Sources of International Law

Question 1

What are the sources of International Law mentioned in Article 38 of the Statute of the ICJ?

Answer 1

• International Treaties
• International Custom
• General principles of law recognized by civilized nations
• Subsidiary means

Question 2

Are the ones mentioned in Article 38 of the Statute of the ICJ all the possible sources of International Law?

Answer 2

No, the list of sources of IL mentioned in Article 38 of the Statute of the ICJ is not exhaustive: there are other sources of international law which are not mentioned in Article 38, like, for example, acts produced by International Organizations.

Question 3

What is the definition of custom present in Article 38 of the Statute of the ICJ?

Answer 3

custom is general practice accepted as law

Question 4

What are the two elements that define a custom as such?

Answer 4

a) General practice: means that states must follow a certain behavior and this practice must be generalized to all states, coming from different parts of the world and with different cultural backgrounds
b) Opinio iuris: acceptance of the practice as law; States need to behave under the conviction that they are bound by the custom and that breaches of it would be violations of International Law

Question 5

Which of the following statements is NOT true?
a) Article 48 of the ICJ Statute mentions all the sources of international law
b) custom is a written source of law
c) custom is defined as “general practice accepted as law”
d) differently from treaties which only bound the the contracting parties (only the countries that signed the treaty), custom binds all states from the moment they are born

Answer 5

a (it’s article 38; + the list is not exhaustive)
b (custom is unwritten)

Question 6

What is function of the International Law Commission (ILC) ?

Answer 6

helping develop and codify international law (codify = write unwritten source of law; therefore ILC codifies international customary law)

Question 7

Which of these is NOT a source of international law?
a) treaties
b) acts produced by International Organizations
c) custom
d) general principles of international law
e) “final drafts” produced by the ILC (codification treaties)
f) they are all sources of international law

Answer 7

f

Question 8

Which of these is NOT a source of international law?
a) general principles of law
b) fundamental principles of international law
c) binding resolutions of the UN Security Council
d) ICJ judgments
e) they are all sources of international law

Answer 8

b

Question 9

Which of the following is NOT jus cogens?
a) Principle of self-determination of people
b) Prohibition of the use of force
c) Prohibition of the use of torture
d) Prohibition of genocide
e) freedom of speech

Answer 9

e

Question 10

What does “civilized nations” referred to general principles of law (Article 38 (1) (c) of the Statute of the ICJ) mean today?
a) nations of the West side of the world
b) it is a synonym of national legal systems (it simply mean “national laws”)
c) common law systems
d) civil law systems

Answer 10

b

Question 11

Which of the following statements on custom is NOT true?
a) States need to give their consent to be bound by custom
b) Custom is an unwritten source of international law
c) There can be rule of customary norm even if practice is inconsistent with that norm, what matters is that the behavior is treated as a violation of the customary norm
d) Jus cogens defines a form of customary rules with a very strong opinio iuris (opinio iuris cogentis)

Answer 11

a: no acceptance is needed by the State in order to be bounded by custom, meaning that States are bound from the beginning to international customary law even without their consent to it.

Question 12

What does Article 13 of the UN Charter say?

Answer 12

Article 13 of the UN Charter lists some of the function of the UN General Assembly, which include “encouraging the progressive development of international law and its codification” –> starting from this, the General Assembly created the International Law Commission (ILC) with the purpose of studying the content of international customary law, in order to write legal texts that reproduce the content of customs.

Question 13

Which of the following statements is NOT true on the International Law Commission (ILC)?
a) It is composed of 34 members which represent their states
b) The purpose of the ILC is to study the content of international customary law, in order to write legal texts that reproduce the content of customs
c) The drafts produced by the ILC before becoming a proper source of international law have to be approved by the General Assembly
d) Many times the final draft of the texts of the ILC are taken as basis for international treaties (like in the case of the 1969 Vienna Convention on the Law of Treaties)
e) The ILC is bound to strictly adhere to the custom, limiting itself to simply codifying it, without making any changes

Answer 13

a: it is composed of 34 members which, however, are NOT state representatives

e: The ILC can decide not to reflect the exact content of custom on purpose, for reasons of fairness or other reasons

Question 14

Which principle is usually used in international law to decide between two sources?

Answer 14

The principle of lex specialis: This means that when you have a conflict between a special source (a rule having a more specific content) and a more general rule, the more specific one is applied; yet, both sources remain valid (≠ hierarchy)
NB: As a general rule, in international law there is no hierarchy between sources

Question 15

Is the order in which the sources of international law are expressed in Article 38 of the Statute of the ICJ random?

Answer 15

No, The order of the sources in Article 38 of the ICJ Statute is not random, instead, it refers to the logical order in which the sources would be considered by the judge, following the principles of lex specialis (a judge would therefore apply firstly a more specific rule, like a treaty, if possible, and only if there are no treaties, apply a custom which is a more general rule, and so on)
It should be noted, however, that the order of sources in Article 38 is NOT a hierarchical order

Question 16

What is jus cogens?

Answer 16

Jus cogens are some norms which are non derogable, also called “peremptory norms”.
Jus cognes could be defined as a form of customary rules with a very strong opinio iuris (opinio iuris cogentis).

In the case of jus cogens hierarchy applies, as a matter of fact a treaty that conflicts with a norm of jus cogens is declared void (it is invalid)

Question 17

Which Article recognizes the existence of jus cogens?

Answer 17

Article 53 of the 1969 Vienna Convention on the Law of Treaties

Question 18

What is a Subordination clause?

Answer 18

A subordination clause is a statement within a treaty in which the treaty says that every other treaty prevails over its own provision

Question 19

What is a Prevalence clause?

Answer 19

A prevalence clause is the opposite of a subordination clause; it is a statement within a treaty, in which the treaty says that its provision PREVAILS over every other treaty

Question 20

What is the purpose of the general principles of law?

Answer 20

Their purpose is to FILL GAPS: The function of General principles is to avoid cases in which a court would not decide because there is no law to apply (function of general principles is to fill the gap). Therefore we can rely on these general principles when there is no treaty or custom.

Question 21

What are the subsidiary means Article 38 of the ICJ Statute talks about?

Answer 21

the subsidiary means mentioned in Article 38 are judicial decisions and the teaching of scholars

Question 22

What does Article 59 of the Statute of the ICJ say about judicial decisions as a source of international law? (NB: judicial decisions, with teaching of scholars, make the subsidiary means Article 38 (1) (d) of the ICJ Statute)

Answer 22

Article 59 of the Statute of the ICJ says that the decision of the Court (meaning the ICJ) has “no binding force except between the parties and in respect of that particular case”, meaning therefore two things:
1. The ICJ judgments are binding only for the parties, not on third parties
2. Precedents are not binding on courts; the ICJ is allowed to follow its precedents when it is appropriate to do so, but it is not compulsory

Question 23

What does Paragraph 2 of Article 38 of the Statute of the ICJ say?

Answer 23

It gives the court the possibility to decide a case ex aequo et bono, meaning on the basis of equity (instead of law), IF both parties agree

Question 24

What are the general principles of international law, and what is a case in which they were used?

Answer 24

General Principles of International law are the main legal rules in IL, derived logically by induction. Some examples of this are some humanitarian laws.

The general principles of international law of
a) consideration of humanity and
b) freedom of maritime communication were used as a source to fill the gap in the case of the Corfu Channel (UK v Albania), ICJ Judgment of 1949

Question 25

Is a promise made by a state an international obligation? (meaning therefore is it binding?)

Answer 25

Yes, as long as it respects these two conditions:
1. It is made with the intention to be bound, meaning the state must want to bind itself (subjective element)
2. the promise must be public (objective element)