1 sources of pil

sources of PIL

watch this nvm no need

What is International Law?

 International law is a system of rules and principles that govern relations between states, international organizations, and, increasingly, individuals.

 It provides a legal framework for addressing global challenges such as trade, environmental protection, human rights, and armed conflict.

 International law adapts to the decentralized nature of global governance, reflecting state consent as a foundation for rule creation.

Purpose and Scope: OF PIL

 The primary purpose of international law is to maintain peace and security, facilitate cooperation among states, and promote justice on a global scale. Its scope extends to areas such as:

 Territorial sovereignty

 Maritime boundaries

 International trade

 Environmental conservation

 Protection of human rights

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Maritime boundaries are legally defined, negotiated lines that divide ocean areas between countries, establishing sovereign rights over marine resources, navigation, and security

Why do we have to understand sources of PIL?

 Understanding the sources of international law is crucial for interpreting and applying legal rules in disputes and fostering global governance.

 The sources define the binding nature of legal norms and their applicability to various subjects of international law.

 The "doctrine of sources" is essential to validating and legitimizing international norms, bridging the gap between state practice and legal rules.

Article 38 of the icj (INTERNATIONAL COURT OF JUSTICE)

Article 38 ICJ Statute provides: THESE ARE ORDERS FIRST 1 AND IF THERE ISNT THEN 2 AND SO ON

1. The Court, 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 the contesting states; ( I think treaties here but international convention are more than 2 parties more broad but treaties 2 more narrow)

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

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.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

 this part is not imp just read:

Historical Background:

 Adopted in the Statute of the Permanent Court of International Justice in 1920.

 Article 38 was later incorporated into the ICJ Statute in 1945.

 It is widely regarded as the definitive enumeration of international law’s sources.

 The doctrine outlined in Article 38 reflects the need for clarity and consistency in international adjudication.

Article 38(1) identifies four sources:

 Treaties: International conventions establishing legal obligations.

 Customary Law: Evidence of a general practice accepted as law.

 General Principles of Law: Principles common to major legal systems.

 Subsidiary Means: Judicial decisions and writings of publicists.

 

ARTICLE 38…MEMORIZE THE CLASSIFICATION AS UR NAME 

Primary (more powerful) vs. Subsidiary Sources:

International law does not have a single global legislature. As a result, its legal rules are derived from different types of sources, which are traditionally divided into primary and subsidiary sources.

 Primary sources: are the binding sources of international law. They create legal obligations for states. They include (treaties, custom, and general principles)(these are the 3 first legal sources). They are legally binding on states.

 Subsidiary sources: do not create binding law by themselves, but help in identifying, interpreting, and applying the law.

  (judicial decisions and scholarly writings) provide interpretative guidance.

 The lack of a formal legislative body in international law makes these sources critical for defining and applying legal obligations.

TREATIES

Definition of Treaties

 Treaties are written agreements between states or international organizations that create binding legal obligations. They are governed by the Vienna Convention on the Law of Treaties (1969).

Vienna Convention on the Law of Treaties (1969) can only be terminated if all parties accept to do so btw

 The Vienna Convention codifies rules on treaty formation, interpretation, and termination. Key principles include:

 Pacta Sunt Servanda: Agreements must be honored.

 Good Faith: Treaties should be performed in good faith.

 Treaties represent deliberate legal commitments, distinguishing them from informal agreements.

 •Treaties that write down and organize existing customary international law into a clear legal text.

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Types of Treaties: IMP FOR FINAL AND DEFINE THEM

 Bilateral Treaties: Agreements between two parties, e.g., trade agreements.

 Multilateral Treaties: Involve multiple states, e.g., Geneva Conventions (International Humanitarian Law).

Codification Treaties: IT IS NOT A 3^RD CLASSIFICATION OF THE TYPES OF TREATES IT JUST COULD HAPPEN WHETHER IN BILATERAL OR MULTILATERAL ( it is not from scratch)

 Codification treaties consolidate existing customary norms. Treaties that write down and organize existing customary international law into a clear legal text. These treaties do not create new law, but codify rules that states already follow in practice.

Examples:

 Geneva Conventions: Humanitarian law in armed conflict.

 UNCLOS (Law of Sea Convention): Maritime law, Codifies customary rules on maritime zones, navigation, and seas.

 Law-Making Treaties:

 Law-making treaties establish general norms applicable beyond the parties. Examples include the UN Charter and the Paris Agreement. These treaties often influence state behavior, becoming reflective of customary norms over time.

INTERNATIONAL CUSTOM

Definition:

 Customary international law is a type of international law that develops from what states actually do over time, not from written treaties.

  It exists when: States regularly behave in a certain way, and they believe they are legally required to behave that way.

  So, it is not enough that states do something — they must also believe they ought to do it because the law requires it.

 Requirements for Customary International Law

 There are two essential elements:

 1. State Practice

 This means the actual behavior of states, such as: Actions (e.g., enforcing a rule), Omissions (e.g., consistently not doing something).

 The practice must be: Widespread, Consistent,  Repeated over time.

 2. Opinio Juris

 Opinio juris means the belief that the practice is legally obligatory.

 In other words: States follow the practice because they think international law requires it Not because it is polite, convenient, or politically useful.  This is what separates law from habit or courtesy.

 Persistent Objector Doctrine

 The persistent objector doctrine is an exception if a state:

•Consistently and clearly objects to a new customary rule from the beginning, while the rule is still forming. Then that state is not bound by the new customary rule. That means that  silence equals acceptance, and the continuous objection equals exemption. 

 Persistent Objector Doctrine – Example

 Classic Example: Fisheries Jurisdiction (UK v. Norway)
In international law, a customary rule was developing on how states should draw straight baselines for measuring territorial waters. Many states accepted the emerging rule, but Norway did not.

 Norway Consistently objected to the proposed method of drawing baselines, and objected from the early stages of the rule’s development. It publicly rejected the rule in official legislation, diplomatic practice, and statements to other states. Norway never accepted the emerging customary norm.

 The International Court of Justice (ICJ) held that the customary rule could not be applied to Norway because Norway had persistently objected to it while the rule was forming. Norway was therefore exempt from the customary rule.

  

General principles of law

Definition and Role

 General principles are foundational norms recognized by major legal systems, ensuring fairness and consistency, and and preventing injustice when written law is missing or unclear.

Examples

 Good Faith: Honesty  and sincerity in fulfilling  legal obligations. States must not abuse legal rights, and obligations must be carried out honestly, not deceptively. A state cannot pretend to comply with the law while acting in bad faith.

 Equity: Fair treatment in legal processes. Avoid rigid or unfair results, and consider the circumstances of each case. Equity helps achieve justice where strict rules may lead to unfair outcomes.

 Proportionality. Proportionality requires a balance between competing interests. This means that measures taken must be appropriate, and must not go further than necessary.

ALLSO REPARATIONNN IN THE CHROZOW FACTORY CASE

 Application in Judicial Decisions

 General principles  fill gaps in treaties and customary law, ensuring just outcomes.

  General principles are especially important when: Treaties are silent, and Customary law is unclear or incomplete. In such cases, courts use general principles to fill legal gaps, and reach fair and reasonable outcomes.

Limitations

 The abstract nature of general principles can limit their applicability to specific disputes. They are broad and general, and do not always give a clear answer to specific disputes

 Their application requires judicial interpretation to ensure relevance. Judges must decide how and when to apply them. This can lead to different interpretations

 

JUDICIAL DECISIONS

Subsidiary Role of Judicial Decisions

 While not binding precedents, ICJ decisions guide interpretation and application of international law. The Court strives to achieve judicial consistency.

According to Article 59 of ICJ statute:

 “The decision of the Court has no binding force except between the parties and in respect of that particular case.” This means that: An ICJ judgment binds only the states involved in that case, It does not legally bind other states,  It does not create precedent in the strict sense.  International law does not follow stare decisis like common law systems.

In Polish Upper Silesia, the Court said: ‘[t]he object of [Article 59] is simply to prevent legal principles accepted by the Court in a particular case from being binding on other States or in other disputes.’

Importance of ICJ Decisions

 ICJ rulings resolve international disputes peacefully,  clarify legal ambiguities in the international law, explain how treaties, custom, and general principles are understood in the international law, and contributing to legal development and consistency.

  Example of ICJ Cases & Advisory Opinions:

 Nicaragua v. United States:

 Nicaragua v. United States (ICJ, 1986)

 Nicaragua claimed that the United States: Supported armed rebel groups known as the Contras, Trained, financed, and supplied them, Mined Nicaragua’s ports, damaging ships and trade.

 Nicaragua argued that these actions violated international law.

 What law did the ICJ apply?

 The United States refused to accept the Court’s jurisdiction under certain treaties, so the ICJ relied mainly on customary international law.

 This made the case very important for understanding customary international law.

 What did the ICJ decide?

 The ICJ held that the United States had violated customary international law, especially: The prohibition on the use of force, The principle of non-intervention in the internal affairs of states

 The Court ruled that: Supporting armed rebels in another state, And mining that state’s ports
amounts to unlawful use of force.

 Great clarification! In Public International Law (PIL), judicial decisions have a very specific and more limited role.

Judicial Decisions in PIL — The Legal Basis

Under Article 38(1)(d) of the ICJ Statute, judicial decisions are listed as:

"subsidiary means for the determination of rules of law"

This is the key phrase. They are not a primary source of international law (unlike treaties or custom) — they are a subsidiary/secondary means, used to identify and clarify what the law is, not to make it.

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So Are They Binding? Between the Parties — YES

Under Article 59 of the ICJ Statute, a decision is binding only between the parties and only in that specific case. So it has no formal erga omnes (toward all) effect.

As General Precedent — NO

The ICJ formally has no doctrine of stare decisis. It is not obligated to follow its own previous rulings, let alone those of other tribunals (like ITLOS, WTO panels, ad hoc arbitrations, etc.).

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But Here's the Reality

In practice, the ICJ and other international courts consistently refer to and follow their prior decisions — not because they are legally bound to, but because:

• It ensures consistency and predictability

• It builds legitimacy and authority

• It reflects the actual state of customary international law

So there's a gap between the formal rule (not binding) and actual practice (heavily relied upon).

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What Judicial Decisions Actually Do in PIL

Rather than "making" law, they serve to:

Function	Example
Clarify existing treaty rules	ICJ interpreting the UN Charter
Identify customary international law	Nicaragua v. US (1986) on custom
Settle disputes between specific states	Any contentious ICJ case
Influence future negotiations & treaty drafting	Courts shaping state practice

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The "Review Old Cases" Part — Your Original Instinct

You were actually quite close! In PIL, judicial decisions largely function as:

• A record of how rules have been interpreted before

• A persuasive guide (not a command) to future courts

• Evidence of what the law is, not a source that creates law

This is fundamentally different from domestic common law, where precedent is a binding source of law in itself.

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Bottom line: In PIL, judicial decisions are formally non-binding beyond the parties, used as a subsidiary tool to find and clarify the law — so yes, closer to your original instinct, but they carry enormous practical weight even without formal binding force.You've hit on one of the most fundamental weaknesses of international law — the enforcement problem.

You're Right — The US Simply Refused

In Nicaragua v. US (1986), the ICJ ruled against the US, ordering it to stop supporting the Contras and pay reparations. The US:

• Withdrew from the compulsory jurisdiction of the ICJ mid-case

• Vetoed the UN Security Council resolution that would have enforced the ruling

• Never paid a cent to Nicaragua

And Nicaragua eventually dropped the case in 1991 for political reasons after a change of government.

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So What Does "Binding" Even Mean in PIL?

This exposes a core truth — in PIL, "binding" is a legal obligation, not a guaranteed reality. There is no:

• 🚫 International police force

• 🚫 Bailiff to seize state assets

• 🚫 Compulsory enforcement mechanism

The only formal enforcement tool is Article 94 of the UN Charter, which says a party can bring non-compliance to the Security Council — but permanent members (US, Russia, China, UK, France) can simply veto any enforcement action against themselves or their allies.

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So Compliance Depends On...

Factor	Reality
Political pressure	Other states shaming or sanctioning the violator
Reciprocity	Fear that non-compliance weakens rules that protect you too
Reputation	States value being seen as law-abiding in future negotiations
Power asymmetry	Powerful states can ignore rulings; weak states often cannot

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The Uncomfortable Truth

International law is largely voluntary compliance dressed up in binding language. It works well between states of roughly equal power or when mutual interest aligns — but when a great power decides a ruling is inconvenient, enforcement is essentially political, not legal.

This is why many scholars argue PIL is less "law" in the strict sense and more a sophisticated system of norms and expectations — binding in theory, but only as strong as the political will behind it.

 What are ICJ advisory opinions?

 ICJ advisory opinions are legal opinions given by the International Court of Justice when asked by UN organs or specialized agencies.

 They do not decide disputes between states, are not legally binding,  and provide authoritative legal guidance on international law. Think of them as legal advice, not judgments.

 Why are advisory opinions important?

 Even though they are not binding, advisory opinions clarify uncertain legal questions, and explain how international law applies to complex situations. They carry strong moral and legal authority.

 Example: The Wall in the Occupied Palestinian Territory (2004)

 What was the question?

 The UN General Assembly asked the ICJ:

·Whether Israel’s construction of a separation wall in the Occupied Palestinian Territory was lawful under international law.

 What did the ICJ say?

 The Court concluded that:

·The construction of the wall violated international law

·It breached: International humanitarian law and International human rights law

·Israel had an obligation to stop construction, dismantle parts of the wall, and to provide reparations

 Was the opinion legally binding?

 No. Because it was an advisory opinion, not a judgment. However, It strongly influenced international debate, guided UN resolutions, and it clarified the legal consequences of occupation.

Writings of publicists

Role of Academic Contributions

 Writings of eminent scholars interpret and clarify legal principles.

Prominent Scholars

 James Crawford: Renowned for work on state responsibility.

 Hersch Lauterpacht: Influential in human rights law.

Examples

 Academic writings often inform judicial reasoning and state practice, such as Crawford’s analysis in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).

Resolutions of international organisations

 Resolutions, particularly from the UN General Assembly, often shape state behavior and contribute to norm development.

Examples

 Universal Declaration of Human Rights: A landmark non-binding resolution influencing global human rights standards.

Binding vs. Non-Binding Resolutions

 Security Council resolutions can be binding, while General Assembly resolutions are typically non-binding. Crawford notes that resolutions often serve as evidence of emerging customary norms.

Think of it like this:

• Resolutions = official statements or decisions made by international organizations (like the United Nations).

Simple idea to memorize:

• 🟢 General Assembly resolutions → Not binding
  = “Advice / guidelines” → countries are not forced, but they often follow them
  Example: Universal Declaration of Human Rights

• 🔴 Security Council resolutions → Binding
  = “Orders” → countries are legally required to follow them

Important concept (very exam-friendly):
Even if not binding, resolutions can still influence law over time.
👉 If many countries follow them consistently, they can become customary international law (unwritten but accepted law).

One-line memory trick:
“GA = Guidance, SC = Strict rules.”

SOFT LAW

 Definition

 Soft law refers to non-binding instruments, such as guidelines and declarations, influencing state practice.

Examples

 UN Guiding Principles on Business and Human Rights: Promote responsible corporate behavior.

 Soft law serves as a precursor to binding norms, bridging gaps in formal law. Soft law has great influence in environmental and human rights law.

 

JUS COGENS NORMS

Jus cogens are peremptory norms from which no derogation is permitted.

Examples

 Prohibition of genocide;

 Slavery;

 torture.

Interaction with Other Sources

 Jus cogens override conflicting treaty or customary norms. Crawford emphasizes their role in limiting state sovereignty to uphold fundamental values.

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Jus cogens (super rules of international law)

• = Highest-level rules that no country can break or ignore, even if they agree to something else.

Examples to remember:

• ❌ Genocide

• ❌ Slavery

• ❌ Torture

Interaction (VERY important for exams):

• Jus cogens override everything:

  • Treaties ❌ (even if countries signed them)

  • Customary law ❌

👉 If a treaty allows slavery → it is automatically invalid.

Big idea (what Crawford means):
States are usually free (sovereign), BUT
👉 Jus cogens limit that freedom to protect basic human values.

One-line memory trick:
“Jus cogens = no exceptions, beats all rules.” 

check notebook v ery imp write the notes not in here ik fe dont be lazy

BETTER SUGGESTION EVERY TIME U DO THIS SET READ THE NOTES VIMMP

bls for A

treaties are governed by…

the vienna convention on the law of treaties (1969)

Asylum case

Principle:
A state cannot unilaterally impose its interpretation of diplomatic asylum on another state unless there is a clear customary rule accepted by both.

Easy memory:

Customary international law needs consistent acceptance.

Anglo-Norwegian Fisheries case

Principle:
States can use special geographical methods to draw baselines for territorial seas if they are long-standing and consistently used.

Easy memory:

Historic practice + consistent state practice can shape maritime boundaries.

Ah, yes! So in the Anglo-Norwegian Fisheries case, the United Kingdom was the one objecting. They argued that Norway's method of using straight baselines to measure its territorial sea wasn’t in line with international law. The UK said you had to stick to the general rule of measuring from the low-water mark. But the ICJ sided with Norway, saying their historic practice was long-established and could form part of international law. So, the UK was the one raising the objection about the customary law limits.

North Sea Continental Shelf cases

Principle:
For a treaty rule to become customary international law, there must be:

• widespread state practice

• opinio juris (belief that the practice is legally required)

Easy memory:

Customary law = state practice + opinio juris.

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Lotus case

Principle:
States are free to act unless international law specifically prohibits the action.

Easy memory:

What is not prohibited is permitted for states.

Also important for:

• jurisdiction in international law.

Libya/Malta Continental Shelf case

Principle:
Maritime boundary delimitation should achieve an equitable result, not just strict mathematical equality.

Easy memory:

Equity/fairness matters in maritime delimitation.

Nicaragua v. United States

Principles:

• Rules on the use of force and self-defense

• Collective self-defense requirements

• Customary international law can exist separately from treaties

Easy memory:

Limits on self-defense + customary law still applies even outside treaties.

Chorzów factory case

Principle:
A state that commits an internationally wrongful act must make full reparation for the damage caused.

This may include:

• restitution

• compensation

• other forms of reparation

Easy memory:

Wrongful act → full reparation.