TREATIES

Art.38(1)(a) refers to

international conventions,
whether general or particular,
establishing rules expressly
recognized by the contracting
states.
 Pacta Sunt Servanda
The obligatory nature of treaties is
founded upon the customary
international law principle that
agreements are binding.

Treaties are express agreements

and are a form of substitute
legislation undertaken by states.
The designation & variety

Law-Making Treaties
 Relation of Treaties with
Custom

When norms of a treaty origin

crystallize into new principles of
customary law, the customary
norms retain a separate
identity even where the two
norms may be identical in
content.
General Principles
of Law
Principles recognized in
most legal systems
 - Estoppel-
As a rule of evidence and
substantive rule of law implies
plea to stop the opposite party
in a suit from leading evidence
which is inconsistent with his
prior conduct and facts
acknowledged by him.
 Cambodia v. Thailand
Temple of Preah Vihear
Case
The claims
 The real issue
Did the parties adopt the Map
and the line indicated on it, as
representing the outcome of
the work of delimitation of the
frontier in the region of Preah
Vihear?
Visit to Preah Vihear by
Siams Minister in 1930
 Therefore
There appears to have amounted to a
tacit recognition by Siam of the
sovereignty of Cambodia over Preah
Vihear, through a failure to react in
any way on an occasion that called
for a reaction.
Siam had received and accepted the
map and their conduct during all
these years is inconsistent with the
stand it now seeks to take.
 - Res Judicata -
Final Judgment of a
competent court shall not
be disputed by parties or
their successors in any
subsequent legal
proceedings on the
question of fact it settles.
 Chorzow Factory
(Indemnity) Case 1928
Effect of Awards of Compensation Made
by the UN Administrative Tribunal, 1954

THE CENTRAL ISSUE

Whether the General Assembly was
bound to comply with the awards of
the United Nations Administrative
tribunal?
Art.1 of the Statute of the
Administrative Tribunal: (1) The
judgments shall be final and without
appeal; (2) The judgments shall State
the reason on which they are based.
 Prescription

This principle implies

acquisition of territory
by an adverse holding,
peacefully, without
protest, continuously for
a long period of time.
 Legal Status of Eastern
Greenland (1933)
Denmark claimed Eastern Greenland
on the ground of peaceful and
uncontested sovereignty over a long
period of time.
Norway claimed sovereignty in
1931.
The court rejected Norways claim
and upheld Denmarks based on
discovery and prescription.
Netherlands v. USA, 1928
Island of Palmas case
 The Dispute
USA
 The Court
The continuous and peaceful
display of territorial
sovereignty (peaceful in
relation to other states) is
as good as title.
 - GOOD FAITH -
The principle of good faith is a
background principle informing
and shaping the observance of
existing rules of international
law and in addition
constraining the manner in
which those rules may
legitimately be exercised.
 Anglo Norwegian Fisheries
Case
The court upheld the straight
baseline method for calculating
the fisheries zone for Norway.
The court looked into the specific
geographical conditions of
Norways coast.
This was primarily a case about
the use of municipal legal norm
of the display of good faith or
prohibition of abuse of right.
 Judicial Decisions
&
Writings of the jurists
 Art. 38(1) d
subject to the provisions of
Article 59, judicial decisions
and the teachings of the
most highly qualified
publicists of the various
nations, as subsidiary means
for the determination of
rules of law
Decisions of tribunals
Determining agency & more

Anglo-Norwegian Fisheries Case:

Recognition of Baseline Method.
Reparations Case: Recognized the
legal personality of international
institutions in certain cases.
Nottebohm Case: Considered the role
and characteristics of Nationality.
Island of Palmas case: Territorial
Sovereignty
Writers
The influence of writers
Writers like Grotius, Vattel
exercised influence of a superior
sort.
Writings of Gidel produced the
idea of contiguous zone.
Today the responsibility of the
publicists is to inject an element
of coherence and order into the
subject as well as to question
the direction and purposes of
 The influence of writers
Where there is no treaty and no controlling
executive of legislative act or judicial decision,
resort must be had to the customs and usages,
of civilized nations and as evidence of these, to
the works of jurists and commentators who by
years of labour, research and experience have
made themselves peculiarly well-acquainted
with the subjects which they treat. Such works
are resorted tofor trustworthy evidence of
what the law really is.
Justice Gray
Paquete Habana case
Other possible sources of
international law
Acts of International
Organizations
General Assembly Resolutions

The decisions taken by the

General Assembly are in the
form of recommendations,
resolutions and declarations are
helpful in the agreement
between States and contribute
in preparing the necessary
environment for the
development of the rules of
international law.
 For example.
The 1960 Declaration on the granting of
Independence to Colonial Countries and
Peoples.

This was Adopted with no opposition.

This was then followed by a series of

resolutions attacking colonialism.

Thereby turned self-determination from

political principle to legal right and consequent
obligation.
 Advisory Opinion of Legality of the
Threat or Use of Nuclear Weapons, 1996

The GA Resolutions, even if they

are not binding, may sometimes
have normative value. They can, in
certain circumstances, provide
evidence important for
establishing the existence of a
customary rule or the emergence
of an opinio juris. A series of
resolutions may show the gradual
evolution of the opinio juris
required for the establishment of a
 Resolutions of the Security
Council

The decisions if the Security

Council in respect of enforcement
measures under Chapter VII as
well as other decisions are
binding upon the Member States
by virtue of the provisions
enshrined in Article 25 of the
Charter.
 Other aspects like Equity
Equity in the present context is
synonymous to justice.

The school that looks to equity as a

source of international law often
appeal to natural law.

Thus, the three terms- equity,

justice and natural law- tend to
merge into one another.
 Ex-aequo at bono
Article 38(2) of the Statute of the
ICJ provides that the court may
decide casesex aequo et bonoonly
if the parties agree.

Ex-aequo at bono: according to

the right and good or from
equity and conscience
Netherlands v. Belgium
(1937),
River Meuse Case
Netherlands
Observation of Judge Hudson

He recognized the principle of

equity as part of international law.
There was no express authority in
the Statute of the PCIJ to apply
equity as distinguished from law.
But the statute allowed the
application of general principles
and the principles of equity are
common to all national legal
systems.
 Hierarchy of sources
Presumption against normative conflict
The courts also consider the
following
Also, in considering the
possible conflicts
 The different sources are
not arranged in strict
hierarchical order,
however, if there is a clear
conflict, treaty prevails
over custom and custom
prevails over general
principles and the
subsidiary sources
Jus Cogens- The Highest Norm
 Jus Cogens & Obligations Erga
Omnes
The superior norms

Fundamental Values

Basic principles of international

law
4 Criteria for a norm to be
determined as Jus Cogens
specifically
(1)status as a norm of general
international law;
(2)acceptance by the international
community of states as a whole;
(3)immunity from derogation; and
(4)modifiable only by a new norm
having the same status.
 Art. 53, VCLT
A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory
norm of general international law.
For the purposes of the present convention,
a peremptory norm of general international
law is a norm accepted and recognized by
the international community of States as a
whole as a norm from which no derogation
is permitted and which can be modified only
by a subsequent norm of general
international law having the same character.
 2-stage approach is
involved in the light of
Article 53
The establishment of a
proposition as a rule of general
international law;
and
the acceptance of that rule as
peremptory norm by the
international community of
states as a whole.
 Norms affecting all states
without exception
The appropriate test would thus
require universal acceptance of
the proposition as a legal rule by
states and recognition of it as a
rule of jus cogens by an
overwhelming majority of states.
The foundation of jus cogens is
international law and the
purpose is to seek international
coherence.
Superiority of Jus Cogens-
some Examples
Art.64, VCLT