Sources of International Law
| Author | John H. Currie |
| Profession | Faculty of Law University of Ottawa |
| Pages | 66-102 |
CHAPTER
3
SOURCES
OF
INTERNATIONAL
LAW
A
RELEVANCE
AND
DEFINITION
OF
"SOURCES"
The
domestic lawyer
or law
student
is
rarely preoccupied with
the
sources
of
domestic
law and
even more rarely with
its
binding
author-
ity.
Most
domestic legal systems
are
mature enough that
the
sources
of
the law are
well established
and
grounded
in an
authoritative, albeit fre-
quently complex, constitutional
and
institutional
framework.
In
Can-
ada it is a
virtual article
of
faith
that
all
binding
legal rules
find
their
source either
in the
enactments
of
constitutionally-sanctioned legisla-
tive
bodies (Parliament
and
provincial legislatures)
or
their delegates
(for
example,
federal
or
provincial cabinets
and
municipal authorities),
or
in the
common
law
developed
by the
courts.
In
other words,
in a
domestic legal order,
it is a
given
that
constitutionally competent
insti-
tutions
are
assigned
the
task
of
promulgating
and
enforcing
the
law.
The
situation
is
entirely
different
in the
international legal sys-
tem.
As we
have
seen,1
that system
is
typified
by the
absence
of a
for-
mal
constitutional structure,
a
lack
of
central organization
and
only
a
tenuous (and essentially voluntary) institutional
framework.
Hence,
there
is no
central
or
constitutionally authorized legislature
or
law-
1 See
above
Chapter
1.
66
Sources
of
International
Law 67
making authority
in
international law. While
the
Charter
of
the
United
Nations2
has the
outward appearance
of an
international constitution,
it is
simply
an
international treaty, binding upon states
who are
par-
ties
to it in
accordance
with
international
treaty
law.3
Further,
while
the UN
enjoys near-universal participation
by the
world's
states4
and
certainly
plays
an
important institutional role
in
providing
a
perma-
nent
forum
for
sustained international dialogue
and
diplomacy,
it has
no
general law-making powers
of its
own.5
The
powers
of the UN
General Assembly,
for
example,
are
limited
to
discussing
and
making
recommendations
on
questions
or
matters coming within
the
scope
of
the UN
Charter.6
The
International Court
of
Justice, being
the
"principal judicial organ
of the
United
Nations,"7
only
has
jurisdic-
tion over cases submitted
to it
with
the
consent
of the
parties and,
in
any
event,
has no
power
to
create binding precedent
as
does
a
com-
mon law
court.8
Even
the UN
Security Council, which
is
given
the
power
to
make determinations
and
impose measures
in
matters
of
international peace
and
security, only
has the
authority
to
bind
mem-
ber
states
of the
organization, that
is,
parties
to the UN
Charter.9
In
that
sense,
the
Security Council
is
simply exercising authority delegated
2
Charter
of
the
United
Nations,
26
June 1945, Can. T.S. 1945
No. 7
(entered into
force
24
October 1945)
[hereinafter
UN
Charter}.
3 See
below Chapter
4.
4 At the
time
of
writing
189
states were members
of the
United Nations.
5 But see O.
Schachter,
"United Nations Law" (1994)
88 Am. J.
lnt'1
L. 1.
6 See
generally
UN
Charter, above note
2,
Chapter
IV.
Note,
however, that
the
General Assembly
has the
power
to
control
the
budget
of the UN
(Article 17);
to
elect members
to
various
UN
bodies such
as the
Security Council (Article
23(1)),
the
Economic
and
Social Council (Article
61),
the
Trusteeship Council (Article
86(l)(c))
and the
International Court
of
Justice (Article
4,
below note
8); and to
admit, suspend,
or
expel
members
to or
from
the UN
(Articles 4-6).
It
also enjoys certain other powers
in
respect
of the
administration
of
trust territories (Chapters
XII-XIII).
7
Article
92, UN
Charter,
above note
2.
8
Case
Concerning
East
Timor
(Portugal
v.
Australia) [1995]
I.C.J.
Rep.
90 at
101,
para.
26;
Article
59,
26
June 1945, Can.
T.S.
1945
No. 7
(entered into
force
24
October 1945)
[hereinafter
ICJ
Statute}.
9
Note, however, that
the UN
Charter provides that
the
United Nations shall ensure
that non-members comply with
the
principles
of the
organization
insofar
as
necessary
to
maintain international peace
and
security:
UN
Charter,
above note
2,
Article
2(6).
68
PUBLIC
INTERNATIONAL
LAW
to
it by
states
in a
treaty10
and
acting
as a
political organ rather than
a
judicial
or
law-making
institution.11
This
perhaps
remarkable
fact
—
that
there
is no
central law-mak-
ing
authority
in our
international legal system
— is, in
reality, hardly
surprising
at
all.
It is a
natural result
of the
underlying structure
of the
international "community," which comprises,
as we
have seen,
a
col-
lection
of
independent, sovereign states which,
by
definition,
are not
subject
to
foreign authority.
The
originally rigid conception
of the
sov-
ereignty
of the
nation state
has
been somewhat relaxed, particularly
in
the
twentieth century,
but in the
main
the
community
of
nations
remains essentially that
— a
collection
of
some
200
independent
nation states that
are
largely
not
subject
to
external authority
and
that
have
so far
resisted
the
establishment
of any
"world government" with
law-making, much
less
law-enforcing,
organs.12
The
dilemma
for the
international lawyer, then,
is
whether
one can
speak
of
international
law at
all.
In the
absence
of
some recognized law-
making authority, where does
the law
originate? What
are its
sources?
While
the
principal
and
most widely accepted answers
to
these
ques-
10
Namely,
the UN
Charter, above note
2.
11
Case
Concerning
Armed
Activities
on the
Territory
of
the
Congo
(Democratic
Republic
of
the
Congo
v.
Uganda),
Provisional
Measures, Order
of 1
July
2000,
(2000)
I.C.J.
No.
116
at
para.
36,
online: International Court
of
Justice Homepage
www.icj-cij.org/icjwww/idocket/ico/icoframe.htm>
(date accessed:
3
June 2001);
Military
and
Paramilitary
Activities
in and
against
Nicaragua
(Nicaragua
v.
United
States
of
America)
(Jurisdiction
and
Admissibility),
[1984]
I.C.J.
Rep.
392 at
435;
Application
of
the
Convention
on the
Prevention
and
Punishment
of
the
Crime
of
Genocide
(Bosnia
and
Herzegovina
v.
Yugoslavia),
Provisional Measures, Order
of
April
8,
1993
at
para.
33. But
note that
the
Security Council
has on
occasion
exercised
its
power
to
establish free-standing judicial institutions, such
as the
International
Criminal Tribunal
for the
Former
Yugoslavia
and the
International
Criminal Tribunal
for
Rwanda.
On the
Tribunal
for the
Former
Yugoslavia,
see
Report
of
the
Secretary
General
Pursuant
to
Paragraph
2
of
Security
Council
Resolution
808
(1993),
UN
SCOR,
48th
Year,
UN
Doc. S/25704,
S/25704/Add.l,
S/
25704/Corr.l;
SC
Res.
827 (25 May
1993),
UN
SCOR,
48th
Year,
UN
Doc.
S/RES/
827(1993);
Statute
of
the
International
Tribunal,
adopted
by SC
Res. 827,
ibid.,
Annex,
UN
Doc. 25704 (1993),
as
amended
by SC
Res.
1166
(13 May
1998),
UN
SCOR,
53rd
Year,
UN
Doc.
S/RES/1166(1998);
as
amended
by SC
Res. 1329
(30
November
2000),
UN
SCOR,
55th
Year,
UN
Doc.
S/RES/1329(2000).
On the
Tribunal
for
Rwanda,
see SC
Res.
955 (8
November 1994),
UN
SCOR,
49th
Year,
UN
Doc.
S/RES/955(1994);
Statute
of
the
International
Tribunal
for
Rwanda,
adopted
by SC
Res. 955(1994),
UN
SCOR,
49th
Year,
UN
Doc.
S/INF/50
(1994).
12 The
United Nations Security Council's powers
to
enforce
maintenance
of
international
peace
and
security pursuant
to
Chapter
VII of the
Charter
of
the
United
Nations
is a
notable
but
narrow exception.
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