Sources of International Law

Introduction
International law is the name of a body of rules which regulate the conduct of the
States in their relations with one another.[1] Sources of international
law include treaties, international customs, general principles of law as recognized
by civilized nations, the decisions of national and lower courts, and scholarly
writings. They are the materials and processes out of which the rules and principles
regulating the international community are developed. They have been influenced
by a range of political and legal theories.

Since there is no world government, there is no world Congress or parliament to

make international law the way domestic legislatures create laws for one country.
As such, there can be significant difficulty in establishing exactly what is
international law. Various sources, however—principally treaties between states—
are considered authoritative statements of international law. Treaties are the
strongest and most binding type because they represent consensual agreements
between the countries who sign them. At the same time, as stated in the statute of
the International Court of Justice (ICJ), rules of international law can be found in
customary state practice, general principles of law common to many countries,
domestic judicial decisions, and the legal scholarship.

Treaty law:
Treaties and Conventions are written agreements that states willingly sign and
ratify and as such are obliged to follow. Such agreements, which are also called
statutes or protocols, givern the mutual relations between states. They are,
however, only binding on those states that have signed and also ratified the
particular treaty.

The Vienna Convention of the Law of Treaties of 1969, sets out the fundamental
legal rules relating to treaties. The Vienna Convention defines a treaty, identifies
who has the capacity to conclude a treaty, and outlines treaty interpretation,
disputes, and reservations…………………………………………………………..
The basis of treaty law is ‘pacta sunt servanda’, which means that agreements
must be honoured and adhered to.

Reservations, declarations and derogations:

Many states are involved in the process of drafting a treaty, which often includes
stark disagreement on the scope and content of the agreement. In order to increase
the number of signatories and ratifications of a treaty, and hence global order,
international law does allow for states to limit the full application of a treaty, or
clarify their specific understanding of the legal content. This is done through
reservations, declarations and derogations.

Reservations are defined by the Vienna Convention as:

A unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State. (Article 2 (1)(d))

Only specified reservations are permitted and they cannot undermine the object
and purpose of the Treaty. …………………………………………………………..
For more information on treaty reservations see the website of the International
Law Commission.

Declarations, unlike reservations, do not affect legal obligations, but are often
made when a State expresses its consent to be bound by a specific treaty. The State
uses the declaration to explain or clarify its understanding of particular aspects of
the treaty text.

For examples see the reservations and declarations made to the Fourth Geneva
Convention.

Some treaties, especially human rights treaties, provide for a derogations system,
which allow for a state party to temporally suspend or limit their legal obligations
in exceptional circumstances, for example during armed conflict or national
emergency. For example, the freedom of assembly may be limited during times of
armed conflict. However, some rights can never be derogated from under any
circumstances, notably the prohibition on torture, inhumane and degrading
treatment.
For more on derogations and human rights law see the website of the Rule of Law
in Armed Conflict Project.

It is important to note that international humanitarian law (IHL) does not have a
system of derogations, as it is a body of law specifically designed to provide
minimum protections during armed conflict.

Customary international law

Customary international law is made up of rules that derive from "a general
practice accepted as law". Customary international law is comprised of all the
written or unwritten rules that form part of the general international concept of
justice.

Unlike treaty law, which is only applicable to those states that are parties to the
particular agreement, customary law is binding upon all states, regardless of
whether they have ratified a treaty.

Unlike treaty law, customary international law is limited in that it is not codified in
a clear and accessible format and the content of the rules is generally less specific
that what you may find in a treaty. However, as a source of IHL, customary
international law is of fundamental importance in armed conflict due to the limited
protections afforded to internal conflicts by treaty law and the lack of ratification
of key treaties. Customary international law exists independently from treaty law
and in 2006 the Independent Commission of the Red Cross (ICRC) published a
collection of the rules of IHL considered to be customary in nature. They identified
161 Rules of customary international law.

How does a rule become customary international law?

When states respect certain rules consistently in their international and internal
relations, with legal intentions, these practices become accepted by the
international community as applicable rules of customary international law.

There are two criteria for identifying a rule as part of customary international law:
state practice (usus) and legal nature of that practice (opinion-uris)

State practice (usus) - Customary law is confirmed through the behaviour of states
(objective criteria), manifested through their official statements and actions.
Legal nature of practice (Opino Juris) is the expressed opinion of states,
individually or collectively, that their actions have a legal and not a mere policy
basis.

In short, customary international law is based on consistent actions by the majority

of the international community. Examples of customary international law are the
prohibition on the arbitrary deprivation of life, the prohibition on torture, and the
rule that civilians and civilian objects cannot be the subject of direct attacks during
armed conflict.

Article 38 (1) International Conventions

International conventions can also be referred to as bilateral and multilateral
treaties, that is, UN charter, as well as other conventions and covenants thereafter.
Treaty is as ‘an international agreement concluded between states in written form
and governed by international law whether embodied in a single instruments or in
two or more related instruments and whether in particular designation'.
Treaties are governed by some rules under international law; First, Treaties are
voluntary in the sense that states cannot be bound by agreement without its
consent. States are bound only if they are parties to a treaty, though there are
exceptions to this, i.e, delimitation of territorial boundaries bind all states, they are
‘ergo omen’s' (against the whole world) Secondly, agreement and consent is by
ratification of states, signature, and expression of consent to be bound and states
are bound only by reason of their consents Thirdly ,when parties consent to treaties
that codified existing customary law, two things happen; The states that are parties
to the treaty are bound in the normal way and states that are not parties to the treaty
originally are bound by the treaty because they are ‘rooted in customary law' and
states that are not parties to a treaty that codified existing customary law into code
of conduct to order state future activities will still be bound by the treaty .This
indicates that customary law can become treaty and vice versa if there is no
sufficient ratification for such treaty, even after ratification, they can still overtake
each other in term of superseding preferences no matter which one is older. The
fourth rule is that treaties must be deposited at the secretariat of UN and published
if ratified by states pursuant to Article 80 of Vienna convention on the law of
treaties and Article 102 of the UN charter; whereas, unregistered treaty remain
binding between parties but it may not be invoked before court of Justice or any of
the UN organs. Treaty is a means of creating obligations and binding law for states
and when state violates the treaty, it has violated the law.
Is Treaty therefore a law or obligation? The question whether treaty create law or
impose obligation generates debate streamlined between ‘contract treaties' and ‘law
making treaties', that is, whether treaties are contracts that impose obligation or
‘law making' leading to international law. In consideration of treaty as a contract,
Lord Temple man in McLain Watson v Dept. of Trade and Industry said a ‘treaty
is a contract between the governments of two or more sovereign states' .Treaty is a
product of negotiations between ‘legal equals' which has contractual obligation
between consenting parties. The rule that proposes obedience to treaties and make
them binding is embedded in customary international law and this is expressed in
the maxim ‘pacta sunt servanda'.The only law in this view is customary
international law but all ‘specific detailed' in the treaty obligation are not law but
‘legal obligation'. On the other hand, considering treaty as a source of law is
plausible, trying to refer treaties as source of obligation is like concealing the
important role they assuage in international law. States coming together to ratify a
treaty is outright means of creating law. A state has created law for itself the
moment it ratifies the treaty and therefore legally bound. If it violates the law, it
has violated international law.
The two legal effects are interwoven, the classification into ‘obligation' and ‘legal'
are similar in operation. if a state consent to treaty, the state is bound by the treaty
either called ‘obligation' or ‘law' The distinction is therefore theoretical for the
purpose of finding answer to the binding nature of international law.A treaty of
contract otherwise known as ‘bilateral treaty' may cease when the purpose for
which it was entered had been achieved or terminated. A ‘Law making treaty' or
‘multilateral treaty', may be planned for enduring future purpose that will lead to
an important customary law like law of the sea convention of 1982 which was
made general for all states. It has been argued that treaties are binding on non-
parties if they have customary law origin. In North Sea Continental Shelf case,ICJ
ruled that for such to be binding,‘it would in the first place be necessary that the
provision concerned should at all events potentially, be of a fundamentally norm
creating character such as could be regarded as forming the basis of a general rule
of law'.
The second procedure laid down by ICJ is that the provision in question ‘should
have been adopted in the practice of a sufficiently widespread and representative
number of state including those that are not parties to the treaty'.The third
requirement is that opinio juris which form the basis of legal character of state
practice be satisfied. Opinio juris and state Practice are elements of customary law.
The sources are complementary and interrelated
but not necessarily hierarchical in the order of Article38. This seems to be the view
of the court in Nicaragua v USA and Danube Dam casewhere it was held that
‘some of the rules laid down in the Vienna Convention on the law of Treaties
might be considered as a codification of existing contemporary law' .Dixon and
McCorquodale said ‘the court confirmed that in general, the law applicable to a
treaty is the law in force when the treaty itself comes into operation, even if
customary law has developed further since then'. However, the court did not
recognize that the ‘treaty itself might permit evolving customary rule to be relevant
to its operation, this seems to be an attempt to introduce a coherency to the law
irrespective of the source of any particular obligation' Treaties can be invalid on
many grounds inter alia, if it is in conflict with jus cogen..Treaty can as well be
withdrawn, terminated, suspended and reserved. The other formal source is
custom:

Article 38 (1) B- International Custom:

The important elements here are state practice, the tenacity and acceptance of such
practice as law, also known as ‘opinio juris.' Customary law may not be as ‘visible'
as treaty.‘ it represents the essential basis upon which modern human rights is
grounded'. Custom is regarded as a form of ‘tacit agreement', the behaviors of
states to each other in an acceptable way leads to tacit accent to the acceptable
behavior. The problem of this view is that if agreement kicks it on, absence of
agreement can kick it off. customary law emanates as law from practice of states
.Dixon refers to it as the ‘foundation stones of the modern law of nations' and this
was backed up in the Gulf of Maine case that custom is the ideal right size for the
general principles and always on ground to fill the vacuum any time obligation and
law of treaties are not gaining global acceptance. Can customary law change?
Customary law can change on the principle of ‘apprehension' and ‘acquiescence'
but that does not mean customary law is not a strong rule of law, the process of
customary law continuously is a good omen to international law because it can
meet up with the timely needs of international law as the world and law develop,
though, it may have its own disadvantages of more relaxed and slow formation
process, it lacks certainty and visibility unlike treaty. it has advantage as regards to
its variety of wide scopes in similarities with state activities. Treaty has advantage
where custom has disadvantage, they are like twin pillars ready to work together in
other to strengthen the sources of international law. Hugh said, ‘the way things
have always been done becomes the way things must be done rules, international
law does not deviate from the pattern discernible in municipal legal systems'.
State practice as one of the elements of customary law, it is a continuous and
constant state practice of international acts over a period of time, Governmental
actions, rule
makings and execution of policies, governmental declaration and pronouncement,
administrative procedures and policies within states constitute good links and
sources of state practice. In Assylum case (Colombia v Peru), to form customary
law, it must be ‘in accordance with a constant and uniform usage practised by
states in question'. This was stated in Fisheries case(United Kingdom V
Norway).The ‘uniformity' and ‘consistency' test is ‘general practice' and not a
‘universal practice' and ‘practice of most influential and powerful states would
carry the greatest weight',deducing from the above, it doesn't mean all states
participation in the practice. ‘Once a practice is established as forming part of
customary International law', all states are bound including states and the new
states that failed to contribute to the practice initially. Nevertheless, we can not rule
out the ‘opt out' possibility for the ‘persistent objectors' at the formative stage of
the law, as Thirlway put it, ‘an attractive option' which will disallow the imposition
of specific rule by the majority over the minority., it has been deeply criticized in
international law, as a result of this, the practice is as stated earlier, states are
bound as a general rule either as ‘objectors' or not.
Consistency of state practice as another element is significant to the alteration of an
existing custom. In Lotus case, the court said customs must be ‘constant and
uniform'. It must not be ‘totally uniform and constant'; it must at least be
significantly constant state practice to become customary international law. Also, it
is well stated in Anglo-Norwegian Fisheries case that the consistency required may
vary in degree based on circumstance.
Generality of Practice as another element in customary law is about the knowledge
of the Custom, to significant number of states. It is a general adoption of practice
by state, in North Sea Continental Shelf Cases, it may be difficult to determine the
number of state to participate in international law before a general practice can
become law because it is not about majority of votes cast, the degree depends on
the various subject matters.
Opinio juris is the second element broadly considered necessary for the formation
of customary international law with state practice, Opinio juris which constitute
‘subjective element'(verbal act) while state practice is the ‘objective
element'(behavioural act) and this was well articulated by Kammerhofer in his
article that verbal act can form a practice with their content forming ‘expression of
the subjective element', a statement of an act and that ‘subjective element may be
dominant factor in the behavioural act itself'. Dixion however holds that ‘state
practice must be accompanied by a belief that the practice is obligatory, the belief
in the obligatory nature of the practice is called the opinio juris' but ICJ on several
occasion refer to opinio juris as having equal footing with ‘state practice' in
Continental shelf case(Libyan Arab Jamahinya V Malta) and legality of Nuclear
Weapons Advisory Opinion .Also in Lotus case ,opinio juris was seen as essential
element of customary international law and this was affirmed in North Sea
Continental Shelf Cases but the judges however held that opinio juris can not be
implied from repeated activities, this made the proof of opinio juris difficult but the
dissenting judges in the case realized the difficulty when they held otherwise in
their minority judgement, its proof however depends on the subject matter, thus
attainment of rule to jus cogen status required strong evidence of opinio juris apart
from the fact of consistence state practice. In Nicaragua case where state practice
and opinio juris was alluded to arrive at a conclusion that use of force had attained
the status of customary rule of jus cogen before the advent of UN charter of
1945.The time element and duration of customary law varies.
The comparison of treaty with customary law is important because they are the two
major sources of international law, the Nicaragua case mentioned briefly above
affirmed the complementary relationship between treaty and international custom.
It also shows that treaty may codify International custom and treaty may also revert
to international custom if the treaty is abandoned by states. They are interrelated
though there may be conflict where the interrelated part tends toward different
obligations; ICJ may resolve the conflict depending on the stronger obligation. In
the Nicaragua case, customary law will not cease to bind because it has been
codified by treaty. Parties to treaty will be bound by it and the non-parties will be
bound by custom. if treaty falls away, customary law will take over but where
there is conflict, if treaty is latter than custom, it will prevail, this is based on
common principle of law and more so that treaty is a deliberate ‘act of law
creation'where custom is latter than treaty, the treaty will still prevail on parties.

Article 38 (1) (C)-General Principle Of Law:

This is unclear and controversial area of the source. Positivist earlier rejected this
principle because it did not conform to state will and consent like treaty and
custom, but they latter accepted it; provided it is accepted as part of state legal
order. ‘The general principles of law recognized by civilized nations' as a source
tend towards exclusion of uncivilized nations. Naturalist believes it tends to
incorporate natural law into international law, they believe law exist before any
law whether treaty or custom, this differs from positive law. It is apparently
conspicuous that paragraph 1(c) added nothing to the sources which treaty and
custom had taken care of and due to this ICJ barely invoke it, it gradually went into
oblivion and remain dormant until it appeared that new areas of international law
had gap and the rule was revitalized and applied to area like international criminal
law and international administrative law, recourse can be made to the general
principle of law common to all ‘major legal systems of members of the community
of nations', if treaty and custom had been exhausted with gap, that is, estoppels,
equity, and so on .Judge McNair in the ‘International Status of South West Africa
Case said that national law can be a pointer to the type of rules that might be of
assistance in international law like ‘the concept of limited liability' in Barcelona
Traction case.Whether procedural, administrative, or substantive rules, they can be
imported to international law, it however need no treaty or custom for its
validation. it is well settled that concepts have ‘pre-existing legal validity'. This
principle tend more to dualistic doctrine.
Principle of equity is applicable to international Tribunals that is general principles
of equity and fairness within the scope of paragraph 1(c).it applies in decisions
according to law and not by abstractness outside law like ex aequo et bono in
Article 38(2),example of equitable principle applied are acquiescence and
estoppels in River Meuse case. Paragraph 1(c) may include ‘general principles of
International law' which are similar to principle in National legal system. In
general, treaty and custom growth and intensity have reduced the weight of general
principle of law as the source of international law.

Article 38 (1) (D) Judicial Decisions:

Article 38(1) d ‘shall apply subject to the provisions of Article 59,Judicial
decisions…' and Article 59 of the ICJ statutes states that the court decisions have
‘no binding force except between the parties and in respect of that particular case'.
Judicial decisions are material area of Sources of law. Though, there may be no
stare decisis as stated in Article 59, recourse can still be made by court to its past
decisions res judicata and advisory opinion to substantiate current case as
authoritative evidence of legal position, for example, in Nauru case,the principle of
Nicaragua case were relied upon to reach the majority decisions. Also, judicial
decisions constitute much of the source of ‘international maritime law' and ‘it is
clear that the ICJ pays great regard to both the actual decisions it has reached in
previous cases and to the law it has declared therein'. It is submitted that ICJ
participates in law making process and technical impediment on this is more in
theory than in practice. Court participates in law making process through case law,
judges' rule and advisory opinion in breaking new area of international law. Dixon
confirmed this by saying ‘The attempt to protect state sovereignty by limiting the
functions of the ICJ and ICC to one of simple adjudication rather than law creation
largely has failed'.Antonio also said ‘ICJ has gone so far as, in fact , to set new
international rule in spite of its aforementioned lack of formal power to do so'
Writing of Publicists which paragraph1 (d) refers to as ‘subsidiary means'. Arbitral
tribunals and national courts consult writing of publicist while international court
make little use of ‘doctrine' but where the writing of publicist is productive is the
draft article, reports and secretariat memorandum produced by the International
Law Commission and Resolution of the Institute of International Law Commission
and that of the Institute of International Law. Nowadays the opinion of writers has
become less important since states now express themselves well through organs of
UN and most importantly that writers are subjective in their writings due to
opinionated reasons.

Are These Accurate Reflections Of The Sources Of International Law?

The sources are not completely accurate, treaties are responsible for the formation
of important Intergovernmental organizations like UN and EU, the organization are
cardinal to national and ‘International concerns'. Treaties produced the
constitutions of these organizations and birthed them especially the UN that has
powerful organs like Security Council and General Assembly that control the
affairs of the world by Resolutions. Treaties and Resolutions by General Assembly
are ‘law making' means. The positivist scholar believe that treaties and
international custom now tend towards the legal positivism, they share the opinion
that international law is binding only if it is rooted in state consent and that no
other sources exist except consent found in treaty and custom. Treaty was
criticized because its processes are ‘political', that is ‘involving law making
primarily by diplomatic means rather than codification and progressive
development by legal experts' and loopholes in custom for its lack of visibility and
slow formation process. Furthermore, one can not say that the source is accurate in
as much as positivist finds expression in the ‘sources' particularly treaty and
custom which their formulation process could be slow and the inability of these to
change with speed of international law and the solution is to keep the law out of
strict positivism to adapt to new system of ‘legislation and administrative rule
making' The states belong to UN and UN does produce vast amounts of law, that is
law made by the system. The legislative ability of UN has escalated from
‘horizontal' system based upon state consent towards a more ‘hierarchical' system,
it is submitted that accuracy of international law can at least be found in this if not
totally found.

Impact of Membership in Intergovernmental Organization Law Making Process

States are members of the organizations like UN and EU; their resolutions are
accepted and followed by action as legislation for the world community even if not
technically binding as treaty. The means of Security Council law making is by
resolutions passed by 9 Permanent and Non Permanent Member of the council
without a veto of any of the G5 Members and in a meeting summoned by Secretary
General, General Assembly 191 members come together to make law by means of
treaty. Moreover, resolutions of General Assembly combined with opinio juris can
form customary international law. states are bound by the decision of Security
council by virtue of Article 25 and by implication, resolutions of UN creates law
and its legislation which derives its power from the constitution, that is, charter is
binding on its members and even non-members. A constitutional based
organisation will produce better binding rule that is compellable on members than
treaties. Intergovernmental organizations derive their formation from the treaty and
after the treaty has formed them, constitution or charter of the organization is more
powerful for decision making and super cede treaty. Some of these decisions may
be ‘soft law'(non binding law) and some ‘hard law'(binding law);with the power of
binding decisions and enforcement power of Security Council, European Union,
law making are tending towards confirmation of the rationalist as against positivist
that international organizations are graduating into centralized government to
legislate international law. Security Council can come out with resolutions in form
of treaties. It is submitted that decisions of the UN is a new source of international
law and members are bound by it. This decision is even more potent than treaty, to
produce law that are binding, declaratory and recommendatory, even Article 103 of
the UN Charter confirmed this; though the founding treaty itself produced the
constitution or charter of the UN. The constitution is not the same with normal
‘bilateral' and ‘multilateral' treaty which is not a continuous reference of
application like the charter. The constitution itself gave power for UN resolution
and UN resolution is a legislation that is binding in international law. The UN is a
complete body of law making process in Security Council as Executive and
Legislator, the legislative power complemented by General Assembly while ICJ is
adjudicator and International law commission as the researching organ of the UN
for law making development. What better impact could be rightly accurate in
means and ways of law making process than this?

Conclusion
All the sources discussed above can all be found in the practice of UN and where
they can not be found they kowtow and bow to the resolutions of the Security
Council and it will remain binding on members and even on non-members,
aberration of which can be faced with sanctions. It is submitted that UN has
provided a true complement for the gap created in what is supposed to be accurate
reflection of other sources of international law and its activities has positively
affected law making ways by resolutions and faster means by 15 members of
Security Council and 191 members of the General Assembly as greater needs arise
for fast development of international law codified by International law
commission.