HI - Week V - Sources of International Law II

Sources of
International Law

General Principles of Law
38 (1) of the ICJ Statute : The
general
principles
of
law
recognized by civilized nations

 Article

 Historical

background
provide a solution in
treaties and custom
guidance > non liquet

: in order to

cases where
provided no

General Principles of Law
 Three

understandings :

– It allows the court to adopt specific rules
of procedure or maxims of law which
are generally applied in national courts
– It permits the court to treat the principles
of national law as a reservoir of
principles from which general concepts
of law can be derived and applied on the
international level

General Principles of Law
– It enables the court to discover and use
the

fundamental
principles
which
underlie the legal organization of the
international community, in other words,
to apply natural law

General Principles of Law
 Rules

law

of Procedure and maxims of

– Rules of procedure  preparatory works
 to mean basic principles of legal
conduct  good faith
– Maxims of law  nemo judex in causa
sua  unarguable and incontrovertible

General Principles of Law
 Difficulties

:

– limiting the development of international
laws since it depends absolutely on the
traditional elements in national legal
systems
– It runs the risk of letting a court simply
label the situation before it in a particular
case with a tag that does not correspond
to human and political realities at stake

General Principles of Law
 Temple

of Preah Vihear Case (1962)

– Thailand v. Cambodia

– 1904, French rulers of Indo – China
(Cambodia was part of) concluded a
treaty w/ Siam to determine the borders
between the two territories in the area
where the temple was situated
– Borderline  run along the watershed of
a certain mountain range, unless a joint
commission decided otherwise

General Principles of Law
 The

commission met and two French
officers drew the appropriate maps
which did not follow the watershed line.
 Consequently, the temple was included
in Cambodia
 Maps were presented to the Siamese
Govt. and no protest upon the incorrect
and seemed to approve by requesting

additional copies

General Principles of Law
 Years

passed, Siamese Govt
complained
 The Court stated qui tacet consentire
videtur si loqui debuisset ac potuisset
(he who is silent appears to consent if
he should, and could, have spoken)
 Dissenting opinion of Sir Percy Spender
: reducing the law to the formless
content of a maxim

General Principles of Law


The reservoir of Principles
– Focuses on technical points

– for instance  the principles of liability,
reparations, exhaustion of local remedies



Natural Law
– principle of good faith
– Estoppel

Judicial Decisions
 Article

38 (1) of the ICJ Statute :
Judicial decisions… as subsidiary means
for the determination of rules of law…
subject to the provisions of article 59

 Article

59 :

The decision of the court has no binding
force except between the parties and in
respect of that particular case

Judicial Decisions
 Courts are not obliged to follow
previous decisions
 however, previous decisions almost
always take into account
 judges create law  Reparations for
Injuries Case  strong probability that
the Int’l court will follow such decisions
 avoiding accusations of bias

Learned Writers
 Article

38 (1) (d) :
the teachings of the most highly
qualified publicists of the various

nations, as subsidiary means for the
determination of rules of law
 Gidel  contiguous zone

Other Sources
 Acts

of International Organizations

 General Assembly  representative of
States  customary of int’l law
 Security Council  take decisions
which are binding  Chapter VII of the
Charter

Other sources
 Soft

law

– Neither strictly binding norms of law nor
completely irrelevant political maxims
– Operates in a grey zone between law
and politics
– can be found in treaties which are not
(yet) in force or UN guidelines of
conduct