Bernas Public International Law – SOURCES OF INTERNATIONAL LAW Part 1

CHAPTER 2 SOURCES OF INTERNATIONAL LAW Part 1

What Sources are

Domestic Laws—found in statute books and in collections of court decisions

Classifications of Sources

1. Formal sources—various processes by which rules come into existence

a. Legislation

b. Treaty making

c. Judicial decision making

d. Practice of states

2. Material sources—identify what the obligations are

a. State practice

b. UN Resolutions

c. Treaties

d. Judicial decisions

e. Writings of jurists

Art. 38(1) of the Statute of the International Court of Justice

1. International conventions—establishing rules expressly recognized by contesting states

2. International custom—evidence of a general practice accepted as law

3. General principles of law recognized by civilized nations

4. Subsidiary means for determination of rules of law

a. Judicial decisions

b. Teachings of the most highly qualified publicists

Restatement of Foreign Relations Law of the US

1. Customary Law

2. International agreement

3. General principles common to the major legal system

Sources of International Law

1. Custom

2. Treaties

3. International agreements

4. Generally recognized principles of law

5. Judicial decisions

6. Teachings of highly qualified publicists

Custom or Customary Law

• A general and consistent practice of states followed by them from a sense of legal obligation
• Elements:

1. Material factor—how state behaves

• Elements of Practice of sates or usus

a. Duration—may be either short or long; not the most important element

b. Consistency—continuity and repetition

c. Generality of the practice of states—uniformity and generality of practice need not be complete but it must be substantial

Opinio Juris—belief that a certain form of behavior is obligatory

Dissenting states: subsequent contrary practice

• Dissenting states are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation
• It is also possible that after a practice has been accepted as law, contrary practice might arise

Evidence of state practice and opinio juris

a. Treaties

b. Diplomatic correspondence

c. Statements of national leaders and political advisers

d. Conduct of states

Instant Custom

• A spontaneous activity of a great number of states supporting a specific line of action

The Martens Clause

Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of the law of nations as they result from: usages of civilized people, laws of humanity & public conscience

2. Psychological or subjective factor—why they behave the way they do