Chapter-2 Sources of International law

• What does it meant by source of law?

• When we say source of law generally we have to
deal with it from two angles;
• (1) Formal source of law (2) material source of law
• Formal source of law: refers to the sources from
with the law directed its binding action.
• So when we talk about formal source of law we are
referring to an institution from which the law
emanates.
• The simple reason that the law is binding is because
it’s promulgated by competent and duly authorized
law making organ.
• Material sources of law: refers to the document on
which the law is found or about sources from
which the law drives its substance or the content.
• So for example the material sources of Ethiopian
law are very clear.
• We have constitution, proclamation, regulation,
directives and so forth.
• In case of international law it may be relatively
difficult to ascertain what are formal sources of
PIL?
• A sources of domestic law is simple this because of
presence of a centralized law making institution.
• However international law lacks that.
• The term “source” refers to the forensic process involving
where a decision maker or researcher looks to ascertain the
substantive legal rule which governs a legal dispute or
academic discourse.
• What are sources of international law?
• Treaties, customs, morality in a sense of doing reasonable
thing, general principles of international law, judicial
decisions and writings of highly qualified scholars usually
mentioned as a sources of international law.
• What is our ground? Art. 38(1) of the statute of ICJ is the
most authoritative, general and enumerative sources with
regard to international law.
• Art. 38(2) indicate the possibility that the principles of
morality, equity and reasonableness can also serve as a
sources of law.
• Hierarchy of Sources of international law (IL)
• The sequential arrangement of the sources within
the above Article 38 of the ICJ Statute suggests an
implicit hierarchy.
• The first layer of this ordering is that treaties,
customs, and general principles are the primary
sources for finding the content of International
Law.
• Judicial decisions and scholarly writings are
expressly designated as the subsidiary sources for
determining the content of International Law
• Generally it’s possible to say treaties and customs
comes first, second general principles of the law,
third comes judicial decisions and writings of
scholars.
• What are the bases to say that treaties and
custom are higher in hierarchy compared to the
other sources?
• As we know the general principles of law is
designed to fill a gap, so it has a gap filling
mission.
• So we cannot apply this general principle in the
face of treaty or custom governing the relationship
and practice of individual parties in dispute.
• The former three sources of IL are primary
sources.
• As a subsidiary sources of IL judicial decisions and
writings of scholars.
• The purpose of the latter two sources is basically
it’s not as a source but verification of the existing
rules i.e. they are basically evidence existence of
custom and treaty.
• They are not strictly speaking source of public
international law.
• Under international laws the principle of “star
deciss “doesn’t apply, so a decision passed by the
court cannot apply a binding obligation.
What makes treaties special?
• Treaties are deliberate, which compromise various
interests, so they are more deliberate.
• Currently treaties have begun to replace
customary international law.
• Although both custom and treaties are supported
by countries consent in case of treaties the
consent is more of express in case of custom it is
tacit.
• (2) Customary as a source of international law: as a
second source of international law as we know the
role of custom at international level is decreasing.
• How can we define custom or customary
international law?
• It is simply a practice followed by those involved
because they feel legally obliged to behave in such
a way.
• So customary international law (CIL) can be defined
as a practice followed by states because they feel
that is legally obligatory to do that.
• An established State practice, accepted by many
nations, qualifies as a binding custom.
• We identify two important elements for this
definition;
• (1) there has to be a party similar to custom under
domestic law or there has to be similar state
practice
• (2) there has to be a belief that there is a legally
obligatory.
• An elements need to be fulfilled in order to qualify
a certain practice into a custom is;
• (1) material element: the fact that there has to be
a state practice
• (2) opinio juris (physiological element) analogues
to moral element under the criminal law.
• (1) duration or passage of time;
• (2) substantial uniformity or consistency of usage
by the affected nations;
• (3) Generality of the practice, or degree of
abstention; and
• (4) opinio juris et necessitatis— international
consensus about, and recognition of, the
particular custom as binding.
• A state’s failure to practice or participate in the
development of certain custom cannot prevent a
state from being bound by the developed rules of
customary international law.
• That means remains dormant amounts to
acceptance.
• So only the persistent objector that cannot be
bound by rules of international law
• For a persistent objector to benefit from the
objection two criteria need to be fulfilled; (1) the
objection has to be raised as early as possible (2)
the objection has to be consistent.
• Psychological element: is about the physiological
conviction that fact that a state has to feel that
the practice in question is legally obligatory.
• The means of prove is similar to that of the
method we used to identify the mental element
under criminal law except the fact that the
existence of physiological element is presumed.
• (3)General principles of Law recognized by a civilized
nation:
• Treaties do not, and usually cannot, provide answers to
every future dispute.
• International decision makers can therefore borrow
gap-filling concepts from the internal law of various
nations, such as “equity” and “good faith.
• The term or the requirement of recognition by a
civilized nation recognized is ridicules from current
point of view.
• Because all the states are deemed to be civilized. What
writers prefer nowadays is that it should be replaced
by a general principle recognized general principle by a
peace loving countries.
• A general principles of law has a gap filling mission,
because they able to resolve a case even if that
kind of dispute in its disposal cannot be covered
by a treaty or custom in which case the court is
allowed to resort to the general principle of law.
• For instance the principle of good faith; Other
additional principles unjust or unlawful
enrichment, principle of reparation of duty,
principle of res judicata, doctrine of
proportionality, the right to fair hearing, the
exhaustion of local remedies, prescription, equity,
liability for fault so on and so forth.
• Equity: according to Art.38 (2) of St. ICJ equity would
come into the picture as a source of international
law where the parties do agree.
• Under this sub- article the term ex aequo ET bono is
referring to equity.
• Art.38 (2) talks about the possibility whereby
whether parties do agree equity can be applicable
by prevailing over or overriding international custom
or treaty.
• But when equity is used as a general principle of
international law it will only be used as a gap filling
rule. So there is a difference in a position and
circumstances under which equity can be applicable.
Judicial decision as a source of international law
• Judicial decisions are other sources of international law.
It is a “subsidiary” source for International Law-finding.
• A judge’s decision does not make law. A judge normally
interprets the law and applies it to a pending case, they
are not sources per-se. (the common law understanding
of the binding effect of decisions of the higher courts on
lower courts or the same courts it doesn’t apply here).
• They are subsidiary sources of international law.
• They do verify whether primary sources of international
law exist or not.
• So one of the basic purposes of these sources of
international law is to serve as evidence.
• A matter of design judicial decisions are not
primary sources of law and they are not source
“stricto senso”.
• And Art.38(1) 18 takes a caption on that sense it
says that referring to article 59 of the united
nations charter,” the decisions of the court has no
binding force except within the parties and with
respect of that particular case.” So a decision is
binding only between the parties and only in that
particular case.
• So when actually 38(1) art refers to art. 59 of UN
charter it means that a court will not be bound by
its previous decisions.
• 4) The Writing of Scholars
• (Art. 38(1) (d) it says the teaching of highly qualified
publicists of various nations.
• This very stringent requirement that do not refer to
any ordinary writer or a teacher the standard is very
high.
• Its referring to other writers whose writing is
actually structure state behavior.
• There are a lot of writers whose writings and
recommendation is accepted and implemented by
states.
• Analyses by influential “publicists,” meaning
prominent commentators on International Law, is
the remaining statutory method for ascertaining
evidence of the content of International Law.
• Publicists write about established or evolving
norms and their interstitial gaps.
• Their summaries thus influence the rule-making
process.
• But they can never make rules, customs, or
treaties.
• (5) Other sources of IL
• Resolution of the UN: the United Nations has six
principal organs the two important organs are the
Security Council and the general assembly.
• The general assembly has a lot of power and
responsibility in exercising these powers and
responsibilities the general assembly passes decisions,
recommendations.
• These can be taken as a sources of international law on
two grounds;
• (1) they can be taken as a subsidiary sources of IL in
terms of verifying the existing rules
• (2) they can be rules in themselves by regulating and
dictating on how state should do and what to do.
• A decision passed by the general assembly under
chapter 17 (a decision on budgetary and financial
matters which is binding on states, and a resolution
of the security council under chapter 7, this are
laws strictly speaking and binding upon sates so we
can take them as a sources of international law
• A resolution and recommendation of the general
assembly can have an evidentiary purpose even if
it’s not binding or assumed as a binding law.
• As we can categorize such resolutions and
recommendations as soft laws.
• One importance of this resolutions is that, they can
serve as evidence state practice.
• By the same token the Security Council passes a
resolution based on 7.
• But there are few occasions whereby this organ
passed a resolution based on chapter 7 which is
binding on states.
• Such resolution based on chapter seven will pass
when we have a serious situation that threaten
international peace and security.
• the Security Council may order states to take
measures necessary to avert that endanger the
peace and security by imposing an economic
sanction, military, or other necessary measure