HI - Week V - Sources of International Law II

(1)

Sources of

(2)

General Principles of Law



Article 38 (1) of the ICJ Statute :

The

general

principles

of

law

general

principles

of

law

recognized by civilized nations



Historical background : in order to

provide a solution in cases where

treaties and custom provided no

(3)



Three understandings :

– _{It allows the court to adopt specific}_{It allows the court to adopt specific}_rules_rules of procedure or maxims of law

of procedure or maxims of law which which are generally applied in national courts

are generally applied in national courts

– It permits the court to treat the principles _{It permits the court to treat the principles} of national law as a

of national law as a reservoir of reservoir of principles

principles from which general concepts from which general concepts of law can be derived and applied on the of law can be derived and applied on the

(4)

General Principles of Law

– _{It enables the court to discover and use}_{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

(5)

General Principles of Law



Rules of Procedure and maxims of

law

– _{Rules of procedure}_{Rules of procedure}_ preparatory works preparatory works



 to mean basic principles of legal to mean basic principles of legal

conduct

conduct  good faith good faith

– Maxims of law _{Maxims of law} nemo judex in causa nemo judex in causa

sua

(6)

General Principles of Law



Difficulties :

– _{limiting the development of international}_{limiting the development of international} laws since it depends absolutely on the laws since it depends absolutely on the traditional elements in national legal traditional elements in national legal

systems systems

– It runs the risk of letting a court simply _{It runs the risk of letting a court simply} label the situation before it in a particular label the situation before it in a particular case with a tag that does not correspond case with a tag that does not correspond

(7)

General Principles of Law



Temple of Preah Vihear Case (1962)

– Thailand v. Cambodia_{Thailand v. Cambodia}

– 1904, French rulers of Indo – China _{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_Borderline_ run along the watershed of run along the watershed of

a certain mountain range, unless a joint

commission decided otherwise

(8)

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

(9)



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

(10)



The reservoir of Principles

– _{Focuses on technical points}_{Focuses on technical points}

– for instance _{for instance} the principles of liability, the principles of liability,

reparations, exhaustion of local remedies



Natural Law

(11)

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

(12)

Judicial Decisions

 _{Courts are not obliged to follow}_{Courts are not obliged to follow}

previous decisions

 _{however, previous decisions almost}_{however, previous decisions almost}

always take into account

 _{judges create law}_{judges create law} ___{Reparations for}_{Reparations for}

Injuries Case

Injuries Case  strong probability that strong probability that

the Int’l court will follow such decisions

(13)

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

(14)

Other Sources



Acts of International Organizations

 _{General Assembly}_{General Assembly} ___{representative of}_{representative of}

States

States  customary of int’l law customary of int’l law

 _{Security Council}_{Security Council} ___{take decisions}_{take decisions}

which are binding

which are binding  Chapter VII of the Chapter VII of the

Charter

(15)

Other sources



Soft law

– Neither strictly binding norms of law nor _{Neither strictly binding norms of law nor}

completely irrelevant political maxims

completely irrelevant political maxims – _{Operates in a grey zone between law}_{Operates in a grey zone between law}

and politics

– can be found in treaties which are not _{can be found in treaties which are not}

(yet) in force or UN guidelines of

conduct