Sources of international law

A source of international law is where an international decision maker or researcher looks to verify the substantive legal rule governing a legal dispute or academic discourse. The sources of international law applied by the community of nations to find the content of international law are listed under Article 38.1 of the Statute of the International Court of Justice: Treaties or International Conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international customs as evidence of a general practice accepted as law, and general principles recognized by civilized nations are stated as the three primary sources; and judicial decisions and scholarly writings are expressly designated as the subsidiary sources of international law.

Many scholars agree that the fact that the sources are arranged sequentially in the Article 38 of the ICJ Statute suggests an implicit hierarchy of sources. Article 38 (1) of the International Court of Justice’s statute identifies three sources of international law: treaties, customary international law, and general principles of international law (jus cogens).

The sources have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state 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, which was succeeded by the United Nations Charter and is preserved in the United Nations Article 7 of the 1946 Statute of the International Court of Justice.

Customary law and conventional law are primary sources of international law. Customary international law results when states follow certain practices generally and consistently out of a sense of legal obligation. Recently the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the Charter of the United Nations. International agreements create law for the parties of the agreement. Many lawyers would argue that treaties cannot form a basis of proper (universal) law, because they are hardly ever universal - they are most often bilateral, statistically rather rarely involve many states. How can then such a treaty (between two or more states) be regarded as general law binding other parties too? In fact, it can only if all states are parties to the treaty, which happens very rarely (one can possibly think of United Nations Security Council resolutions having the source in the United Nations Charter signed by all UN members). The answer to this question lies in the next source of international law and pertains to state practice: if states not-bound by the treaty nevertheless adhere to its stipulations, the treaty can be viewed as a customary international law. In the other words, they may also lead to the creation of customary international law when they are intended for adherence generally and are in fact widely accepted. Customary law and law made by international agreement have equal authority as international law. Parties may assign higher priority to one of the sources by agreement. However, some rules of international law are recognized by international community as peremptory, permitting no derogation. Such rules can be changed or modified only by a subsequent peremptory norm of international law.

General principles of international law are a primary source of international law. There are situations where neither conventional nor customary international law can be applicable. In this case a general principle may be invoked as a rule of international law because it is a general principle common to the major legal systems of the world and not inappropriate for international claims.

More recent discussions of the sources of international law, recognizing the growing role of international organizations, include the resolutions and other acts of international governmental organizations, such as the United Nations, as sources or evidence of international law.

 

Appendix

Article 38

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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

 

Article 59

The decision of the Court has no binding force except between the parties and in respect of that particular case.

 

III. Use the information in the excerpt that follows and match each Latin term (1-10) with its English equivalent (a-j):

Lawyers use Latin words and expressions when writing legal texts of every kind, from statutes to emails. The following excerpt is from the legal document known as an “answer” It was submitted to the court by the defendant. Underline the common Latin words and phrases in the text. Do you know what they mean?

“The claim for breach of contract fails inter alia to state facts sufficient to constitute a cause of action, is uncertain as to what contract plaintiffs are suing on, and is uncertain in that it cannot be determined whether the contract sued on is written, oral or implied by conduct.

The complaint alleges breach of contract as follows: “At all times herein mentioned. Plaintiffs were a part (sic) to the Construction Contract, as well as intended beneficiaries to each sub-contract for the construction of the house. In light of the facts set out above, defendants, and each of them have breached the Construction Contract.”

On its face, the claim alleges only that defendants “breached the Construction Contract”. But LongCo is not a party to the Construction Contract. Therefore LongCo cannot be liable for its breach.”