Theme2: Sources of PIL

Question 1

What does sources of IL involve?

Answer 1

It involves the processes or means by which rules of international
law are created or determined.

Question 2

What are Sources of PIL?

Answer 2

the processes or means by which rules of IL are created or determined

Question 3

Kinds of questions sources of IL ask

Answer 3

How is international law created/established?
Where do we ‘find’ International law?

Question 4

What does Article 38 ICJ Statute state?

Answer 4

the International Court of Justice (ICJ) applies the following sources of law when deciding disputes:

International Conventions:

International Custom:

General Principles of Law: .

Judicial Decisions and Teachings:

Question 5

International Conventions:

Answer 5

These are agreements between countries that establish specific rules.
The ICJ considers conventions that both contesting states have recognized.

Question 6

International Customs

Answer 6

This refers to general practices accepted as law by the international community.
It serves as evidence in legal matters.

Question 7

General Principles of law

Answer 7

These are fundamental legal principles recognized by civilized nations.
The ICJ takes them into account

Question 8

Judicial decisions and teachings

Answer 8

The ICJ considers decisions from other courts and the writings of highly qualified legal experts as additional guidance

Question 9

Article 38(1)(a) of the ICJ Statute

Answer 9

Article that deals with International Conventions

Question 10

What are “Treaties or Conventions – Art 38(1)(a)” defined as?

Answer 10

❖ They are defined as:
➢ A Formal Agreement between State
➢ Formed on the Consent of States
➢ Written
➢ Legally binding on contracting states.
❖ Examples include:
➢ Eg: UN Charter, The Paris Agreement, the Rome Statute.

Question 11

Article 38(1)(b) of the ICJ Statute

Answer 11

Article dealing with international customs

Question 12

Definition of Custom – Article 38(1)(b)

Answer 12

❖ They are defined as:
➢ Practices that States consistently follow out of a sense of
legal obligation (State practice + opinio uris)
➢ Consent of States
➢ Legally binding on all States ( but remember the persistent objector rule)
➢ Not written
❖ Examples include:
➢ Eg: The prohibition against genocide

Question 13

Article 38(1)(c) of the ICJ Statute

Answer 13

Article dealing with General
Principles of International Law

Question 14

What can “General Principles of International Law – Art38(1)(c)” be defined as? Give e.gs

Answer 14

❖ It can be defined as:
➢ Gap filler for when there is no treaty rule, no rule of custom.
➢ Basic principles of law found in national legal systems
❖ Examples Include
➢ The principle of good faith

Question 15

Article 38(1)(d) of the ICJ Statute

Answer 15

Judicial Decisions as well as writings of the most highly qualified
publicists

Question 16

what can “Judicial decisions as well as writings of the most highly qualified
publicists – Art 38(1)(d)” be defined as?

Answer 16

It can be defined as:
➢ Subsidiary means for the determination of rules of law.
➢ Judicial Decisions – Used to interpret international law.
➢ Writings – Expert analysis and commentary by legal scholars
to interpret international law.

Question 17

Other sources of public international law

Answer 17

➢ Resolutions of International Organizations
▪ UN General Assembly
▪ UN Security Council
▪ Soft law – Eg: Rio Declaration
➢ These are non-binding, but they play an important role in shaping, influencing and developing international law. They are
often the first step towards the development of legally binding
rules.

Question 18

Category of sources of international law

Answer 18

➢ There is no hierarchy of sources of international law = Not
explicitly provided for in Article 38.
➢ Some scholars categorize treaties, custom and general principles as the three main sources of international law.
They are considered primary sources.

Question 19

What kind of sources are Judicial decisions and academic writings regarded as?

Answer 19

They are often regarded
as law determining agencies, which deal with the interpretation of international law.
These are considered
subsidiary sources.

Question 20

How does article 38 differ from contemporary international law in recognizing a form of hierarchy?

Answer 20

While Article 38 does not propose a hierarchy among these sources, contemporary international law recognizes a form of hierarchy, such as the concept of jus cogens norms, which
are peremptory norms that hold a higher status than other rules of international law and cannot be derogated from