WEEK 2: Sources of International law

7/3/11 & 14/3/11

2.1 Introduction  Lack of legislature, executive and structure of courts, i.e. no single body able to create laws internationally binding upon everyone, plus no system of courts with comprehensive and compulsory jurisdiction to interpret and extend law, means that sources are very important as to what law is, and where international law can be found.  sources = provisions operating within legal system on a technical level  Article 38(1) ICJ Statute: widely recognised as most authoriutative and complete statement as to sources of international law 1. 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.  Distinction between fo rmal and material sources: o Formal = authority of source, confers obligatory character upon rules o Material = actual content and scope of source 2.3 Customary International Law  = early subconscious development of rules that become norm, exist due to historical legitimacy , dynamic source of international law  Practice & behaviour of states show custom  Libya/Malta (1985) ICJ noted: substance of customary international law must be looked for primarily in the actual practice and opinion juris of states . 2.3.1 State Practice (objective element)  What do states do? What do states say?  Factors to be considered when examining state practice: duration, consistency, repetition and generality.  Basic rule re repetition and continuity:  Asylum case (Colombia v Peru) (1950) Facts: Peruvian (T) sought by his govt after an unsuccessful revolt. T granted asylum in Colombia, but Peru refused to issue a safe conduct to permit T to leave country. Colombia brought action before ICJ and requested decision recognising Col ombia as competent to define T s offence, and if it were a political offence, asylum and safe conduct should be allowed. Alleged C.R.: regional custom pertaining only to Latin America.

ICJ held: characterised nature of a C.R. it had to constitute the expression of a right appertaining to one state (Colombia) and a duty incumbent upon another (Peru). Ct felt that state practices in this case had been so uncertain and contradictory as not to amount to a constant and uniform usage regarding the unilateral qualification of the offence in question.  Emphasis that some degree of uniformity amongst state practices is essential before a custom can come into existence:  Anglo-Norwegian Fisheries case (1951) Facts: UK argued against Norwegian method of measuring the breadth of the territorial sea, referring to alleged rule of custom whereby a straight line may be drawn across bays of less than 10 miles from one projection to the other, which could then be regarded as the baseline for the measurement of the territoria l sea. ICJ held: actual practice of states did not justify the creation of any such custom. Thus, there had been insufficient uniformity of behaviour to create a C.R.  North Sea Continental Shelf cases (1969) Facts: dispute between Germany and Netherlands and Denmark over delimitation of continental shelf. Territorial miles of sea were substantially increased due to technology, and could no longer rely on C.S. Treaty to govern situation as not all concerned states were parties to Treaty/had not been party to Treaty long enough to constitute S.P. ICJ held: there was no C.R. because there was not enough state practice. Remarked that S.P. including that if states who interests are specially affected , had to be both extensive and virtually uniform in the sense of the provision invoked . This is indispensible to the formation of a new rule of customary international law. CONTRAST:  Nicaragua v U.S. (1986) Court emphasised that it was not necessary that the practice in question had to be in absolutely rigorous c onformity with the purported C.R. In order to deduce the existence of customary rules, the court deems it sufficient that the conduct of states 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 . In essence, S.P. does not need to be consistently uniform all the time. Logic: if one or two states do not follow S.P. consistent 100 % of the time, this should not obliterate S.P. completely anarchy would erupt if this were so. THEORY: between 1969 and 1986, technology had improved vastly and was rapidly changing => perhaps the test for state practice could no longer be so strict.  Importance of power of states: views of those states with greater power on particular issues carry greater weight; eg// a regulation regarding the breadth of the

territorial sea is unlikely to be accepted as general law if the great maritime nations do not agree to or acquiesce in it, no matter how many landlocked states demand it. Accordingly, duration and generality of a practice may take second place to the relative importance of the states precipitating the formation of a new customary rule in any given field.  Relevancy of failure to act:  Lotus case (1927) Perm ct of IJ: laid down high standard in declaring that abstention could only give rise to the recognition of a custom if it was based on a conscious duty to abstain. i.e. states had to be aware they were not acting in a particular way because they were under a definite obligation not to act that way Acquiesence must be based upon full knowledge of rule invoked.  SUMMARY: generally, S.P. must be consistent and uniform, but there has been a move to a more pragmatic approach, due to changing society, technologies, etc. One deviation from S.P. does not constitute obliteration of the C.R. n.b. in terms of North Sea Continental Shelf cases, S.P. of < 10 years is probably not sufficient to constitute C.R. S.P. of some states may be more important than others depending on circumstances of case at times (eg// in North Sea cases, the idea that the S.P. of landlocked states might be less important in situations concerning the law of the sea than coastal states existed). 2.3.2 Opinio Juris (subjective element)  Once one has establish specified usage, it is necessary to consider how the state views its own behaviour.  Opinio juris = belief that state activity is legally obligatory. Factor turning state practice from usage into custom and renders it part of the rules of international law.  Lotus case (1927) Facts: collision on high seas (where int law applies) between two French and Turkish ships. Several people aboard T drowned and T alleged negligence by F officer of the watch. When F arrived in Istanbul, F officer was arrested for manslaughter and case turned on whether T had jdn to try him. F argued that there existed a rule of customary law to the effect that the flag state of the accused had exclusive jdn in such cases and that accordingly the national state of the victim was barred from trying him. In justifying this, F referred to the absence of previous criminal prosecutio ns by such states in similar situations and from this deduced tacit consent in the practice which therefore became a legal custom. Court held: rejected F s argument and declared that even if such a practice of abstention from instituting criminal proceedi ngs could be proved in fact, it would not amount to a custom. only if such abstention were based on their [states] being conscious of a duty to abstain would it be possible to speak of an international custom . Thus, the essential ingredient of opinio juris was lacking and the practice remained nothing more than that.

 North Sea Continental Shelf cases (1969) Similar approach to Lotus. Dissenting judge commented that once S.P. is established, perhaps unless there is some serious evidence pointing away from opinio juris, O.J. should be presumed because it is so difficult to establish in itself.  Nicaragua (1986) Approach in NSCS and Lotus maintained by court. Held: for a new customary rule to be formed, not only must the acts concerned amount to a settled practice , but they must be accompanied by the opinio juris...either the States taking such action or other states in a position to react to it, must have behaved so that their conduct is evidence of a rule of law requiring it . The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris.
2.3.3 Regional and local custom  = smaller subset of custom where custom applies only to a particular region of the world, or even only between two states.  Asylum case (1950) Argument was that there existed a Latin American custom for diplomatic asylum. Ct declared: the party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party . In this case, regional custom could not be proved because of uncertain and contradictory evidence.  Right of Passage Over Indian Territory (1960) Facts: Portugal claimed existence of a right of passage over Indian territory as between the Portuguese enclaves. ICJ held: rejected India s objections that no local custom could be establish between only two states. Declared that it was satisfied that there had in the past existed a constant and uniform practice allowing free passage, and that the practice was accepted as law by the parties and has given rise to a right and a correlative obligation . 2.3.4 Problems of consent: Persistent objector and subsequent objector  Customary law is established by virtue of a pattern of claim, absence of protest by states particularly interested in the matter at hand and acquiescence by other states. Together with related notions such as recognition, admissions and estoppels, such conduct or abstinence from conduct forms part of a complex framework within which legal principles are created and deemed applicable to states.  Consent need not always be express; can occur by acquiescence when S.P. becomes widespread.  What is the position of a state existing after the formation of a customary rule? Principally, the only way out is by way of the persistent objector rule.  Persistent objector rule = a state which persistently objects to the application of a customary rule to that state, can opt out of the rule, whilst C.R. is in formation. Objection must be persistent a nd consistent.

 Gulf of Maine case (1984) Chamber of Int ct: acquiescence is defined as equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent and as founded upon the principles of good faith and equity.  Lotus (1927) Ct held: only if such abstention were based on their [states] being conscious of having a duty to abstain would it be possible to speak of an international custom . Thus, one cannot infer a rule prohibiting certain action merely because states do not indu lge in that activity.  Anglo-Norwegian Fisheries case (1951) Facts: concerned rule about maritime boundaries, and at what stage it is possible for other states to fish in waters close to the state. Norway persistently objected to a rule that caused its boundary to very zigzagged due to coastline shape. UK argued that the general rule should be the applicable rule. ICJ held: since Norway has P.O. d to rule, it is not bound by the C.R. Suggests ICJ has accepted the P.O. rule, but there is an argument the following comment is obiter: A state opposing the existence of a custom from its inception would not be bound by it, but the problem of one or more states seeking to dissent from recognised customs by adverse behaviour coupled with the acquiescence or non-reaction of other states remains unsettled.  SUMMARY: Persistent objector rule can only apply when customary rule is coming into existence. Problem for new states who are automatically bound to accept C.R. as they exist now. No subsequent objector exists for these states or any others for that matter because the need for legal certainty is so important.
2.3.5 Problems of consent: jus cogens (peremptory norms)  Erga omnes obligations or jus cogens rules are deemed to be of a different or higher status than others, whether derived from custom or treaty.  Erga omnes obligations = scope of application relevant rule, i.e. extent to which states as a generality may be subject to the rule in question and may be seen as having a legal interest in the matter. Primarily procedural focus. Owed to international community as a whole.  jus cogens rules = substantive rules recognised to be of a higher status as such.  Barcelona Traction (1970) ICJ: there exists an essential distinction between the obligations of a state towards the international community as whole and those arising vis-a-vis another state in the field of diplomatic protection. Obligations erga omnes are those obligations that all states have a legal interest in their protection. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis--vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved,

 

 

all States can be held to have a legal interest in their protection; they are obligations erga omnes. 34 Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi universal character.  East Timor (1995) ICJ: stressed that the rights of peoples to self-determination has an erga omnes character.  Genocide Convention case (1996) ICJ: the rights and obligations enshrined in the Convention are rights and obligations erga omnes . Vienna Convention on the Law of Treaties 1969, article 53: Treaties conflicting with a peremptory norm of general international law ( jus cogens ) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the internation al community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. VCLT 1969, article 64: if a new peremptory norm of general inter national law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. This rule (jus cogens) will also apply in the context of customary rules so that no derogation would be permitted to such norms by way of local or special custom. Importance of mechanisms by which to establish a peremptory norm: once created, a peremptory norm cannot be derog ated from. 2 stage approach of identifying mechanisms by which a P.N. is created: 1) establishment of proposition as a rule of general international law; 2) acceptance of rule as a P.N. by international community as a whole. Relationship between S.P. and P.N.? Torture, for example: not torturing is a P.N., but S.P. shows that this P.N. is widely violated. General case law:  Nicaragua v US (1986) Para. 190: A further confirmation of the validity as customary international law of the principle of the prohibi tion of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal

principle of such law. The International Law Commission, in the course of its work on the codification of the law of treaties, expressed the view that "the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens Nicaragua, in its Memorial on the Merits submitted in the present case States that the principle prohibiting the use of force embodied in Art icle 2, paragraph 4, of the Charter of the United Nations "has come to be recognized as jus cogens". The United States, in its Counter-Memorial on the questions of jurisdiction and admissibility, found it material to quote the views of scholars that this principle is a "universal norm", a "universal international law", a "universally recognized principle of international law", and a "principle of jus cogens". i.e. when deciding whether non -use of force is a customary rule, one must account for the fact that some states argue it is a peremptory norm. BUT court did not endorse non -use of force as a peremptory norm, and this was not the basis for their decision.  DRC v Rwanda (2006) Court applied the prohibition on genocide as the prohibition exists in the Treaty, not because the prohibition is a peremptory norm. Para. 64: The same applies to the relationship between peremptory norms of general international law (jus cogens) and the establishment of the Court s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court s Statute that jurisdictio n is always based on the consent of the parties. 2.3.6 Relationship between treaties and custom  Treaties exemplify the fundamental nature of consent in public int law. Treaties are primarily material sources of int law.  In essence, consent is the legiti macy and binding nature of P.I.L.  Article 38(1), ICJ Statute refers to international conventions, whether general or particular, establishing rules expressly recognised by the contracting states .  Treaty = international agreement concluded between states in written form governed by international law.  A provision in a treaty may constitute the basis of a rule which, when coupled with opinio juris, can lead to the creation of a binding custom governing all states, not just those party to the original treaty, provided the particular provision was of a fundamentally norm-creating character : North Sea Continental Shelf  Nicaragua US argued that norms of customary international law had been subsumed and supervened by article 51 UN Charter. Ct held: even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the

customary norm into treaty law must deprive the customary norm of its applicability as distinct from the treaty norm . Concluded that it will therefore be clear that customary international law continues to exist and to apply separately from international treaty law, even where the two categories of law have an identical con tent .  ITLOS Seabed Chamber, Advisory Opinion, 1 Feb. 2011 180. It may, however, be argued that such entitlement [to claim compensation] is implicit in article 137, paragraph 2, of the Convention, which states that the Authority shall act on behalf of mankind. Each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area. 2.4 General principles of law  General principles of law may be applied by ICJ in cases where circumstances arise that there is no law covering the exact point in question.  This situation is more likely to arise under international law because of its relative underdevelopment in comparison to municipal laws.  Article 38 ICJ Statute: the general principles of law recognised by civilised nations as a source of law. Bridges some of the gaps in the system.  Can constitute a separate source of international law but of fairly limited scope.  Chorzow Factory case (1928) Facts: seizure of a nitrate factory in Upper Silesia by Poland. Perm ct of justice held: it is a general conception of law that every violation of an engagement involves an obligation to make reparation .  German Settlers in Poland case Court held: approached matter from a negative point of view. Declared that: private rights acquired under existing law do not cease on a change of sovereignty...It can hardly be maintained that, although the law survived, private rights acquired under it perished. Such a contention is based on no principles and would be co ntrary to an almost universal opinion and practice.  Corfu Channel case (1949) ICJ held: when referring to circumstantial evidence, this indirect evidence is admitted in all systems of law and its use is recognised by international decisions.  Administrative Tribunals case (1954) Court dealt with problem of dismissal of members of UN secretariat staff and whether the GA had the right to refuse to give effect to awards to them made by the relevant Tribunal. Ct held: according to well-established and generally recognised principle of law, a judgement rendered by such a judicial body is res judicata and has binding force between the parties to the dispute .  Genocide Convention case Court emphasised that the principle signifies that the decisions of the court are not only binding on the parties, but are final, in the sense

that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. That princi ple signifies that the decisions of the court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose .  Right of Passage (1957) Ct in preliminary objections stated: it is a rule of law generally accepted, as well as one acted upon in the past by the court, that, once the court has been validly seized of a dispute, unilateral action by the respondent state in terminating its Declaration [i.e. accepting the jdn of the court], in whole or in part, cannot divest the court of jdn.  Temple (1962) ICJ applied estoppel doctrine (provides that a party that has acquiesced in a particular situation cannot then proceed to challenge it).  Serbian Loans (1929) Facts: French bondholders demanding payment in gold francs as against paper money upon a series of Serbian loans. Ct held: declared estoppel was inapplicable.  ELSI (1989) IC: there are limitations upon the process of inferring an estoppel in all circumstances, since although it cannot be excluded that an estoppels could in certain circumstances arise from a silence when something ought to have been said, there are obvious diff iculties in constructing an estoppels from a mere failure to mention a matter at a particular point in somewhat desultory diplomatic exchanges .  Cameroon v Nigeria (1998) Meaning of estoppel confirmed: an estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or had suffered some prejudice .  AMCO v Republic of Indonesia Stated: the full compensation of prejudice, by awarding to the injured party the damnum emergens and lucram cessans is a principle common to the main systems of municipal law, and therefore, a general principle of law which may be considered as a source of international law .  German Interests in Polish Upper Silesia (1926) Respect for acquired rights = general principle of law.  Crucial general principle of international law: pacta sunt servanda.  Most important general principle underpinning many legal rules: good faith. UN Charter, Article 2(2): all Members, in order to ensure to all of them the rights and

benefits resulting from membership, shall fulfil in good faith the obl igations assumed by them in accordance with the present Charter .  Nuclear Tests (1974) IC: One of the basic principle governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co -operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral obligation.  Nicaragua v Honduras (1988) Ct held: good faith as a concept is not in itself a source of obligation where none would otherwise exist .  Cameroon v Nigeria (1998) IC noted: principle of good faith relates only to the fulfilment of existing obligations .   Important principle: ex injuria jus non oritur facts flowing from wrongful conduct cannot determine the law.  Court has discretion to which principles of law to apply in th e circumstances of the particular case under consideration, and it will do this upon the basis of the inability of customary and treaty law to provide the required solution :  Barcelona Traction (1970) ICJ relied heavily upon the municipal law concept of the limited liability company and emphasised that if the court were to decide the case in disregard of the relevant institutions of municipal law it would, without justification, invite serious legal difficulties. It would lose touch with reality, for there a re no corresponding institutions of international law to which the court could resort. 2.4.1 Equity and International Law  References to equity as a set of principles constituting the values of the international law system.  Diversion of Water from the Meuse (1937) Facts: dispute between Holland and Belgium. Hudson J: what are regarded principles of equity have long been treated as part of international law and applied by the courts. Under article 38 of the Statute, if not independently of that article, t he Court has some freedom to cinsider principles of equity as part of the international law which it must apply.  Rann of Kutch Arbitration (1968) Facts: dispute between Pakistan and India. Tribunal: agreed that equity formed part of international law and that accordingly the parties could rely on such principles in the presentation of their cases.  North Sea Continental Shelf cases (1969)

ICJ: directed a final delimitation between the parties in accordance with equitable principles and discussed the rele vance to equity in its consideration of Barcelona Traction.  South-West Africa cases (1966) Jude Tanaka (dissenting opinion) argued for a wider interpretation of equity, and treated the concept as a source of HR ideas. Relevant courts are not applying principles of abstract justice to the cases, but rather deriving equitable principles and solutions from the applicable law.  Libya/Malta case (1985) Court declared: the justice of which equity is an emanation, is not an abstract justice but justice according to the rule of law; which is to say that its application should display consistency and a degree of predictability even though it looks beyond it to principles of more general application. Equity has been used by courts as a way of mitigating certain inequities, not as a method of refashioning nature to the detriment of legal rules. Its existence, therefore, as a separate and distinct source of law is at best highly controversial.  Tunisia/Libya Continental Shelf (1982) IC noted: it is bound to apply e quitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result. While it is clear that no rigid rules exist as to the exact weight to be attached to each element in the case, this is very far from being an exercise of discretion or conciliation; nor is it an operation of distributive justice. Use of equity principles marked by 1982 Law of the Sea Convention; article 59: provides that conflicts between coastal and other states regarding the exclusive economic zone are to be resolved on the basis of equity ; article 74: delimitation of the zone between states with opposite or adjacent coasts is to be effected by agreement on the basis of international law in order to achieve an equitable solution; article 83: similar provision in relation to delimitation of the continental shelf. Convention on the Law of the Non -Navigational Uses of International Watercourses 1997: lays great emphasis on concept of equity.  Burkina Faso/Republic of Mali (1986) Ct noted re pool of Soum, that it must recognise that Soum is a frontier pool; and that in the absence of any precise indication in the texts of the position of the frontier line, the line should divide the pool of Soum in an equitable manner .  Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) IC emphasised: at the heart of the rules and principles concerning international humanitarian law lies the overriding consideration of humanity .

2.5 Judicial Decisons  Article 38, ICJ Statute: judicial decisions are to be used as a subsidiary means for the determination of rules of law rather than as an actual source of law. BUT still of immense importance.

 Article 59: judicial decisions of ICJ have no binding force except as between th e parties and in respect of the case under consideration.  Nonetheless, court strives to follow previous decisions and insert element of certainty into decision-making process in international sphere.  Exemplar cases:  Cameroon v Nigeria (1998) Examining of previous cases will be court s starting point in most decisions. Ct noted: the real question is whether, in this case, there is cause not to follow the reasoning and conclusion of earlier cases .  Anglo-Norwegian Fisheries (1951) Statement of criteria for recognition of baselines from which to measure the territorial sea was later enshrined in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.  Reparation for Injuries (1949) Recognised legal personality of institutions in certain cases.  Genocide (1951) Dealt with reservations to treaties.  Nottebohm (1955) Considered role and characteristics of nationality and the range of cases concerning maritime delimitation.  But note other cases:  Lotus (1927) Part of decision in this case was criticised and later abandoned in the Geneva Conventions on the Law of the Sea. n.b. relatively unusual for this to occur, and it is practice by court to examine its own relevant case law with considerable attention and to rarely depart from it.  Judicial decisions in cludes: decisions of Permanent Court, ICJ, international arbitral tribunals and rulings of national courts.  Alabama Claims arbitration (1898) Facts: vessel built on Merseyside to the specifications of the Confederate states, which succeeded in capturing so me seventy Federal ships during the American Civil War. U.S. sought compensation for depredations of the Alabama and other ships after the war. Tribunal: accepted U.S. s claim. Said Britain had infringed the rules of neutrality and was accordingly obliged to pay damages to the U.S.  Island of Palmas Illustration of impact of arbitral awards.  Note increasing significance of case law of International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda.  Importance of municipal judicial decisions: may provide evidence for existence of customary rule; constitute evidence of actual practice of states; and may point to decisions of highest federal courts in federal countries in resolving internal disputes between states/regions of countries.

2.6 Teachings of publicists/writers  Article 38, ICJ Statute: the teachings of the most highly qualified publicists of the various nations .  Historically, influence of academic writers on international law has been marked. When Natural Law was significant, analyses and juristic opinions were crucial. Rise of positivism and consequent emphasis upon state sovereignty meant treats and custom assumed the dominant position in the exposition of the rules of the international system.  Subsequently, textbooks and writings are more of a place to discover what the law is, rather than an actual source of law. 2.7 Other possible sources of international law/role of international organisations 2.7.1 UN General Assembly  Resolutions of GA are not generally binding. Merely put forward opinions on various issues. Reflects intention that GA was basically meant to be a Parliamentary advisory body with binding decisions being taken by Security Council.  Situation more complex nowadays: GA has produced a number of highly important resolutions and declarations. Inevitable that these should have some impact on the direction and development of international law.  Often the way states vote in GA resolutions is evidence of S.P./O.J.  Nicaragua (1986) Ct tentatively expressed view that opinio juris requirement could be derived from the circumstances surrounding the adoption and application of a GA Resolution. It noted: [the relevant] opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the parties...and the attitude of States towards certain GA resolutions... the wording of certain GA declarations adopted by states demonstrates their recognition of the principle of the prohibition of force as definitely a matter of customary international law .  Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) The court notes that GA resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a GA resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule. 2.7.2 The International Law Commission  Established by GA in 1947 with declared object of promoting the progressive development of international law and its codification. Has 34 members from Africa, Asia, America and Europe.

 Prepares drafts submitted to various states for comments and followed by international conference convened by UN.  Issues reports and studies: has formulated such documents as the Draft Declaration on Rights and Duties of States of 1949 and the Principles of International Law recognised in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal of 1950. 1991: production of set of draft articles on problems of jurisdictional immunities; 1994: draft statute for international criminal court; 2001: set of draft articles on state responsibility.  Drafts of ILC often referred to in judgements of ICJ: o President Schwebel, speech to GA 1997, referring to judgement in GabcikovoNagymaros Project: it is notable, moreover, because of the breadth and depth of importance given in it to the work of product of the ILC. The court s judgement not only draws on treaties concluded pursuant to the Commission s proceedings: those on the law of treaties, of state su ccession, in respect of treaties, and the law of international watercourses. It gives great weight to some of the Comm s draft work....it illustrates the fact that just as the judgements and opinions of the court have influenced the work of the ILC, so the work of the Comm may influence that of the court. o => ILC is involved in at least 2 of the major sources of law: its drafts may form the bases of international treaties which bind those states who sign & ratify them; and its work is part of the whole range of statutes which can lead to new rules of customary law.
2.7.3 Other bodies  UN Comm on International Trade Law; UN Conference on Trade and Development; Committee on Principles of International Law; International Labour Organisation; UNESCO. 2.7.4 Unilateral acts  Unilateral acts by states may give rise to obligations => cannot be sources of law within meaning of article 38 ICJ Statute, but can be sources of obligations. 2.8 Hierarchy of sources  Academic writings and judicial decisions are subordi nate within hierarchy (described as subsidiary sources within article 38).  General principles lesser to above as they complement custom and treaty law.  Generally, in case of custom and treaty, that which is later in time will have priority. BUT where the same rule appears in both treaty and custom, there is no presumption that the latter is subsumed by the former. The two may co-exist (Nicaragua). A special rule prevails over a general rule (lex specialis derogate legi generali).  Note jus cogens and erga omnes. 2.9 Soft Law  Soft law = particular non-binding instruments or documents or non -binding provisions in treaties form a special category. Not actual law, but particular emphasis requires to be paid to it.