeInternational Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
does not refer to domestic decisions although it does invoke its previous case-law.
There is no rule of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.
Often the International Court of Justice will consider General Assembly resolutions as indicative of customary international law.
Juristic writings
Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilised by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1).Further reading
- Thirlway, H., International Customary Law and its Codification (A. W. Sijthoff: Leiden, 1972).
External links
- A Brief Primer on International Law With cases and commentary. Nathaniel Burney, 2007.
- Official United Nations website
- Official UN website on International Law
- Official website of the International Court of Justice