Sources of International Law
Article 38(1): Statute of the international court of justice: The courts shall apply/use the following sources of law to solve any disputes submitted to it:
· International Conventions – treaties, agreements, etc; Treaties are defined as international agreements concluded between states in written form and governed by international law.
· International Customs: - Customary International Law (State practice and opinion juris)
· General Principles of Law
· Morality and natural law
· General restatements of treaty and customary law (ex: freedom of the high seas)
· Rules and principles extracted from national legal systems
Writers and Publicists
1. Solve problem questions by applying what writers and publicists previously have discussed. This will give more authority to your answer.
2. Example: What does ‘force’ mean? Military force? Economic force? It means ‘military force’ because many authors such as Marriam Smith have agreed that ‘use of force’ means use of ‘military’ force.
3. Malcolm Shaw - States in their presentation of claims, national law officials in their opinions to their governments, the various international judicial and arbitral bodies in considering their decisions, and the judges of municipal courts when the need arises, all consult and quote the writings of the leading juristic authorities.
4. International Law Commission (‘the progressive development of international law and its codification’) is a very popular commission.
5. The International Law Commission was established by the General Assembly, in 1947, to undertake the mandate of the Assembly, to "initiate studies and make recommendations for the purpose of ... encouraging the progressive development of international law and its codification".
6. Nowadays there are different manuals. However, they must be used only as manuals/a guide. Ex: cyber space manual.
Article 38.1 – General Comments
Lists sources of international law – writers/publicists/treaties/conventions.
* But is this list exhaustive? Is it Hierarchical?
1. UN General Assembly resolutions
‘The General Assembly may discuss any questions or any matters within the scope of the present Charter…and…may make recommendations to the Members of the United Nations or to the Security Council’ (article 10 UN Charter)
– Check the power of the GA.
- The GA cannot make international law because the UN Charter says so.
- The GA only discusses international issues and makes ‘recommendations’ to the members of the UN or the Security Council.
2. Unilateral acts
Nuclear Tests Cases (1974): ‘it is well recognised that declarations made by way of unilateral acts concerning legal or factual situations, may have the effect of creating legal obligations’ (cf. Frontier Dispute (Burkina Faso/Mali) (1986))
They don’t make international law. Feeds into customary international law. Unilateral acts by themselves DO NOT make international law. They are not sources of international...