Unit
- Definition: International law is a body of rules and principles that regulate relations among states and other international actors. Unlike domestic law, it lacks a centralized legislature, executive, or judiciary. Its binding force derives from consent and customary practice.
- Primary sources: Article 38(1) of the ICJ Statute lists treaties, customary international law, and general principles of law recognized by civilized nations. These are the main building blocks for legal argument before international tribunals.
- Subsidiary sources: Judicial decisions and the teachings of the most highly qualified publicists serve as evidence of legal rules. They are not binding but carry persuasive authority in shaping doctrine.
- Treaties: Written agreements between states, governed by the Vienna Convention on the Law of Treaties. They can be bilateral or multilateral and cover any subject matter. Example: the UN Charter is a multilateral treaty.
- Customary international law: Arises from two elements: state practice (objective) and opinio juris (subjective belief that the practice is legally required). Custom evolves slowly and binds all states except persistent objectors.
- General principles: Common legal principles found in domestic systems, such as good faith, estoppel, and proportionality. They fill gaps where treaty and custom are silent.
- Jus cogens: Peremptory norms of general international law from which no derogation is permitted. Examples include the prohibition of genocide, slavery, and torture. These norms override conflicting treaties.
- Soft law: Non-binding instruments such as UN General Assembly resolutions, codes of conduct, and guidelines. While not formally binding, they influence state behavior and can crystallize into custom.
- Subjects of international law: States are the primary subjects, possessing full legal personality and capacity to enter treaties and bring claims. International organizations, non-state armed groups, multinational corporations, and individuals increasingly enjoy rights and obligations under international law, broadening the traditional state-centric framework significantly.
- State responsibility: The ILC's Articles on Responsibility of States for Internationally Wrongful Acts codify when a state is liable for attributable conduct breaching an international obligation. Remedies include cessation of the wrongful act, assurances of non-repetition, and full reparation through restitution, compensation, or satisfaction.
- Diplomatic law: The Vienna Convention on Diplomatic Relations (1961) governs diplomatic missions, granting agents immunity from criminal jurisdiction and inviolability of premises and archives. These privileges ensure effective diplomatic functions while imposing duties on diplomats to respect host state laws and regulations.
- Jurisdiction in international law: States exercise prescriptive, adjudicative, and enforcement jurisdiction based on principles including territoriality, nationality, passive personality, protective principle, and universality for certain crimes. The Lotus case established the permissive approach, though human rights law now limits extraterritorial enforcement actions.
- Use of force and self-defense: Article 2(4) of the UN Charter prohibits the threat or use of force in international relations. Self-defense under Article 51 requires an armed attack and respects necessity and proportionality. The Caroline incident test remains authoritative for anticipatory self-defense claims.
- International humanitarian law: IHL regulates conduct in armed conflict, protecting civilians and combatants hors de combat. Core treaties include the four Geneva Conventions of 1949 and their Additional Protocols. Fundamental principles of distinction, proportionality, and precaution govern all targeting decisions during hostilities.
- International dispute settlement: Peaceful methods under Article 33 of the UN Charter include negotiation, inquiry, mediation, conciliation, arbitration, and judicial settlement. The ICJ, ITLOS, ICSID, and WTO panels provide institutional frameworks for binding resolution of inter-state and investment disputes.
Governance Requirement
Requirement: Article 38(1) of the Statute of the International Court of Justice
This foundational provision defines the sources the ICJ shall apply when deciding disputes in accordance with international law. It establishes the hierarchy and interplay of treaties, custom, and general principles. Practitioners must learn this article to construct legal arguments. The ICJ has consistently applied this framework in cases such as the Nicaragua case (1986) and the North Sea Continental Shelf cases (1969). Understanding the source taxonomy enables legal professionals to identify applicable law and predict tribunal reasoning.
Quick Revision
- International law regulates relations between states and other actors without centralized authority.
- Primary sources are treaties, customary international law, and general principles of law.
- Subsidiary sources include judicial decisions and scholarly writings as evidence of rules.
- Custom requires state practice plus opinio juris; jus cogens norms are peremptory and non-derogable.