Public International Law Bernas 2009CHAPTER 2: THE SOURCES OF INTERNATIONAL LAWWhat sources areChapter 2 Sources of International Law - 1 Public International Law Bernas 2009In the absence of centralized, legislative, executive and judicial structure, there is no single able to legislate and there is no system of courts with compulsive power to decide what the law is nor is there a centralized repository of international law.Thus, there is a problem of finding out where the law is.Nevertheless international law exists and there are sources where, with some effort, thelaw can be found.Chapter 2 Sources of International Law - 2 Public International Law Bernas 2009Formal Sources & Materal SourcesChapter 2 Sources of International Law - 3 Public International Law Bernas 2009!ormal "ources # can refer to the various processoes y which rules come into existence.$xample%&egislation is a formal source of law. "o are treaty ma'ing and judicial decision ma'ing as well as the practice of states.(aterial "ources # are not concerned with how rules come into existence but rather with the substance and consent of obligation. They identify what obligations are.$xample%"tate practice, )N *esolutions, treaties, judicial decisions and the writing of jurists are material sources insofar as they identify what those obligations are.The doctrine of sources lays down conditions for verifying and ascertaining the existence of legal principles. observable manifestations of the wills of States as revealed in the processes by which norms are formed. (practice accepted as law.)Chapter 2 Sources of International Law - 4 Public International Law Bernas 2009Artcle !"#$% o& the Statue o& the I'ter'ato'al Court o& (ustceChapter 2 Sources of International Law - 5 Public International Law Bernas 2009+rticle ,- is primarily a directive of the .ourt on how it should resolve conflicts brought before it./. The .ourt, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply%a. International conventions, whether general or particular, establishing rules expressly recognized by contesting states0b. International custom, as evidence of a general practice accepted as law0c. The general principles of law recognized by civilized nations0d. "ubject to the provision of +rticle 12, judicial decisions and the teachings of the most highly 3ualified publicists of the various nations, as subsidiary means for the determination of rules of law.4. This provision shall not prejudice the power of the .ourt to decide ex aeuo et bono, if the parties agree thereto.Chapter 2 Sources of International Law - Public International Law Bernas 2009Stateme't o& Sources: Restateme't #Thr)% o& Fore*' Relato's La+ o& the U'te) StatesChapter 2 Sources of International Law - ! Public International Law Bernas 2009/. + rule of international law is one that has been accepted as such by the international community of statesa. In the form of customary law0b. 5y international agreement0 orc. 5y derivation from general principles common to major legal systemsof the world.4. .ustomary international law results from a general and consistent practice of states followed by them form a sense of legal obligation.,. International agreements create law for the states parties thereto and may leadto the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted.6. 7eneral principles common to the major legal systems even if not incorporated or reflected in customary law or international agreements, may be invo'ed as supplementary rules of international law where appropriate.Chapter 2 Sources of International Law - " Public International Law Bernas 2009Custom or customar, 'ter'ato'al la+Chapter 2 Sources of International Law - 9 Public International Law Bernas 2009.ustom or customary international law # a general and consistend practice of states followed by them from a sense of legal obligation.(aterial factor # how states behave 8sychological or subjective factor # why they behave the way they do.Chapter 2 Sources of International Law - 10 Public International Law Bernas 2009Materal &actor: -ractce o& states or ususChapter 2 Sources of International Law - 11 Public International Law Bernas 2009The initial factor for determining the existence of custom is the actual behaviour of states 9usus:. $lements%!. ;uration". .onsistency,. 7enerality of the practice of statesChapter 2 Sources of International Law - 12 Public International Law Bernas 2009Materal &actor: -ractce o& states or ususDuration vs Generality and UniformityChapter 2 Sources of International Law - 13 Public International Law Bernas 2009The re3uired duration can be either short or long. +n example of customary law that is the result of long, almost immemorial, practice is the a rule affirmed in The #auette $avana. 9exemption of fishing vessels from capture as prize of war:%orth Sea &ontinental Shelf cases 9duration by itself will not exclude the possibility of a practice maturing into a custom provided that some conditions are satisfied."tate practice must be extensive and virtually uniform and occurred in such a way that it shows general recognition.;uration therefore is not the most important element. (ore important is the consistency and the generality of practice."ee +sylum .ase 9I.< reports /21=: page // to /4 5ernas )niformity and generality of practice need not bo complete, but it must be substantial."ee Nicaragua v. )nited "tates 9I.< *eports /2->:Chapter 2 Sources of International Law - 14 Public International Law Bernas 2009O-'o .ursChapter 2 Sources of International Law - 15 Public International Law Bernas 2009?nce the existence of state practice has been established, it becomes necessary to determine why states behave the way they do.?pinio juris # or the belief that a certain form of behaviour is obligatory.?pinio juris is what ma'es practice an international rule, without practice, it is not a lawIt should be noted that it is also possible for customary law to develop which will bind onlyseveral states. 5ut the party claiming it must prove that it is also binding on the other party. 9"ee *ight of 8assage over Indian Territory 9I.< *eports /2>=:Chapter 2 Sources of International Law - 1 Public International Law Bernas 2009/sse't'* states0 su1se2ue't co'trar, -ractceAre they bound by custom?Chapter 2 Sources of International Law - 1! Public International Law Bernas 2009@ould dissenting states be bound by customABes, unless they had consistently objected to it while the custom was merely in the process of formation.9see +ngloCNorweigian !isheries I.* *ep /21/:;issent however, protects only the dissenter and does not apply to other states. (oreover, a state joining the international law system for the first time after practice has become law is bound b such practice.If a contrary practice gain acceptance, it might instead become a law. 9!isheries