MODULE 2: SOURCES OF INTERNATIONAL LAW Ms.

Shreya
Assistant Professor
School of Law, Christ University
 SOURCES OF INTERNATIONAL LAW

Where does international law come from and how is it made ? These are more difficult questions
than one might expect and require considerable care. In particular, it is dangerous to try to transfer ideas
from national legal systems to the very different context of international law. There is no “Code of
International Law”.
There is no central international body that creates public international law; it is created by several
sources.
The Charter of the United Nations is the establishing document for the International Court of
Justice (ICJ) as the principal judicial organ of the UN. Article 38(1) of the Statute of the International
Court of Justice lists the sources that the ICJ uses to resolve disputes as follows:
 ARTICLE 38 OF ICJ
1. 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.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
Article 59: The decision of the Court has no binding force except between the parties
and in respect of that particular case.
 CUSTOMARY INTERNATIONAL LAW
Customs are rules of behavior which prescribes what is permitted and what is not. Such rules develop
subconsciously within the group and are maintained by the members of the group by social pressures and with
the aid of various others more tangible implements. They are not written down or codified and survive
because of an aura of historical legitimacy.
“Customary law can be regarded as any recurring mode of interaction among individuals and groups together
with the more or less explicit acknowledgement by these groups and individuals that such patterns of
interaction produce reciprocal expectations of conduct that ought to be satisfied” – R.Unger
Customary law is the oldest source and the one which generates rules binding on all States.
Customary law is not a written source.
 A rule of customary law, is said to have two elements –

1. There must be widespread and consistent State Practice - Material facts/ Actual
Behaviour of States
2. There has to be what is called “opinio juris”, usually translated as “a belief in legal
obligation” - Psychological/Subjective Belief

Opinio juris is a shortened form of the Latin phrase opinio juris sive necessitatis, which
means "an opinion of law or necessity”.
In words of Prof. Greenwood, Opinio Juris should be considered as an ‘assertion of a legal
right’ or the ‘acknowledgement of a legal obligation’.
STATE PRACTICE
what is state practice? Does it cover every kind of behavior initiated by the state, or is it limited to
actual, positive actions? Does it include such things as speeches, informal documents and governmental
statements or is it restricted to what states actually do?
It is how states behave in practice that forms the basis of customary law, but evidence of what a state
does can be obtained from numerous sources.
A state is not a living entity, but consists of governmental departments and thousands of officials, and
state activity is spread throughout a whole range of national organs. There are the state's legal
officers, legislative institutions, courts, diplomatic agents and political leaders. Each of these
engages in activity which relates to the international field and therefore one has to examine all such
material sources and more in order to discover evidence of what states do.
 The obvious way to find out how countries are behaving is to read the newspapers, consult historical
records, listen to what governmental authorities are saying and peruse the many official
publications.
There are also memoirs of various past leaders, official manuals on legal questions, diplomatic
interchanges and the opinions of national legal advisors. All these methods are valuable in seeking to
determine actual state practice.
In addition, one may note resolutions in the General Assembly, comments made by governments on
drafts produced by the International Law Commission, decisions of the international judicial
institutions, decisions of national courts, treaties and the general practice of international
organisations.
States' municipal laws may in certain circumstances form the basis of customary rules.
Consistency, Repetition and Generality important for the creation of Customary International Law.
Duration not so important – Instant Custom
State practice should be Constant and Uniform – Asylum Case (Columbia v. Peru)
To quote from the ICJ’s decision in the Nicaragua case:
‘In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of
States should in general be consistent with such a rule; and that instances of State conduct
inconsistent with a given rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule.’ (ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.)
ASYLUM CASE (COLUMBIA V PERU)
The granting of diplomatic asylum in the Colombian Embassy at Lima, on 3 January
1949, to a Peruvian national, Victor Raúl Haya de la Torre, a political leader
accused of having instigated a military rebellion, was the subject of a dispute
between Peru and Colombia which the Parties agreed to submit to the Court.
The Pan-American Havana Convention on Asylum (1928) laid down that, subject
to certain conditions, asylum could be granted in a foreign embassy to a political
refugee who was a national of the territorial State.
The question in dispute was whether Colombia, as the State granting the asylum,
was entitled unilaterally to “qualify” the offence committed by the refugee in a
manner binding on the territorial State — that is, to decide whether it was a
political offence or a common crime.
ASYLUM CASE
Furthermore, the Court was asked to decide whether the territorial State was bound
to afford the necessary guarantees to enable the refugee to leave the country in
safety.
In its Judgment of 20 November 1950, the Court answered both these questions in
the negative.
However, the existence, of constant and uniform practice of unilateral qualification
as a right of the State of refuge and an obligation upon the territorial State, could not
be proved.
Colombia’s evidence of the existence of such a custom was riddled with
inconsistencies and lack of uniformity which reduced the credibility of such a
custom as a source of International law.
State practice should be Constant and Uniform.
OPINIO JURIS SIVE NECESSITATIS
The opinio juris, or belief that a state activity is legally obligatory, is the factor which turns the
usage into a custom and renders it part of the rules of international law. To put it slightly differently,
states will behave a certain way because they are convinced it is binding upon them to do so.
Faced with difficulty in practice of proving the existence of opinion juris, increasing reference has
been made to conduct within international organizations. The ICJ in a number of cases has utilized
attitude taken by States in the UN General Assembly Resolutions; major codifications conventions;
work of international law commission.
A new rule of customary international law cannot be created unless both of these elements are
present. Practice alone is not enough – see, e.g., the Case of the SS Lotus (1927). Nor can a rule be
created by opinio juris without actual practice – see, e.g., the Advisory Opinion on Nuclear Weapons
(1996).
Nicaragua (ICJ 1986) : ‘In order to deduce the existence of customary rules, the Court deems it
sufficient that the conduct of States should in general be consistent with such a rule; and that instances
of State conduct inconsistent with a given rule should generally have been treated as breaches of that
rule, not as indications of the recognition of a new rule.’
 NORTH SEA CONTINENTAL SHELF
CASE
Germany's North Sea coast is concave, while the Netherlands' and Denmark's
coasts are convex. If the delimitation had been determined by the equidistance
rule ("drawing a line each point of which is equally distant from each shore"),
Germany would have received a smaller portion of the resource-rich shelf
relative to the two other states.
Germany argued that the length of the coastlines be used to determine the
delimitation. Germany wanted the ICJ to apportion the Continental Shelf to the
proportion of the size of the state's adjacent land, which Germany found to be 'a
just and equitable share', and not by the rule of equidistance.
Denmark and The Netherlands, having ratified the 1958 Geneva
Continental Shelf Convention, whereas the Federal Republic of Germany
did not, wished that Article 6, p. 2 (equidistance principle) were to be
applied.
The Court argued that it is indeed possible for Conventions, while only
contractual in origin, to pass into the corpus of international law, and thus
become binding for countries which have never become parties to the
Convention. However, the Court notes that, it would first be necessary that
the provision should be of a fundamentally norm creating character,
i.e. a general rule of law.
the Court argues that while the passage of any considerable period of
time is not a requirement, it is an indispensable requirement that within
the period in question State practice should have been both extensive
and virtually uniform in the sense of the provision invoked.
the practice must also, as a subjective element, stem from a notion
of opinio juris sive necessitatis. In other words, the States concerned
must feel they are conforming to what amounts to a legal obligation.
 NORTH SEA CONTINENTAL SHELF
CASE
‘Not only must the acts concerned be a settled practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of
a rule requiring it. … The States concerned must feel that they are conforming to what amounts to a
legal obligation.’ (North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)
“an indispensable requirement would be that within the period in question, short though it might be,
state practice, including that of states whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked, and should moreover have
occurred in such a way as to show a general recognition that a rule of law or legal obligation is
involved.‘’
 PERSISTENT OBJECTOR
Once there is sufficient practice together with opinio juris, a new rule of
custom will emerge. Subject only to what is known as the “persistent
objector” principle the new rule binds all States. The persistent objector
principle allows a State which has persistently rejected a new rule even before
it emerged as such to avoid its application.
CASE STUDY ASSIGNMENT
Case of the SS Lotus (1927)
Advisory Opinion on Nuclear Weapons (1996)
Nicaragua case (1986)
 VIDEOS TO WATCH
https://www.youtube.com/watch?v=tUHn0xgpmoU - The Asylum Case
https://www.youtube.com/watch?v=xvrYYRoqHBI – Customary
International Law
https://www.youtube.com/watch?v=DdoqQ-vfRy8
- North sea Continental Shelf Case
https://www.youtube.com/watch?v=X8pL-Mu9mLw
INTERNATIONAL
CONVENTIONS/TREATIES
In contrast with the process of
creating law through custom, treaties
(or international conventions) are a
more modern and more deliberate
method. Article 38 refers to
'international conventions, whether
general or particular, establishing
rules expressly recognised by the
contracting states’.
 VIENNA CONVENTION ON THE
LAW OF TREATIES (1969)
Art 2 of VCLT 1969: An international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.

Treaties are known by a variety of differing names, ranging from Conventions, International
Agreements, Pacts, General Acts, Charters, Statutes, Declarations and covenants.

All these terms refer to a similar transaction, the creation of written agreements whereby the states
participating bind themselves legally to act in a particular way or to set up particular relations between
themselves. A series of conditions and arrangements are laid out which the parties oblige themselves to
carry.
Treaties are express agreements and are a form of substitute legislation
undertaken by states. They bear a close resemblance to contracts in a
superficial sense in that the parties create binding obligations for themselves,
but they have a nature of their own which reflects the character of the
international system.
Treaties are thus seen as superior to custom, by some scholars, which is
regarded in any event as a form of tacit agreement.
A rule of customary international law – Pacta Sunt Servanda – which requires all States to
honour their treaties – is the basis of treaties being binding. Article 26 of Vienna Convention
on the Law of Treaties, 1969.
A treaty can create obligations for only one party as well as ‘consideration’ is not required
for the creation of a treaty. Example: Treaty of Versailles, 1919; 99 year lease agreement of
Hong Kong between Britain and China.

https://www.youtube.com/watch?v=AuWgsgUgRz0
https://www.youtube.com/watch?v=wD2lctCw0H0
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
MARITIME DELIMITATION AND
TERRITORIAL QUESTIONS BETWEEN
QATAR AND BAHRAIN (QATAR V.
BAHRAIN) 1994
On 8 July 1991, Qatar filed in the Registry of the Court an Application instituting
proceedings against Bahrain in respect of certain disputes between the two States relating
to sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qit’at
Jaradah and the delimitation of their maritime areas.
Qatar founded the jurisdiction of the Court upon certain agreements between the Parties
stated to have been concluded in December 1987 and December 1990.
As Bahrain contested the basis of jurisdiction invoked by Qatar, the Parties agreed that the
written proceedings should first be addressed to the questions of jurisdiction and
admissibility.
It took the view that both the exchanges of letters of December 1987 between the King of
Saudi Arabia and the Amir of Qatar, and between the King of Saudi Arabia and the Amir
of Bahrain, and the document entitled “Minutes” and signed at Doha in December 1990
constituted international agreements creating rights and obligations for the Parties ; and that
by the terms of those agreements they had undertaken to submit to the Court the whole of
the dispute between them.
 TYPES
Law-making Treaties - intended to have universal or general relevance. Agreements whereby
states elaborate their perception of international law upon any given topic or establish new rules
which are to guide them for the future in their international conduct. Such law-making treaties, of
necessity, require the participation of a large number of states to emphasize this effect, and may
produce rules that will bind all. They constitute normative treaties, agreements that prescribe rules of
conduct to be followed. Examples of such treaties may include the Antarctic Treaty and the Genocide
Convention.
Certain treaties attempt to establish a 'regime' which will, of necessity, also extend to non-parties.
Example - The United Nations Charter.
Treaties may be constitutive in that they create international institutions and act as constitutions for
them, outlining their proposed powers and duties.
Treaty-Contracts - which apply only as between two, or a small number of states. Not
law-making instruments in themselves since they are between only small numbers of states
and on a limited topic, but may provide evidence of customary rules.
For example, a series of bilateral treaties containing a similar rule may be evidence of the
existence of that rule in customary law, although this proposition needs to be approached with
some caution in view of the fact that bilateral treaties by their very nature often reflect
discrete circumstance.
This distinction is intended to reflect the general or local applicability of a particular treaty
and the range of obligations imposed.
It cannot be regarded as hard and fast and there are many grey areas of overlap and
uncertainty.
 CUSTOMS AS TREATIES
There are also many agreements which declare the existing law or codify existing customary rules,
such as the Vienna Convention on Diplomatic Relations of 1961;Vienna Convention on the Law of
Treaties, 1969
Treaties may also act as evidence of Customary International Law.
 TREATIES AS CUSTOMS
Parties that do not sign and ratify the particular treaty in question are not bound by its terms.
However, where treaties reflect customary law then non-parties are bound, not because it is a
treaty provision but because it reaffirms a rule or rules of customary international law.
The possibility that a provision in a treaty may constitute the basis of a rule which, when coupled
with the opinio juris, can lead to the creation of a binding custom governing all states, not just those
party to the original treaty, was considered by the International Court of Justice in the North Sea
Continental Shelf Case and regarded as one of the recognized methods of formulating new rules of
customary international law. The Court, however, declared that the particular provision had to be 'of a
fundamentally norm-creating character', that is, capable of forming the basis of a general rule of
law. What exactly this amounts to will probably vary according to the time and place, but it does
confirm that treaty provisions may lead to custom providing other states, parties and non-parties to the
treaty fulfil the necessary conditions of compatible behavior and opinio juris.
 SEPARATE IDENTITY OF TREATIES &
CIL
It is now established that even where a treaty rule comes into being covering the same ground as a
customary rule, the latter will not be simply absorbed within the former but will maintain its separate
existence. The Court in the Nicaragua case held:
“even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the
same content, this would not be a reason for the Court to hold that the incorporation of the customary
norm into treaty law must deprive the customary norm of its applicability as distinct from the treaty
norm”
 GENERAL PRINCIPLES OF LAW
The general principles of law proved to be the most controversial source during the drafting
of the Statute for the Permanent Court of International Justice in 1929 and continues to
divide the opinions of scholars and tribunals today.
There is very little agreement on the interpretation of Article 38 (1) (c) of the SICJ and
arguably insufficient guidance by the ICJ itself on the methodology to be employed in its
application.
This ongoing controversy is partly due to the unwritten character of general principles as a
source of international law and the related challenges of evidence, capacity and burden of
proof in their identification.
The general principles of law recognised by civilised nations was inserted into Article 38 as a
source of law, to close the gap that might be uncovered in international law and solve this
problem which is known legally as “non liquet” or no law.
 It is thus not surprising that in its 69th Session, the International Law
Commission of the United Nations ("ILC"), which is the body responsible for
the codification and progressive development of international law, identified
the study of the general principles of law as one of the topics for its future
programme of work.
Accordingly, a doctrinal engagement with the challenges in the identification
and application of the general principles of law was done by International Law
Commission and it came out with its first, second and third report on GPL in its
71st, 72nd and 73rd Session in the year 2019, 2021 and 2022 respectively.
 METHODS OF FINDING GPL
I. Comparative Law Approach
Authors supporting the comparative approach include, among others, Oppenheim,
Lauterpacht, Grapin, Schlesinger and Herczegh.
Thirlway addresses this challenge by defining general principles as “those principles
without which no legal system can function at all, that are part and parcel of legal
reasoning” and the comparative methodology for their ascertainment is not so much a
criterion but a guide.
Pellet adopts an attenuated comparative approach for deriving general principles from those
common to national legal systems but with the additional requirement that they are
“transposable in the jurisdiction of international law” This additional requirement is fully
in line with the text of Article 38(1) of the SICJ, requiring the ICJ to decide disputes "in
accordance with international law".
 The conceptual difficulty with the comparative law approach lies in the transposition of domestic
principles to the international plane which necessitates reasoning by analogy and involves an
inherent degree of indeterminacy.
D'Aspremont opines that the difficulties of collecting representative domestic laws have led to the
ascertainment of general principles moving away from having any formal legal character at all.
 ILC REPORTS ON GPL
(COMPARATIVE LAW APPROACH)
• Determining the
existence of a
I. Common principle common
to the principal
Denominator legal systems of
the world

• Ascertaining the
II. transposition of
that principle to
Transposition the international
legal system.
In the often cited words of Judge McNair while delivering a separate opinion in the Status of South West Africa case:

“ International law has recruited and continues to recruit many of its rules and institutions from private systems of law.
Article 38 (1) (c) of the Statute of the Court bears witness that this process is still active … The way in which
international law borrows from this source is not by means of importing private law institutions “lock, stock and
barrel”, ready-made and fully equipped with a set of rules. It would be difficult to reconcile such a process with the
application of “the general principles of law”. In my opinion, the true view of the duty of international tribunals in this
matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an
indication of policy and principles rather than as directly importing these rules and institutions.”
II. International Law Approach
Kelsen forcefully rejects the comparative law methodology noting with some justification
that "it is doubtful whether such principles common to the legal orders of civilized
nations exist at all". He argues instead that the general principles of law are only those that
are already part of international law either as treaties or custom.
Cassese identifies two different classes of general principles of law:
1. The general principles of international law derived from conventions and custom.
2. The principles that are peculiar to a particular branch of international law.
ILC REPORTS ON GPL
(INTERNATIONAL LAW APPROACH)
A unified methodology for the identification of general principles of law formed within the international
legal system

An analysis of relevant To derive the a specific

INDUCTIVE

DEDUCTIVE
treaties, customary rules principle reflected therein.
and other international
instruments such as General
Assembly resolutions or
declarations adopted at
intergovernmental
conferences for establishing
broad generalizations.
CASES ON GENERAL PRINCIPLES OF
LAW
I. Prosecutor v. Akayesu (1998)
II. Chorzow Factory case (Germany v. Poland) (1928 PCIJ)
There was an agreement between Germany and Poland and that bilateral treaty was known as the
Geneva Upper Silesia Convention 1922. It had been provided in that treaty that on transfer of
sovereignty of certain territories from Germany to Poland after the 1st world war, existing proprietary
right were to be maintained except that the Polish Government was granted a right of expropriation
under certain conditions with respect of all property belonging to German nationals in Upper Silesia.
The present dispute arose when Poland seized some companies there in breach of its international
obligation under the Upper Silesia convention of 1922. Germany demanded compensation from the
Poland.
CHORZOW FACTORY CASE (GERMANY V.
POLAND)

The Permanent Court of International Justice held:

“A principle of international law that the reparation of a wrong may consist in an indemnity
corresponding to the damage which the nationals of the injured state have suffered as a result
of the act which is contrary to international law.”
“reparation must, as far as possible, wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if that act had not been
committed.”
III. CORFU CHANNEL CASE (1947-49)

It arose out of the explosions of mines by which some British warships suffered
damage while passing through the Corfu Channel in 1946, in a part of the Albanian
waters which had been previously swept. The ships were severely damaged and
members of the crew were killed.
The United Kingdom seized the Court of the dispute by an Application filed on 22
May 1947 and accused Albania of having laid or allowed a third State to lay the
mines after mine-clearing operations had been carried out by the Allied naval
authorities.
The case had previously been brought before the United Nations and, in consequence
of a recommendation by the Security Council, had been referred to the Court.
III. CORFU CHANNEL CASE

The International Court of Justice in the Corfu Channel case, when referring to
circumstantial evidence, pointed out that “this indirect evidence is admitted in all systems
of law and its use is recognized by international decisions”.
The International Court of Justice considered, as regards the burden of proof, that a State
“should be allowed a more liberal recourse to inferences of fact and circumstantial
evidence. This indirect evidence is admitted in all systems of law, and its use is
recognized by international decisions”.
The term “all systems of law” may be understood as including national legal systems.
IV. LAGUNA DEL DESIERTO ARBITRATION
(ARGENTINA VS. CHILE)1994

International judicial reference has also been made to the concept of res judicata, that is that
the decision in the circumstances is final, binding and without appeal.
In the Laguna del Desierto (Argentina/Chile) case, the Tribunal noted that:
“A judgment having the authority of res judicata is judicially binding on the Parties to the
dispute. This is a fundamental principle of the law of nations repeatedly invoked in the
jurisprudence, which regards the authority of res judicata as a universal and absolute
principle of international law.”
IV. BARCELONA TRACTION CO. CASE (1964, 1970)
(BELGIUM V. SPAIN)
The legal personality of corporations is widely accepted in national legal systems.
But international law seldom adopts in its entirety a legal concept from a particular
national legal system; instead the search is for a principle that in one form or another
is recognized in a wide range of national legal systems.
“In turning now to the international legal aspects of the case, the Court must, as already
indicated, start from the fact that the present case essentially involves factors derived from
municipal law – the distinction and the community between the company and the shareholder
– which the Parties, however widely their interpretations may differ, each take as the point of
departure of their reasoning. If the Court were to decide the case in disregard of the relevant
institutions of municipal law it would, without justification, invite serious legal difficulties. It
would lose touch with reality, for there are no corresponding institutions of international law
to which the Court could resort. Thus the Court has, as indicated, not only to take cognizance
of municipal law but also to refer to it. It is to rules generally accepted by municipal legal
systems which recognize the limited company whose capital is represented by shares, and
not to the municipal law of a particular State, that international law refers.”
 JUDICIAL DECISIONS
Although these are, in the words of Article 38, to be utilized as a subsidiary means for the
determination of rules of law rather than as an actual source of law, judicial decisions can
be of immense importance.
While by virtue of article 59 of the Statute of the International Court of Justice the decisions
of the Court have no binding force except as between the parties and in respect of the case
under consideration, the Court has striven to follow its previous judgments and insert a
measure of certainty within the process.
While the doctrine of precedent as it is known in the common law, whereby the rulings of
certain courts must be followed by other courts, does not exist in international law, one still
finds that states in disputes and textbook writers quote judgments of the Permanent Court
and the International Court of Justice as authoritative decisions.
 In addition to the Permanent Court and the International Court of Justice, the phrase 'judicial decisions'
also encompasses other international courts and tribunals including arbitral awards and the
rulings of national courts.
The ICJ refers frequently to its own past decisions and most international tribunals make use of past
cases as a guide to the content of international law, so it would be a mistake to assume that
“subsidiary” indicated a lack of importance.
 WRITINGS
Article 38 includes as a subsidiary means for the determination of rules of law, ‘the teachings of the
most highly qualified publicists of the various nations’.
The writings of international lawyers may also be a persuasive guide to the content of international
law but they are not themselves creative of law and there is a danger in taking an isolated passage from
a book or article and assuming without more that it accurately reflects the content of international law.
 OTHER SOURCES
The list of sources in Article 38 of the Statute is frequently criticized for being incomplete. In
particular, it makes no mention of the acts of the different organs of the United Nations. Today there can
be no doubting the importance of those acts in shaping international law, although they perhaps fit
within the system of Article 38 better than is sometimes imagined.
The United Nations General Assembly has no power to legislate for the international community; its
resolutions are not legally binding. However, many of those resolutions have an important effect on the
law-making process. (For Example as an evidence of opinio juris for constituting Customary
International Law; some resolutions are part of treaty making process)
The studies of international law produced by the International Law Commission for the General
Assembly, especially if adopted by the Assembly, may also have an important effect on customary
international law, even if they are not turned into treaties (the ILC Articles on State Responsibility
adopted in 2001 is a good example).
 JUS COGENS NORM
Article 53 of the Vienna Convention on the Law of Treaties, 1969, provides that a treaty will be void
'if, at the time of its conclusion, it conflicts with a peremptory norm of general international law'. This
rule (jus cogens) will also apply in the context of customary rules so that no derogation would be
permitted to such norms by way of local or special custom.
The concept of jus cogens is based upon an acceptance of fundamental and superior values within the
system and in some respects is akin to the notion of public order or public policy in domestic legal
order.
It also reflects the influence of Natural Law thinking.
It is defined as a peremptory norm which is accepted and recognized by the international community
of states as a whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent jus cogens norm.
Examples : unlawful use of force, genocide, slave trading, piracy, rape, torture
A two-stage approach is here involved in the light of article 53:
first, the establishment of the proposition as a rule of international law and,
secondly, the acceptance of that rule as a peremptory norm by the international law community of
states as a whole.
Universal acceptance of the proposition as a legal rule by states and recognition of it as a rule of jus
cogens by an overwhelming majority of states, crossing ideological and political divides
It is also clear that only rules based on custom or treaties may form the foundation of jus cogens
norms. This is particularly so in view of the hostile attitude of many states to general principles as an
independent source of international law and the universality requirement of jus cogens formation.
 HIERARCHY OF SOURCES
Hierarchy exists with respect to subsidiary means of determination of rules – Writings
& Judicial Decisions
Hierarchy also exists to a certain extent w.r.t General Principles of law as it is
resorted to only in case of absence of International Treaty and/or Customary
International law.
General Principles is to be found in case of Non-Liquet or No Law.
No hierarchy exists between Customs and Treaties – Preference depends on
1. Whichever came Later (lex posterior derogate priori)
2. Special rule prevails over general rule (Lex specialis derogat Legi
generali)