B.A. LL.B. (Five Years) Sem 7 Public International Law 2018 Dec Question Paper with Solutions

What a source is

A formal source is what gives a rule its binding force, such as a treaty or a custom. A material source is where the content of a rule comes from, such as a draft of the International Law Commission. International law has no legislature. So it needs an agreed list of the ways in which binding rules arise.

Article 38(1) of the ICJ Statute

Article 38(1) gives the list. The Court, "whose function is to decide in accordance with international law such disputes as are submitted to it", shall apply:

1. international conventions, "whether general or particular, establishing rules expressly recognized by the contesting states";
2. international custom, "as evidence of a general practice accepted as law";
3. "the general principles of law recognized by civilized nations";
4. 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", subject to article 59.

2. International custom

Custom needs a general practice and its acceptance as law. The leading case is the North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969, p. 3. The Court asked whether the equidistance method had become custom. The practice had to be extensive and virtually uniform, "including that of States whose interests were specially affected". It also had to show a general recognition that a rule of law was involved. Neither was shown.

A custom may bind only two States. In Right of Passage over Indian Territory (Portugal v. India), judgment of 12 April 1960, the Court found "a constant and uniform practice allowing free passage" for Portuguese private persons, civil officials and goods. It was "accepted as law by the Parties".

3. General principles of law

These are principles common to the main legal systems, used by the Court where treaty and custom are silent. They prevent the Court from having to say that there is no law.

4. Judicial decisions

Under article 59, "The decision of the Court has no binding force except between the parties and in respect of that particular case". There is no rule of binding precedent. But the Court follows its own earlier reasoning in practice, and its decisions are the most authoritative statements of the law.

Arbitral awards count too. The Island of Palmas Case (Netherlands v. United States), (1928) 2 RIAA 829, still supplies the law of territorial title, including the rule that "continuous and peaceful display of territorial sovereignty ... is as good as a title". The Trail Smelter Arbitration (United States v. Canada), 3 RIAA 1905 (1938 and 1941), is the starting point of the rule against serious transboundary harm.

National courts also contribute. In The Paquete Habana; The Lola, 175 U.S. 677 (1900), the United States Supreme Court traced centuries of practice and held that coast fishing vessels were exempt from capture as prize of war.

1. General Assembly resolutions. They are mostly recommendations, but they can evidence custom. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment of 27 June 1986, the Court found opinio juris for the ban on force partly in States' attitude to resolution 2625 (XXV). In the Western Sahara opinion of 16 October 1975, the Court applied resolution 1514 (XV) and the principle of self-determination.
2. Binding decisions of the Security Council. The Namibia opinion of 21 June 1971 applied article 25 of the Charter. Members must comply with Council decisions, including Members that voted against them.
3. Unilateral declarations. In Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ Series A/B, No. 53 (1933), Norway was held bound by its Foreign Minister's declaration of 22 July 1919.

The order of sources

Article 38 sets no formal hierarchy, though the Court usually turns first to the most specific evidence of the parties' consent, a treaty. Two rules stand above the rest. A treaty is void if it conflicts with a peremptory norm (VCLT, article 53). And Charter obligations prevail over obligations under any other international agreement (Charter, article 103).

Conclusion. The sources of international law are listed in article 38(1) of the ICJ Statute. Treaties bind their parties (Asylum Case), and custom binds States generally or locally (North Sea, Right of Passage). General principles fill the gaps (Chorzow, Corfu Channel). Judicial decisions and writers are subsidiary means, though decisions bind only the parties (article 59). Equity applies by agreement or as equitable principles within the law. Outside the list, Assembly resolutions evidence custom (Nicaragua), Council decisions bind (Namibia), and unilateral declarations may bind (Eastern Greenland). Over all stand jus cogens and Charter article 103.