Topic 1 Introduction to International Law

SINGAPORE LEGAL SYSTEM 2009

PART 1: SINGAPORE LAW AND INTERNATIONAL LAW

Topic 1. Introduction to International law

A. STUDY GUIDE...................................................................................................................2B. DISCUSSION QUESTIONS......................................................................................................2C. DEFINITION OF INTERNATIONAL LAW......................................................................................5D. INTERNATIONAL LEGAL PERSONALITY......................................................................................5

1. States...........................................................................................................................52. International Organizations.........................................................................................53. Nationality of individuals, companies, etc...................................................................6

E. SOVEREIGNTY OF STATES OVER TERRITORY..............................................................................7F. JURISDICTION OF STATES.....................................................................................................8

1. Principles of Jurisdiction..............................................................................................82. Immunities from Jurisdiction.......................................................................................9

G. STATUS OF THE SEAS, OUTER SPACE AND ANTARCTICA.............................................................101. High Seas...................................................................................................................102. Territorial Sea............................................................................................................113. Exclusive Economic Zone...........................................................................................114. Continental Shelf and Deep Seabed...........................................................................125. Outer Space...............................................................................................................126. Antarctica..................................................................................................................13

H. PRINCIPLES GOVERNING RELATIONS BETWEEN STATES..............................................................13I. INTERNATIONAL OBLIGATIONS (SOURCES OF LAW)..................................................................14

1. Article 38(1) of ICJ Statute.........................................................................................142. Treaties......................................................................................................................143. Custom.......................................................................................................................164. General Principles of Law...........................................................................................175. Subsidiary for the determination of rules of law.......................................................176. Hierarchy of norms....................................................................................................197. Role of the International Law Commission................................................................20

J. RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS...........................................211. Internationally Wrongful Act.....................................................................................212. Rules of Attribution....................................................................................................213. Consequences of a Breach.........................................................................................214. Circumstances precluding wrongfulness (defences)..................................................22

K. PEACEFUL SETTLEMENT OF DISPUTES....................................................................................231. Methods of Peaceful Settlement...............................................................................232. Permanent Court of Arbitration.................................................................................233. International Court of Justice.....................................................................................24

All Rights ReservedRobert Beckman 2009

These materials are for the sole use of students in the NUS Faculty of Law. They are not to copied or circulated without the express written permission of the author.

Topic 1. Introduction to International Law Page 2

A. STUDY GUIDE

This topic is intended to provide students with an introductory overview of international

law and the international legal system. It introduces the most important principles of

international law and the basic terminology that is encountered when you begin the study of

international law. Many of the principles and terms will be referred to again under the other

topics. Students are advised to approach the topic as follows:

First, skim the Discussion Questions to get an overview of the facts in each question.

Second, read through the materials quickly to obtain an overview of the most important

principles and terms, including concepts such as sovereignty, jurisdiction, international

personality, sources of law, state responsibility and dispute settlement. Note that the

international legal system is a highly decentralized system in which the major actors are

States, and that as a general rule, States are bound only by rules to which they consent. Note

also that international courts and tribunals do have jurisdiction to resolve disputes between

two States on issues of international law unless both States expressly consent to such

jurisdiction.

Third, carefully study the sections on Sources of International Law and on State

Responsibility, paying particular attention to treaties and custom as sources of international

obligations, the elements of an internationally wrongful act, and the consequences of an

international wrongful act.

Finally, return to the discussion questions and read them very carefully. Analyse them in

light of the materials in the chapter and prepare notes on the issues of international you can

identify.

During class the instructor will lead a discussion of the issues raised in the Discussion

Questions. Students are expected to have studied the readings and prepared notes on the

questions in preparation for class. Students should come to class expecting to respond to

questions and willing to enter into a discussion on the issues raised in the discussion

questions.

B. DISCUSSION QUESTIONS

Question 1.

An air force plane of State A is flying in State A, along its border with State B. The plane is

hit by lightening and all its instruments, including its radio, are knocked out. The pilot enters

Singapore Legal System 2009 Part I. Singapore Law and International Law


the airspace of State B without realizing it. He then makes an emergency landing in a civilian

airfield. During landing the air force plane strikes a parked civilian aircraft belonging to a

private company in State B, causing damage to the plane.

Question 2.

Following a rise in tension between Arcadia and Ruritania over allegations that Ruritanian

agents were supplying arms to rebels in Arcadia, Arcadian students call for protests outside

the Ruritanian Embassy in Arcadia. Several thousand students descend upon the Embassy.

Violence erupts, and the three Arcadian police officers who are guarding the Ruritanian

embassy flee after they are threatened by the students. The demonstrators then break

through the gates and storm the Embassy. The two members of the Ruritanian security forces

inside the Embassy fire on the demonstrators when they attempt to break into the building,

killing one student and injuring 3 others. This enflames the demonstrators even more, and

they throw Molotov cocktails threw a second story window, starting a fire. Special forces

units of the Arcadian army then arrive, together with the local fire department. They drive the

students away and break up the demonstration. No arrests are made. The special forces units

then demand that the embassy officials allow the fire fighters to open the doors of the

embassy so that they can put out the fire. Over the objections of Ruritanian Ambassador, they

break down the doors and enter the Embassy, together with the fire fighters. In a room on

the second storey the Special Forces units find rifles and ammunitions in boxes labeled as

“diplomatic bags”. They also find documents linking Embassy officials to rebel groups in

Arcadia. Arcadia is a party to the 1959 Vienna Convention on Diplomatic Relations. Ruritania is

not a party.

Question 3.

A Japanese Airlines plane enroute from Hong Kong to Singapore is hijacked over the high

seas by 4 passengers, all of whom are Chinese nationals. In taking control of the plane, the

hijackers kill one crew member and injure two others. All three crew members are Japanese

citizens. The plane is forced to land in Cambodia. The hijackers threaten to blow up the plane

unless the Chinese government releases two Tibetans who are detained without trial in China.

China refuses to negotiate with the hijackers. After 48 hours of threats and fruitless

negotiations with the Cambodian authorities, the hijackers kill 2 passengers, one American

and one German, and throw their bodies out of the plane. US special operations forces from

US naval ship in the South China Sea are sent by helicopter into Cambodia and land near the

airport. The special operations forces storm the hijacked plane during the night, killing two



hijackers and taking two into custody. An elderly Japanese passenger suffers a heart attack

during the rescue and dies. The United States did not notify or seek authorization from

Cambodia, China or Japan before undertaking the rescue. None of the States are parties to

any international treaties on the hijacking of aircraft.

Question 4.

Toxico, a private company in Arcadia produces large amounts of toxic waste in its

manufacturing processes. The disposal of toxic waste in licensed plants in Arcadia is very

expensive. Toxico enters into a contract with Solutions, a private company registered in the

Caymen Islands, and owned by citizens of Ruritania, to dispose of the hazardous waste

“outside of Arcadia”. An employee of Solutions, who is an Arcadian national, bribes customs

officials in Arcadia to permit large quantities of the waste, in barrels labeled as “palm oil”, to

be loaded on a cargo ship registered in Mondola. Under the direction of Solutions, the captain

of the Mondola ship, a national of Deva, takes the waste more than 50 miles off the coast of

Arcadia, and orders his crew, all nationals of the Inda, to dump the barrels into the sea. The

Captain and crew did not know exactly what was in the barrels, only that Solutions wanted it

dumped at sea. Within weeks the waste begins to leak from the drums, killing all sea life

within hundreds of miles, and seriously damaging the fishing resources in the exclusive

economic zone of Arcadia.

Question 5.

The Igmars are a primitive war-like ethnic group of about 10,000 people who live in the

remote jungle region between Arcadia and Ruritania. Both States want to exploit potential

mineral resources in the region, but the Igmars are very hostile to anyone entering their

traditional homeland. Several expeditions to explore for minerals have been attacked, and

two expeditions never returned. Whenever military forces from one country attempt to move

into the areas, the Igmars seek refuge across the border in the other country. Recently the

Heads of State of the two countries held a summit at which they entered into a formal treaty

to jointly develop the mineral resources in the region. The treaty also provided that the two

States would coordinate efforts by their militaries to completely remove the Igmars from their

traditional homelands, and relocate them in villages several hundred miles inland. The treaty

also provided that they would use “all necessary means”, including the assassination of tribal

leaders, to clear the Igmars from their homeland.



C. DEFINITION OF INTERNATIONAL LAW

International Law consists of the rules and principles of general application dealing with

the conduct of States and of international organizations, and with relations with each other,

as well as with some of their relations with private individuals, minority groups and

transnational companies. For the most part, however, international law deals with legal

relations between the legal entities known as sovereign independent States.

D. INTERNATIONAL LEGAL PERSONALITY

International legal personality refers to the entities or legal persons that can have rights

and obligations under international law.

1. STATES

A State is an entity with the following characteristics: (1) a permanent population; (2) a

defined territory; (3) a government; and (4) the capacity to enter into relations with other

States. Many writers also argue that a State must also be independent of the authority of any

other State. Some writers also argue that an entity is not a State until it has been recognized

as such by other States, even though it is admitted that recognition is a political rather than

legal act. A State is the term used in international law, although the terms nation states,

nations and countries are also used on occasion.

The international legal system is a horizontal legal system dominated by States. States

are in principle considered as being sovereign and equal. International law is predominately

made and implemented by States. Only States can have sovereignty over territory. Only

States can become members of the United Nations and other international organizations.

Only States have access to the International Court of Justice to settle their disputes. Only

States can become parties to many treaties.

2. INTERNATIONAL ORGANIZATIONS

International Organizations are established by States through international agreements

for particular purposes. As a general rule, they have only such powers as are conferred on

them by States in their constituent document. International organizations have a limited

degree of international personality, especially vis-à-vis member States. They can enter into

international agreements and their representatives have certain privileges and immunities.

The constituent document may also provide that member States area legally bound to comply

with decisions on particular matters.



The powers of the main political and legal organs of the United Nations are set out in

the 1945 Charter of the United Nations. The main political organ, the General Assembly, is

not a world legislature. The authority of the General Assembly on most matters (such as

human rights and economic and social issues) is limited to discussing issues and making

recommendations.

The UN Security Council has the authority under the United Nations Charter to make

decisions that are binding on all member States when it is performing its primary

responsibility of maintaining international peace and security under Chapter VII of the

Charter. Members of the United Nations are bound under the Charter to carry out decisions

of the Security Council on matters relating to international peace and security.

The main UN judicial organ is International Court of Justice (ICJ). It may only hear

cases between States on questions of international law. Its jurisdiction is based upon the

principle of consent. It can only hear contentious cases between States when both States

parties to the dispute have consented to its jurisdiction. The decisions of the ICJ are binding

only on the States parties to the case. The ICJ may also give “advisory opinions” when so

requested by organs of the United Nations.

3. NATIONALITY OF INDIVIDUALS, COMPANIES, ETC.

Private individuals are generally not regarded as legal persons with rights and duties

under international law. Their link to State is through the concept of nationality, which is often

referred to under domestic law as citizenship. Nationality is the status of being treated as a

national of a State for particular purposes. Under international law, each State has wide

discretion to determine which individuals should be considered its nationals. The most

common methods of acquiring nationality at birth are through one or both parents and/or by

the place of birth. Nationality can also be acquired by adoption and naturalization. Nationals

of a State carry a travel document called a passport when they travel to another State.

In some circumstances individuals have a limited degree of international legal

personality, including the right to bring a claim against a State for a violation of their

fundamental human rights by a State. For example, some human rights treaties give

individuals the right to make complaints to an international body if their basic human rights

have been violated by government officials of a State. As a general rule, however, individuals

have no right to bring a claim against a State. Individuals must request their State to make a

claim on their behalf. Under the principle of nationality of claims, if a national is injured by

another State through conduct that is not consistent with international law, the State may



make a claim against the other State on behalf of its injured national. This is known as the

doctrine of diplomatic protection.

In some circumstances individuals can also have obligations under international law.

Individuals can be personally responsible under international law for serious breaches of

fundamental norms of international law, such as grave breaches of the laws of war, genocide

or crimes against humanity.

Companies, ships, aircraft and space craft are usually considered under international law

as having the nationality of the State in whose territory they are registered. This is important

because in many circumstances States may have international obligations to regulate the

conduct of their nationals, especially if they are carrying out act activities outside their

territory.

E. SOVEREIGNTY OF STATES OVER TERRITORY

Sovereignty is the exclusive right to exercise supreme political authority (legislative,

judicial and executive) over acts and events within a territory. Since it is the exclusive right, it

means that no other State can have formal political authority within that State. Therefore,

sovereignty is closely associated with the concept of political independence. This right is

usually described as “territorial sovereignty”.

States have sovereignty over their land territory and over the airspace above their land

territory. The land territory includes off-shore islands if they are naturally formed areas of

land which are above water at high tide.

Classical international law developed doctrines by which States could make a valid claim

of sovereignty over territory. The doctrines included discovery and occupation and

prescription. During the period of Western colonial expansion new territories and islands

were subject to claims of sovereignty by discovery and occupation. Sovereignty could also be

transferred to another State by conquest (use of force) or by cession. If the Western colonial

powers recognized a ruler in an overseas territory as the sovereign, they would often enter

into a treaty of cession with the ruler by which sovereignty over the territory would be ceded

in to the Western colonial power. Problems often developed because the peoples in those

territories did not fully understand the Western European concepts of sovereignty and

cession.

Since a State has sovereignty over its territory, the entry into its territory or airspace by

the armed forces of another State without consent is a prima facie breach of international



law. Among the attributes of sovereignty is the right to exclude foreigners from entering the

territory, which is traditionally referred to as the right to exclude aliens.

Since a State has sovereignty within its territory and territorial sea, it has the exclusive

authority to exercise police power within its territory. Therefore, if foreign ships are attacked

by “pirates” in the territorial sea of a State, the only State that can exercise police power and

arrest the pirates in the territorial sea is the coastal State.

F. JURISDICTION OF STATES

1. PRINCIPLES OF JURISDICTION

Jurisdiction refers to the power of a State to prescribe and enforce laws through its

national legal institutions. The justification for a State extending its criminal and regulatory

laws to particular activities is based on several principles. Almost all States claim jurisdiction

based on the territorial principle, under which a State has jurisdiction over activities within its

territory. Some states also claim jurisdiction over activities outside its territory which have an

effect within its territory (the effects doctrine).

It is accepted that States can also claim jurisdiction based upon the nationality principle,

under which a State also may extend its jurisdiction over the actions of its nationals when they

are outside its territory. Most European States whose legal systems are based on the civil law

extend their criminal law to cover their nationals while abroad. States whose legal systems

are based upon the English common law usually extend their criminal laws to the actions of

their nationals while abroad only in exceptional cases such as offences against the State and

terrorist acts.

Almost all States claim jurisdiction under the protective principle, under which a State

asserts jurisdiction over acts committed outside their territory that are prejudicial to its

security, such as treason, espionage, and certain economic and immigration offences.

It is accepted that there is a narrow category of crimes over which States may assert

jurisdiction based upon the universality principle, under which all States have jurisdiction over

offenders, no matter their nationality and no matter where the offence was committed. There

is universal jurisdiction over crimes such as genocide and war crimes, giving any State which

the right to assume jurisdiction.

The most controversial basis for jurisdiction is the passive personality principle, which

establishes jurisdiction based on the nationality of the victim. Very few States attempt to



extend the reach of their criminal laws to situations where there only link to the crime is that

their national was the victim. However, there is a recent trend to base jurisdiction based on

the passive personality principle when a State’s nationals are the targeted by terrorists.

Modern counter-terrorism treaties establish jurisdiction among State Parties based on

the presence of the offender within their territory. If persons who are alleged to have

committed the offence established in the treaty (e.g., hijacking of an aircraft) are present in

their territory, a State Party to the treaty is under an obligation to take the persons into

custody, and to either prosecute them or extradite them to another State Party that has

jurisdiction over the offence.

In summary, the bottom line is that the assertion by a State of jurisdiction over the acts of

a foreign national outside its territory may be not be lawful under international law unless it

has a clear justification for doing so under the protective principle or the universality principle.

If two or more States have jurisdiction over a particular offence, they are said to have

concurrent jurisdiction. In such cases the State which is most likely to prosecute the offender

is the State which has custody over him.

One of the fundamental principles of international law is that no State may exercise

jurisdiction in a place under the territorial sovereignty of another State. The police of one

State cannot enter the territory of another State to arrest a person who has committed a

crime in their State. Also, if a crime takes place in the territorial sea of a coastal State, no

State other than the coastal State my intercept and arrest the ship carrying the offenders.

States enter into bilateral treaties to provide for the extradition of alleged offenders from

one State to another. The sending of an alleged criminal to another State for investigation or

prosecution in the absence of an extradition treaty is referred to as rendition. This word was

made famous by the practice of the Bush administration in sending alleged terrorists to third

States for interrogation (or, as has been alleged, torture).

2. IMMUNITIES FROM JURISDICTION

The principle of sovereign equality of States requires that the official representatives of

one State should not be subject to the laws of another State. Therefore, the law of the sea

provides that warships on the high seas are subject only to the jurisdiction of the flag State.

Further, warships may never by intercepted and boarded by another State, even if they

commit acts contrary to the right of innocent passage and the laws and regulations of the



coastal State. However, if a warship which violates the right of innocent passage, it may be

escorted out of the territorial sea by warships of the coastal State.

The principle of State immunity or sovereign immunity provides that foreign sovereigns

enjoy immunity from the jurisdiction of other States.

The principle of diplomatic immunity provides that the diplomatic agents of the sending

State have complete immunity from the criminal jurisdiction of the receiving State. The

immunity of the diplomatic agent is not personal to the diplomatic, but belongs to the State.

Therefore, the immunity of a diplomat can be waived by the sending State. Also, the receiving

State has the right to expel any diplomatic agent from its country by declaring them persona

non grata.

A foreign embassy is under the territorial sovereignty of the receiving State, and the laws

of the receiving State apply to acts within the embassy. However, diplomatic relations law

provides that the premises of an embassy or diplomatic mission as well as its records and

archives are inviolable. This means that the authorities of the receiving State cannot enter a

foreign embassy without the express permission of the head of mission, even in the case of an

emergency. Similarly, “diplomatic bags” are inviolable and cannot be opened by the receiving

State. This is necessary to ensure that the embassy officials can communicate with their home

country in secrecy.

G. STATUS OF THE SEAS, OUTER SPACE AND ANTARCTICA

1. HIGH SEAS

The high seas are governed by several fundamental principles. First, no State may

purport to assert sovereignty over any part of the high seas. Second, all States have the right

to exercise the freedoms of the seas, including freedoms of navigation, freedom of overflight,

freedom to lay submarine cables and pipelines, and freedom to conduct marine scientific

research. Freedom of fishing was a traditional high seas freedom but fishing on the high seas

is subject to restrictions as set out in the 1982 United Nations Convention on the Law of the

Sea. It is generally agreed that freedom of the seas also includes the right of all States to use

the high seas for military purposes, including weapons testing and naval exercises.

Since no State can claim sovereignty over the high seas, the territorial principle of

jurisdiction is not applicable. The general principle governing ships on the high seas is that

they are subject to the exclusive jurisdiction of the flag State. There are limited exceptions to

this principle, the most important of which applies to piracy. All States have the right to



intercept a pirate ship on the high seas and to seize the ship and arrest the pirates. There are

treaties creating other exceptions for intercepting ships on the high seas if they are engaged in

illegal activities such as slave trading or drug trafficking.

2. TERRITORIAL SEA

States have sovereignty in a belt of sea adjacent to their coast called the territorial sea, as

well as the air space above the territorial sea and the seabed and subsoil below the territorial

sea. The breadth of the territorial sea is 12 nautical miles from the baselines from which the

territorial sea is measured, which is normally the low water mark along the coast. Unlike land

territory, the sovereignty of States over their territorial sea is subject to limitations. For

example, ships of all States have the right of innocent passage through the territorial sea, and

ships and aircraft of all States have the right of transit passage through and over straits used

for international navigation that lie within the territorial sea of the coastal State.

3. EXCLUSIVE ECONOMIC ZONE

Coastal States are permitted to claim an exclusive economic zone (EEZ) of up to 200

nautical miles from the baselines from which the territorial sea is measured. The EEZ is

neither under the sovereignty of the coastal State nor part of the high seas. It is a specific

legal regime in which Coastal States have the rights and jurisdiction set out in UNCLOS, and

other States have the rights and freedoms set out in UNCLOS.

Coastal States have the sovereign right to explore and exploit the natural resources of the

sea and of the seabed and subsoil in their EEZ. In other words, they have the exclusive right to

the fisheries and other living resources of the sea and to the oil and gas resources of the

seabed and subsoil. They also have such jurisdiction as is necessary for them to exercise their

sovereign rights, included limited jurisdiction over marine scientific research and protection

and preservation of the marine environment.

Other States have the right to exercise high seas freedoms in the EEZ of any State,

including the freedoms of navigation and overflight. With respect to jurisdiction over matters

outside of economic activities, the principles of jurisdiction governing the high seas apply in

the EEZ. In other words, outside of economic activities, ships in the EEZ are subject to the

principle that ships are subject to the exclusive jurisdiction of the flag State, and the warships

of any State may seize pirates in the EEZ.



4. CONTINENTAL SHELF AND DEEP SEABED

Under the law of sea Coastal States have a right to claim an EEZ of up to 200 nautical

miles from the baselines from which there territorial sea is measured. Coastal States also

have sovereign rights to explore and exploit the natural resource of the seabed and subsoil on

their continental shelf. State with a broad continental shelf off their coasts may claim

sovereign rights to the resources of their continental shelf out to the outer edge of the

continental margin, to a maximum of 350 nautical miles from the baselines.

The natural resources of the deep sea bed beyond the limits of national jurisdiction are

governed by the principle of common heritage of mankind. No State may claim or exercise

sovereignty or sovereign rights over any part of this area or its resources. All rights in the

resources in the area are vested in mankind as a whole. An International Sea Bed Authority

(ISBA) has been established and it acts on behalf of mankind as a whole to regulate the

exploration and exploitation of the natural resources of the deep sea bed. No State or natural

or juridical person may appropriate any part of the area or its resources except under the

authority of the ISBA, which is based in Jamaica.

5. OUTER SPACE

The law of outer space became an issue only after the USSR launched a satellite into orbit

around the earth in 1958 and began the “space race” between the two cold war super

powers, the USA and the USSR. The two super powers worked together with the international

community to establish legal principles governing the use of outer space. The principles

governing the use of outer space are similar to those that govern the high seas. First, no State

may purport to assert sovereignty over any part of outer space. Second, all States have the

freedom to use outer space for peaceful purposes. Third, States on whose registry a space

object is launched shall retain jurisdiction and control over the space object and over any

persons on board the space object.

The 1979 Moon Treaty purports to declare the natural resources of the moon and other

celestial bodies the common heritage of mankind. However, it has been opposed by the

United States and several other important space powers. Therefore, the principle that the

natural resources of the moon and other celestial bodies are the common heritage of mankind

has not become a principle of customary international law binding on all States.



6. ANTARCTICA

Official claims to sectors of the ice-covered continent of Antarctica were made by seven

States – Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. A

sector was also claimed by Admiral Byrd on behalf of the United States, but the United States

never officially adopted Byrd’s claim, and refused to recognize the claims of the six claimant

States. In 1959 the seven claimant States, together with 5 other States whose scientists had

been conducting research in Antarctica (Belgium, Japan, South Africa, the United States and

the USSR) entered into the Antarctic Treaty. The Antarctic Treaty “froze” the claims of the

seven claimant States, and stated that no new claims to sovereignty would be made. It also

stated that Antarctica should be used only for peaceful purposes. The Antarctic Treaty

permits States parties to conduct scientific research in Antarctica.

H. PRINCIPLES GOVERNING RELATIONS BETWEEN STATES

The general principles governing friendly relations between States are set out in UN

General Assembly Resolution 2625, which was adopted without vote in 1970. It states the

progressive development and codification of the principles below would secure their more

effective application within the international community and would promote the realization of

the purposes of the United Nations. The resolution elaborates on the following seven

principles:

1) The principle that States shall refrain in their international relations from the

threat or use of force against the territorial integrity or political independence of

any State, or in any other manner inconsistent with the purpose of the United

Nations

2) The principle that States shall settle their international disputes by peaceful

means in such a manner that international peace and security and justice are not

endangered

3) The duty not to intervene in matters within the domestic jurisdiction of any State,

in accordance with the Charter

4) The duty of States to co-operate with one another in accordance with the

Charter

5) The principle of equal rights and self-determination of peoples

6) The principle of sovereign equality of States



7) The principle that States shall fulfill in good faith the obligations assumed by

them in accordance with the Charter

I. INTERNATIONAL OBLIGATIONS (SOURCES OF LAW)

1. ARTICLE 38(1) OF ICJ STATUTE

As international law developed, it became accepted that the sources of international law

were treaties, custom and general principles of law. It is generally accepted that the sources

of law are listed in the Article 38(1) of the Statute of the International Court of Justice, which

provides that when deciding disputes submitted to it in accordance with international law, the

Court 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.

Article 59 of the ICJ statute provides that a decision of the Court has no binding force except

between the parties and in respect of that particular case.

2. TREATIES

The reference to international conventions in paragraph (a) of Article 38 refers to

treaties. Treaties are written agreements between States that are governed by international

law. Treaties are referred to by different names, including agreements, conventions,

covenants, protocols and exchanges of notes. If States want to enter into a written

agreement that is not intended to be legal binding under the law of treaties, they often refer

to it as a Memorandum of Understanding and provide that it is not to be governed by

international law. Treaties are sometimes classified as either bilateral or multilateral. They

can also be classified as bilateral, regional and global.

The law of treaties is now set out in a global convention, the 1969 Vienna Convention on

the Law of Treaties. The 1969 Vienna Convention sets out the basic principles of treaty law,



the procedures for how global treaties becoming binding and enter into force, the

consequences of a breach of treaty, and principles for interpreting treaties.

The basic principle underlying the law of treaties is referred to by the Latin phrase pacta

sunt servanda. This means that every treaty in force is binding upon the parties to it and must

be performed by them in good faith. Under the law of treaties a State cannot invoke the

provisions of its internal law, including its constitution, as justification for its failure to perform

its treaty obligations. Once a State expressly agrees to be bound by a treaty, the grounds on

which it can validly suspend or terminate the treaty are very narrow. The two most common

grounds cited for terminating a treaty are material breach and fundamental change of

circumstances, but both of these grounds are difficult to satisfy.

The other important principle is that under the law of treaties, the provisions in treaties

are binding only on States parties. They are not binding on third States without their consent.

However, it may be possible for some or even most of the provisions in an international

convention to become binding on all States as rules of customary international law. This will

be explained in the next section.

There are now global conventions covering most major topics of international law. Such

conventions are open to all States. They are usually adopted at an international conference

and opened for signature. Treaties are sometimes referred to by the place and year of

adoption, e.g. the 1969 Vienna Convention. If a State becomes a signatory to such a treaty, it

is not bound by its provisions, but it undertakes an obligation to refrain from acts which would

defeat the object and purpose of the treaty.

A State expresses its consent to be bound by the provisions of a treaty when deposits an

instrument of accession or ratification to the official depository of the treaty. The United

Nations Secretary-General is often the official depository. If a State is a signatory to an

international convention, the formal document it sends to the depository is called an

instrument of ratification. If a State is not a signatory to an international convention but

decides to become a party, the formal document it sends to the official depository is called an

instrument of accession. The legal effect of the two documents is the same.

A treaty usually enters into force after a certain number of States have expressed their

consent to be bound through accession or ratification. Once a State has expressed its consent

to be bound and the treaty is in force, it is referred to as a party to the treaty.

The general rule on the interpretation of treaties is that it shall be interpreted in good

faith in accordance with the ordinary meaning to be given to the terms of the treaty in their



context and in light of its object and purpose. As supplementary means of interpretation,

recourse may be had to the preparatory work of the treaty and the circumstances of its

conclusion. The preparatory work is usually referred to by the French term travaux

préparatoires.

3. CUSTOM

Paragraph (b) of Article 38 refers to “international custom, as evidence of a general

practice accepted as law”. It has also been described as a constant and uniform usage among

States which is accepted as law. Rules of customary international law, sometime referred to

general international law, are in principle binding on all States.

If a dispute arises between two States over the existence of a rule of customary

international law, the State alleging the existence of the rule has the burden of proving its

existence. This is done by showing a consistent and uniform practice among States, including

those States specially affected by the rule or having the greatest interest in the matter. For

example, to examine the practice of States on military uses of outer space, one would look in

particular at the practice of the space powers, especially the super powers.

In addition to constant and uniform usage or practice, some ICJ cases suggest that the

State attempting to prove the existence of the rule must also present evidence of a second

element called opinio juris. This is the belief by States following the particular practice or

usage that such practice or usage is required by international law. In theory the concept of

opinio juris creates a serious obstacle to any State attempting to prove the existence of a rule

of customary international law because it is extremely difficult to find evidence of the reason

why a State followed a particular practice of usage. However, in practice the problem is

usually not as great as it seems. If a particular practice or usage is widespread, and there is no

contrary State practice proven by the other side, the Court often finds the existence of a rule

of customary international law. It sometimes seems to assume that opinio juris was satisfied,

and it sometimes fails to mention it. Therefore, what is most important in proving the

existence of a rule of customary international law is finding consistent and uniform State

practice, especially among the States with the most interest in the issue, with minimal or no

State practice to the contrary.

Over hundreds of years States uniformly followed practices in their relations with one

another such as (a) giving foreign diplomats in their territory immunity from their criminal

laws; (b) treating foreign diplomatic premises in their territory as inviolable; (c) recognizing

the right of innocent passage of foreign ships in their territorial sea; (d) recognizing the



exclusive jurisdiction of the flag State on the high seas; (5) ordering its State authorities to

respect the territorial boundaries of neighboring States; and (6) protecting non-combatants

such as civilians and sick or wounded soldiers during international armed conflict. These

usages or customs came to be accepted as legally binding. Hence they are referred to as rules

of customary international law.

4. GENERAL PRINCIPLES OF LAW

General principles of law recognized by civilized nations are often cited as a third source

of law. They are principles that can be applied by courts or tribunals in decided cases on

issues of international law. The principles are general principles that apply in all major legal

systems of the world. An example would be the principle that persons who intentionally harm

others should have to pay compensation or make reparation. General principles of law are

usually referred to by courts or tribunals when they must decide a legal dispute between two

States, and no treaty provision or clear rule of customary international law exists. In such

cases, the Court may fill the void by turning to general principles of law that exist in the major

legal systems in the world. Examples are natural justice principles such as good faith, estoppel

and proportionality. Others are procedural in nature, such as the doctrine of clean hands, or

the principle that a State that has committed an international wrong toward another State has

a duty to make reparation.

5. SUBSIDIARY FOR THE DETERMINATION OF RULES OF LAW

Paragraph (d) of Article 38 lists subsidiary means for the determination of rules of law.

Subsidiary means are not sources of law. They are subsidiary means or evidence that can be

used to prove the existence of a rule of customary international law or a general principle of

law.

Article 38 lists only two subsidiary means, the teaching of the most highly qualified

publicists and judicial decisions. The first phrase is antiquated language that refers to the

writings of scholars who are experts in international law. The second phrase can mean judicial

decisions of international courts or tribunals. Judicial decisions could also include decisions of

the highest national courts if they are ruling on issues of international law.

If highly qualified publicists are referred to try to prove the existence of rule of customary

international law, eminent scholars of international law should be cited, not articles written by

a student author or a book publishing the PhD thesis of a young scholar.



Resolutions of the UN General Assembly or resolutions adopted at major international

conferences are only recommendations and are not legally binding. However, in some cases

such resolutions may be subsidiary means for determining rules of customary international

law. The weight of such resolutions as evidence of rules of customary international law

depends upon their wording, the circumstances of their adoption, and whether they have

been adopted by consensus or without negative vote. . If the resolution purports to declare a

set of legal principles governing a particular area, if it is worded in norm creating language,

and if is adopted without any negative votes, it can be evidence of rules of custom, especially

if States have in practice acted in compliance its terms after the resolution was adopted.

Examples of UN General Assembly Resolutions which have been treated as strong evidence of

rules of customary international law include the following:

GAR 217A Universal Declaration of Human Rights (1948)

GAR 1514 Declaration on the Granting of Independence to Colonial Territories

and Peoples (1960) [Declaration on De-Colonization]

GAR 1962 Declaration of Legal Principles Governing Activities of States in the

Exploration and Use of Outer Space (1963)

GAR 2131 Declaration on the Inadmissibility of Intervention in the Domestic

Affairs of States and the Protection of their Sovereignty (1965) [Declaration on

Non-Intervention]

GAR 2625 Declaration on Principles of International Law Concerning Friendly

Relations and Cooperation among States in Accordance with the Charter of the

United Nations (1970) [Declaration on Friendly Relations]

GAR 1970 Declaration of Principles Governing the Sea-Bed and the Ocean Floor,

and the Subsoil thereof, Beyond the Limits of National Jurisdiction

GAR 3314 Resolution on the Definition of Aggression

Some of these resolutions have also been treated as subsequent agreement or practice of

States on how the principles and provisions of the UN Charter should be interpreted.

In addition, writers have argued that Article 38 fails to take into account the norm-

creating effect of modern global conventions. Once the international community has spent

several years drafting a major international convention, States often begin in practice to refer

to that Convention when a problem arises which is governed by the Convention. In such case,

the provisions in such a convention can become evidence of the rules of customary



international law. Furthermore, if the Convention becomes universally accepted, and the

parties include the States with the most interest in the matters governed by the Convention,

the provisions in the Convention may become very strong evidence of the rules of custom,

especially if States which are not parties have also acted in conformity with the Convention.

The stage can be reached where the Convention provisions are regarded as binding on all

States under customary international law, unless there is State practice to the contrary. An

example of such a convention would be the 1959 Vienna Convention on Diplomatic Relations,

the 1969 Vienna Convention on the Law of Treaties, and the first ten Parts of the 1982 United

Nations Convention on the Law of the Sea.

6. HIERARCHY OF NORMS

In theory there is no hierarchy among the three sources of law listed in Article 38 of the

ICJ Statute. In practice, however, when examining a dispute between two States,

international advisors usually look first to any applicable treaty rules, then to custom, and last

to general principles. Since treaties rules are the most clear and certain, they are always the

starting point.

Also, there are two types of norms or rules which do have a higher status. First,

peremptory norms or principles of jus cogens are norms that have been accepted and

recognized by the international community of States as so fundamental and so important that

no derogation is permitted from them. Under the law of treaties, a treaty between States

which conflicts with a principle of jus cogens is void. Examples of jus cogens principles are a

war of aggression and genocide. A war of aggression is the use of armed force to take over

another State or part of its territory. A modern example of a war of aggression would be the

1990 invasion of Kuwait by Iraq for the purpose of annexing Kuwait and making it part of Iraq.

Genocide is the killing or other acts intended to destroy, in whole or in part, of a national,

ethnical, racial or religious group.

Second, members of the United Nations are bound by the Article 103 of the United

Nations Charter, which provides that in the event of a conflict between the obligations of

members under the Charter and their obligations under any other international agreement,

their obligations under the Charter prevail. Therefore, when the Security Council acts under

Chapter Seven in performing its responsibility for maintaining international peace and

security, its decisions to impose economic sanctions are binding on UN members, and such

decisions prevail over conflicting obligation in other international agreements.



7. ROLE OF THE INTERNATIONAL LAW COMMISSION

The International Law Commission was established by the United Nations in 1948. The

34 members of the Commission are elected by the General Assembly from among persons

nominated by member States who possess recognized competence and qualifications in both

doctrinal and practical aspects of international law. The membership of the Commission often

reflects a broad spectrum of expertise and practical experience within the field of

international law, including international dispute settlement procedures.

The mandate of the Commission is the progressive development and codification of

international law. The Commission usually spends many years studying areas of international

law before presenting draft articles to the General Assembly for adoption as a draft

convention. Rapporteurs are assigned to be responsible for drafting articles in a particular

area, and they undertake extensive studies of the practice of states to determine whether

there is a consistent and uniform practice among States. The rapporteurs issue reports to the

Commission. In addition, each draft article that is approved by the Commission has an official

commentary explaining its object and purpose and providing essential background. When the

ILC Draft Articles are approved, they are approved together with the official commentaries.

Sometimes the official commentary to an ILC draft article or the rapporteur’s report will

indicate whether that draft article is intended to codify a rule of customary international law

or is intended to progressively develop the law on that point. Such information can be strong

evidence before a court or tribunal if you are attempting to prove or disprove the existence of

a rule of customary international law. ILC draft articles are prepared and circulated to all

members of the UN for comment.

The official commentaries to ILC draft articles and the reports of the commission and its

rapporteurs can be considered for two purposes. First, they can be referred to as part of the

travaux préparatoires when interpreting a provision in a convention. Second, they can be

referred to as the writings of highly qualified publicists under Article 38(1)(d) as subsidiary

means for determining rules of customary international law. Given that the Commission’s

articles and official commentaries are approved by a team of 34 international law experts

from a wide variety of States, it could be argued that the official commentaries are more

valuable as evidence of the existence of a rule of customary international law than the work of

one or two individual writers.



J. RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS

The area of international law referred to as “State responsibility” refers to the principles

and rules for determining when a State is responsible for breaching the international

obligations it owes to another State and the consequences of the breach.

1. INTERNATIONALLY WRONGFUL ACT

The general principle is that a State is internationally responsible to other another State

for its internationally wrongful acts. A State commits internationally wrongful act when

conduct consisting of an act or omission (a) is attributable to the State under international

law; and (b) constitutes a breach of an international obligation of the State. Therefore, if a

dispute arises between two States, the first question that is usually asked is whether the State

whose conduct is in question owed an international obligation to the other State under either

a treaty or under customary international law. To answer this question, you must refer to the

sources of international law. The second question is whether that obligation was breached by

conduct consisting of either an act or an omission that is attributable to the State.

2. RULES OF ATTRIBUTION.

The rules on attribution are based on common sense. The conduct of an organ of the

State is attributable to the State. In its relations with other States, a State acts through its

official representatives, such as its Head of State, Prime Minister or President, Minister of

Foreign Affairs, Ambassadors, as well as through government ministries and departments.

The official acts of these persons and organs are attributable to the State. The conduct of

private persons or private entities is generally not attributable to the State. However, the

conduct of a person or entity empowered by the law of the State to exercise elements of

government authority is also attributable to the State.

3. CONSEQUENCES OF A BREACH

A State is in breach of an international obligation when conduct attributable to it is not in

conformity with what is required by the obligation. A State may not rely on provisions of its

internal or domestic law as justification for failure to comply with an international obligation.

The State responsible for the internationally wrongful act is under an obligation to cease

the wrongful act if it is continuing. It is also under an obligation to offer appropriate assurance

and guarantees of non-repetition, if circumstances so require. In addition, the State

responsible for the internationally wrongful act is under an obligation to make full reparation



for the injury caused to the other State by the internationally wrongful act. Injury includes any

damage, whether material or moral, caused by the internationally wrongful act.

The forms of reparation under international law are restitution, compensation and

satisfaction. The preferred form of reparation is restitution, which requires the State to re-

establish the situation which existed before the wrongful was committed. Insofar as the

damage is not made good by restitution, the State much pay compensation to cover the

financially assessable damage, including loss of profits insofar as it is established. If the injury

cannot be made good by either restitution or compensation, the State must provide

satisfaction, which may consist of acknowledgement of the breach, an expression of regret, a

formal apology or another appropriate remedy.

4. CIRCUMSTANCES PRECLUDING WRONGFULNESS (DEFENCES)

The principles of state responsibility provide that a State which preclude the

wrongfulness of an act. They include:

a) valid consent by the injured State to the commission of the act

b) self-defence under article 51 of the UN Charter

c) force majeure

d) distress

e) necessity

f) valid counter-measure in respect of a previous wrongful act

A countermeasure is a form of self-help that is taken in order to induce a State which is

responsible for an internationally wrongful act to comply with its obligations. A

countermeasure consists of the non-performance for the time being of an international

obligation owing to the responsible State. An example of a countermeasure would be the

United States freezing all assets of Iran in US banks in response to the takeover of the US

Embassy in Iran in 1979.

There are several restrictions on the use of countermeasures. They cannot involve the

use of force or be in violation of obligations for the protection of fundamental human rights.

Also, countermeasures are limited by the principle of proportionality, and must be

commensurate with the injury suffered, taking into account the gravity of the internationally

wrongful act, and the rights in question.



K. PEACEFUL SETTLEMENT OF DISPUTES

1. METHODS OF PEACEFUL SETTLEMENT

Under the United Nations Charter, States have an obligation to settle their disputes by

peaceful means. However, States are generally not under any legal obligation to settle their

disputed by resorting to an international court or tribunal. A dispute cannot be referred to an

international court or arbitral tribunal with the express consent of the States concerned.

There are various means by which States can agree to resolve their disputes by peaceful

means. The methods for resolving disputes include negotiation, mediation, conciliation,

arbitration, judicial settlement or resort to regional agencies or arrangements, or in the

dispute endangers international peace and security, referral to the United Nations Security

Council. Negotiation and mediation are less formal means of resolving disputes. Conciliation

brings in a third party who usually issues a report, but the report is usually only

recommendatory. Arbitration and adjudication are the most formal. Disputes referred to an

arbitral tribunal or court are decided in accordance with international law, and the decision is

legally binding on the parties to the dispute. In arbitration each party usually selects one

arbitrator, and they agree on a third, or someone like the President of the International Court

of Justice selects the third. In adjudication the dispute is taken to an existing court, so as a

general rule, the parties have no say in selecting the judges. Arbitral procedures are less

formal than court procedures.

2. PERMANENT COURT OF ARBITRATION

The Permanent Court of Arbitration (PCA) was established by the 1899 Convention for

the Pacific Settlement of International Disputes, which was concluded at The Hague during the

first Hague Peace Conference. The 1899 Convention was revised in 1907 at the second Hague

Peace Conference. The PCA still exists. It is an intergovernmental organization with over one

hundred member states, including Singapore. Established in 1899 to facilitate arbitration and

other forms of dispute resolution between states, the PCA has developed into a modern,

multi-faceted arbitral institution to meet the evolving dispute resolution needs of the

international community. Today the PCA provides services for the resolution of disputes

involving various combinations of states, state entities, intergovernmental organizations, and

private parties.



3. INTERNATIONAL COURT OF JUSTICE

A Permanent Court of International Justice (PCIJ) was established in the League of

Nations Charter in 1919. When the United Nations Charter was signed in 1945, the

International Court of Justice (ICJ) was established, and it became the successor to the PCIJ.

The International Court of Justice (ICJ) is the chief judicial organ of the United Nations. All

members of the UN are automatically parties to the Statute of the International Court of

Justice.

The jurisdiction of the ICJ in “contentious disputes” between States is subject to the principle

of consent. It can obtain jurisdiction in three ways. First, the States parties to a dispute may

enter into an ad hoc agreement to refer a particular legal dispute to the court. An example of

this would be the current case before the ICJ between Malaysia and Singapore regarding the

sovereignty over Pedra Branca / Pulau Batu Puteh. Second, States can submit an “optional

clause declaration” to the UN Secretary-General declaring that they accept the jurisdiction of

the ICJ over certain categories of disputes with other States which have also filed an optional

clause declaration. This category of disputes is quite rare, especially in Asia, as many States

are not willing to accept the jurisdiction of the ICJ in advance for wide categories of disputes.

Third, many international conventions contain dispute settlement clauses called

“compromissory clauses” allowing disputes between States parties to the convention to refer

disputes concerning the interpretation or application of provisions of that convention to the

ICJ by one of the parties to the dispute. Some conventions allow States to “opt out’ of such

compromissory clauses. The dispute between Malaysia and Singapore in the Land Reclamation

case went to the International Tribunal for the Law of the Sea pursuant to the Dispute

Settlement provisions in Part XV of the 1982 United Nations Convention on the Law of the Sea

(1982 UNCLOS).

If a dispute between two States is decided by the ICJ, the decision of the court is final and

binding as between the parties to the case. It is not binding on other States. However, to the

extent that the ICJ pronounces on issues of customary law or treaty law, its judgment will be

treated as an authoritative interpretation of international law by many States.

The ICJ also has ‘advisory’ jurisdiction. The UN Security Council and the UN General

Assembly may request advisory opinions on any legal question. The UN General may also

authorize other UN organs or specialized agencies to request advisory opinions on legal

questions arising within the scope of their activities.


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Topic 1 Introduction to International Law

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