SUBJECTS: PUBLIC INTERNATIONAL LAW

TOPIC: ANALYZE THE STRUCTURE OF SOURCES OF PUBLIC

INTERNATIONAL LAW. EVALUATE THEIR ROLES IN REGULATING
CURRENT INTERNATIONAL RELATIONS

Môn công pháp quốc tế bài tập nhóm chất lượng cao
 A. PROLOGUE
International law is a system of principles, legal norms, and legal bases jointly
developed by countries around the world and other subjects participating in international
legal relations on a voluntary basis, and equality, through comments and negotiations, to
regulate relationships in many different aspects between the subjects of International Law
with each other. When necessary, it will be guaranteed to be implemented by individual
or collective coercive measures prescribed and enforced by the subjects of International
Law themselves, and by the people's fighting power, world progressive public opinion 1.
International law is built on the basis of agreements expressing the will of the subjects.
Through the agreement process, countries have drafted international treaties, establishing
rules of international law in certain areas. These rules only come into force with the
approval of states. By signing, ratifying, and approving international treaties, countries
commit to implementing international legal norms and are bound by those norms. In
essence: IT represents a compromise on the interests of countries participating in
international relations on the basis of the correlation of forces between countries and the
country's ruling classes in the process. cooperate and fight with each other.2

B. MAIN CONTENT
I. The structure of sources of public international law
* Definition: “The source of law is the expression of legal norms expressed in two
forms, written and unwritten. Regarding the source of International Law, there are many
different interpretations.” In a broad sense: sources of International Law are everything
that competent authorities can rely on to make legal decisions.3

The source of international law has a vital legal and practical significance because
it is closely related to determining the formation of international legal relations and the
process of implementing international law. The formally recognized sources of
1
Stephen P. Marks, Beate Rudolf, Koen De Feyter, and Nicolaas Schrijver “The role of international law”,
https://www.ohchr.org/sites/default/files/Documents/Issues/Development/RTDBook/PartIVChapter31.pdf
2
Frédéric Mégret - Assistant‐Professor, Faculty of Law, McGill University, “International law as law”,
https://s.pro.vn/1bjQ
3
Hugh Thirlway, “The sources of international Law”, https://lawcat.berkeley.edu/record/1102040
2
international law are reflected in Article 38 of the Statute of the International Court of
Justice:

“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;

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.” 4

Thus, according to the above provisions, the sources of public international law are
divided into two types: Primary sources and subsidiary sources. Treaties, customs, and
principles of law are sometimes referred to by lawyers and librarians with a common law
background as "primary sources" of international law. Judicial decisions and the teachings
of publicists are sometimes referred to as "secondary sources" or evidence of international
law rules.

1.1. Primary sources

“A type of source formed from the agreement of international law holders, directly
containing international legal norms, mainly including international treaties and
international practices.”

1.1.1. Treaties and conventions

Treaties are written agreements concluded between states, international
organizations, or a combination of both. They are one of the most important sources of
international law. Treaties can cover a wide range of subjects, including human rights,
trade, environmental protection, and armed conflict. Treaties may be bilateral (between

4
Article 38 - The Statute of the International Court of Justice, https://www.icj-cij.org/statute
3
two states) or multilateral (involving multiple states or international organizations). They
establish binding obligations on the parties involved and contribute to the development
and codification of international law.

Strictly speaking a treaty is not a source of law so much as a source of obligation

under law. Treaties are binding only on States that become parties to them and the choice
of whether or not to become party to a treaty is entirely one for the State – there is no
requirement to sign up for a treaty. Why is a treaty binding on those States which have
become parties to it? The answer is that there is a rule of customary international law –
pacta sunt servanda – which requires all States to honor their treaties. That is why treaties
are more accurately described as sources of obligation under law. But many treaties are
also important as authoritative statements of customary law. A good example is the
Vienna Convention on the Law of Treaties, 1969. Less than half the States in the world
are parties to it but every court which has considered the matter has treated its main
provisions as codifying customary law and has therefore treated them as applying to all
States whether they are parties to the Convention or not. The Vienna Convention of the
Law of Treaties of 1969 sets out the fundamental legal rules relating to treaties. The
Vienna Convention defines a treaty, identifies who has the capacity to conclude a treaty,
and outlines treaty interpretation, dispute settlement mechanisms, and reservations.

The process of signing and implementing international treaties is governed by legal

principles and norms and complies with the jus cogens norms of International Law.
Conditions for an international treaty to become a source of International Law: Not all
signed international treaties are sources of International Law. A treaty that wishes to
become a source of international law must satisfy the following principles:

- Principles of voluntariness and equality in the process of signing international

treaties;

- The principle that international treaties must have content consistent with basic
principles of international law;

- The principle that international treaties are signed must be consistent with the laws
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of the signing parties regarding authority and signing procedures.

1.1.2. International custom

Article 38 of the ICJ Statute provides that a custom is a general practice accepted as
law. Custom is a practice followed by two or more nations in the course of dealing with
each other. These practices can be found in diplomatic correspondence, policy statements,
or official government statements. For the formation of a custom, two elements are
required: the material, generalized repetition of certain acts, and the psychological, the
conviction that such acts are practiced by obligation. The customs must be proved so that
they are valid. Customs may become codified in treaties.

1.1.3. General Principles

General principles of law recognized by civilized nations – the third source – are
seldom mentioned in judgments. They are most often employed where the ICJ or another
international tribunal wants to adopt a concept such as the legal personality of
corporations (eg: in the Barcelona Traction Co. case (1970)) which is widely accepted in
national legal systems. But international law seldom adopts in its entirety a legal concept
from a particular national legal system; instead, the search is for a principle that in one
form or another is recognized in a wide range of national legal systems.

1.2. Subsidiary sources

As a type of source that does not directly contain international legal norms, it is
almost only a recommendation for subjects participating in international legal relations.
They include decisions of the International Court of Justice, international law, general
legal principles, resolutions of intergovernmental international organizations, unilateral
legal acts of states, and doctrines of renowned scholars of international law.”

1.2.1. Decisions of Court (Precedent)

Precedent is legal principles established by prior court cases, serving as a model for
future cases with similar circumstances.5 The doctrine of precedent is based on the
principle of Stare Decisis in the American legal system. Precedents are not binding on

5
Black's Law Dictionary, 5th edition, 1979, p.1059
5
states, except for states that are parties to the proceedings that have made the precedent. 6
Precedent is not unchangeable, because precedents are not inviolable. 7 The
complementary nature of precedent is understood as not directly containing international
legal norms but as an indicator to determine the existence of such norms or used to
supplement the interpretation of norms. These are two functions of precedent as a
supporting source. In a precedent, there will usually be sections where the jurisdiction
makes general statements about the law (determining the existence of a customary rule, or
explaining the meaning of a rule of law), and sections that apply the law to the facts of the
case. There are case laws that have been and will be cited many times (for example, the
PCIJ's decision in 1927 in the Mavromatis Case on the definition of disputes), but there
will also be case laws where the citation is just for reference.8

1.2.2. Doctrines of renowned scholars of international law

Doctrines of renowned scholars of international law are expressed through their
research works, specialized articles, and books. Scholars should have the highest
reputation in the relevant legal fields of various countries. One point to note is that
sometimes documents from groups, organizations, and professional agencies can also be
classified into this group of scholarly opinions. 9 Doctrines of renowned scholars do not
have any legal effect on countries, because this is simply the opinion of an individual or a
group of experts. When suitable case law cannot be found, the use of the doctrines of
renowned scholars is a useful solution. In practice, however, it is rare for Courts to cite
scholarly opinions, although they use! While arbitral tribunals often cite books and
scholarly opinions, ICJ is very limited in doing so, except in the accompanying opinions
of its judges.10

6
Article 59 - The Statute of the International Court of Justice, https://www.icj-cij.org/statute
7
The Court always has the power to vary its case law if, as an exception, it considers that there are compelling
reasons for doing so, for example, because of a change in the general circumstances surrounding certain awards.
certain legal laws. See also: The case of the obligation to negotiate regarding the end of the nuclear race and nuclear
disarmament (Marshall Islands v. England), Statement of Judge Abraham attached to the Jurisdiction of the ICJ
Court in 2016, para 11.
8
For example, in 2000, the Arbitral Tribunal's Jurisdiction Under Annex VII in the Southern Bluefin Tuna Case on
the interpretation of Article 282 of UNCLOS.
9
For example, drafts with explanations of the ILC, recommendations of committees established by multilateral
human rights conventions, or works of the ICRC
10
Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7 edtion, Routledge, 1997, p.52.
th

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 1.2.3. Unilateral legal acts of states
Unilateral legal acts or unilateral declarations are not included in the list of sources
of Article 38(1) of the Statute of the ICJ. Unilateral legal acts can create obligations for
the state performing the act, and should therefore be considered a formal source of
international law, or can constitute "sources of obligations". 11 Unilateral legal acts were
recognized as legal for the first time by the ICJ in the Nuclear test case. 12 The legal effect
of a unilateral legal act comes from the consent of the state performing the act to be
bound. The special point is that the binding effect of commitments comes from unilateral
legal acts of a one-way nature, whereby a country commits to an obligation for itself in
relations with other countries. In the Nuclear Test Case, ICJ further explained that the
legal effect of a unilateral declaration comes from the principle of good faith.13

1.2.4. Resolutions of intergovernmental international organizations (IGOs)

Depending on the regulations of each international organization as recorded in
international treaties that are the legal basis for the powers and activities of that
international organization, resolutions may be binding or binding. Are not. For example,
according to the provisions of the United Nations Charter, resolutions of the Security
Council have binding force, while resolutions of the General Assembly normally do not
have binding force but are recommendations. Besides their binding effect, the role of
resolutions of international organizations lies in expressing the common will of member
states, for example, resolutions of the UNGA can represent 193 countries. And this has an
impact on the direction in which international law will develop in the future. In addition,
the method of passing the resolution – majority, absolute majority, unanimity or
consensus. Each resolution needs to be considered in its entire relevant context, including
evidence of countries' positions on each issue and each clause in the resolution.

11
ILC, Report of International Law Commission, 54th session, 2002, GAOR Suppl. No. 10 (A/57/10), p. 215.
12
Nuclear testing case (Australia v. France/New Zealand v. France), 1972 ICJ Judgment, para 46.
13
The Court declared: “One of the basic principles governing the creation and performance of legal obligations,
whatever their source, is the principle of good faith…Thus interested States may take cognizance of unilateral
declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.".
See Nuclear testing (Australia v. France/New Zealand v. France), 1972 ICJ Judgment, para. 49
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 1.3. The relationship between primary sources and subsidiary sources
Primary sources Subsidiary sources
Characteristic - Directly contains basic legal There are no specific
rules explanatory texts or documents
- Stated and explained carefully in
many international legal
documents
- Formed from the agreement of
the subjects of international law
Role Has binding value for subjects in - Is an interpretation tool for
international legal relations primary sources
- Is the basis and legal basis to
form the primary sources
- Determine the role of the
primary sources

II. The important role of these sources in regulating the International relations
2.1. The meaning and role of international treaties in regulating international
relations
- It is a basic legal form containing international legal norms to build and stabilize
the legal basis for international legal relationships to form and develop. In all cases, the
subject of international law must always ask which norms of international law this
specific social relationship needs to be regulated by. Therefore, voluntary and equal
agreement between subjects of international law to sign international treaties regulating
issues arising in international relations is very important. It creates a legal basis for
building and stabilizing international legal relationships, the need for international
cooperation in resolving human rights issues has led to the emergence of the Convention
on Children's Rights in 1989.

- It is an important tool to maintain and strengthen international cooperative

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relations between subjects. Article 26 of the 1969 Convention stipulates: "Every treaty
in force is binding on the parties to the treaty and must be implemented by the parties in
good faith". Participating in a treaty is the basis and important guarantee for the signing
entity to bind itself to the obligation to implement the provisions of international law.
Therefore, a treaty plays an important role in maintaining and strengthening international
cooperation.

- Important legal guarantees for the legitimate rights and interests of international
law subjects. In the process of signing a treaty, in the first stage, all countries when
negotiating and discussing are given their opinions to come up with the most correct
content that benefits all parties. join. In the second stage, countries also have the full right
to decide whether or not it is in the interests of their nation to join the treaty. Besides, all
international treaties, when implemented, will apply equally to all and have the same legal
effect, with no exceptions for any country. It can be seen that voluntariness and equality
in treaty relations have become a basis for evaluating the legality of an international
treaty. Accordingly, treaties signed through deception, use of force, or coercion will have
no legal value (Articles 49.52 of the 1969 Vienna Convention). Thus, the principle of
voluntary equality in the process of signing international treaties has contributed to
protecting the legitimate rights and interests of the signing subjects in international legal
relationships.

- It is a tool to build a modern legal framework, as well as effectively carry out the
codification of international law. Article 38 of the statute of the United Nations
International Court stipulates: “The court has the task of resolving disputes brought
before it on the basis of international law, applying: a) international conventions, general
or specific, in which the rules are clearly recognized by the disputing countries..." Thus,
international treaties are one of the important legal bases for resolving international
disputes, thereby contributing to Building a modern legal framework. Starting from
international agreements and treaties, clearly reflect the aspirations and will of the
subjects of international law, so the implementation and compliance with international
law becomes should be voluntary and active. In addition, international treaties are clearly

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recorded in normative documents, so they also contribute to creating conditions for
effectively codifying international law.

2.2. The meaning and role of customary convention in regulating international

relations
Effectively regulate international legal relations arising between international law
subjects. International legal relationships are very diverse and complex, therefore, to
regulate these relationships effectively and consistently, the application of international
legal practices is important. The process of forming international customs: Not through
signing acts, but it is formed in the practice of international relations and recognized by
international law subjects. However, international customs are mainly formed in the
following ways:

- Traditional path: formed from the practice of international relations. For example:
Regulations related to diplomatic and consular relations are also formed from the needs of
diplomatic relations between countries around the world.

- From the practice of implementing recommended resolutions of international

organizations. For example: United Nations General Assembly Resolution No. 3314
dated December 14, 1974, clearly stated that aggression is an act of this country illegally
using armed forces to attack national territory. Another thing...the fact that countries
agreed with the above resolution on the definition of invasion demonstrated their
recognition of the practical effect of the resolution so that countries could act according to
the standards stipulated in the resolution. this decision. This also means that countries
have acknowledged the application of new international practices as binding legal
norms.14

- From the practice of implementing judgments of international judicial agencies.

For example: The dispute between Norway and England over fishing rights in the waters
of Norway has formed international practice on how to determine straight baselines.

- Formed from a single precedent. For example: In 1975, the Soviet Union was the

14
Definition of Aggression General Assembly resolution 3314, https://legal.un.org/avl/ha/da/da.html
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first country to launch a ship into space. The silent agreement of nations also means the
recognition of a new customary norm of international law, which is the customary norm
of the right of innocent passage in space above the territorial air of the country. other
countries.

- Formed from international treaties: International treaties and international

practices have two different ways of formation: First, international practices are formed
from codified international treaties. For example: Before the Convention on the Law of
the Sea took effect, countries applied it as customary practice. Second, international
customs are formed from the practice of implementing international treaties of third
parties.

For example: 2 countries A and B agree to a treaty related to avoiding double taxation,
and country C finds it reasonable to apply the regulations applied by C as international
customary norms. in this treaty.

2.3. The role of subsidiary sources in adjusting international relations

Although it does not have mandatory legal value like the basic sources of
International Law (International Treaties and International Customs conventions), the
subsidiary sources are extremely important and have high practical value in legal science.

- Types of supporting sources act as a basis for forming basic sources and are also a
means of explaining and clarifying the content of basic sources. Various types of
supplementary sources can be used to regulate international legal relations in the absence
of a basic source for adjustment.

- Supporting sources are a highly convincing basis for determining legal standards,
especially when there is disagreement on a certain issue of International Law. On the
basis of affirming their correctness and reasonableness, supporting sources serve as a
material basis to serve as a foundation for building new norms of international law,
including the formation of international legal norms. practice in the form of customs

In addition, supporting sources also have a positive influence on the development

process of International Law and people's awareness of the science of International Law.
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From here on, when developing international treaties and international practices, they play
a significant role in the formation of new international treaties.

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 C. EPILOGUE
A rule of international law must derive from one of the recognized sources,
namely: (1) treaties and conventions; (2) international custom; (3) general principles of
law; and (4) the 'subsidiary sources' of judicial decisions and legal teachings. Treaties are
binding only on the parties to them; custom (which pre-supposes an established practice
and a psychological element known as the opinio juris) is in principle binding on all
States unless it is a 'special' or 'local' custom, and save for the exceptional case of the
'persistent objector. The general principles of law (princi- pally as evidenced by national
legal systems) may be appealed to if a point is not settled either by treaty or custom. Other
sources, or alternative conceptions of how law comes into being. have from time to time
been suggested, but the traditional analysis continues to be used in practice, in particular
by the International Court.

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