Nicaragua Case
28 October 2011, Assignment #3
Rules and norms derive from their sources. The sources articulate what the law is and where it can be found. The sources of international law can be found in article 38 of the Statute of the International Court of Justice. Article 38 of the Statute of the ICJ states: ‘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.’
A rule must derive from one of these sources in order to be considered international law.’
Custom in international law is a practice followed by those concerned because they feel legally obliged to behave in such a way. Custom must be distinguished from mere usage, such as behavior which may be done out of courtesy, friendship or convenience rather than out of legal obligation or a feeling that non-compliance would produce legal consequences, for example sanctions imposed by other members of the international community. This is also a requirement for opinion juris.
The source judicial decisions and scholarly writings are subsidiary means for the determination of the law. Both municipal and international judicial decisions can serve to establish new principles and rules. In municipal cases, international legal rules can become clear through their consistent application by the courts of a number of states.
In the Nicaragua Case the Treaties, Conventions, general principles and customary law are used as sources of law. As are General Assembly resolutions which
Rules and norms derive from their sources. The sources articulate what the law is and where it can be found. The sources of international law can be found in article 38 of the Statute of the International Court of Justice. Article 38 of the Statute of the ICJ states: ‘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.’
A rule must derive from one of these sources in order to be considered international law.’
Custom in international law is a practice followed by those concerned because they feel legally obliged to behave in such a way. Custom must be distinguished from mere usage, such as behavior which may be done out of courtesy, friendship or convenience rather than out of legal obligation or a feeling that non-compliance would produce legal consequences, for example sanctions imposed by other members of the international community. This is also a requirement for opinion juris.
The source judicial decisions and scholarly writings are subsidiary means for the determination of the law. Both municipal and international judicial decisions can serve to establish new principles and rules. In municipal cases, international legal rules can become clear through their consistent application by the courts of a number of states.
In the Nicaragua Case the Treaties, Conventions, general principles and customary law are used as sources of law. As are General Assembly resolutions which