Sources of International Law

C.L. Akurugoda Lecturer (Probationary)

Faculty of Law

Article 38 of ICJ statute

• (a) International Conventions

• (b) International Customs

• (c) General Principles of law recognized

by civilized nations

• (d) Judicial decisions and teaching of

highly qualified publicists (subject to

Article 59)

• -G. Schwanzenberger-

• But this is not a hard and fast rule

International Conventions

International Customs

General principles

Judicial Decisions

Academic writing

Exclusive law creating processes

Verification of alleged rules

Customary International Law

• CIL is considered as a dynamic source of International law.

• Nature of IL system

• Lack of centralized government organs

Elements of CIL

• Physical element

(State Practice)

• Mental element

(Opinio juris)

Different opinions on value of CIL

• It is too clumsy and slow-moving to

accommodate the evolution of

international law any more. (W.

Friedmann) So it is not significant as a

source of law today.

• It is activated by the spontaneous

bahaviour and thus mirrors the

conteporary concerns of society.

The material fact/State practice

• Duration

• Consistency

• Repetition

• Generality

Duration

• There is no rigid time element

• Depend upon the

circumstances of the case and

usage

• Does not the most important

component

Continuity and Repetition

• Asylum Case(Columbia v. Peru)

…that a customary rule must ‘in accordance

with a constant and uniform usage practiced by

the State in question’

Anglo-Norwegian Fisheries Case

• Some degree of uniformity

amongst state practices was

essential before custom could

come into existence.

http://www.worldcourts.com/icj/eng/decisions/1951.12.18_fisheries.htm

North Sea Continental Shelf case

• Dispute between Germany, Holland and Demark.

• Delimitation of the continental shelf

• State practice had to be ‘both extensive and virtually uniform in the sense of the provision invoked.’

http://www.icj-cij.org/docket/index.php?sum=295&code=cs2&p1=3&p2=3&case=52&k=cc&p3=5

Nicaragua v. US

• It was not necessary that the practice in question had to be ‘in absolutely rigorous conformity’ with the purported customary rule

• In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of state should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule

• ICJ Reports, 1986, p. 98; 76 ILR,p.432.

Can only few states create a custom?

• Yes

• They are intimately connected with the issue in hand

Power

Wealth

special relationship with the subject matter

Examples

• UK Law of the sea/Prize law

• Soviet Union

& Space Law

USA

• For a custom to be accepted and recognized it must have the concurrence of the major powers of that particular field

• Duration and generality takes second place

• Universality is not required

• Depending on the context some degree of continuity must be maintained..

Whether failure to act create a custom not to act?

• Legal obligation not to act

• Incapacity or unwillingness

Lotus case PCIJ, series A, No.10,1927, p18

• ‘abstention could only give rise

to the recognition of a custom if

it was based on a conscious duty

to abstain ’

State Practice

STATE

State’s Legal officers

Diplomatic agents

Legislative institutions

Courts

Political leaders

How to find actual state practice?

• News papers • Historical records • Statements/speeches of governmental

authorities • Official publications • Memoirs of past leaders • Official manuals • Diplomatic interchanges • Opinions of national legal advisors • Comments made by governments on draft

international instruments

Lotus case

• …the French maintained that there are existed a rule of customary law to the effect that the flag state of the accused(France) had exclusive jurisdiction in such cases and that accordingly the national state of victim (Turkey) was barred from trying him.

• Justifications:

absence of previous criminal prosecutions by such states in similar situations

• Held:

‘only if such abstention were based on their [the state] being conscious of a duty to abstain would it be possible to speak of an international custom. ’

North Sea Continental Shelf case

• ‘… state practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked, and should moreover have occurred in such a way as to a general recognition that a rule of law or legal obligation is involved’

Anglo-Norwegian Fisheries case

• A state opposing the existence of a custom from its inception would not be bound by it…

Reference

• Shaw,M.N, International Law, 5th Edition, Cambridge University Press

• http://anthonydamato.law.northwestern.edu/Adobefiles/A69b-spec-cust.pdf