ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 12

Soft law refers to guidelines of behavior such as those provided by treaties not yet in force, resolutions of the United Nations, or international conferences, that are not binding in themselves but are more than mere statements of political aspiration (they fall into a legal/political limbo between these two states). Soft law contrasts with hard law, i.e. those legal obligations, found either in treaties or in customary international law that are binding in and of themselves.

Sources of international law are not as explicit and accessible as those of municipal law, nor is the machinery for their identification comparable to municipal law. However, the internationally accepted classification of sources of international law is formulated in Article 38 of the Statute of the International Court of Justice. These sources are:

Broadly speaking, the ICJ will resort to the following sources for deciding a dispute before it: treaties (conventions); custom; general principles of law; judicial decisions; juristic work on international law (the teachings of publicists); principles of equity and ex aequo et bono; General Assembly and Security Council resolutions and practices. Whereas treaties, custom, and general principles of law are the main sources of international law, judicial decisions and juristic work on international law fall into the category of subsidiary sources.

Accordingly, the sources of international law will be explained under the following headings below:

5. Other sources

Custom is a habitual course of conduct or general practice accepted as law. Custom evolves after a long historical process culminating in its recognition by the community. Custom may be treated as a source of law if it manifests the attributes of antiquity, certainty, continuity, consistency, and uniformity.

There are two requirements for a custom to be accepted as law: (i) there should be sufficiently uniform general practice accepted as law, and (ii) the belief that such a practice is obligatory.

Treaties have been classified into “general” and “particular”, as is done in Article 38(l)(a) of the Statute of the ICJ. A convention may be general either because of the number of parties (as being accepted by a large number of States), or because of the nature of its contents (which is of universal importance).

Non-liquet means “it is not clear.” In law, a non liquet is a situation where there is no applicable law. It refers to a situation in which a competent court or tribunal fails to decide the merits of a case for the absence of suitable law, the “it is not clear.”ness or ambiguity of rules, inconsistencies in law, or the injustice of the legal consequences.

Subrogation: The substitution of one person for another so that the person substituted succeeds to the rights of the other (Martin, 2003: 483).

Equity: In its broadest sense, equity is fairness. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of Common Law. It can be traced to England, where it began as a response to the rigid procedures of England’s law courts.

Article 38 of the Statute of the International Court of Justice identifies two subsidiary means for the determination of rules of law: a) judicial decisions, b) the teachings of the most highly qualified publicists of the various nations.