Técnicas e instrumentos de investigación:

International law has three primary sources: international treaties, custom, and general principles of law. See Article 38, Statute of the International Court of Justice

International Treaties

Treaties are formal agreements between states. They comprised of obligations that states expressly and voluntarily accept between themselves in treaties.

Customs

Customs are regular practices, usages, traditions of a society. Customary International law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources of custom in addition to direct evidence of state behaviour. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). Codified customary law is made up of the binding interpretation of the underlying custom by agreement

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through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states.

General Principles of Law

General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norm (jus cogens) as to extend to all states.

Legal principles common to major legal systems may also be invoked to supplement international law when necessary.

Some writers have referred to Article 38 of the Statute of the International Court of Justice, as the "Bible of the Poor". It is commonly referred to by persons who seek quick answers despite of the complexity of international relations, constitutes nevertheless a good starting point for the understanding of the sources of international law.

This article confirms that international law finds its origin in the

following three sources:

- international conventions of general or particular nature;

- international custom, as evidence of a general practice

accepted as law;

- the general principles of law recognized by civilized nations.

International law experts have added the "unilateral acts" as another source of law declaring that Article 38 of the Statute has omitted.

Contrary to this opinion, other international lawyers would maintain that these unilateral acts constitute specific expressions of the will of States leading eventually to agreements which are then governed by the rules

applicable to international conventions.

Finally, the idea of justice and equity originating in the philosophy of natural law is not to be discarded as a source of international law, since it is the opinion of the International Court of Justice itself that whatever the legal argumentation of the judge, his or her decisions have to be just and in that sense must correspond to the demand of justice and equity.

Moreover, the judges of the International Court of Justice are expressly authorized to decide a case ex aequo et bono, if the parties agree thereto, i.e. to found their judgments on equity principles (Article 38 (2) of the

Statute of the International Court of Justice).

International treaty law as codified by Vienna Convention on the Law of Treaties, 1969 is also open for considerations by the justices (Preambular para. 4 and 5 and Article 44 (3)). Moreover, the concept of "jus cogens"

seems also to be an angle of incidence for natural law ideas.

it must be stressed that the basis of sovereignty and therefore independence, as well as the equality of all States constitutes the theoretical foundation of international relations. Although public international law, by definition, does not belong to civil law, international legal debates are often reminiscent of the discussions known in the civil law, particularly in the context of the law of contracts.

However, this cannot be said for measures taken on the basis of Chapter VII of the Charter of the United Nations. Although they are foreseen in an international treaty - in particular by Article 25 of the Charter - these measures deserve to be highlighted because of the legal obligations they impose on the whole world, their political significance and the remarkable development they have undergone since the Gulf War, 1991.

The measures taken by the Security Council and which are expressly based on Chapter VII of the Charter encompass military as well as economic sanctions against certain States e.g. Ethiopia, Eritrea, Iraq, Yugoslavia, Sierra Leone etc or against insurgents e.g. Angola's UNITA.

(See resolution 1173/1998 of 12 June 1998) in extreme cases sanctions have been imposed on political parties in government e.g. the Afghan faction of the Taliban. (See Resolution 67/1999 of 15 October 1999).

The Security Council has also been known to create special tribunal for purpose of prosecuting war crimes or crimes against humanity. Example is the Special Tribunal for the territory of former Yugoslavia (Res.

827/1993 of 25 May 1993) and Rwanda (See Resolution 955/1994 of 8 November 1994). The Council has gone further and created special administrative zones like in East Timor (See Resolution 1272/1999 of 25 October 1999) or in Kosovo (See Resolution 1244/1999 of 10 June 1999).

Currently and since 2001, the Council has initiated measures against terrorism in general (See Resolution 1373/2001 of 28 September 2001).

All these have expanded the sources of international law and they are

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supplemented by two subsidiary instruments for the determination of rules of law (Article 38 (1) (d) of the Statute), namely:

a. Judicial Decisions The decisions of the International Court of Justice have binding force only between the parties and in respect of the particular cases submitted to the Court - Article 59 of the Statute) and

b. the teachings of the most highly qualified publicists of the various nations.

International Treaties and Conventions

International treaties and conventions are seen as agreements between subjects of international law. To qualify as such, there must be the existence of pertinent elements e.g.

the capacity of the parties to conclude treaties,

parties must have intended to act under international law, there must be a meeting of wills between the parties and the parties must have the intention to create legal obligations.

However, not all treaties end up as rules of international law. The essential ingredient to watch out for is whether the treaty was agreed upon multilaterally. It is only multilateral treaties, signed, ratified or adhered to, by a large number of states that can be regarded as law-making treaties, as no nation is bound by a contractual agreement that it has not legally accepted. Treaties may be used to abolish or modify existing custom or law or to add a completely new law. However, even a law making treaty is subject to the limitation which applies to other treaties: it does not bind states who are not parties to it. Therefore, except in the almost impossible event of every state in the world becoming a party to one of these treaties, the law which it creates will not be law for every state. The real justification for ascribing a law-making function to a treaty is that it does in fact perform the function which legislation performs in a state, though it may do so only imperfectly. It is only a machinery which exists for the purposive adapting of international law to new conditions and in general for strengthening the force of the rules of law between states.

Customs

For a long period of time, international law was largely composed of customary rules. These legal norms arose through usage and practice over a fairly long period, and become international law when it has been repeated by many states over a period of time. Secondly, when states have generally acquiesced in such behaviour by one another. Lastly, when governments begin to behave as if they have a legal obligation. However, most new nations are no longer recognizing the efficacy of customary international law and the proliferation of law making treaties has also in recent time obliterated the acceptance of customary international law.

General Principles of Law

The general principles of law recognized by civilized nation is a source of international law, despite the controversy trailing the inclusion of this source. The General Principles of Law must fulfill the following obligations to be accepted as a source of international law. First, it must be a general principle of law distinct from a legal principle of more limited functional scope. Second, it must be recognized by civilized nations and lastly, it must be common to all or most national systems of law.

Judicial Writings/Decisions

These are regarded as subsidiary sources of law, for they are only useful as a means of educating the rules of law. The judgments and advisory opinions of the Court are often cited by international lawyers as the authoritative pronouncements on international law. Judicial writings of renowned scholars can be evidence of international law as well as playing subsidiary role in developing rules of law. In some cases, the opinions of leading international law scholars are often quoted as persuasive authoritative source. It should also be emphasized that such works are not independent source of law, although they sometimes lead to the formation of international law.

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How pre-colonial African municipal law impact on the sources of modern day international law, especially in the areas of treaties and customs are some of the questions we are poised to answer in the next segment of the course. Article 59 emphatically states that an international decision is binding only upon parties to the case and in respect of that particular case.

Precedents are not therefore binding authorities in international law. This is such that, when any system of law has reached a stage at which it is thought worthwhile to report the decisions and the reasoning of judges, other judges inevitably give weight, though not necessarily decisive weight, to the work of their predecessors. For judicial writings, there are two basic contributions to international law. The first is that it provides useful evidence of what the law is, and the second is that it provides speculations on what the law ought to be. Their role is highly revered for their writings may help to create opinion which may influence the conduct of states and thus indirectly in the course of time modify the actual law.