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C. Sources of international law

1. Article 38, International Court of Justice Statute

a. ARTICLE 38, ICJ Statute

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

2) International custom, as evidence of a general practice accepted as law;

3) The general principles of law recognized by civilized nations;

4) 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. (Article 38, International Court of Justice Statute)

The above provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

2. Effect of United Nations Declarations, Security Council Resolutions

a. CONCEPT

The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. (Article 23[1], UN Charter)

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. (Article 25, Ibid.)

In general, resolutions adopted by the Security Council acting under Chapter VII of the Charter, are considered binding, in accordance with Article 25 of the Charter. (UN Website, https://ask.un.org/faq/15010)

3. Effect of actions of organs of international organizations created by treaty

a. 1981 VIENNA CONVENTION

The capacity of an international organization to conclude treaties is governed by the rules of that organization. (Article 6, 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations)

1) Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A State or an international organization is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) that State or that organization has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, act of formal confirmation, acceptance or approval, until that State or that organization shall have made its intention clear not to become a party to the treaty; or

(b) that State or that organization has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. (Article 18, Ibid.)

2) Entry into force

A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations may agree. (Article 24[1], Ibid.)

Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States and negotiating organizations or, as the case may be, all the negotiating organizations. (Article 24[2], Ibid.)

When the consent of a State or of an international organization to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State or that organization on that date, unless the treaty otherwise provides. (Article 24[3], Ibid.)

The provisions of a treaty regulating the authentication of its text, the establishment of consent to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. (Article 24[4], Ibid.)

3) Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Article 26, Ibid.)

4) Internal law of States, rules of international organizations and observance of treaties

1. A State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty. (Article 27[1], Ibid.)

2. An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty. (Article 27[2], Ibid.)

3. The rules contained in the preceding paragraphs are without prejudice to article 46. (Article 27[3], Ibid.)

4) Non-retroactivity of treaties

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. (Article 28, Ibid.)

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