Presenter: Shree Krishna Silwal

MIRD,T.U

2ND SEMESTER

What law does the ICJ(International Court of

Justice) apply in deciding disputes submitted to

it?

(confused???)

Definition of sources of

international law• Sources of international law are the materials

and processes out of which the rules andprinciples regulating the internationalpersonalities are developed.

• Rules are extracted and analyzed from thesources.

• According to Lawrence and Oppenheim thereis only one source of IL i.e. the consent ofnation.

• But Brierly considers customs and reasonsas the main sources of IL.

• Article 38(1) of the statute of the

International Court of Justice is

widely recognized as the most

authoritative statement as to the

sources of International law.

The law applicable in ICJ,

sec 38(1 and 2)On the basis of Article 38 of ICJ Statute,

5 distinct sources can be identified:

1. International conventions/treaties

2. International customs

3. General principles of law

4. Judicial decisions and writings of the

publicists

5. Reason and equity

1. International Conventions/ Treaties Treaties are known by a variety of

terms-conventions, agreements,pacts, general acts, charters,statutes, declarations andcovenants.

The creation of written agreementswhereby the states participating bindthemselves legally to act in aparticular way or to set up particularrelations between themselves.

Types of international treaties.

International treaties can be broadly

divided into two types:

i. Law making treaties (L)-Universal or

general relevance.

ii. Treaty contracts (T)- between two or

small number of countries.

i. Law making treaties

It is conducted between many statesand creates general rules binding thestates

Lawmaking treaties or conventions arethe main source of international lawsince, the basis of all international law isconsent.

Examples:a. The Hague Convention of 1899 and

1907 (on law of war and neutrality), b. The Geneva Protocol of 1925 (on

prohibited weapons), c. The Genocide Convention of 1948,

ii. Treaty Contracts

Deals with a special matter between contractingstates only

Example: Indo Nepal treaty on trade and transit,

Indo Nepal treaty on Peace and Friendship.

Create particular law between the signatories.

But is also source of universal rule also.

Example: . Briand Kellogg Pact 1928 (a treaty forthe renunciation of war between USA and Francebecame so attractive that other states alsosubscribe to its principle of non use of force, so ifmore and more states consent to the rule of treatycontract universal rule is established.

2. Customs as a source of IL The article 38 (1) of the statute of the

International Court of Justice

recognises “International Customs”, as

a source of international law.

The ICJ’s statute refers to

international customs, as “evidence

of a general practice accepted as

law”.

Elements for making

custom as international law1.Duration of state practice

2. Uniformity and consistency in

practice

3. Generality in practice

4. Opinio juris – (Acceptance of practice

as law)

Some views regarding

customary laws

Can customary law be significant inpresent world?

1)Opinion 1: customs can’t be significanttoday as source of international lawbecause it is too clumsy and slow movingto accommodate the evolution ofInternational law.

2)Opinion 2: custom is relevant in presentday also as it is the dynamic process oflaw creation and more important thantreaties since it is of universal application.

3.General Principles of Law

The general principles of law are thoseprinciples which have got recognitionfrom all the states and by all the legalsystems of the world.

The general principles of law are basedon justice and equity.

They include basic principles of lawwhich are indisputable.

They provide a mechanism to addressinternational issues not already subjecteither to treaty provisions or to bindingcustomary rules.

Why general principles of

law are included? The main reason why this source is included

in ICJ because a situation may arise whenthere is absence of law relating exactly to thepoint.

International law has no method of legislatingto provide rules to regulate new situations

neither it follows principle of past precedents.Hence, the provision of general principle wasestablished as a source of law to fill the gapand solve the problem of non liquet (asituation when the court refuses to settledisputes on the ground that rules are notavailable).

Case involving general

principle of law Permanent Court of International

Justice (PCIJ) in Mosul Boundary

Case (1925) applied the principle of

natural justice that No one can be

judge in his own suit

4.Judicial decisions

(subsidary source) Article 38 recognises a judicial decisions

as a subsidiary source of internationallaw but not an actual source.

Article 59 of the Statute of ICJ providesthat: The decision of the court haves nobinding force except between the partiesin respect of that particular case.

While the doctrine of precedent does notexist in international law, one still findsthat states in disputes and textbookwriter quote judgments of the permanentcourt and the ICJ as authoritativedecisions.

Judicial decisions of the

municipal courts The laws of a specific state and

decisions of the municipal courts are

not in general, source of international

law, since, they do not create legally

binding obligations for other state.

5. Writings of the publicists

(subsidiary source) Article 38 of statute of ICJ recognises ‘ the

teachings of the most highly qualified publicists of the various nations’ as a subsidiary means for the determination of rules of international law.

Writers such as Gentilli, Grotius,Vatted etc, were the supreme authorities of the 16th and 18th centuries and determined the scope, form and content of international law.

The various international judicial and arbitral bodies in considering their decisions consult and quote the writings of the teaching juristic authorities, when need arises.

Other sources Draft conventions

Ex aequo et bono

Equity and justice

GA Resolutions

Consideration of human

International comity

Legally binding resolution of the international organisation

State practices

Soft laws

EX-AEQUO ET BONO

Can ICJ give a decision on grounds of

fairness and justice or not?

Can ICJ give a decision on grounds of

fairness and justice or not?

It is a term often used in international law when a matter is to be decided according to principles of equity rather than by points of law.

Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto.

Example: In 1984 the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada and the US.