Sources of international law

Abstract

Introduction International law treatises typically devote a chapter to the ‘sources of international law’, and it has been said that ‘[f]ew provisions of treaty law, if any, have called for as many comments, debates, criticisms, praises, warnings, passions, as Art. 38 of the Statute’. Article 38(1) of the ICJ Statute reads: 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. In the process of discharging their function of clarifying the provisions of the WTO agreements, WTO adjudicators have offered useful statements on all of the different sources of international law. This chapter reviews WTO pronouncements of wider applicability relating to: (i) Article 38(1) generally; (ii) customary international law; (iii) general principles of law; (iv) judicial decisions; and (v) the teachings of publicists. Article 38(1) of the ICJ Statute WTO panels and the Appellate Body have relied on Article 38(1) of the ICJ Statute as a general and authoritative definition of the accepted sources of international law. In EC – Approval and Marketing of Biotech Products , the Panel stated that the reference to ‘rules of international law’ in the context of Article 31(3)(c) of the Vienna Convention seems sufficiently broad to encompass ‘all generally accepted sources of public international law’. The Panel did not make express reference to Article 38(1), but the ‘generally accepted sources of public international law’ that the Panel identified corresponded to those set out therein: In considering the provisions of Article 31(3)(c), we note, initially, that it refers to ‘rules of international law’.