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Virally provides a good introduction law to ources o !nternational law"
#y" Gesal $arie %rno&a
He begins with saying " '!nternational law, as any other species o law, invests its
(sub)ects* with rights and duties. uch is the unction o all legal systems, and the
result is that every such system, together with the rules which compose it, stands
above its sub)ects and has or them an obligatory characternot a+ected by the
act that the principal (sub)ects* o international law are sovereign political units,
namely, states.
%ccording to Virally to is also true in international law the sub)ects o international
law is co-eual because each state is a sovereign in itsel we have rights and rules
that provides duties to state. %ccording to Virally we don*t need to answer theuestion how can international law be building, because,
For all practical purposes the proposition already laid down will su/ce international
law e0ists and it is universally agreed that states are bound by it. 1For him it is no
longer a uestion 2hether !nternational 3aw is binding on tates. !t is a aith
%ccompli, meaning !t is an accomplish act, you don*t argue, don*t uestion the
e0istence, and its obligatory toward the tates. 4o him what is important to 5now is"
what international law orbids, permits or reuires to be done67
2hen a state claims that another state*s action is orbidden, what does the state
do8 4hat state prove that the other tate*s act is in violation o international law.4hat international law reuire such state to do such conduct. 4he uestion really is
how can a state fnd a basis in international law. #ecause when state can fnd one,
then the state can enorce that rule, which orbids that state*s conduct. o Virally
said the solution is the doctrine o sources o international law. 9nli5e in municipal
law , the tas5 o the lawyer is to invo5e the proper law and apply the acts o such
law, li5e i criminal law you go to revised penal code, but that is not the case o
international law because you need to search or the sources. %nd it is a convention,
that sources o !nternational law is provided by %rticle 6: o !;< statute, the statute
that constituted the !nternational ;ourt o page ?6 Virally, 4he ources o !nternational 3aw. =age ?
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#y" Gesal $arie %rno&acontext of international law. There is no ode of International !aw". International law has no #arliament and nothing that canreally be described as legislation. While there is an International ourt of $ustice and a range of specialised international courts
and tribunals, their %urisdiction is critically dependent upon the consent of &tates and they lac' what can properly be described
as a compulsory %urisdiction of the 'ind possessed by national courts.The result is that international law is made largely on a decentralised basis by the actions of the ()* &tates which ma'e up the
international community. The &tatute of the I$, +rt. - identifies five sources/
0a1 Treaties between &tates2
0b1 ustomary international law derived from the practice of &tates20c1 3eneral principles of law recogni4ed by civilised nations2 and, as subsidiary means for the determination of rules ofinternational law
0d1 $udicial decisions and the writings of the most highly qualified publicists".
This list is no longer thought to be complete but it provides a useful starting point. 4
4he !;< statute is organi&ed according to articles, class ! want you to integrate the
articles, that you ma5e your own outline, you pic5 the article which you thin5 belong
to one category, you ma5e your own organi&ation, and ! will fnd out, i your
organi&ation is a disorgani&ation @heheA, it is a challenge, so it ta5es reading o the
!;< statute, and the ;enter o the tatute is %rticle 6:. #ut now it is a great act that
article 6: provides or a sources o international law,
4his humble writer would li5e to cite the argument by =roessor Green wood that
strictly spea5ing %rticle 6: o the !;< tatue is not a source o law@ with the same
obligatory character with regard contracts as a source o obligation in municipal
law, since in international law a treaty is sub)ect to those parties who gave their
consent thertoA,Bbut only so due to the customary norm in article 1C o V;3D4
which is '=acta unt ervanda . 2hile Father #ernas in his boo5 '!ntroduction to
=ublic !nternational 3aw wrote that %rticle 6: o the !;< is not a source o law but a
directive to the court. !n his boo5 Father #ernas e0plained "
!t is interesting, however, that the most widely accepted statement o the 'sources
o international law, that is, %rticle 6:@A o the tatute o the !nternational ;ourt o
4he writer o this term paper would li5e to insert this article 'ources o !nternational 3aw"%n !ntroduction#y"=roessor ;hristopher GreenwoodB4reaties
4reaties @sometimes called agreements, conventions, e0changes o notes or protocolsAbetween tates > or sometimes between tates and international organi&ations > are the
other main source o law.trictly spea5ing a treaty is not a source o law so much as a source o obligation under law.
4reaties are binding only on tates which become parties to them and the choice o whetheror not to become party to a treaty is entirely one or the tate > there is no reuirement tosign up to a treaty. 2hy is a treaty binding on those tates which have become parties to it 8
4he answer is that there is a rule o customary international law > pacta sunt servanda >which reuires all tates to honour their treaties. 4hat is why treaties are more accuratelydescribed as sources o obligation under law. 4he writer o this term paper would li5e toinsert this article 'ources o !nternational 3aw" %n !ntroduction#y"=roessor ;hristopherGreenwood.
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#y" Gesal $arie %rno&a
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#y" Gesal $arie %rno&a. 4he ;ourt, whose unction is to decide in accordance with international law
such disputes as are submitted to it, shall apply" @ 2hat is its unction8 4o
decide, to ad)udicate meaning when u decide there parties, a classical
e0ample is a police manA
#oy " ir . ani man ni sir @bla blaA
=olice3" sa5to 5a
#oy 1" di man na pwede sir sa5to 0a, a5o sa5to sad
=olice" sa5to 5a
@Dutsider A#oy 6" ah sus, binuang sad, di man na pwede puro sila sa5to ..
=olice" sa5to pud 5a..
2hole class here laughed , hehe @KLKA hehe ir said ' ! have policemen as relatives,
! get those things everyday so everybody happy , hehe 5insa man malipay sato sad
ang usa
#ut D5 guys that*s international law
a. international conventions, whether general or particular, establishing rules
e0pressly recogni&ed by the contesting states7
b. international custom, as evidence o a general practice accepted as law7
c. the general principles o law recogni&ed by civili&ed nations7
d. sub)ect to the provisions o %rticle B?, )udicial decisions and the teachings o the
most highly ualifed publicists o the various nations, as subsidiary means or the
determination o rules o law.
1. 4his provision shall not pre)udice the power o the ;ourt to decide a case e0
aeuo et bono, i the parties agree thereto.
4he court who*s unction is to ad)udicate conicts, on the basis o international law
on the basis o international law, can in ad)udicating disputes in accordance
international law the !;< ought to apply % to M so you get now where these sources
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%rticle 1C ' =acta sunt servanda
Every treaty in orce is binding upon the parties to it and must be perormed by
them in good aith.
#y" Gesal $arie %rno&acome in repeat the court the unction o which is to decide controversies on the
basis o international law, ought to apply, "
%. 2hat is %8 2hen you say international convention what is it8 %nswer" 4reaty ,
an !nternational ;onvention, give me a general international convention8
Iot
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%rticle 1O !nternal law and observance o treaties
% party may not invo5e the provisions o its internal law as )ustifcation or its ailure
to perorm a treaty. 4his rule is without pre)udice to %rticle C.
%rticle C =rovisions o internal law regarding competence to conclude treaties
. % tate may not invo5e the act that its consent to be bound by a treaty has
been e0pressed in violation o a provision o its internal law regarding
competence to conclude treaties as invalidating its consent unless thatviolation was maniest and concerned a rule o its internal law o undamental
importance.
1. % violation is maniest i it would be ob)ectively evident to any tate
conducting itsel in the matter in accordance with normal practice and in good
aith..
#y" Gesal $arie %rno&a
o as to %rticle 1O e0ample
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#y" Gesal $arie %rno&aa. international conventions, whether general or particular, establishing rules
e0pressly recogni&ed by the contesting states7
b. international custom, as evidence o a general practice accepted as law7
%rticle 6: now paragraph @aA was a general or particular establishing rules
e0pressed by consenting states,
Ie0t international custom, or in short customary law, a treaty law, b customary law
'as evidence o state practice, and opinion )uris sive necessitates ' an opinion o
law or necessity, simply put it means this, when states practice a particular conduct
and they practice this conduct because they believe it is their legal obligation then
such practice is binding,
so anyone who do that is sanctioned by international law, so i anyone who does
not do that is ought to be punished by !3,
Q" does this result to the obligatory o such act8 Pes though no due to the treaty
law*s obligatory character but because o customary law.
o what is the common trend8 % and # are sources o obligations,
4he di+erence is % reerring to treaty 3aw, mas sayun mas direct, it*s easier to
prove, but letter # is not any lesser, i a Iormis )udge to be a cusomtary norm, by
that we mean there is gen state practice and opinion )uris, then that law ought not
to be inringed upon, but ought to ollowed by states, so that norm is obligatory,
4his humble %uthor would li5e to cite the argument made by =roessor Greenwood
that or those !nternational ;onventions codiying international customs binds
those who are not made party with the ormer,
But many treaties are also important as authoritative statements of customary
law. A treaty which is freely negotiated between a large number of States is often
regarded as writing down what were previously unwritten rules of customary law.
That is obviously the case where a treaty provision is intended to be codicatory of
the existing law. A good example is the ienna !onvention on the "aw of Treaties#
$%&%. "ess than half the States in the world are parties to it but every court which
has considered the matter has treated its main provisions as codifying customarylaw andhas therefore treated them as applying to all States whether they
are parties to the Convention or not.'(
Ie0t letter ;,
O;hristopher Greenwood. 'ources o !nternational 3aw" %n !ntroduction.
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#y" Gesal $arie %rno&ac. the general principles o law recogni&ed by civili&ed nations7
general principle o law 'estoppel you cannot come to court with unclean hands,
are these binding to all states8 Pes. %re the embodied in treaty law8 $aybe, do they
constitute customary norm8 maybe
but they are generally 5nown as general principles o law binding to states.
#ut ub)ect to article B?
o read %rticle B? 4he decision o the ;ourt has no binding orce e0cept between
the parties and in respect o that particular case.
Moes res )udicata apply to international law8 Io , basis8 !s article B?, guys this
uestion has been as5ed several times sa #%. #ut yes on what basis loo5 art 6:
@dA sub)ect to article "
d. sub)ect to the provisions o %rticle B?, )udicial decisions and the teachings o the
most highly ualifed publicists o the various nations, as subsidiary means or the
determination o rules o law.
o ater all there is an opening or res )udicata, which is %rt 6: @dA ,so in short the
!;< who*s unction is to decide in accordance with international law, disputes
between state that are submitted to it may apply )udicial decisions and the
teachings o the most highly ualifed publicists o international law.
#ut as what8 #ut as 'subsidiary means or the determination o rules o law.
4he classic uestion in art 6: is this "
!s there a hierarchy a among the ources o !nternational law8
a. international conventions, whether general or particular, establishing rules
e0pressly recogni&ed by the contesting states7
b. international custom, as evidence o a general practice accepted as law7
c. the general principles o law recogni&ed by civili&ed nations7
d. sub)ect to the provisions o %rticle B?, )udicial decisions and the teachings o the
most highly ualifed publicists o the various nations, as subsidiary means or the
determination o rules o law.
1. 4his provision shall not pre)udice the power o the ;ourt to decide a case e0
aeuo et bono, i the parties agree thereto.
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#y" Gesal $arie %rno&a
4he classic uestion in art 6: is this "
!s there a hierarchy a among the ources o !nternational law8
2hich mean a and b are the principal sources., this uestion has been reinorced bythat act that letter b, the phrase subsidiary means, which might mean that a and c
are the principal sources, is there a hierarchy8 !nternational law e0perts would not
agree on an answer but agree that # and ; are not subsidiary, because M is
subdiary.
Q" among the principal sources is there a hierarchy8 Mo we mean that c. the general
principles o law recogni&ed by civili&ed nations7 are lesser sources compared to
international custom, do we mean international custom is lesser as sources o law in
comparison to international conventions8
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#y" Gesal $arie %rno&a;hristopher Greenwood. 'ources o !nternational 3aw" %n !ntroduction.
4he e0planation given is as to
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#y" Gesal $arie %rno&a
=arties can come to court and say ' your e0cellencies can we do away with
custom, treaty law, with genral principles o law, and ocus on euity, that is our
agreement.
4he court cannot say "Io no we need to apply treaty law., bec when the parties
agree, 4HEI D #E !4..
ecap
Article 38 Bernas mentioned that this article serves as a guideline
1. 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 contestingstates;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subect to the provisions of !rticle "#, udicial decisions and the teachings of the most highly $ualified publicists ofthe various nations, as subsidiary means for the determination of rules of law.
%. This provision shall not preudice the power of the Court to decide a case ex aequo et bono, if the parties agreethereto.
=3E%E GDM #3E $P 2DR
! there a hierarchy uality
!t maybe that % to ; are principal sources o law as indicated by the phrase
'subsidiary means in letter d
Pou ualiy % to ; are norm creating mechanisms, while M are the mechanisms o
proving the source or root o law which are already in e0istence, !a which could be
considered as pieces o evidence o e0istence o primary sources
#ut why is it that !@aA is in letter %8 because on the account o its nature, it is easier
to prove,
o i 1 parties come to court, the court should as5 then, did you agree on a matter
on this8 o guys it is a matter o convenience.NA
'%nd as to the issue again o hierarchy =roessor Greenwood in his article on
introduction o !nternational 3aw ac5nowledge that %rticle 6: @aA and @bA are themost important sources. 2hile treaties and custom are the most important sources
o international law, the others mentioned in %rticle 6: o the !;< tatute o the !; the
third source > are seldom mentioned in )udgments. 4hey are most oten employed
where the !;< or another international tribunal wants to adopt a concept such as the
legal personality o corporations @eg in the #arcelona 4raction ;o. case @?OJAA
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#y" Gesal $arie %rno&awhich is widely accepted in national legal systems. #ut international law seldom
adopts in its entirety a legal concept rom a particular national legal
system7 instead the search is or a principle which in one orm or another is
recogni&ed in a wide range o national legal systems.?
Dther ources"
Dther ources
4he list o sources in %rticle 6: o the tatute is reuently criticised or being
incomplete. !n particular, it ma5es no mention o the acts o the di+erent organs o
the 9nited Iations. 4oday there can be no doubting the importance o those acts in
shaping international law, although they perhaps ft within the system o %rticle 6:better than is sometimes imagined.
4he 9nited Iations General %ssembly has no power to legislate or the international
community7 its resolutions are not legally binding. However, many o those
resolutions have an important e+ect on the law-ma5ing process. ome resolutions
are part o the treaty-ma5ing process, attaching a treaty te0t negotiated in the
ramewor5 o the 9nited Iations and recommended to the $ember tates by the
%ssembly @this was the case with the ;onvention against 4ortureA. 2hile it is the
treaty which creates the legal obligation > and then only or the tates which choose
to become party to it > the importance o the 9nited Iations in the process o
creating that treaty should not be underestimated.
!n addition, as ! have already mentioned, the positions which tates ta5e in the
9nited Iations is part o their practice and a resolution @or seuence o resolutionsA
which commands a su/ciently widespread acceptance and which is regarded by the
tates as embodying a rule o international law can have an important e+ect on the
development o customary international law, so long as it is not contradicted by
what tates actually do
elsewhere @see, e.g., the discussion o the resolutions on nuclear weapons in the
%dvisory Dpinion on Iuclear 2eapons @??CAA.
4he studies o international law produced by the !nternational 3aw ;ommission or
the General %ssembly, especially i adopted by the %ssembly, may also have an
important e+ect on customary international law, even i they are not turned into
treaties @the !3; %rticles on tate esponsibility adopted in 1JJ are a good
e0ampleA.
?;hristopher Greenwood. 'ources o !nternational 3aw" %n !ntroduction.
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#y" Gesal $arie %rno&a4he position o the ecurity ;ouncil is somewhat di+erent. Mecisions ta5en by the
;ouncil under ;hapter V!! o the ;harter and ramed in mandatory terms are legally
binding on all tates @%rticle 1B o the ;harterA. $oreover, under %rticle J6 o the
;harter the duty to carry out a decision o the ;ouncil prevails over obligations
under all other international agreements @see the 3oc5erbie cases @??1AA. However,
the ;ouncil does not create new laws but rather obligations in relation to specifcissues and it is not a legislature @see the decision o the !;4P in 4adic @??BAA.
S ;hristopher
!n the previous paragraphs a Miscussion on Hierarchy o ources was made. Iow
4his humble writer would li5e to borrow the Miscussion on Hierarchy o Iorms J
. % Hierarchy o Iorms 8
% controversial uestion is whether there is a hierarchy o norms in international
law. %rticle 6: ma5es no reerence to such a hierarchy but it is possible to discern
elements o a hierarchy in certain respects. !t is now generally ac5nowledged that a
ew rules o international law are o such undamental importance that they have
the status o )us cogens, that is peremptory norms rom which no derogation is
permitted. 2hereas tates can always agree to depart @as between themselvesArom ordinary rules o customary international law, they are not ree to depart rom
or vary a rule o )us cogens. 4hus, a treaty which conicts with a )us cogens rule is
void @Vienna ;onvention on the 3aw o 4reaties, ?C?, %rticle B6A and such a rule
will prevail over inconsistent rules o customary international law.
However, it is important to bear in mind that @aA there are very ew rules which
possess the status o )us cogens @e.g. the prohibitions o aggression, genocide,
torture and slaveryA and the criteria or achieving such status are strict > near
universal acceptance not merely as a rule but as a rule rom which no derogation is
permitted7 @bA cases o conict are very rare and the suggestion that such a conict
e0ists should be careully scrutinised @see, e.g. the re)ection both by the !;< > %rrest2arrant case @1JJ1A > and the English courts > o the
suggestion that the law on sovereign immunity conicted with the prohibition o
tortureA.
J;hristopher Greenwood. 'ources o !nternational 3aw" %n !ntroduction.
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#y" Gesal $arie %rno&a% treaty prevails over customary law as between the parties to the treaty but a
treaty will not a+ect the rights o tates not party to that treaty. 4here is, thereore,
no strict sense o hierarchy between treaty and customary law, contrary to what is
sometimes alleged.