CHAPTER 2
SOURCES OF INTERNATIONAL LAW
Article 38 (1), Statute of the International Court
of Justice
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 aequo et bono- cases to be decided by
principles of what is fair and just.)
In order to enable the World Court to apply any
asserted rule of international law, it must be
shown that it is the product of one, or more, of the
three-creating processes, treaties, international
customary law or general principles of law.
The significance of this enumeration lies in its
exclusiveness.
The court is bound to take into consideration any
asserted rule which bears the hall-mark of one of
these three law-creating processes. It is
immaterial whether such rule is also claimed as
their own by any of the various brands of natural
law, has its origin in considerations of humanity,
or is postulated by the standards of civilization.
2nd paragraph of Article 38 means that the Court
may ignore rules which are product of any of the
above three law-creating agencies and to
substitute itself as a law-creating agency, depends
on agreement of the parties to a dispute.
Sub-paragraphs a-c deal with the three formal
sources of international law to which the Court
may resort and exclude material sources.
Sub-Paragraph d refers to subsidiary means for
the determination of rules of law. It follows that
principal means for the determination of rules of
law must exist.
These principal and subsidiary means of evidence
are called law-determining agencies. Each of
these is composed of more or less fallible human
beings, and these cannot be taken to be passive
agents who merely reflect true international law
as it were in a faithful mirror.
In case of law-creating processes, the emphasis
lies on the form by which any particular rule of
international law is created.
In case of the law-determining agencies it is on
how alleged rule is to be verified.
CLASSIFICATION OF SOURCES
FORMAL SOURCE is that from which a rule of
law derives its force and validity.
MATERIAL SOURCES are those from which
is derived the matter, not the validity of law. It
supplies the substance of the rule to which the
formal source gives the force and nature of law.
EXAMPLE:
A rule will be legally binding if it meets the
requirements of a custom. Custom is the formal
source of international law. Its substance will be
indicated by state practice, which is the material
source of custom.
ORDER OF APPLICATION
When drafting the original text of Article 38, the
committee considered a proposal that it should
state that the sources listed should be considered
in the Court “in the undermentioned order”
However, these words were not only superfluous,
but they might also suggest the idea that the judge
was not authorized to draw upon a certain source
before having applied conventions and customs
mentioned respectively.
If two states concluded a treaty in which the
solution of the dispute could be found, the Court
must not apply international custom and neglect
the treaty.
If a well-known custom exists, there is no
occasion to resort to a general principle of law.
If the expression “undermentioned order” only
meant that a convention should be considered
before customary law, it is unnecessary.
This expression also seems to fail recognize that
these various sources may be applied
simultaneously and that nature of each source
differs.
CUSTOM
ASYLUM CASE
COLUMBIA VS PERU
After an unsuccessful rebellion in Peru, a warrant
was issued for the arrest on criminal charge
arising out of rebellion of one of its leaders, Haya
de la Torre, a Peruvian National.
He was granted asylum by Colombia in its
Peruvian Embassy in Lima.
Colombia sought, and Peru refused, a safe
conduct to allow Haya de la Torre out of the
country.
Colombia brought this case asking the Court to
rule that: “Colombia, as the state granting asylum,
is competent to qualify the offense for the purpose
of the said asylum”
JUDGMENT OF THE COURT
The party which relies on a custom of this kind
“must prove that this custom is established in
such manner that it has become binding on the
other party.”
The Colombian government must prove that the
rule invoked:
1. it is in accordance with a constant and
uniform usage practiced by states in
question,
2. 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 the international custom
“as evidence of a general practice accepted by
law”.
The Colombian Government has referred to a
large number of cases in which diplomatic
asylum was in fact granted and respected.
But is has not shown that the alleged rule of
unilateral and definitive qualification was
invoked or that it exercised by the States granting
asylum as a right appertaining to them and
respected by the territorial States as a duty
incumbent on them and not merely for reasons of
political expediency.
There has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by
some States and rejected by others, and the
practice has been so much influenced by
considerations of political expediency in the
various cases, that it is not possible to discern in
all this any constant and uniform usage.
The Court cannot therefore find that the
Colombian Government has proved the existence
of such custom.
But even if it could be supposed that such custom
existed between certain Latin-American States
only, it could not be invoked against Peru which
repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939.
(MC – first to include a rule concerning the
qualifications of the offence in matters of
diplomatic asylum)
In the Legality of Nuclear Weapons case, the
Court confirmed that the substance of a
customary rules is to be found “primarily in the
actual practice and opinion juris of states.”
As the Court recognized in this case, although
refers to a “general practice”, it allows for local
customs amongst a group of states or just two
states in their relations inter se as well as for
general customs may supplement or derogate
from general customary international law.
Although local customs exist, general customs
are by far more numerous and important.
The International Law Commission included the
following in a non-exhaustive list of the forms
that the state practice may take: treaties, decision
of international and national courts, national
legislations, diplomatic correspondence, opinions
of national legal advisers and the practice of
international organizations.
Other categories listed are policy statements,
press releases, official manuals on legal
questions, executive decisions and practices,
orders to naval forces, and comments by
government on drafts produced by the
International Law Commission.
ANGLO-NORWEGIAN FISHERIES CASE
This cannot be established by citing cases where
coastal states have made extensive claims, but not
have maintained their claims by the actual
assertion of sovereignty over trespassing foreign
ships.
Such claims may be important as starting points,
which, if not challenged, may ripen into historic
title in the course of time.
The only convincing evidence of State practice is
to be found in seizures, where the coastal state
asserts its sovereignty over the water in question
by arresting a foreign ship and by maintaining its
position in the course of diplomatic negotiation
and international arbitration.
Although acts in support of a claim may be “the
only convincing evidence where the claim is
challenged by the acts of another state, abstract
statements of a legal position have been
recognized as being of value in other cases, as the
extract from North Sea Continental Shelf cases.
Persons who act or speak in the name of a state
do acts or make declarations which either express
or imply some view on a matter of international
law.
Any such act or declaration may be some
evidence that a custom and therefore that a rule of
international law, does or does not exist but
course its value as evidence will be altogether
determined by the occasion and the
circumstances.
States like individuals, often put forward
contentions for the purpose of supporting a
particular case which do not necessarily represent
their settled or impartial opinion.
The repetition, the number of examples of State
practice, the duration of time required for the
generation of customary law cannot be
mathematically and uniformly decided.
What is important in the matter at issue is not the
number or figure of ratifications of and
accessions to the Convention or of examples of
subsequent State practice, but the meaning which
they would imply in the particular circumstances.
Cannot evaluate the ratification of the
Convention by a large maritime country or state
practice represented by its concluding an
agreement on the basis of the equidistance
principle, as having exactly the same importance
as similar acts by a land-locked country which
possesses no particular interest in the delimitation
of the continental shelf.
Opinio Juris is a factor relating to international
motivation and being a psychological nature,
cannot be ascertained very easily, particularly
when diverse legislative and executive organs of
a government participate in an internal process of
decision-making in respect of ratification or other
State acts.
Ascertain the existence of opinion juris from the
fact that the of the external existence of a certain
custom and its necessity felt in the international
community, rather than to seek evidence as to the
subjective motives for each example of State
practice, which is something which impossible of
achievement.
Delay in ratification of and accession to
multilateral treaties is a well-known phenomenon
in contemporary treaty practice, experience
indicates that in most cases cause by factors
extraneous to the substance and objective of
instrument in question.
Therefore, number of ratifications and accessions
cannot in itself be considered conclusive with
regard to the general acceptance of a given
instrument.
CONVENTION ON THE CONTINENTAL
SHELF
There are other elements that must be given their
due weight.
31 states comes into existence during the period
between its signature and its entry into force,
while 13 other nations have acceded to
independence. Thus, the time during which there
44 states could have completed the necessary
procedure enabling them to become parties to the
convention has been rather limited.
Taking into account the great and urgent
problems of each of them had to face, one cannot
be surprised that many of them did not consider it
as a matter of priority.
It is noteworthy that about seventy sates are at
present engaged in the exploration and
exploitation of continental shelf areas
It is the above analysis which is relevant, not the
straight comparison between the total number of
States in existence and the number of parties to
the convention. It reveals the fact that the number
of parties to the Convention on the Continental
Shelf is very impressive, including as it does the
majority of the States actively
A persistent objector cannot escape being bound
by a new rule of customary international law that
has the character of ius cogens. The concept of ius
cogens originated in the law of treaties, in which
there is a rule prohibiting states from making a
treaty by which they derogate from a rule of ius
cogens.
Example: A rule that proscribes conduct that is
fundamentally immoral or anti-social.
Does it matter whether the dissenting state was in
existence or not at the time the custom came into
being? Can the dissent of one state bring down a
custom if it is couple with that of others? If so,
there is clearly a stage hem states leading an
assault upon a custom are, although participating
in an accepted law-changing process,
delinquents.
Another intrinsic weakness in the customary
international law-making process is that, in some
cases e.g that concerning the breadth of the
territorial sea.; the change from one rule of
customary international law to another is
unacceptably slow with an interim period of
considerable uncertainty.
For the purpose of the formation of rules of
customary international law, consent is
commonly indicated by state practice not in the
form of positive statements or other action
approving or following the practice in question,
but of acquiescence.
Acquiescence describes as silence or absence of
protest in circumstances which generally call for
a positive reaction signifying an objection.
Acquiescence cannot be established unless a state
has actual or constructive knowledge of the claim
being made.
Some rules of customary international law are
often broken, For example, it is not uncommon
for states illegally to resort to armed force or to
intervene in the affairs of other states and more
than one government has tortured its opponents.
In such cases, the question must be whether the
delinquent and the other states continue to
recognize the breaches as illegal.
In Nicaragua, acknowledged that a practice does
not always have to be followed for it to indicate a
custom: it is sufficient that any departure from the
practice is recognized as illegal.
The above materials concerning custom are based
upon the voluntarist or consensual theory of the
nature of international law, by which states are
bound only by that to which they consent.
TREATIES
Treaties determine the rights and duties of states
just as individual rights are determined by
contracts.
Their binding force comes from the voluntary
decision of sovereign states to obligate
themselves to a mode of behavior.
While treaties are generally binding on the
parties, the number of the contracting parties and
the generality of the acceptance of the rules
created by the treaty can have the effect of
creating a universal law.
Treaties are, formally, a source of obligation
rather than the source of law.
In their contractual aspect, they are no more a
source of law than an ordinary private law
contract which simply creates rights and
obligations.
There is really no such thing as particular
international treaty law, though there are
particular international treaty rights and
obligations.
The only law that enters into these is derived,
principle pacta sunt servanda – an antecedent
general principle of law. The law is that the
obligation must be carried out, but the obligation
is not, in itself, law.
A statute is always, from its inception, law: a
treaty may reflect or lead to law but particularly
in its inception, is not, as such, law.
It reflects (e.g codifies) existing law, non-parties
may conform to the same rules, but they do so by
virtue of the rules of general law thus reflected in
the treaty, not by the virtue of the treaty itself.
The treaty may be an instrument in which the law
is conveniently stated, and evidence of what it is,
but it is still not itself the law. (It is still formally
not a source of law but only evidence of it.)
A treaty becomes a material source of law,
because the rules it contains come to be generally
regarded as representing rules of universal
applicability. When non-parties apply or conform
to these rules, this will be because the rules are or
have become rules of general law.
If the treaty reflects/codifies existing law, then in
applying it, the parties merely conform to general
law obligation already valid for them. (Same rule
applies where the treaty does not reflect existing
law but leads to the emergence of a new general
rule of law.
The parties apply the treaty not as law, but as an
obligation inter se which antecedent general law
respecting treaties compels them to carry out
because they have undertaken to do so.
If the treaty rule does eventually pass into general
law, its formal source as law is clearly custom or
practice, its adoption into general customary law.
The parties are applying the treaty, but as they
would now be bound to apply it even if there were
no treaty (or if the treaty had lapsed or the party
concerned had formally denounced) its legal
basis as law is clearly not the treaty, although it
retains a treaty basis obligation so far as the
parties are concerned.
Whether or not treaties override custom depends
on the intention of the parties. If the treaty is
intended to be declaratory or customary law, it
may be seen as evidence of customary law.
If a treaty comes later than a particular custom, as
between the parties to the treaty, the treaty should
be prevail. A treaty manifest a deliberate choice
of the parties and the principle of pacta sunt
servanda.
For an instance, in the Wimbledon Case, although
the PCIJ recognized that customary international
law prohibited belligerents from ferrying
armaments through a neutral state, the Court said
that Article 380 of the Treaty of Versailles opened
the Kiel Canal to passage “to the vessel of
commerce and of war of all nations at peace with
Germany on terms of entire equality.” It follows
that canal has ceased to be an internal and
national navigable waterway, the use of which by
the vessels of the states other than the riparian
state is left entirely to the discretion and the state,
and it has become an international waterway
intended to provide under the treaty guarantee
easier access to the Baltic for the benefit of all
nations.
However, if a later treaty is contrary to customary
rule that has the status of jus cogens, custom will
prevail. A treaty is void, if at the time of its
conclusion, it conflicts with a peremptory norm
of general international law. 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.
Where custom develops after a treaty, the rule is
not clear. The logical rule perhaps should be that
the later custom being the expression of later will,
should prevail. But such an approach would
militate against the certainty of treaties.
In practice, however, an attempt is made to keep
the treaty alive by efforts at reconciling a treaty
with the developing custom.
Example: reconciliation is the Anglo-French
Continental Shelf Case, the issue was the
applicability of the equidistance principle in the
delimitation of the continental shelves of the
United Kingdom and France. The court does not
overlook that under Article 6 the equidistance
principle ultimately possesses an obligatory force
which does not have in the same measure under
the rules of customary law, for Article 6 makes
the application of the equidistance principle a
matter of treaty obligation for parties to the
convention. (The obligation to apply the
equidistance principle is always one qualified by
the condition unless another boundary line is
justified by special circumstance.)
Multilateral Treaties – which a large number of
states are parties which lay down general rules of
conduct for the parties for them.
Example: Vienna Convention on Diplomatic
Relations. They are referred as law-making
treaties.
Whatever dignity treaties may lose by not being a
formal source of law, in practice they are a very
and increasingly, important source of state’s
rights and duties.
GENERAL PRINCIPLES OF LAW
Refers not to the principles of international law
but to principles of municipal law common to the
legal systems of the world. They may be said to
belong to no particular system of law but are
evidence rather of the fundamental unity of law.
Either become part of the customary law or have
been incorporated into conventional international
law.
These restatement refers to the supplementary
rules of international law. These may be found in
judicial decisions and teaching of the most highly
qualified publicists of the various nations which
the stature refers to as subsidiary means for the
determination of rules of law.
Example:
It is general conception of law that every violation
of an engagement involves an obligation to make
reparation.
Affirmation that private rights acquired under one
regime does not cease upon change of
government.
Principle of estoppel.
The affirmation of general principles of law
found in domestic system as a source of
international law makes up for the fact that there
is no international legislative system.
If the Court were to decide the case in disregard
of the relevant institutions of municipal law, it
would invite serious difficulties.
It is to rules generally accepted municipal
systems and not to the municipal law of particular
state.
WALDLOCK, GENERAL COURSE ON
PUBLIC INTERNATIONAL LAW
Article 38 has the effect of incorporating “natural
law” in international law and even claim that
positive rules of international law are invalid if
they conflict with natural law.
Paragraph C adds nothing to what is already
covered by treaties and custom; for these
authorities hold that general principles of national
law are part of international law only to the extent
that they have been adopted by States in treaties
or recognized in State practice.
General principles recognized in national
constitute a reservoir of principles which an
international judge is authorized by Article 38 to
apply in an international dispute, if their
application appears relevant and appropriate in
the different context of their Inter-State relations.
The Travaux preparatoires of Article 38 and the
decisions of international tribunals support the
taken by majority. (Official record of negotiation
use in clarifying the intentions of a treaty.)
Even when apparently relying on this source of
law, the Court has not infrequently either referred
also to customary law or left it ambiguous as to
whether it was speaking of general principle of
national or international law.
The main spheres in which these principles have
been held to apply have been either the general
principles of legal liability and reparation for
breaches of international obligations or the
administration of international justice.
CHORZOW FACTORY CASE:
A party cannot take advantage of its own wrong,
as principle “generally accepted in the
jurisprudence of international arbitration as well
as by municipal courts. It is general conception of
law that every violation of an engagement
involves an obligation to make reparation, and it
went on speak of restitution and damages.
There are number of reference to general
principles of law in connection with questions of
jurisdiction, procedure, evidence or other aspects
of the judicial process; circumstantial evidence,
this indirect evidence is admitted in all systems of
law, and its use is recognized by international
decisions.
In inter-state relations, the court transport into
international law substantive doctrine of national
law; as different from principles of legal liability
and reparation.
Common law is authorized to apply under Article
38, paragraphs (b) and (c) very much as a single
corpus of law. Paragraph c adds a flexible
element which enables the court to give greater
completeness to customary law and in some
limited degree to extend it.
It is never question of importing into international
law private law institution ready made and fully
equipped with a set of rules.
It is rather a question of finding in the private law
institutions indications of legal policy and
principles appropriate to the solution of the
international problem in hand. It is not the
concrete manifestations of a principle in different
national systems, but the general concept of law
underlying them that the international judge is
entitled to apply under paragraph C.
Phrase, “Civilized nations”
Purpose: To leave out of account undeveloped
legal systems so that a general principle present
in the principle legal systems of the world would
not be disqualified from application in
international law merely by reason of its absence
from, for example, the tribal law of a backward
people.
General principles of recognized in the legal
systems of independent states.
Does this mean that today a principle has to pass
the test of a hundred legal systems and that in this
legal tower of Babel no principle will ever be a
able to qualify for application under paragraph c?
1. some of the principal European systems
of law have penetrated over large areas of
the globe, mixing in the greater or less
degree with the indigenous law and often
displacing it in just those spheres of law
in which we have seen that international
law has most readily borrowed from
domestic law. There is a much larger
unity in the fundamental concepts of the
legal systems of the world today than
there might otherwise have been.
2. It was never intended under paragraph c
that proof should be furnished of the
manifestation of a principle in every
known legal system considered to be
civilized; and it has never been the
practice of the court to insist upon proof
of manifestation of principle or to
indulge in elaborate comparative studies
of the legal systems of the world. Judges
have taken into account their own
knowledge of the principles of the
systems in which arbitrators were
themselves trained; and these would
usually have been common law, roman
law, Germanic systems.
Paragraph C was necessary to meet the possibility
of a non liquet (a situation where there is no
applicable law)
A rule answers the question what, a principle
answers the question why.
The general principles referred to were those
which were accepted by all nations such as certain
principles of procedure, the principle of good
faith and the principle of res judicata. (a matter
that’s has been adjudicated by a competent court
may not be pursued further by the same parties.)
There is identity of parties, subject matter, and
causes of action
There is "bar by prior judgment" when, as
between the first case where the judgment was
rendered and the second case that is sought to be
barred, there is identity of parties, subject matter,
and causes of action. In this instance, the
judgment in the first case constitutes an absolute
bar to the second action.
But where there is identity of parties in the first
and second cases, but no identity of causes of
action, the first judgment is conclusive only as to
those matters actually and directly controverted
and determined and not as to matters merely
involved therein. This is the concept of res
judicata known as "conclusiveness of judgment."
Stated differently, any right, fact or matter in
issue directly adjudicated or necessarily involved
in the determination of an action before a
competent court in which judgment is rendered
on the merits is conclusively settled by the
judgment therein and cannot again be litigated
between the parties and their privies, whether or
not the claim, demand, purpose, or subject matter
of the two actions is the same.
Concept of Unjust Enrichment is widely
accepted.
BARCELONA TRACTION CASE
Lifting the veil principle is found to be admitted
by municipal law generally, when deciding that
in exceptional circumstance, the national state of
the shareholders of a company could act to protect
them in the place of the national state of the
company. Legal decision to treat the rights and
duties of corporation as the rights and liabilities
of its shareholders.
Ex injuria jus non oritur – the does not arise from
injustice/unjust acts cannot create law.
Actio popularis was known only to certain legal
systems and hence was not a general principle.
(lawsuit brought by a third party in the interest of
the public as a whole.)
Unius est excluision alterius was held to be a
principle rooted in a good sense and common
practice of the generality of civilized nations, but
the English rule that grants by a sovereign should
be construed agains the grantee was not. (Express
mention of one thing, includes others; when one
or more things of class are expressly mentioned
the same class are excluded.)
DIVERSION OF WATER FROM MEUSE
CASE
Equity have long been considered to constitute
part of international law and such as they have
been applied by international tribunals.
The court has not been expressly authorized by
the statute to apply equity as distinguished from
law. However, article 38 expressly direct the
application of general principles of law
recognized by civilized nations and in more than
one nation principles of equity have an
established place in the legal system.
The Court’s recognition of equity as part of
international law is allowed by the special power
conferred upon it. The Court has some freedom to
consider principles of equity as part of the
international law which must apply.
RIVER MEUSE CASE
Netherlands had complained that certain canals
constructed by Belguim were in violation of an
agreement in that construction would alter the
water level and rate of flow of the Meuse River.
The Court rejected the Netherlands claim and a
Belgian counterclaim based on the construction
of a lock by the Netherlands at an earlier time.
Principle of equity: where two parties have
reciprocal obligation, one party which is engage
in a continuing non-performance of that
obligation should not be permitted to take
advantage of a similar non-performance of that
obligation by the other party.
Equality is equity: he who seeks equity must do
equity. A court of equity refuses relief to a
plaintiff whose conduct in regard to the subject
matter of the litigation has been improper.
Equity has both a procedural and substantive
aspect. Procedurally means a mandate given to a
judge to exercise discretion in order to achieve a
determination that is more equitable and fair.
Different kinds of equity
Within the law – adapted to the facts of the case;
beyond the law – sued to fill gaps within the law;
against the law – refusal to apply the law which
is seen as unjust.
“the Netherlands claimed that Belgium had
infringed a treaty obligation by building canals
that altered the flow of water in the River Meuse.
Netherlands has lost the right to bring its claim
because of similar earlier conduct on its part.
Gulf of Maine case, “the concept of acquiescence
and estoppel in international law follow from the
fundamental principles of good faith and equity
In what different ways was the Court using equity
when applying the sources of law in these cases?
As a general principle of law? As a concept found
in a state practice and hence a part of custom?
Reliance upon equity, and unduly subjective and
uncertain element into international law. (Equity
is simply reflection of the judge’s perception.)
In UN, equity has been referred to in General
Assembly resolutions and other documents
concerning the New International Economic
Order as part of a distributive justice argument
favoring the establishment of new economic
order that is more sympathetic to the needs of
developing countries.
The task of the court is to apply equitable
principle and to balance up the various
considerations which regards as relevant in order
to produce an equitable result.
Law-making treaties also now commonly rely
upon equity, with the Law of the Sea Convention,
being a striking example.
Natural law is source of international law. The
law of nature may have been helpful to build a
new law of nations and the conception of
inalienable rights of men and nations may have
exercised salutary influence, but they have failed
as a durable foundation of either municipal or
international law and cannot be used in the
present day as substitutes for positive municipal
law.
Some general principles of law involve inherently
necessary principles of natural law. (Formal
source not merely material.)
Example:
Pacta Sunt Servanda – a state or government
cannot plead the provisions or deficiencies of its
own internal laws or constitution as ground or
excuse for non-compliance with its international
obligations.
JUDICIAL DECISIONS
Subsidiary means for the determination of the
rules of law.
Decisions of the courts have no binding force
except between parties and in respect of that
particular case. Hence, such decision do no
constitute stare decisis.
The decisions of the ICJ are not only regarded as
highly persuasive in international circles; they
also have contributed to the formulation of
principles that have become international law.
ICJ is the source of principles recognizing the
international personality of international
organizations, the doctrine on “genuine link”
between a person and a state for purpose of
jurisdiction, and the straight baseline method in
drawing baselines for achipelagos.
Stare decisis - once a question of law has been
examined and decided, it should be deemed
settled and closed to further argument. This
simply means that a ruling on a certain state of
facts established in a final decision of the
Philippine Supreme Court has to be followed in
subsequent cases by all courts in the land where
the facts are substantially the same, regardless of
whether the parties and property are the same.
Courts are bound by prior decisions. Thus, once a
case has been decided one way, courts have no
choice but to resolve subsequent cases involving
the same issue in the same manner.
The focal point of res judicata is the judgment.
The principle states that a judgment on the merits
in a previous case rendered by a court of
competent jurisdiction would bind a subsequent
case if, between the first and second actions, there
exists an identity of parties, of subject matter, and
of causes of action.
On the other hand, the focal point of stare decisis
is the doctrine created. The principle, entrenched
under Article 8152 of the Civil Code, evokes the
general rule that, for the sake of certainty, a
conclusion reached in one case should be
doctrinally applied to those that follow if the facts
are substantially the same, even though the
parties may be different.
SCHWARZENBERGER, INTERNATIONAL
LAW
(Stare decisis)
Difference between a binding and persuasive
authority of judgment.
A perusal practice of World Court will reveal
consistency in its judgment. It did not hesitate to
refer from its previous judgments and advisory
opinions. (greater degree of responsibility and
care that a average lawyer shows when he deals
in judicial capacity with real issues as compared
with private comments on such issue or the
discussion of hypothetical case. Difference
between practicing shooting with dummy
ammunition at a wooden target and firing with
live ammunition at a living target.)
Where a case is argued by experienced counsel
from widely differing legal training, it more
likely that an all-round view of the matter will be
taken where the same topic is turned over by a
writer in the isolation of his study.
World court – law-determining agencies. The
persuasive character of its judgments and
advisory opinions depends on the fullness and
cogency of the reasoning offered. Least
convincing statements on international law made
by ICJ excel by remarkable economy of
argument.
Minority opinions of judges who could not square
it with their judicial conscience to join the
“compact majority” may constitute evidence of a
kind which has an intrinsic value than any of
particular majority opinion.
In the investigation of the rules of modern law of
nations, particularly with regard to the extensive
field of maritime capture, reference is generally
and freely made to the decisions of the English
courts. They contain more intrinsic argument,
more full and precise details.
The judges of municipal courts are more likely to
suffer from subconscious national bias than a
body of international judges drawn from all
quarters of the globe.
Cases do not make law. The decision of the Court
has no binding force except between parties and
in respect of particular case.
Although judgments do not constitute a formal
source of law, those of World Court at least play
a larger part in the development of international
law than theory might suggest.
World Court as any other international court or
tribunal is by no means the mechanical recorder
of law that might be supposed, a fact which
becomes important in assessing the contribution
of the Court because of undoubted influence that
its pronouncements have on subsequent state
practice.
The decision in a particular case has a deep
repercussions, particularly in international law,
because views which have been confirmed by that
decision acquire quasi-legislative value, in spite
of the legal principle to the effect that decision
has no binding force except between the parties
and in respect of that particular case.
One exceptional instance of a ruling by the court
not finding general acceptance is that in the Lotus
case on criminal jurisdiction in respect of
collision at sea as well as the “preferential fishing
rights.”
International Courts not only do not make law,
they are also not bound by their previous
decisions as to the law which they apply. Despite
their absence of a doctrine of binding precedent,
the word court does tend to follow or feel the need
to distinguish its own jurisprudence.
Often the court will cite its own case law for
preposition and not bother to refer to state
practice supporting it.
Other international courts that decide more than
one case tend naturally to build up a consistent
jurisprudence too.
Although there is no hierarchy of courts, the
World Court is indisputably pre-eminent and its
judgment and advisory opinions are highly
persuasive for other international courts.
The persuasiveness of the pronouncement of
international court depends upon their intrinsic
merit.
THE TEACHINGS OF HIGHLY
QUALIFIED WRITERS AND PUBLICISTS
The extent to which they are referred to depends
on the tradition of the court or of individual
judges.
In common law jurisdiction, there is reluctant to
use them, more so in the US than in Britain. The
ICJ is generally reluctant to refer to writer but
they are often taken into consideration.
Publicists are institutions which write on
international law.
International Law Commission – an organ of the
U.N
International Law Commission – a multinational
body; Restatement of Foreign Relations Law of
the United States; the annual publication of the
Hague Academy of International Law.
It should be noted that these institutions are
generally government sponsored, hence, they
bear within themselves a potential for national
bias.
PARRY, THE SOURCES AND EVIDENCE
OF INTERNATIONAL LAW
Subsidiary status.
No legal order wherein the publicist has played a
greater part than international law.
Grotius is the father of law of nations and at the
beginning of the last century, all states seemed to
rely heavily on Vattel.
As the body of judicial decisions increases, the
authority of the commentator is diminished.
The literature of international law possesses
evident defects. The writers of one country thus
reflect their national legal tradition and technique
rather than any national political viewpoint.
By attracting attention to international practice
and apprising it, the writers indirectly influence
its further evolution, that is the development of
customs.
They were largely responsible for establishing the
basic idea that there was such a thing as law
governing the relations between states.
Their statements of the law were derived by
deduction from natural law principles and by
generalization from what state practice they could
find.
Naturalists – based international law on natural
law; Positivist based it on the consent of states
evidence in state practice; Eclectic relied on both.
It is true that the great majority of writers show a
very marked tendency to restrict the
responsibility of the states. Their doctrines are
frequently politically inspired and represent a
natural reaction against unjustified intervention in
the affairs of certain nations.
GENERAL ASSEMBLY RESOLUTION
Related to customary international law as one of
the elements required for the validation of a
customary rule: practice or usage and opinion
juris.
Unless one takes the extreme and untenable,
position that only physical acts constitute
practice, General Assembly Resolutions which
are collective pronouncements of States must be
considered a part of State practice.
State Practice is any or or statement by a state
from which views about customary law can be
inferred; include physical acts, claims,
declarations in abstracto, national judgment,
national laws.
State practice may be evidenced either in
declarations of general principle or in resolutions
dealing with particular cases.
With respect to declarations of general principles
it may be objected that the practice, to be
constructive of custom, must relate to a specific
claim or dispute.
Resolutions may satisfy the subjective element of
customary international law by expressly
articulating a belief concerning the existence of
principles and rules of international law.
Such belief may also be complied either by the
terms and context of a resolution or by the
circumstance surrounding its adoption,
particularly if the resolution is dealing with a
specific dispute or situation.
OTHER SUPPLEMENTARY EVIDENCE
UN RESOLUTIONS
Declarations of legal principles and resolutions
by the United Nations are generally considered
merely recommendatory, But if they are
supported by all the states, they are an expression
of opinion juris communis.
But growing a number of weaker nations, who
have a very substantial vote, feel that U.N
resolutions should have the force of law. It can
also be the reflection of what has become
customary law.
SOFT LAW
Non-treaty agreements. They are international
agreements not concluded as treaties and
therefore not covered by the Vienna Convention
on the Law of Treaties.
Source of soft law is administrative rules which
guides the practice of states in relation to
international organization. They can be carried
out with the varying degrees of consistency and
uniformity that may eventually ripen into
customary law or become formalized later on its
treaties.
It plays an important role because states prefer
non-treaty obligations as a simpler and more
flexible foundations of their future relations. The
difference lies mainly in the wish of the parties to
model their relationship in a way that excludes the
application of treaty of customary law on the
consequences of breach of obligation.