Introduction
According to Jeremy
Bentham (1748-1832), an English Philosopher, “International Law is the body of
legal rules, norms and standards that apply between sovereign states and other
entities that are legally recognized as international actors”.
In the above definition
reference is made to legal rules, norms and standards but then we ask
ourselves: From where does those legal rules originate? In International Law
there is no Global legislature to enact law and World government as such to
conduct the legislative process. Nevertheless even if International Law does
not possess formal institutions responsible for law creation there are recognised and accepted methods
through which legal rules and principles come into being as well as numerous
ways by which the precise content of legal rules can be identified.
International Law therefore emanates from these accepted sources.
Traditionally,
international law is derived from various sources, which are listed in Article
38 of the Statute of the International Court of Justice (1946). It provides
that:
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.
2. This provision shall not prejudice the power of the Court
to decide a case ex aequo et bono, if the parties agree thereto.
Ex Facie, it is apparent that article 38
seems to be a mere list of the sources of international law. It is more a
direction to the Court allowing it to consider and apply the sources when
deciding disputes submitted to it. It is to be noted that article 38 does not
provide a comprehensive list but rather limits the sources to be used in the
settlement of disputes. Article 38 has in the past been subject to extensive
debates and in 1949 the ILC purported to enlarge the scope of the sources
defined therein. Practice of International Organisations such as the United
Nations, the Security Council and the General Assembly resolutions are not
mentioned as source of international law in article 38 when in practice they
figure prominently in the judgements of the International Court of Justice. In
the case of Nicaragua v USA (1986)[1],
the Court referred extensively to General Assembly resolutions and stated that:
“…it was never intended that the Charter
should embody written confirmation of every essential principle of
international law in force…” However, the reason for this omission may be
for the simple reason that they are merely material evidence of state practice
and this will be considered later.
In addition, article 38 gives no indication of the priority
or hierarchy of the sources of international law, except the single reference
to ‘subsidiary means’ in 38(1) (d). The order in which the sources are to be
applied by the court is generally accepted as from (a) to (d). Nonetheless, in Nicaragua v USA (supra), the Court considered
each source simultaneously and stated that: “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 take the view that the treaty process must necessarily deprive the
customary norm of its separate applicability”. Globally, article 38 is a
guideline which recognizes the sources of international law. It is however
considered authoritative by the ICJ and States themselves; therefore States
cannot ask the Court to decide a dispute on the basis of selected sources only.
Equally under article 38(2), the Court is authorized to decide a case ex aequo et bono for the settlement of
disputes. This was established in the Frontier
Case (Burkina Faso v Mali) (1986)[2],
where the government of Upper Volta (now Burkina Faso) and Mali agreed to
submit to a chamber of the Court a dispute concerning the delimitation of their
common frontier and the Court acceded to their request.
Before proceeding any further, it is important to make a
distinction between formal and material sources of international law. A formal
source of law is a process by which a legal rule comes into existence: it is
law creating. In UK for example the passage of a bill through Parliament is a
formal source of law whereas in international law, ‘custom’ is a formal source
of law as it creates legal rules. In the same vein, treaties create law for the
parties and are therefore also formal sources. Conversely material sources are
not concerned with the formal act of law creation. It is those sources which
are concerned with the substance and content of legal obligations, they are
therefore law identifying. Practice of States and International Organisations,
judicial decisions, juridical writings and General Assembly resolutions are all
material sources of international law. Salmond effectively explained the
distinction as follows: “A formal source
is that from which a rule of law derives its force and validity. The material sources
on the other hand are those which derive the matter. The material source
supplies the substance of the rule, through which the formal source give the
force and nature”[3].
Treaties:
Article 38(1) (a) of the statute of ICJ refers to ‘international
conventions, whether general or particular, establishing rules expressly
recognized by contesting States’, as a primary source of international law.
Oppenheim purported that: “The only way
in which international law can be made by a deliberate act, in contradiction to
custom, is that the members of the Family of Nations conclude treaties in which
certain rules for their future conduct are stipulated. Of course such law
making treaties create law for the contracting parties only”[4].
The above statement as formulated by Oppenheim contains the
essence of treaties. Treaties are bilateral or multilateral agreements between
two or more States in writing. They are the means through which States can
create certain specific obligations and are at the same time respected as they
are deliberate. Therefore in the case before the Court, the pleadings refer to
a treaty between the two parties in part (c), is valid for consideration by the
Court as it exclusively embodies the intention of the two parties to regulate
conduct and obligations between States.
Article 38(1) (a) makes reference to general or particular
treaties. Where treaties have been concluded by the majority of States,
including leading Powers are called general treaties whereas those which are concluded
by a few States only are called particular treaties. However treaties whether
general or particular , are presently the most important source of
international law and this is likely to remain so given the continuing efforts
of the International Law Commission to codify customary law in treaty form. A
treaty imposes obligations on the State-parties which must be carried out and
failure to conform to the terms of a binding treaty will entail international
liability unless a defense is available.
As a primary source of international law, treaties have
certain characteristics which will differentiate it from the other sources and
they are considered below.
The first characteristic of treaties is that they are
voluntary, i.e., no state can be bound by a treaty without having consented
either by signature, ratification or accession. Only parties to the treaty are
bound by its terms. Of course, there are exceptions to this rule but are very
limited. These include treaties for the delimitation of territorial boundaries
which binds even non-signatory states. Such treaties are said to be valid erga omnes, i.e., against the whole
world, as in the Case Concerning
Kasikili/Sedudu Island (Botswana v Namibia)[5],
where the Court observed that: “...the
law applicable to the present case has its source first in the 1890 Treaty
which Botswana and Namibia acknowledge to be binding on them. As regards
interpretation of the Treaty, the Court notes that neither Botswana nor Namibia
are parties to the Vienna Convention on The Law of Treaties of 23 May 1969, but
that both of them consider that article 31 of the Vienna convention is
applicable inasmuch as it reflects customary international law”. The case
of Botswana v Namibia established
that treaties may develop customary law although the primary rule remains that
a State cannot be bound by a treaty to which it is not a party even if its
obligations under customary law are similar to those of the treaty.
Furthermore when a treaty codifies existing customary law as
was the case with the Vienna Convention on Diplomatic Relations and the Vienna
Convention on The Law of Treaties, the obligation found therein will be binding
on all States as those States may be parties to that treaty in the normal way
and States who are not parties cannot exempt themselves for the states are
bound by the same obligations which are found in the treaty. Many multilateral
treaties are a mixture of codification of current customary law and progressive
developments of that law. Most of the time, the intention of parties to such
treaties is that the principles contained therein will guide the future conduct
of all states. Therefore parties are bound by all obligations and non-parties
are bound mainly by those obligations that have achieved the status of customary
law. Consequently impetus is given to the formation of customary law. However
not all treaty provisions can produce customary law. According to the ICJ in
the North Sea Continental Shelf Cases
(1969)[6],
in order to extrapolate a general customary norm from a treaty provision, that
treaty provision “should be of a
fundamentally norm creating character such as could be regarded as forming the
basis of a general rule of law”. In other words, the treaty provision
alleged to give rise to custom must be capable of general application and must
be intended to be the basis for future practice and it was therefore held that
article 6 of the Geneva Convention did not embody or crystallize any pre
existing or emergent rule of customary law.
In addition, customary law and treaties have equal authority
as they are the primary sources of law according to article 38. Therefore if
there is any conflict between the two it is the treaty that prevails. This
characteristic of treaties is illustrated in the Wimbledon Case (Great Britain, France Italy and Japan v Germany) (1923)[7],
where the Court while recognizing that customary international law prohibited
the passage of armaments through the territory of a neutral state into the
territory of a belligerent state, upheld the Treaty of Versailles, articles
380, which provided that the Kiel Canal was to be free and open to all
commercial vessels and warships belonging to States at peace with Germany. In
stopping a vessel of a state with which it was at peace, Germany was in breach
of treaty obligations. It should however be noted that a new custom may
supersede older treaties and new treaties may overrule existing customs as
enunciated in article 53 of the Vienna Convention on Law of Treaties:
“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 international
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.”
Customs:
In any society
rules of acceptable behavior develop at an early stage and international law is
of no exception. Indeed, Oppenheim argued that custom id the foundation on
which international law rests, as without customs norms of behavior would not
have been crystallized into rule of international law. As it was pointed out in
the Gulf of Maine Case (1984)[8],
“...Custom is ideally suited to the
development of general principles and it is always available to fill the void
should the detailed legal regime of a treaty fail to gain universal acceptance.
The process of customary law formation being derived from the practice of
states and occasionally the practice of other legal persons is an ongoing
phenomenon and its great advantage is that it enables international law to
develop in line with the needs of the time”.
Custom in international is
therefore a practice followed by states because they feel legally obliged to do
so. Custom must be distinguished from usage, such as acts done out of courtesy
rather than out of obligation or a feeling that non compliance would produce
legal consequences. Article 38 circumscribes customary law as ‘international
custom, as evidence of a general practice accepted as law’, therefore the court
cannot apply any custom but only those of international order since it must be
general practice accepted as law.
However a custom may also be local or
regional and applicable to small States inter
se. As illustrated in the Right of
Passage over Indian Territory Case (Portugal v India) (1960)[9],
where there was a claim by Portugal of a right of passage based on local
customs. The Court held: “It is difficult
to see why the number of States between which a local custom may be established
on the basis of long practice must necessarily be larger than two. The Court
sees no reason why long continuous practice between two States accepted by them
as regulating their relations should not form the basis of mutual rights and
obligations between the two States.”
Furthermore
Judge Hudson of the ILC[10]
listed the following criteria for the establishment of a customary rule:
(a) concordant
practice by a number of States with reference to a type of situation falling
within the domain of international relations;
(b) continuation
or repetition of the above practice over a considerable period of time;
(c) conception
that the practice is required by or consistent with, prevailing international
law; and
(d) general
acquiescence in the practice by other States.[11]
But then we ask
ourselves the question: How is custom distinguished from behavior which
involves no legal obligation? The conventional view is that a rule of customary
international law derives its validity from the possession of two elements:
State practice and Opinio Juris. State practice includes, but is not limited
to, actual activity and statements made in respect of concrete situations or
disputes as in the Nuclear Tests Cases
(Australia & New Zealand v France) (1974)[12],
where the French Government issued a number of statements indicating its
intention to cease holding further nuclear tests in the atmosphere in the South
Pacific after the 1974 tests had been completed.
In 1950 the
International Law Commission listed the following classical form of ‘Evidence
of Customary International Law’:
-
treaties;
-
decision of national and international
courts;
-
national legislation;
-
diplomatic correspondence;
-
practice of international organisations.
The list was not
intended to be exhaustive but to provide a basis for discussion.[13]
Reports of ILC therefore constitutes a basis on which evidence of customary law
can be founded as it codifies practice of states, thus the reference to Report
of ILC on the area concerned in (b) can be considered by the Court but in
addition it must be supported by the requisite opinio juris.
However, the ICJ
further requires the State practice to be constant and uniform as pointed out
in the Asylum Case (Colombia v Peru)
(1950)[14],
where the Court stated that: “The party
which relies on a custom…must prove that this custom is established in such a
manner that it has become binding on the other party. The Colombian Government
had to prove that the rule invoked by it is in accordance with a constant and
uniform usage practiced by the States in question and that this usage is the
expression of a right appertaining to the State granting asylum and a duty
incumbent on the territorial State. This follows from article 38 of the Statute
of the Court, which refers to international custom ‘as evidence of a general
practice accepted as law’”.
The same approach was adopted in the Lotus Case (France v Turkey) (1927)[15],
where the French Government argued that there existed a custom in international
law of which Turkey was in breach. After extensive research, no evidence was
found to prove its existence and the stated that for the formation of customary
law state practice should be ‘constant and uniform’. In the same vein, state
practice must have some consistency, i.e., practice of states must be
recognized by other states and must not encounter objections as was decided in
the Anglo-Norwegian Fisheries Case (UK v
Norway) (1951)[16],
where the UK objected to the method applied by Norway to delimit its
territorial sea. The Court concluded that: “the
method of straight lines established in the Norwegian system, was imposed by
the peculiar geography of the Norwegian coast; that even before the dispute
arose, this method had been consolidated by a constant and sufficiently long
practice, in the face of which the governments bear witness to the fact they
did not consider it to be contrary to international law”.
Nevertheless, in Nicaragua v USA (1986), the ICJ gave a
different opinion where it indicated that it was not necessary that all state
practice must be rigorously consistent in order to establish a rule of custom.
Also for a
universal norm of customary law to develop, the practice of States must be
fairly general. In other words, the practice must be common to a significant
number of states as pointed out in the Anglo-Norwegian
Fisheries Case, where it was stated that the rule must be “generally adopted in the practice of States”.
Again, ironically, a divergent statement was given by the ICJ in the North Sea Continental Shelf Cases (1969),
where it was stated that all States need not participate before a general
practice can become law. This may be justified by the fact that many States may
have no interest in the subject matter of the rule. It would rather require
uniformity of practice between those States whose interests are specifically
affected by the subject matter of the rule as in the North Sea Continental Shelf Cases (1969), where it was held that:
“…State practice, including that of
States whose interests are specially affected, should have been both extensive
and virtually uniform…” On the other hand a State may contract out of a
development of a customary rule of international law by persistently objecting
to its formation known as the concept of ‘persistent objector’, or adopts
contrary practice.
Then in the North Sea
Continental Shelf Cases (1969), the Court held that: “Even without the passage of any considerable period of time, a very
widespread and representative participation in the (practice) might suffice of
itself…Although the passage of only a short period of time is not necessarily,
of itself, a bar to the formation of a new rule of customary law… within the
period in question, short though it might be, state practice… should have been
both extensive and virtually uniform”. There is therefore in the words of
the ICJ, no time limit and no demand, that the behaviour or practice should
have existed since time immemorial.
In addition to
State practice, an alleged rule of customary international law also requires an
Opinio Juris Sive Neccesitatis or
simply opinio juris. It is not enough
for the formation of customary law that there is general, uniform and
consistent state practice. In order that this practice constitutes law, States
must recognize it as binding upon them as law. This was the stand of the ICJ in
the North Sea Continental Shelf Cases
(supra), where it stated: “…to
constitute the opinio juris…two conditions must be fulfilled. Not only must the
acts concerned amount to a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence 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 sive necessitatis. The states concerned
must therefore feel that they are conforming to what amounts to a legal
obligation”.
The same view was adopted by the Court in the Lotus Case (France v Turkey) (1927)[17],
where it stated that: “Even if the rarity
of judicial decision to be found…were sufficient to prove…the circumstances
alleged…it would merely show that States had often, in Practice, abstained from
instituting criminal proceedings and not that they recognized themselves as
being obliged to do so; for only if such abstention were based on their being
conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States
have been conscious of having such a duty; on the other hand…there are other
circumstances calculated to show that the contrary is true.” It was here
emphasized that opinio juris is an
important element in the formation of customary law and could not be inferred
from a particular pattern of practice unless the state involved was conscious
of having a duty in that regard.
This was reiterated in the North Sea Continental Shelf Cases, where a majority of the Court
stated that: “The frequency or even
habitual character of the acts is not in itself enough. There are many
international acts, e.g. in the field of ceremonial and protocol, which are
performed almost invariably, but which are motivated only by consideration of
courtesy, convenience or tradition and not by any sense of legal duty.”
Another
interpretation in the literal sense of the opinio
juris tantamount to “an opinion of law” which would include legal opinion
of jurists of States on the area concerned with the formation of a customary
rule of international law and this could be considered when determining whether
or not the State deemed to be under a legal obligation with respect to the
custom. Therefore the opinion of the law officer of one of the states referred
to in (f) could effectively be used by the Court to assess the obligations of
the State and form the required opinio
juris.
General
Principles of Law:
Article 38 of
the Statute of ICJ refers to, “general principles of law recognized by
civilized nations”. Sir Hersh Lauterpacht referred to this provision and noted
that it was introduced by a commission of jurists in order to avoid the problem
of a non liquet, i.e. an absence of
rules in novel situations. General principles tend to be employed as a last
resort, a supplementary argument in case the contentions based on customary law
or treaties fail to convince, this was the view adopted in a UN Report of 2006 on
“FRAGMENTATION OF INTERNATIONAL LAW:
DIFFICULTIES ARISING FROM THE DIVERSIFICATION AND EXPANSION OF INTERNATIONAL
LAW”[18],
where it was noted that: “the body of customary law has
primacy over the general principles of law under article 38 (1) (c) of the ICJ
Statute. This informal hierarchy follows from no legislative enactment but,
emerges as a “forensic” or a “natural”
aspect of legal
reasoning. Any court or lawyer will first look at treaties, then custom and
then the general principles of law for an answer to a normative problem”.
Regarding
treaties, the Vienna Convention on the Law of Treaties 1969, in its article 3
provides that: “In the absence of any
contrary provisions laid down by the parties and not inconsistent with
overriding principles of international law, the conditions of the validity of
treaties, their execution, interpretation and termination are governed by
international custom and, in appropriate cases, by general principles of law recognized by civilized nations.” Therefore
where customs fail to provide guidance, general principles will be used to
interpret treaties. It must here be noted that the Vienna Convention on The Law
of Treaties is in itself a codification of general principles. Then it has been
questioned whether the principles referred to in article 38 are those of
municipal law or international law? It is fairly well established that the
general principles contemplated by article 38 are primarily those which reveal
themselves in the consistent solutions to a particular problem as Lord
Philimore, the author of article 38(1) (c) stated: “the general principles of
law referred to were those which were accepted by all nations in foro domestico. This was decided in the
case of Petroleum Development limited v Sheik of Abu Dhabi (1951)[19],
where the umpire, Lord Asquith of Bishopstone, held that no municipal
law
of any particular country was applicable to the interpretation of the
concession agreement and that the terms of the agreement" invite, indeed prescribe, the application of
principles rooted in the good sense and common practice of the generality of
civilized nations — a sort of 'modern law of nature' ".
Also Lord Oppenheim further stated that in connection with article 38
that: “the intention is to authorize the Court to apply the general principles
of municipal jurisprudence, in particular private law, insofar as they are
applicable to relations of States”. A number of decisions of the ICJ illustrate
the nature of general principles. In the Chorzow
Factory Case (Claim for Indemnity) (Merits) (1927)[20],
the Court observed that: “…The essential principle contained in the actual
notion of an illegal act-a principle which seems to be established by
international practice and in particular by the decisions of arbitral
tribunals-is that reparation must, as far as possible, wipe out all the
consequence of the illegal act and re-establish the situation which would, in
all probability, have existed if that act had not been committed.”
Similarly in UN Administrative Tribunal
Case (1973), the ICJ, referred to: “…well established and generally
recognized principles of law that a judgement rendered by a judicial body is
res judicata and has binding force between the parties to the dispute.” In
numerous case the ICJ has made use of the doctrine of estoppels as recognized
by a number of legal systems. The best example being that of The Temple Case (1962)[21],
involving Thailand (formerly Siam) and Cambodia formerly part of French
Indo-China. The two states were in dispute over a section of the frontier,
Cambodia successfully relied on a map of 1907 which the predecessor French
authorities had produced at the request of the Siamese Government. The map
clearly showed the Temple area as part of French Indo-China. The Siamese
authorities, far from protesting at the error, had thanked the French for
preparing the map and requested a number of copies. Furthermore, in 1930, a
Siamese Prince paid a visit to the disputed area and was officially received
there by French authorities. Together, these two events were seen by the ICJ as
conclusive and it found that Thailand was precluded by its conduct from denying
the Frontier indicated on the map.
The ICJ has also indicated that it considers the principles of equity
to constitute an integral part of international law. In the Diversion of Water from the Meuse (1937)[22],
Judge Hudson declared: “…What are widely known as principles of equity have
long been considered to constitute a part of international law and as such,
they have often been applied by international tribunals. A sharp division
between law and equity, such as prevails in the administration of justice in
some states, should find no place in international jurisprudence; even in some
national legal systems, there has been a strong tendency towards the fusion of
law and equity.”
Judicial Decisions:
In the eventuality of the Court being unable to solve a dispute by
reference to treaty, custom or general practice, Article 38 of the Statute of
ICJ provides as a ‘subsidiary’ means for the determination of law, judicial
decisions and the teachings of the most highly qualified publicists of the
various nations. Judicial decisions may be applied subject to the provisions of
article 59 of the same statute which states: “The decision of the Court has no
binding force except between the parties and in respect of that particular
case.”
In the German Interest in Polish
Upper Silesia (1926), the Court stated that: “…the object of Article 59
is simply to prevent legal principles, accepted by the Court in a particular
case from being binding on other states or in other disputes.” This
provision prevents the establishment of stare decisis in international
law even if a previous case submitted to the ICJ was decided between the same
states or different states. However if a previous decision of the Court is law
identifying and judicially consistent; the Court may refer to it for guidance.
The material referred to in (g) can therefore be considered by the Court
provided it is in line with the above and also if required at all because some
decisions may have for object different subject matter. It is therefore left to
the appreciation of the learned judges of the Court.
Article 38 does not limit the scope of judicial decisions only to those
delivered by international tribunals. It takes into account decisions of
municipal courts due to the fact that municipal courts deal frequently with matters
of international law and provide evidence of state practice. They provide
guidance and are law identifying, but not every municipal court’s decision will
be considered. The case therefore referred to in (e), if relevant and
consistent, will be given its due consideration by the Court.
Writings of Publicists:
Article 38(1) (d) of the statute of ICJ directs the Court to apply the
writings of the ‘most highly qualified publicists of various nations’ as a
subsidiary means for the determination of rules of law. During the early stages
of the development of international law, the writings of publicists such as
Grotius, Vattel and Gentili were of upmost importance in settling down the
notion of the existence of binding rules that could govern the relations of
sovereign and independent states. However, nowadays writings of publicists are
no more regarded as authorities as it used to be in the past. It is considered
as constituting a material source for practice of international law. Therefore
the article from the British Journal of International Law by a university
lecturer, referred to in (a) will be given little or no consideration by the
Court depending on the subject matter of the case before it. Nonetheless such
writings can be very useful to the Court when deciding cases on new treaties or
conventions or also a completely new branch of international law such as
‘refugee law’, ‘international trade law’, etc. to shed light on moot points and
therefore be pivotal for the identification of the source of law applicable. It
is equally true that there is no statute book for international law regrouping
all international conventions and thus textbooks and publications is an easier
way to discover the current content of the law. Furthermore care should be
exercised when deciding the work of the publicists to rely on because as
pointed out by Judge Huber in the Spanish
Zone of Morocco Claims Case (1925)[23]
that: “Writers are frequently politically inspired and caution must be
exercised when the country of the author has a special interest in a particular
matter”. The outcome of which has generally been that the Court has till
date refused to admit writings of publicists as source of international law.
Other Sources of International Law:
The UN since its institution in 1945 has adopted a number of
resolutions dealing with many different areas of international law which have
constantly expressed principles inherent to the international legal system. The
General Assembly is essentially a political body, whose resolutions is adopted
by its members and expresses the will of States. The most comprehensive was the
declaration on Principles of International Law concerning Friendly Relations
and Co-operation among states (GAR 2625(XXV) 1970).
In Texaco Overseas Petroleum Co v Libya (1978), arbitration arose
after Libya had nationalized the property of two American Oil Companies, the
arbitrator, Professor Dupuy, had cause to discuss the international relating to
nationalization of foreign owned property. He referred to the General Assembly
resolution on Permanent Sovereignty over Natural Resources 1962 (GAR
1803(XVII)) and the Charter of Economic Rights and Duties of States 1974 (GAR
3281(XXIX)). Resolution 1803 recognised the right to expropriate foreign owned
property where it was carried out for reasons of public utility, security or
national interest and where compensation is paid. It was therefore established
that resolutions are capable of constituting rules of international law.
However the primary rule is that resolutions of the General Assembly are not
binding and States are not under an obligation to follow conduct stipulated in
the resolution. Nevertheless, there is an exception to this principle namely
resolutions on the internal administration of the United Nations as enunciated
by article 10 of the UN Charter. The UN General Assembly resolutions referred
to in (d) may be admissible as a source of international obligations, if it
concerns the internal administration of the UN and secondly if they enlighten
the Court on the content of the international obligations.
Conclusion:
International law therefore stems from the sources discussed above but
is not limited to the article 38 of the Statute of ICJ. Much of it is under
development and in the future new fields of international law with the likes of
‘international tax law’, ‘international investment law’, etc. will emerge
following globalization and in an attempt to regroup the nations of the World
into a universal legal order, free from conflicts between rules of law and
institutional practice thereby giving the world a common outlook of
international law.
------------------------------------------------------------------------------------------------------------
Bibliography
Books:
·
Textbook on International Law, Martin
Dixon, 4th Edition, 2000
·
Sourcebook on Public International Law,
Tom Hillier, 1998
·
Casebook on Public International Law,
Old Bailey Press, 1997
·
International Law: A Treatise,
L.Oppenheim, 3rd Edition, 2005
Websites:
·
International Law Commission- http://www.un.org/law/ilc/index.htm
·
International Court of Justice-
http://icj-cij.org/docket/index.php?p1=3&p2=2
·
United Nations- http://un.org/en
·
Britannica Online Encyclopedia- http://www.britannica.com
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[1]
ICJ Rep14
[2]
ICJ Rep 554
[3]
Salmond, Jurisprudence, 10th edition, 1947, London:
Sweet&Maxwell at p151-56
[4]
L.Oppenheim, International Law, A Treatise, 3rd Ed, 2005, at p22
[5]
1999 ICJ Rep131
[6]
Federal Republic of Germany v Denmark; The Netherlands 1969 ICJ Rep p3
[7]
PCIJ Rep Series A No1 93
[8]
ICJ Rep246
[9]
ICJ Rep p6
[10]
International Law Commission
[11]
UN Doc A/CN4/163/3/50 at p5
[12]
ICJ Rep p253
[13]
1950, ILC Yearbook at p368-72
[14]
ICJ Rep p116
[15]
PCIJ Rep Series A No. 10
[16]
ICJ Rep p116
[17]
PCIJ Series A No. 10
[19]
18 ILR 144
[20]
PCIJ Rep Series A No 17
[21]
ICJ Rep p1
[22]
PCIJ Rep Series A/B No 70 p4
[23]
2 RIAA 615
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