4. Sources of international law
•Article 38- sub article (i) of ICJ set a number anumber of important sources.
•International covenant.treaties
•International custom
•The general principle of law recognised bynations
•Judicial decisions
•Teachings of highly placed publicist assubsidiary means of determination of rules oflaw
4.1
•IS THERE AHIERACHY OF SOURCES?
•There is a hierachy but there is debate about theform of this heirechy. Most scholars believe thatgenerally treaties are most importyant sources oflaw. However, scholars generally agree thatparticular treaties can sometimes be set asideby state practice under international customarylaw whereby state through their practise indicatethat they regard the particular treaty concernedbeing not in operation any longer.
4.2
•Conventions and treaties
•Treaties are defined in two Vienna conventionson treaties one with regard to states and theother with international organizations.
•DEF: are written agreements between states orbetween states in international org or betweenIOs. In order to qualify as a treaty or conventionthe agreement must be governed by rules ofinternational law.
4.3
•Treaties are divided into two: 1. Law MakingTreaties- codify rules of customary IL orthemselves create new rules of IL. Sometimestreaties maybe invoked as documents to presentevidence of customary IL and can be invoked bystates that are not part of the agreements. Shawdefined law making treaties as thoseagreements whereby states elaborate theirperceptions of IL on a given topic or establishnew rules that guide them for the future ininternational conduct.
4.4
•Such law making treaties of necessity requirethe participation of large number of states toemphasise the fact and will bind all theyconstitute normative treaties that specify rules tobe followed.
•Contract making treaties: represents businesscontracts they are not sources of IL they aremainly legal transactions but they are governedby international law. Where state X binds itself tocertain service provision to state Y. It isimportant to highlight that most contractual arebilateral but others are multilateral.
4.5
•Customary International Law
•Rules of international customary law are createdthrough state practise. In other words the way inwhich the state behaves may depend uponcircumstances giving rise to rules giving rise torules that bind their relation with other in variosdecisions of the ICJ said custom at the level ofinternational law is made up of two keyelements.
4.5
•First, objective concerned with actual statepractice in question. Some subjectiveconcerned with practice in question isaccepted as law.
•The subjective regiment is known asopinion iuris and refers to the intention orsense of obligation of the state to bebound particular rule of states in practice.
4.6
•Proof of opinion iuris sometimes being orinferred is evidence in support of generalpractise in support of particular rule. In NORTHSEA CONTINENTAL SHELF CASE ICJ said notonly must act concerned amount to a settledpractice but there must be also such or becarried out in such a way as to be evidence ofbelief that practise is the rendered obligation bythe existence of subjective element is implicit inthe very notion of opinion iuris the stateconcerned must therefore feel that they areconforming to what amounts to legal obligation.
4.7
•If state activity demonstrate their support for aparticular rule no problem of proof arises as towhether the state concerned have consented tothe creation of room of international customarylaw. Unfortunately sometimes it will be differentto determine whether particular state has agreedto regard as law and to be bound by practiseclearly adopted by other states as creating rulecustomary international law. Silence byparticular state in face of the creation by otherstates of mew rule of customary IL may beconsidered as acquiecence.
4.8
•A state should come out clear failure orsilence means it would have accepted.
•ICJ has made it clear that the practice willnot qualify as customary law unless itconstitutes constant an uniform usage.
4.9
•In another decision ICJ Asylum Case 1950 hadto consider whether the practice of grantingasylum in embracing to political refugees inSouth America constituted a customary Americarule that was legally binding. Court held “the factdescribe much function and discrepancy in theexercise of asylum and official views expressedon various occasion, there has been, so muchinconsistency in the practice of asylum whichhas been frequently expediently’
4.10
•The various examples over the years thatis not possible to discern in all this anyconstant and uniform usage accepted asthe law with regard to the alleged ruleconstitute law.
4.11
•General Principles Recognised by nations
•Sometimes gaps exist in IL to adopt generalprinciples of law recognised by other nations isdesigned to allow these gaps to be filled byappropriate rules derived from municipal legalsystem.
•This particular source is not very often and evenwhen it is an effort will have to be made toattempt to use only those municipal rules thatare common to a number of national legalsystems.
4.12
•Judicial Precedent
•Early decision are binding to an upcomingdecision. National courts operating withinthe countries in Anglo-American judicialtraditions including Zimbabwe havedeveloped systems of judicial precedent.
•This means once a supreme court hashandled down a ruling concerning adisputed point of law legally binding.
4.13
•These means once a supreme court hashanded down a ruling concerning adisputed point of law legally binding.Judicial standing is established whichmust be followed by inferior courts insubject cases were the same issues whicharises.
4.14
•Judicial precedents as such is not afeature of international law. This isbecause Article 59 of the statute ICJ inparticular cases has no binding effectexcept in respect of parties to thatparticular dispute. In other words the ICJIS NOT BOUND TO FOLLOW ITSEARLIER DECISION. However it isentitled to look for legal principles todetermine the case before it.
4.15
•Learned Writers
•Article 38 (I) (d) alerts the court to applyteachings of the most highly qualifiedpublicist of various nations, as subsidiarymeans for their determination of the rulesof law. But problems often arise givencultural world hence making it different toget acceptable authorities to lead touniversally acceptable proposition.
4.16
•Today international tribunals cite textbooks.
•Other sources of IL includes Acts ofinternational Organisations, equity, softlaw.