KAMPALA INTERNATIONAL UNIVERSITY

SCHOOL OF LAW
COURSE: BACHELOR OF LAWS
COURSE UNIT: PRINCIPLES OF INTERNATIONAL LAW 1
COURSE CODE: LLB 310
YEAR: THREE
SEMESTER: ONE
GROUP: GROUP 1

TOSKIN PEARL 2023-04-16330

NDIBAWAAKI CATHARINE 2023-01-15051

TUSHABE AMOS 2023-04-15817

NAMUHENGE DOROTHY 2023-04-15933

ATWINE AMON GWERA 2023-01-14755

WEERE SAFINAH 2022-08-12774

NABIRYE SHARUWAH 2023-04-15719

GWEBAKOBERA EMMANUEL 2022-01-08717

SOURCES OF INTERNATIONAL LAW

International law refers to the result at any give time of an evolutionary law law-making
process whereby the international community develops a system of rules to guide relations between
sovereign nations.

According to Bentham classic, international law refers to the collection of rules governing relations
between states.

The objective of international law is to introduce order into relations of sovereign nations to
each other through the establishment of predictable barriers to conduct.

The sources of international include the following;

i) Article 38 of the Statute of International Court of Justice

This rather describes how the court is to decide disputes which come before it for
settlement thus the court which is to decide any of the disputes accordingly shall apply; international
conventions(general/particular) establishing rules expressly recognised by the contesting states,
international custom as evidence of a general practice accepted as law, the general principles of law
recognised by civilised nations as well as the judicial decisions and teachings of the most highly
qualified publicists of the various nations as subsidiary means for the determination of the rules of
the law.

ii) Creation of norms and principles.

These are widely shared expectations about what constitutes appropriate behaviour among
governments and certain non state actors at the international level. They are primarily created
through a combination of treaty law (formal agreements between states), customary international
law and general principles of law recognised by civilised nations.

The example include; sovereignty of a territory, human rights, use of force (military force), non
intervention of states in internal affairs of other states

iii) Formal basis of international law.

This is made up of treaties(statutes/protocols), customary law which is based on practices of

states that are generally accepted as law and the general principles of law that are recognised by
civilised nations as mentioned accordingly.

iv) Identification of a rule of international law.

To identify a rule of international law, one must establish the existence of a general practice
among states which is widely accepted as law (opinio juris). This means that states not only behave
in a certain way but also believe that such behaviour is legally binding. For instance; opinio juris,
state practice, wide spread acceptance, consistency such as the prohibition of torture which is
considered as peremptory norm (jus cogens).

The identification is done through analysis of treaties, international court decisions and scholarly
writing. Therefore, this the core element of customary international law and one of the primary
sources of international law.

v) International custom

Custom in international law is a practice followed by those involved because they feel legally
obliged to behave in such a way. This is the evidence of general practice accepted as law, pursuant to
Article 38(1)(b) of the Statute of the International Court of Justice.

The criteria for establishment of a customary rule include the ways:

a) Concordant practice by a number of states with reference to a type of situation falling within the
domain of international relations

b) Continuation or repetition of the practice over a considerable period of time

c) Conception that the practice is required by or consistent with, prevailing international law; and
General acquiescence in the practice by other states
The traditional view is that a rule of customary international law defines its validity from the
possession of two elements which differentiate it from the behaviour which involves no legal
obligation. The material element and a psychological element.

vi) The material element of state practice.

State practice is a material element of customary international law. It is a

factual understanding of how states conduct themselves and often analyzed using inductive process.
These include; diplomatic acts, legislative actions, decisions made by national courts as well as
actions taken in connection with treaties/resolutions adopted by international organizations.

When analyzing state practice, all available actions taken by a state are considered, the practice must
be general and the practice doesn’t need to be a certain length of time as long as its general.

State practice includes any act, articulation, or other behaviour of the state which discloses the
state's conscious attitude concerning the recognition of a customary rule. In 1950, the International
Law Commission listed the following classical forms or Evidence of customary International Law;
Treaties, decision of national and international courts, National legislation, Diplomatic
correspondence, Opinions of national legal advisors and Practice of international organisations.

The extent of the practice

The formation and existence of a customary rule requires general state practice. In the North Sea
Continental Shelf cases, the ICJ postulated that 'state practice should have been extensive'. The term
'general' indicates that common and widespread practice is required, although universal practice is
not necessary.it seems also that practice must be representative in the sense that all the major
political and socio-economic systems should be involved in the widespread practice.

If practice is not widespread or general it may still give rise to a local or regional customary
rule/special rule, as was argued unsuccessful in the Asylum case (1950). In that case, the ICJ held that
before state practice could be acknowledged as law, it has to be in accordance with a constant and
uniform usage practiced by the states in question. The case concerned political asylum after an
unsuccessful rebellion in Peru one of the leaders was granted asylum in the Colombian embassy in
Lima.

The practice of dissenting states and persistent objectiors.

If, and when, certain patterns of practice are emerging, or have emerged, states may wish to diverge
or dissent from such practice.states may dissent from a customary rule from its inception onwards.
The feasibility of such dissent was acknowledged by the ICJ in the Anglo-Norwegian Fisheries case
(1951).The case concerned the manner in which Norway calculated it's territorial sea and the Court
found that Norway was not bound by the existing general rules of customary law relating to the
matter.a persistent objectior is not bound by the eventual customary rule if the state fulfils two
conditions:

I. The objections must have been maintained from the early stages of the rule onwards, up to it's
information and beyond.

2. The objections must have been maintained consistently, since the position of other states that may
have come to rely on the position of the objector, has to be protected.the objector should not be
able to rely on his own inconsistencies.
Duration of practice

There is no set time limit and no demand that the behavior should have existed since time
immemorial. The relative unimportance of time was highlighted by the ICJ in the North Sea
Continental Shelf cases. The cases involved the Federal Republic of of Germany, Denmark and
Holland and a dispute over the Continental Shelf. Denmark and Holland argued that the equidistance
principle which was contained in the convention on the Continental Shelf 1958 was customary law .
The two states had argued that even if no customary rule existed at the time of the convention, a
rule had since come into being, partly as a result of the impact of the convention, and partly on the
basis of subsequent state practice. The court was therefore required to look at the time requirement
and it ruled, in rejecting their argument, that although the passage of only a short period of time is
not necessarily, or of itself, a bar to the formation of a new rule of customary International Law , an
indispensable requirement would be that the practice of states whose interest are specially affected,
should have been extensive and virtually uniform.

vii) The psychological element.

This is opinio juris which is the belief that a practice is legally binding. It is one off the
two essential elements of customary international law along with state practice, otherwise known as
opinio juris sive necessitatis. State practice must occur because the state concerned believes it is
legally bound to behave in a particular way and customary law must be distinguished from mere
usage. The essential problem then becomes one of burden and standard of proof.ie. the proponent
of a custom has to establish a general practice and thereafter must show that the general practice is
due to a feeling of legal obligation.

In many cases the international court has been willing to assume the existence of an opinio juris on
the basis of evidence of general practice or the previous determinations of the court or other
international tribunal for example in the Gulf of Maine case (1984). However, in a significant minority
of cases the court has adopted a more rigorous approach and has called for more positive evidence
of the recognition of the validity of the rules in question such as; the ICJ in Nicaragua vs US(merits)
case (1986) which provided for a new customary rule to be formed and that the Acts concerned must
not only amount to a settled practice, but they must be accompanied by the opinio juris sive
necessitatis.

viii) International conventions/treaties.

Treaties are known by a variety of terms; conventions, agreements, pacts, general acts,
charters, and covenants—all of which signify written instruments in which the participants (usually
but not always states) agree to be bound by the negotiated terms. Some agreements are governed
by municipal law (e.g., commercial accords between states and international enterprises), in which
case international law is inapplicable. Informal, nonbinding political statements or declarations are
excluded from the category of treaties.

Treaties may be bilateral or multilateral. Treaties with a number of parties are more likely to have
international significance, though many of the most important treaties (e.g., those emanating from
Strategic Arms Limitation Talks) have been bilateral. A number of contemporary treaties, such as the
Geneva Conventions (1949) and the Law of the Sea treaty (1982; formally the United Nations
Convention on the Law of the Sea), have more than 150 parties to them, reflecting both their
importance and the evolution of the treaty as a method of general legislation in international law.
Other significant treaties include the Convention on the Prevention and Punishment of the Crime of
Genocide (1948), the Vienna Convention on Diplomatic Relations (1961), the Antarctic Treaty (1959),
and the Rome Statute establishing the International Criminal Court (1998). Whereas some treaties
create international organizations and provide their constitutions (e.g., the UN Charter of 1945),
others deal with more mundane issues (e.g., visa regulations, travel arrangements.

ix) General principles of law

this is another source of international law identified by the Article 38(1)(c) ICJ’s statute is “the
general principles of law recognized by civilized nations.” The general principles are those principles
of law (private and public) which contemplation of the legal experience of civilized nations leads one
to regard as obvious Maxims of jurisprudence of general and fundamental character such as the
principle that no one may be judged in his own cause, that a breach of legal duty entails the
obligation of restitution, that a person can not invoke his own wrong as a reason for release from
legal obligation, that the law not countenance the abuse of a right, that legal obligation must be
fulfilled and rights must be exercised in good faith, and the like In the Chorzow Factory (Jurisdiction)
case, the permanent court enunciated the principle that it is a principle of international law, and
even a general conception of law, that any breach of an engagement involves an obligation to make
reparation.

Another principle considered by the court have included the right to bring class actions (actio
popularis) in the South West Africa case (1950) and the doctrine of corporate personality in the
Barcelona Traction, Light and Power Company Limited case.

x) Judicial decisions

In the event of the being unable to solve a dispute by reference to treaty law, custom or general
principles, Article 38 provides a subsidiary means of Judicial decisions and the teachings of the most
highly qualified publicists of the various nations be employed-although the increase of treaty law has
led to a decline in the use of the subsidiary source.

Judicial decisions maybe applied subject to the provisions of Article 59 which states that the decision
of the court has no binding force except between the parties and in respect of that particular case.

In other words, there is no stare decisis in international law. Nevertheless the ICJ does look at earlier
decisions and take them into account. Value is seen in Judicial consistency. But caution should be
exercised when looking at a particular decision. Decisions are by majority. In the event of division a
decision may have been made by the president using a casting vote. Some dissenting judgements
may be made more for political than for legal reasons.

Arbitration decisions depend for their weight on the subject matter involved and the agreement
between the states to submit the dispute to Arbitration.

Article 38 does not limit the Judicial decisions that may be applied to international tribunals. If a
municipal court's decision is relevant it may be taken into account the weight attached will depend
on the standing of the court e.g. the US Supreme Court is held in high regard, particularly in disputes
on state boundaries; similarly, the decisions of the English prize courts contributed to the growth of
prize law (the law relating to vessels captured at sea during war) .Municipal court decisions may also
be evidence of state practice for the purpose of establishing the rules of customary international law
Xi)The teachings of the most highly qualified publicists of the various nations.

Historically, writers have performed a major role in the development of international law. The
significance of jurists such as Grotious, Suarez and Gentilis has already been discussed in chapter one
(1). Even today, states make plentiful references to academic writings in their pleadings before the
court. Writers have played an important part in the development of international law for two main
reasons:(a) the comparative youth of a comprehensive system of international law; and (b) the
absence of any legislative body. In the formative period, writer's helped to determine the scope and
content of international law. However as the body of the substantive law has increased, so the
influence of writer's has decreased (although writer's still have an important role in developing new
areas of law for example, Marine pollution). Who the most qualified writers are is a matter for
subjective assessment; as is usual in these matters, death is often seen as an important qualification!
It should be noted that the court itself does not usually make references to specific writers.

xii) Equity

Equity in the sense of justice and fairness is included and in a number of cases has been used
indirectly to affect the way in which substantive law is applied. The ICJ has on many occasions
indicated that it considers the principles of equity to constitute an integral part of international law.

In the diversion of water from the meuse case (1937) the judge Hudson declared; What are widely
known as principles of equity have long been considered to constitute a part of international law and
such they have oftenly been applied by international tribunals.

To sum up the above there are various sources of international law as clearly explained ranging from
the customs to international magnified.