ULUSLARARASI KAMU HUKUKU I

The term ‘source’ articulates what the law is and where it can be found. In developed legal systems, sources may be readily identifiable in the form of legislation and judicial decisions. However, 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. The concept of ‘sources of international law’ faces many conceptual difficulties. Jurists of international law do not agree on the very concept of “source.” They evaluate it from their doctrinal philosophy regarding the basis of international legal obligations. A distinction has also been made between formal sources and material sources of international law. From formal sources, the law derives its authority or sanction, and from material sources, the law derives its content or subject matter.

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 vagueness or ambiguity of rules, inconsistencies in law, or the injustice of the legal consequences.

Resolutions of the General Assembly are sometimes referred to as soft law, since they cannot be classified as full-fledged rules of international law such as international custom, treaties, or general principles of law. However, resolutions meet, to a great extent, the criteria to be termed as law.Soft law consists of written instruments that spell out rules of conduct that are not legally binding and do not generate the requisite opinio juris contributing to customary rules but that lay down the trend for the future development of law.

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.

Article 38 classifies the sources of international law into two categories. Sub-paragraphs (a), (b), and (c) incorporate the law-creating process, which means that in any asserted rule of international law, it must be shown that it is the product of one or more of the three law-creating processes: treaties, customs, and general principles of law. Sub-paragraph (d), however, enumerates some of the means for the determination of alleged rules of international law. In the case of the law-creating process, the emphasis lies on the forms by which any particular rule of international law is created. This is being done through the law-determining agencies, (those stated in sub-paragraph d), that verify an alleged rule

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. Consequently, for a practice or usage to become a customary rule of international law, the following two factors are essential:

• A material fact: in similar circumstances States act similarly, in other words, usage has been constantly and uniformly practiced by States. 

• A psychological element: (opinio juris sive necessitatis) (an opinion of law or necessity) - the feeling on the part of States that in acting as they act they are fulfilling a legal obligation.

The two are often referred to as the objective (material) and subjective elements of custom respectively

For a practice to crystalize as a custom, it does not need to pass the test of universal acceptance. It is enough to show that the majority of States have accepted a particular practice. For example, in the matters related to maritime law, the practice of the United Kingdom and the United States is of special importance, just like the practice of the United States and Russia is significant in the law relating to outer space.

Acquiescence and mutual tolerance became the basis of the ICJ decision in the Anglo-Norwegian Fisheries case (UK v. Norway, 1951). The Court accepted the legality of Norway’s straight baseline system for delimiting its “Fishery Zone” by a 1935 decree. This decree was based on Norway’s earlier decrees of 1869 and 1889. No State had protested against them including the United Kingdom. The Court observed that there is a general tolerance with regard to the Norwegian practice.

Treaties have been classified into “general” and “particular”, as is done in Article 38(l)(a) of the Statute of the ICJ.

A treaty, even if of universal or normative nature, will not bind the non-parties unless they (expressly or by their conduct) manifest their intention to be bound by the provisions of the treaty as general rules of international law.

Some jurists have further classified the treaties into lawmaking treaties and treaty contracts. Whereas the law-making treaties are a source of law, the treaty contracts merely purport to lay down special obligations between the parties and are not directly a source of law.

A treaty is an express manifestation of the parties’ intention to be bound by a particular rule, and it can modify or reject the existing customary rules. Hence, treaty law takes priority over international customary law. In those situations where there is a conflict between a treaty rule and a customary rule, the judicial bodies have to give effect to the treaty provision.

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 vagueness or ambiguity of rules, inconsistencies in law, or the injustice of the legal consequences.

Subrogation is the substitution of one person for another so that the person substituted succeeds to the rights of the other.

In the Mavrommatis Palestine Concessions case (1924), the PCIJ referred to the general principle of subrogation and held that the concessions made by the Ottoman Empire in favor of Mavrommatis were enforceable against the United Kingdom, which was the successor State to the Ottoman Empire in Palestine.

The ICJ does not always transfer general principles from municipal law to international law, but it also sometimes resorts to the rules and institutions that are created within municipal law. In the Barcelona Traction Light and Power Company case (Belgium v. Spain, 1970), the Court had to decide whether Belgium could exercise its right of diplomatic protection against Spain in respect of its nationals, who were shareholders in the company that was registered in Canada and operated in Spain. Spain had declared the company bankrupt and took certain other measures injurious to the company. The Court, applying the municipal law doctrine of “corporate personality”, held that the alleged wrongful acts were committed against the company and, though shareholders suffered indirectly, Belgium had no cause of action. The corporate personality is distinct from shareholders under municipal law, and separation of property rights was an important manifestation of this corporate personality. The court observed that “whenever legal issues arise concerning the right of States with regard to the treatment of companies and shareholders, as to which international law has not established its own rules, it has to refer to the relevant rules of municipal law” disregarding of which invite serious legal difficulties.

Resolutions of the General Assembly are sometimes referred to as soft law, since they cannot be classified as full-fledged rules of international law such as international custom, treaties, or general principles of law. However, resolutions meet, to a great extent, the criteria to be termed as law.

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.