International Law: Sources and Principles

Subsidiary Sources of International Law

• General principles of law recognized by civilized nations are a subsidiary source of international law, meaning they are referenced when no applicable treaty or customary international law exists.
• These principles are derived from Article 38.3 of the Statute of the Permanent Court of International Justice (PCIJ).
• Examples of general principles:
  • Nemo Iudex in Re Sua: "no one should be a judge in their own case," emphasizing impartiality and fairness in legal proceedings.
  • Inadimplenti Non Est Adimplendum: "a party that fails to perform its obligations cannot demand performance from the other party," highlighting fairness in contractual obligations.

Soft Law

• Not legally binding resolutions adopted by international organizations.
• Often labeled as recommendations or declarations of principles.
• The UN Universal Declaration of Human Rights (1948) is an important example, despite not being legally binding, it influences subsequent international treaties and customary law.

Sources of International Law

• International conventions: Treaties or agreements between states, establishing rules expressly recognized by the participating nations.
• International custom: Evidence of a general practice accepted as law, requiring both uniform state behavior (diuturnitas) and belief in its obligatory nature (opinio juris).
• General principles of law: Fundamental principles recognized by most legal systems worldwide.
• Judicial decisions: Decisions of international courts and tribunals as subsidiary means of determining rules of law.
• Teachings of highly qualified publicists: Works of prominent international law scholars used as a subsidiary source.

General International Law Rules

• Although unwritten and few in number, they are essential for the international legal order.
• Examples include:
  • Structural principles: Rules stemming from sovereign equality of states (like state immunity) and principles like "consuetudo est servanda" (custom must be observed) and "pacta sunt servanda" (agreements must be kept).
  • Rules protecting individual state interests: Diplomatic protection of citizens or rules for coastal states.
  • Jus cogens: Fundamental values of the international community (prohibition of the use of force, prohibition of gross human rights violations, and protecting the right to self-determination).

Customary International Law

• Established through state practice and belief in its obligatory nature (opinio juris).
• Diuturnitas: Requires consistent and repeated behavior by a majority of states.

International Law vs. International Relations

• International law is the legal system governing relations between states and international organizations.
• International relations are the political interactions between states.
• While distinct, they are interconnected.
• International law is crucial for stability and order in international relations.

Subjects of International Law

• States:

  • The fundamental subjects of international law.
  • Defined by the Montevideo Convention (1933): a permanent population, defined territory, government, and capacity to enter into relations with other states.
  • Originated with the Treaty of Westphalia in 1648, establishing the modern concept of sovereign states.

• Inter-governmental international organizations:

  • Functional subjects of international law.
  • They do not have a territory or population.
  • They produce specific sources of international law.

Functions of International Law

• Law-making: The creation of new rules.
• Law determination: Applying rules to specific cases.
• Law enforcement: Ensuring compliance with international legal norms.