NAME : MUHAMMAD SULAIM
SECTION : SEVEN B
SUBJECT : PUBLIC INTERNATIONAL LAW
TOPIC: HIERARCHY AND INTERRELATIONSHIP OF THE SOURCES OF
INTERNATIONAL LAW
Introduction
International law, as a decentralized system governing relations between
states and other actors, derives its rules from various sources without a
central legislative authority. The primary framework for identifying these
sources is Article 38(1) of the Statute of the International Court of Justice
(ICJ), which instructs the Court to apply: (a) international conventions
(treaties), whether general or particular; (b) international custom, as
evidence of general practice accepted as law; (c) general principles of law
recognized by civilized nations; and (d) judicial decisions and teachings of
highly qualified publicists as subsidiary means for determining rules of law.
Additionally, Article 38(2) allows decisions ex aequo et bono (on equity and
good conscience) if parties agree, underscoring the system’s flexibility.
This enumeration implies a hierarchy, with treaties and custom as primary
sources, followed by general principles, and subsidiary aids last. However,
the list is not exhaustive or rigidly hierarchical; international law is dynamic,
adapting to global changes through interrelationships among sources. For
instance, treaties often codify customs, while general principles fill gaps
where treaties and customs are silent. Emerging elements, such as United
Nations General Assembly (UNGA) resolutions and equity, further illustrate
this interplay, potentially evolving into custom over time.
This assignment discusses the hierarchy and interrelationships of these
sources, supported by case law and examples. It argues that while Article 38
provides a structured order for application, sources are interconnected,
allowing international law to evolve responsively. Drawing on classic and
recent cases, such as the ICJ’s 2024 Advisory Opinion on Obligations of
States in Respect of Climate Change, the analysis highlights how hierarchy
ensures predictability, while interrelationships promote comprehensiveness
and adaptability in addressing contemporary challenges like climate change
and human rights.
Main Body
The Hierarchy of Sources in International Law
The hierarchy in Article 38 reflects a practical order for the ICJ to apply
sources, prioritizing explicit consent and established practices to resolve
disputes efficiently. Treaties rank first as they embody express state
consent, making them the most precise and binding for parties involved.
Particular treaties (bilateral or plurilateral) apply directly to contesting states,
while general treaties (multilateral) can influence broader norms. For
example, in the North Sea Continental Shelf Cases (Federal Republic of
Germany v. Denmark; Federal Republic of Germany v. Netherlands, 1969),
the ICJ prioritized the 1958 Geneva Convention on the Continental Shelf but
found it inapplicable to non-parties, illustrating treaties’ primacy only when
expressly
If treaties are unavailable, custom—rooted in general state practice accepted
as law (opinio juris)—takes precedence. Custom requires elements like
duration, uniformity, and generality, though no fixed timeframe is needed;
rapid formation is possible, as seen with continental shelf rules crystallizing
by 1958 from 1945 practices. In the Asylum Case (Colombia v. Peru, 1950),
the ICJ emphasized that the party relying on custom must prove its binding
nature through constant and uniform usage, rejecting diplomatic asylum as
custom due to inconsistencies.
General principles of law, third in order, serve as gap-fillers, drawing from
principles common to major legal systems, such as good faith, estoppel, and
res judicata. These are applied only when treaties and customs fail,
preventing non liquet (no decision due to legal voids). In the Chorzów
Factory Case (Germany v. Poland, 1928), the Permanent Court of
International Justice (PCIJ) invoked the principle of reparation, stating that
breaches entail restitution or compensation—a general principle now integral
to state responsibility. The term “civilized nations” is archaic but implies
universality, as no state is deemed uncivilized today.
Subsidiary means—judicial decisions and juristic teachings—are not true
sources but interpretive tools, used last. Article 59 limits ICJ decisions’
binding force to parties in specific cases, avoiding precedents, yet they
influence future rulings. In the Nicaragua Case (Nicaragua v. United
States, 1986), the ICJ relied on prior decisions to affirm customary rules on
non-use of force, despite overlapping treaty provisions in the UN Charter
Teachings of publicists, like Oppenheim or Lauterpacht, clarify ambiguities
but carry less weight due to potential bias.
This hierarchy is not absolute; Article 38 is declaratory, not exhaustive.
Emerging sources like UNGA resolutions (e.g., the 1960 Declaration on
Granting Independence to Colonial Peoples) can evidence or accelerate
custom formation, as in the Western Sahara Advisory Opinion (1975), where
self-determination was deemed customary.
Equity, though unlisted, informs applications, as in the Gulf of Maine Case
(Canada v. United States, 1984), where equitable delimitation
supplemented treaty rules.
Interrelationships Among the Sources
Sources of international law are not isolated; they interrelate, with one often
reinforcing or evolving from another, ensuring the system’s coherence and
adaptability. Treaties frequently codify customs, transforming implied
consent into explicit rules for clarity and precision. For instance, the Vienna
Convention on Diplomatic Relations (1961) codified customary diplomatic
immunities, while the Vienna Convention on the Law of Treaties (1969)
formalized pacta sunt servanda—a general principle—as treaty law.
This interrelationship accelerates law-making, as treaties provide rapid
development compared to custom’s gradual evolution.
Custom persists alongside treaties, neither superseding the other when
contents align. In the Nicaragua Case, the ICJ held that customary non-
intervention and non-use of force rules continued independently of UN
Charter provisions, allowing application to non-members or where treaties
were inapplicable
Similarly, in the Military and Paramilitary Activities in and against Nicaragua
(Merits, 1986), the Court affirmed that identical rules in treaties and custom
coexist, with custom providing a fallback
Local customs, binding specific states, interlink with general ones, as in the
Right of Passage over Indian Territory Case (Portugal v. India, 1960), where
bilateral practice created mutual obligations without treaty.
General principles bridge gaps, interacting with treaties and customs by
supplying foundational norms. In the Corfu Channel Case (United Kingdom
v. Albania, 1949), circumstantial evidence—a general principle—was
admitted to establish responsibility under custom
Equity interrelates by tempering rigid rules, evolving into custom over time;
in the Fisheries Case (United Kingdom v. Norway, 1951), historic rights
justified exceptional maritime delimitations as customary exceptions
Subsidiary means interpret and develop primary sources. Judicial decisions
clarify interrelationships, as in the Nuclear Tests Cases (Australia v.
France; New Zealand v. France, 1974), where unilateral declarations
were deemed binding under good faith—a general principle—drawing on
juristic teachings.<
UNGA resolutions interlink by evidencing opinio juris, potentially crystallizing
custom; the 1970 Declaration on Principles of International Law accelerated
norms on non-aggression.
A recent example is the ICJ’s Advisory Opinion on Obligations of States in
Respect of Climate Change (2024), which integrates sources without strict
hierarchy.
Treaties like the Paris Agreement (2015) impose mitigation duties,
supplemented by customary no-harm principles requiring due diligence
against GHG emissions. General principles of equity and common but
differentiated responsibilities (CBDR) interrelate with human rights treaties,
obliging states to protect vulnerable populations. The opinion rejects climate
treaties as lex specialis excluding general law, instead affirming custom’s
persistence for non-parties and judicial precedents (e.g., Trail Smelter
arbitration) for attribution of harms. This demonstrates how sources
interrelate synergistically: treaties provide specifics, custom universality,
principles equity, and decisions interpretation, enabling accountability for
fossil fuel activities and reparations.
Such interrelationships ensure international law’s resilience, as seen in
municipal court decisions influencing custom (e.g., uniform extradition rules
from bilateral treaties) and regional courts like the European Court of Human
Rights reinforcing global norms.
Conclusion
In summary, the hierarchy in Article 38—treaties first, followed by custom,
general principles, and subsidiary means—provides a logical sequence for
applying sources, ensuring disputes are resolved based on consent and
practice. Yet, this order is flexible, with interrelationships allowing treaties to
codify customs, customs to endure alongside treaties, and principles to fill
voids, as exemplified in cases like Nicaragua and the recent Climate Change
Advisory Opinion. This dynamic interplay, supported by emerging elements
like UNGA resolutions, enables international law to address modern issues
without stagnation.
Ultimately, while hierarchy promotes clarity and predictability,
interrelationships foster originality and adaptability, reflecting the
consensual, evolving nature of the international community. As global
challenges intensify, this framework will continue to evolve, potentially
incorporating new sources to meet demands for justice and equity.