Written Assignment:

Sources of International Law

Aiman Hafiz bin Abd Razak (1815153)

Introduction to Public International Law (LAW 3912)

Semester 1, 2020/2021

Prof. Dr. Abdul Ghafur Hamid @ Khin Maung Sein

3 December 2020
 SOURCES OF INTERNATIONAL LAW

Introduction

The international legal system is lack of legislative authority. Unlike the national legal
system, there are no specific constitution or statutes that govern the relationship between the states.
Therefore, it is important to know which sources do the international tribunals and arbitrations
apply in deciding an international dispute. The sources of international law are prescribed under
Article 38 of the Statute of the International Court of Justice (ICJ Statute). It states that the court
should apply international conventions, international custom, the general principles of law, judicial
decisions and the teachings of the most highly qualified publicists of the various nations.

Among these sources, they are categorized into primary and secondary sources. The
primary sources, also known as the formal sources, constitute the international law itself.
Paragraph a, b and c of Article 38 are considered as the primary sources, namely the international
treaty, customary international law and the general principles of law recognized by civilized
nations. Besides, secondary or material sources of international law such as judicial decisions and
the teachings of the publicists of the various nations are only to be used as the evidence in
determining the law. It can be found in paragraph d of Article 38 by the term ‘as subsidiary means’.
However, these sources do not create the law, but they are merely identifying the customary
international law as it is unwritten. Other than that, the International Court of Justice may decide
a case ex aequo et bono, provided that the parties in dispute agree to it1. The maxim means that
the judge would consider what to be fair, just and equitable in deciding the case, rather than strictly
follow the law.

This paper discusses how the following materials can be treated as sources of international
law. Among of the items are the commentary of the International Law Commission on a provision
of a convention drafted by it, the principles of equity, a treaty between two disputing parties and
an article in the international law journal by an eminent professor. Also, the hierarchy among these
materials will be included in the discussion.

1
Art. 38(2) of the Statute of the International Court of Justice.
Item (e) – The commentary of the International Law Commission on a particular provision
of a convention drafted by it

International Law Commission (ILC) is a law drafting body established by the United
Nations General Assembly. The body consists of 34 elected members of international law experts
from around the world, provided that no two members of the same nation2. Its establishment was
due to the absence of legislative authority to enact international laws. We will discuss whether the
commentary of the Commission is considered as a formal or material source of international law
under the ICJ Statute.

There is no express provision in Article 38(1) concerning the commentary of the ILC.
However, it obviously excluded from the formal sources of law. Because of that, we need to know
its objectives and functions in the international legal system to determine whether it occupied the
notions of ‘subsidiary means for the determination of rules of law’. In the case of Archer Daniels
Midland Company and Tate & Lyle Ingredients Americas, Inc v Mexico 3, the tribunal
acknowledged the fact that the ILC Articles represent in part the progressive development of
international law, pursuant to its UN mandate and represent to a large extent a restatement of
customary international law regarding secondary principles of state responsibility.

Basically, ILC is responsible for the codification and progressive development of several
fields in international law4. The Commission had contributed to the codification and progressive
development of several other fields of international law, including international criminal law,
jurisdictional immunities of States and diplomatic protection5. One of its successful contribution
to the development of international law is the codification of the Vienna Convention in the Law
of Treaties 1969. Besides, in Hostage6 case, the ICJ expressed the view that the codification of the
Vienna conventions may restate customary international law of diplomatic and consular relations,
state principles and rules.

2
Article 2a of the Statute.
3
Case No. ARB(AF)/04/05, Award, 21 November 2007.
4
Article 1 of the Statute of ILC.
5
Fernando Lusa Bordin “Reflections of Customary International Law: The Authority of Codification Conventions
and ILC Draft Articles in International Law,” International and Comparative Law Quarterly 3, 63 (2014): 539.
6
US Diplomatic and Consular Staff in Tehran (United States v Iran) [1980] ICJ Rep 3.
 Article 20 of the ILC Statute provides the procedures in codifying international law. The
ILC shall draft articles and submit to the General Assembly together with a commentary containing
the treaties, judicial decisions and state practice. Moreover, it is stated that the Commission shall
make a report to the General Assembly on the ways for making the evidence of customary
international law more readily available, such as the collection and publication of documents
concerning State practice and of the decisions of national and international courts on questions of
international law7.

‘Publicist’ can be separated into different types, which are state-empowered entities, expert
groups, and ordinary writers8. The commission was established by the General Assembly, which
was itself established by states. Furthermore, by looking at the procedure, the works of the ILC
are based on the existing customary law and state practice. The ILC can be regarded as a publicist
as it is one of the state-empowered body that provides authoritative evidence of international law.
In conclusion, the commentary made by the International Law Commission is a material source of
international law.

7
Article 24 of the Statute.
8
Sandesh Sivakumaran, “The Influence of Teachings of Publicists on the Development of International Law,”
International and Comparative Law Quarterly (2017) 66, 3.
Item (f) – An equitable principle applied in most of the national legal system

Other than written law, equity is also a legal principle that is exercised commonly by the
courts in deciding a case. Hence, we need to determine how equitable principles that are applied
in most of the national legal system can be addressed as a source of international law.

Article 38(1)(c) of the ICJ Statute states that the court may invoke the legal principles
accepted in all or most of the national legal systems. Further, it is stated that the court may decide
a case ex aequo et bono, which means that the judge would consider what to be just and equitable
in deciding the case9. It is important for the international courts to use it in the absence of treaty
and customary international law. In the case of Diversion of Water from the Meuse10, the Belgian
Government relied on the principle of estoppel by conduct against Netherlands’ claim. The judge
in his judgement recognized the principles of equity as part of the international law. Further, he
stated that the principles of equity are allowed by the authority of Article 38(1)(c) of the Statute
since the principles are common to all national legal system.

One of the equitable principles in international law is natural justice such as the doctrine
of good faith and estoppel. It can be found in the case involving the delimitation of maritime
boundaries like Gulf of Maine case and North Sea Continental Shelf case. The court stated that the
concepts of acquiescence and estoppel follow from the fundamental principles of good faith, even
though they are not expressly mentioned in international law11. It shows that the courts in both
cases recognized the fundamental principles of equity in delimiting the boundaries between the
States. Besides, the duty to provide reparation in consequence of a wrongful act, legal logic and
equitable principles in procedural law are among the examples of the general principles in
international law.

The principles of equity may be considered as the general principles of law mentioned
under Article 38(1)(c). In addition, the principles are applied in most of the national legal system.
To conclude, the courts may apply equitable principles as a primary source of international law,
after the international conventions and custom.

9
Art 38(2) of the Statute of the International Court of Justice.
10
(1937) PCIJ Series A.B. case No. 70.
11
ICJ Rep., 1984, p. 246.
Item (g) – A treaty between the two parties to the dispute

Treaty is defined as an international agreement established between two or more sovereign

The authority of applying a treaty as the primary source of law can be found in Article
38(1)(a) of the ICJ Statute. The statute provides that the court shall apply the international
conventions which establish the rules that are recognized by the disputing parties. The conventions
or treaties may either be a general or particular treaty. The general treaty includes most of the
nations as the subject while the latter binds a limited number of states only.

The rules to conclude an international treaty can be found in the Vienna Convention on the
Law of Treaties. Fundamentally, a treaty is binding upon the parties who are consent to it and must
be performed in good faith. The consent may be expressed such as signature, ratification and
accession13. This is in line with the legal maxim pacta sunt servanda, which later was codified into
Article 26 of Vienna Convention on the Law of Treaties. Any failure to comply with the treaty
would render the wrongful party liable for international responsibility. In the case of Whaling in
the Antarctic14, the court ordered Japan to revoke any extant authorization, permit or license
granted to the whaling project, resulting from the violation of the convention to preserve marine
mammals. It was further stated in Article 34 of the convention that non-parties are not bound by
the treaty. The article applies the maxim pacta tertiis nec nocent nec prosunt. It means that the
party who does not consent to the treaty would not subject to the obligations incurred in it.

Nevertheless, there are some exceptions which a treaty may bind the non-parties states.
Firstly, the rules in a treaty may be binding upon a non-member due to its recognition as customary
international law. In North Sea Continental Shelf cases15, the court held that a multilateral treaty
may be binding on all States because the parties are bound by the obligations and non-parties are
bound because the obligations are rooted in customary international law. Secondly, certain treaties

12
Article 2(1a) of the Vienna Convention on the Law of Treaties.
13
Article 11 of the Vienna Convention.
14
(Australia v. Japan: New Zealand intervening), I.C.J. Reports 2014, p. 226.
15
North Sea Continental Shelf cases (1969) ICJ Rep., 3.
like the Charter of the United Nations have universal application upon its members or non-
members16.

It is obvious that the two disputing parties are bound by the terms and obligations that they
have created in the treaty. All in all, the treaty should be treated as the first and primary source of
international law in resolving a dispute.

16
Article 2 (6) of the Charter of the United Nations.
Item (h) – An article in the American Journal of International Law by an eminent professor

Finally, we need to determine how an article by an eminent professor in the American

Article 38(1)(d) of the ICJ Statute states that teachings of the most highly qualified
publicists to be applied as subsidiary means for the determination of rules of law. The term
‘teachings’ in the provision includes writings, digests, textbooks, monographs, commentaries,
journal articles, and blog posts made by the publicist. Whilst, the term publicist can be broken
down into different types, which are state-empowered entities, expert groups, and ordinary
writers17. Although the phrase ‘most highly qualified’ brought a subjective meaning, courts and
tribunals frequently indicate the expertise of an individual publicist through how they are
described. Sometimes, individual publicists are described as ‘eminent’ or ‘learned’ to show that
they are someone whose views really can be taken seriously18.

In the case of The Paquete Habana19, the judge stated that customs and usages of civilized
nations will be referred to in the absence of treaty and legislative act or judicial decision. In order
to do that, the works of experienced and well-acquainted jurists and commentators would be used
as evidence of these customs. Further, he stated that such works are referred to by judicial tribunals
not for the speculations of the authors concerning what the law ought to be, but for trustworthy
evidence of what the law is.

Referring to the items given, the article is written by an eminent professor in one of the
infamous international law journals. American Journal of International Law is a journal that
contains articles, essays, editorial comments and book reviews by pre-eminent scholars and
practitioners from around the world indicating developments in public and private international
law and foreign relations law20. Article 38(1)(d) mentions that the source should be used as
subsidiary means, thus the article is a material source of international law.

17
Sandesh Sivakumaran, “The Influence of Teachings of Publicists on the Development of International Law,”
International and Comparative Law Quarterly (2017) 66, 3.
18
Sivakumaran, “The Influence of Teachings of Publicists,” 9.
19
175 U.S. 677 (1900).
20
“American Journal of International Law,” American Society of International Law, accessed November 24, 2020,
https://www.asil.org/resources/american-journal-international-law.
Conclusion

In a nutshell, Article 38(1) of the Statute of ICJ is the main authority in prescribing all
sources of international law that the international court should apply in settling the disputes
between the nations. However, international courts are not restricted to apply these prescribed
traditional sources only. There are other contemporary sources such as the resolutions of
international organizations and soft law. Usually, the acts of United Nations General Assembly
and Security Council would represent as another source of law in the modern time.

Based on all materials discussed above, first and foremost, the court shall apply a treaty
between the two parties to the dispute. Treaty and customary international law should be prioritized
than other sources in resolving the disputes between the parties. If both sources are absent, then
the court shall apply the general principles of law recognized by civilized nations, which is the
equitable principle applied in most of the national legal system.

The subsidiary sources which are the commentary of the International Law Commission
and the article by an eminent professor in international law journal would be used as the material
in identifying the customary international law. However, the work of the ILC should convey more
authority compared to the teachings of an eminent professor. The status of the entity, its
composition and the procedure it follows have provided obvious reasons why its work should be
regarded as authoritative21. In comparison, ILC is an international body established by the United
Nations and consists of 34 international law experts, representing several regional groups.
Furthermore, it follows a special procedure in codifying international law22.

It is important to mention that even though the material sources such as judicial decisions,
are not binding to all states23, they are essential to prove the existence of such rules of international
law due to the undocumented customary law and state practice. The judicial decisions and the
teachings of the publicists would contribute to the development of international law.

21
Fernando Lusa Bordin “Reflections of Customary International Law: The Authority of Codification Conventions
and ILC Draft Articles in International Law,” International and Comparative Law Quarterly 3, 63 (2014): 558.
22
Article 20 of the ILC Statute.
23
Article 59 of the ICJ Statute.
References

“American Journal of International Law,” American Society of International Law, accessed

November 24, 2020 https://www.asil.org/resources/american-journal-international-law.

Bordin, Fernando Lusa. “Reflections of Customary International Law: The Authority of

Codification Conventions and ILC Draft Articles in International Law.” International

and Comparative Law Quarterly 3, 63 (2014): 535-567.

Diversion of Water from the Meuse (Netherlands v Belgium), (1937) PCIJ Series A/B, No. 70.

http://www.worldcourts.com/pcij/eng/decisions/1937.06.28_meuse.htm.

Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, 1.C.J. Reports

1984, p. 246. https://www.icj-cij.org/public/files/case-related/67/067-19841012-JUD-01-

00-EN.pdf.

ICSID, Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v the

United Mexican States, Case No. ARB(AF)/04/05, Award, 21 November 2007.

International Court of Justice. 1965. “Statute of The International Court of Justice 1965.”

https://www.icj-cij.org/en/statute.

North Sea Continental Shelf cases, (1969) ICJ Rep. 38.

Sivakumaran, Sandesh. “The Influence of Teachings of Publicists on the Development of

International Law.” International and Comparative Law Quarterly 66 (2017) 1-32.

The Paquete Habana, 175 U.S. 677 (1900) https://supreme.justia.com/cases/federal/us/175/677/.

United Nations. 1945. “Charter of United Nations.” https://www.un.org/en/sections/un-

charter/un-charter-full-text/.

United Nations Office of Legal Affairs. 1947. “Statute of the International Law Commission.”

https://legal.un.org/ilc/texts/instruments/english/statute/statute.pdf.
United Nations Office of Legal Affairs. 1969. “Vienna Convention on the Law of Treaties

1969.” https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

United States Diplomatic and Consular Staff in Tehran, Judgment, 1.C.J. Reports 1980, p. 3.

https://www.icj-cij.org/public/files/case-related/64/064-19800524-JUD-01-00-EN.pdf.

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J.

Reports 2014. https://www.icj-cij.org/public/files/case-related/148/148-20140331-JUD-

01-00-EN.pdf.