Main Sources

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Main Sources

 Peter Malanczuk, Akehurst’s Modern

Introduction to International Law, Routledge, 7th Revised Edition, (Reprinted) 2009.

 Malcolm Shaw, International Law, Cambridge University, 2011

 www.un.org.tr

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The Main Features of Public International Law

 Most of the rules of public international law aim at regulating the behavior of states (not that of individuals).

 The relations between the states remain

largely horizontal. (No vertical structure)

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The Main Features of Public International Law

 No rules setting up special machinery for discharging the main three functions (law making; law determination; law

enforcement). All three functions are decentralized.

 Reciprocity is the basis of international rights and obligations. Self-interest governs.

International rules confers reciprocal rights

or impose reciprocal obligations.

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The Fundamental Principles Governing International Law

 No member state of the international

community had enough power to impose

standarts of behavior on all other members and impose any fundamental principle for regulating international dealings.

 The increase in the corpus of rules made it

clear that States spontaneously based their

lawmaking on a few fundamental postulates.

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The Fundamental Principles Governing International Law

 The Sovereign Equality of States Sovereignty and Legal equality

 Non-intervention in the Internal or External Affairs of Other States

 Prohibition of the Threat or Use of Force

 Peaceful Settlement of Disputes

 Respect for Human Rights

 Self-Determination of Peoples

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The Fundamental Principles Governing International Law

 All these fundamental principle supplement

and support one other and also condition

each other’s application.

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Article 38 of the Statute of the International Court of Justice

• 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 custom, as evidence of a general practice accepted as law;

• c. the general principles of law recognized 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.

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Any treaty provision existing between the parties to the dispute must be applied;

If there is no treaty then a rule of international custom should be applied;

If there is neither a prevailing treaty provision nor a custom then a general principles are turned to; and

In the absence of any of the foregoing, look to judicial decisions and writings as a subsidiary means for

determining the law

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International Custom

Elements of Custom:

a) General state practice:

 Duration: The proof of the consistency and generality of a practice is provided by the duration.

 Uniformity, consistency of the practice:

Complete uniformity is not required but

substantial uniformity is.

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Elements of custom

b) Corresponding views of States:

Opinio juris sive necessitatis: (Subjective

element): The conviction that such practice

reflects, or amounts to law (opinion juris) or

is required by social, economic or political

exigencies (opinion necessitates).

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International Custom

 The primary concern of states is to safeguard some economic, social or political interests.

The gradual birth of a new international rule is the side effect of state’s conduct.

 Customary rules do not need to be supported

or consented to by all states.

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The Persistent Objector

 Can a state that objects to the formation of a customary rule disassociate itself from such a rule and thus remain free from the

obligations it imposes?

 A state may contract out of a custom in the

process of formation. But the evidence of

objection must be clear.

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General Principles of Law

 Elements of legal reasoning and private law analogies.

 General principles of law in the practice of tribunals: The International Court of Justice has used this source without any formal

reference or label as a part of judicial

reasoning.

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Judicial Decisions and Writings of Publicists

 Decisions of international tribunals and arbitral tribunals.

 The teachings of the most highly qualified publicists of the various nations ; only

constitutes evidence of the law,

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The hierarchy of the sources

What happens if a rule derived from one source of international law conflicts

with a rule derived from another source?

Which prevails over the other?

Is there an order of application of the sources listed in Article 38 of the

Statute of the ICJ?

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