Sources of International Law

Basis
The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, 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 38, Statute of the International Court of Justice]

Treaty
Requisites before a treaty can be considered a source of
international law:
1. Must be signed by a considerable number of states
2. Must be of the same nature, and contain practically uniform
provisions
3. Intended to lay down rules for observance by all
(Examples: ICRC, United Nations)
Note! Bilateral Treaties (Those between two states) Particular
international law

Custom
Custom

Usage

Practice which has grown up

Not as obligatory and right as
between states and has come to
custom (conviction to bind other
be accepted as binding by the
states)
mere fact of persistent usage over
a long period of time
Example: State Immunity, State
responsibility

Problems:
1. Proof
2. Inflexibility

Example: Use of French or

English as language of diplomacy

2 elements of Custom as enunciated in the Case

of USA vs. Nicaragua
1. General Practice or Material Factor
2. Accepted as Law or Subjective Factor

Opinio Juris - a sense on behalf of a state that it is bound to the

law in question

General Principles of Law

Those which, because they are good and just, have been
accepted and are being observed by the majority of civilized
states.
Based on reason and conscience

Examples: Prescription, Estoppel, Pacta Sunt Servanda

Decisions of Courts
No distinction whether international or local court as long as
they establish rules of international law

Note! Doctrine of stare decisis is not applicable in international law

See Article 59 ICJ: Decisions of ICJ have binding force only
between parties and in respect to particular cases
Examples: Nuremberg Trials, ICTY, ICTR, Yamashita (Source of
Yamashita standard)

Writings of publicist
Requisites:
1. Publicist must be highly qualified
2. Writing must be fair and unbiased representation of
international law

Examples: Writings of Ian Brownlie, Publications from international

organizations

Jus Cogens
Translation: Compelling Law a.k.a. Peremptory Norm

Technical term given to those norms of general international law

that are argued as hierarchically superior. These are, in fact, a set
of rules, which are peremptory in nature and from which no
derogation is allowed under any circumstances.
Likened to a Constitution where all treaties, agreements, or
application of international law must conform to
Examples: prohibition on the use of force; the law of genocide;
principle of racial non-discrimination; crimes against humanity;
and the rules prohibiting trade in slaves or human trafficking