Sources of Public International law Chapter Two Sources

Sources of Public International law Chapter Two

Sources of Public Inter. Law Every legal system has its own ‘sources of law. The term “sources of law” reflects the idea that a rule of law must come from a particular source.

• What are the sources of international law? ?

ARTICLE 38 OF THE STATUTE OF THE ICJ (a)International conventions (b)International custom (c)The general principles (d)judicial decision (e)The teachings of the most highly qualified publicists of the various nations

a)International conventions (Treaty) • Article 38 (1) (a) of the Statute of the International Court of justice requires the Court to apply “. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States”. The word ‘convention’ means a treaty; it is an agreement made between two or more States or other subjects of international law. ‘Treaty’ is a generic term and the law that governs treaties is known as the ‘Law of Treaties

b) INTERNATIONAL CUSTOM • Custom is the oldest and the original source of international law. Article 38 (1) (b) of the Statute of the ICJ refers to “international custom, as evidence of a general practice accepted as law”.

c) GENERAL PRINCIPLES OF LAW • The third source of international law listed in the Stature of the Court is ‘the general principles of law’. It is commonly accepted tha ‘general principles of law’ which are firmly established in all or most of the national systems of law, in so far as they are applicable to relations between States.

Examples of general principles of law • "lex posterior derogat legi priori" may also apply - the younger law overrides the older law • Lex specialis derogat legi generali. -the special law derogate the general law

d) JUDICIAL DECISIONS • Article 38(1)(d) of the Statute of the International Court of justice directs the Court to apply judicial decisions.

e) WRITINGS OF JURISTS • Writing of jurist can be used as a sources of public international law.

OTHER POSSIBLE SOURCES • Having examined the sources mentioned in the Statute of the Court. Our concern now is to consider whethere any other possible sources, • General Assembly Resolutions (UN) • Equity • Soft Law

• The hierarchy of the sources. • A. jus cogen: are generally accepted and recognized by international community as a whole which cannot derogated. • B. treaty binding on the parties of dispute. • C. customary international law • D. General principles of law and other sources. • E. teaching and writings of legal experts

Types of Sources • When talking about sources of law, it is traditional to distinguish between the ‘formal sources’ and the ‘material sources.

Formal sources • The formal source is the source from which the legal rules derive its legal validity or the mechanism through which the law comes into existence. Therefore, the function of the formal source is to create law (law-creating).

Material sources • The material source, on the other hand, indicates where the legal rules are located. Therefore, the material source is simply the place – normally a document of some kind – in which the substance of the rule is set out. This may be a treaty, a resolution of the UN General Assembly, a judicial decision, a report of the International law Commission, a restatement of law by a learned body, or even a writing of an eminent jurist.

The Two are Distinguished? ? • The formal source is the real source from which a rule of international law receives its authority to be legally binding on States whereas the material source is not the real source of international law and is merely a place or a document where the formal source can be found.

End • Questions are welcomed