LAW 510

Public International Law I

Sources of International Law

 Introduction
Article 38 of the Statute of the ICJ

(1) The court, whose functions 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 provision of Article 59, judicial
decisions and the teaching 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
agreed thereto.
 Five distinct sources of law can be identified from Article
38 (1) of the Statute of the ICJ which is generally taken
to be the classic statement of the sources of
international law:

• Treaties
• International custom
• General principles of international law
• Judicial decisions
• The writing of the publicists
• Equity a source additional also originates from Article 38.

• Where there is little doubt that Article 38 does embody the most
important sources of international law, it provides an incomplete list
of them.

• It envisages sources of international law from a strictly jurisdictional

perspective but being a text adopted more that 90 years ago, it does
not take into account the evolution of international law.

• Article 38 has been criticized for a number of reasons.

(1) It treats judicial decisions and the writings of publicists as being of
equal importance, while in practice judicial decisions have more
weight that the writings of publicists.

(2) There is a discrepancy between English and the French texts of

Article 38 as to the role of judicial decisions and the writings of
publicists which are referred to as ‘auxiliary’ in the French version
and as ‘subsidiary’ in the English version. Both words do not have
the same meaning.

(3) It is worded very generally and thus provides little assistance in

resolving the issue of the hierarchy of sources. Article 38 indicates
that an order of importance, which in practice the Court may be
expected to observe, although it does not address the issue of a
conflict between difference sources of law.
(4) It does not reflect the evolution of international law. Thus, the
reference to international principles ‘recognized by civilized nations’
appear today as at best archaic and at worst insulting, implying as it
does that some nations may not be civilized.

• Acts of international organizations which have greatly contributed to

the formation of international law are not mentioned in Article 38.

• Moreover, the concepts of jus cogens, recognized by the 1969

Vienna convention on the Law of treaty (VCLT), endorsed by the ICJ
and other international courts and tribunals and which plays a
fundamental role in modern international law, is not part of Article
38.
• It is debatable whether declarations made by a state or group of
states which produce binding legal effects are to be regarded as a
distinct source of international law.

(5) It does not reflect the importance of non-binding sources.

Contemporary international law non-binding rules, the so called soft
law, which emanates from states and non-states actors, although
not a source of law, plays an increasingly important role in the
international law making process.
 Treaties

• Treaty can be defined as an agreement (usually written) between two or

more states, governed by international law and intended to create legal
obligations.

• Distinction between law making treaties (normative treaties) and treaty

contracts.

• Law making treaties lay down rules of general or universal application and
are intended for future and continuing observance.

• Treaty contracts resemble contracts in that they are concluded to perform

contractual rather than normative functions (e.g. building an aircraft).
• They are entered into between two or only a few states and deal with
particular matters concerning those states exclusively.

• Such treaties like contract, expire when the parties have performed their
obligations (e.g. build the aircraft).
 International Custom
A customary rule requires the presence of two elements:

• An objective element consisting of a relatively uniform and constant

state practice;

• A psychological element consisting of the subjective conviction of a

state that it is legally bound to behave in a particular way in respect
of a particular type of situation. This element is usually referred to as
the opinio juris sive necessitatis.
 The objective element

• This is normally constituted by the repetition of certain behavior on the part

of a state for a certain length of time which manifest a certain attitude,
without ambiguity, regarding a particular matter.

• However, as no particular duration is required for practice to become law,

on some occasion instant customs come into existence.

• For that reason, a few repetitions over a short period of time may suffice or
many over a long period of time or even no repetition at all in so far as an
instant custom is concerned.

• However, the shorter the time, the more extensive the practice would have
to be to become law.
• In North Sea Continental Shelf, the following principles has been
laid down:

• A practice must be constant and uniform, in particular with regard to

the affected states, but complete uniformity is not required.

• It would suffice that conduct is generally consistent with the rule and
that instances of practice inconsistent with the rule are treated as
breaches of that rule rather than as recognition as a new rule.

• So far as the generality of the practice is concerned, this will usually

mean widespread but not necessary universal adherence to the rule.
• Indeed, custom may be either general or regional.

• General customs apply to the international community as

a whole.

• Local or regional customs apply to a group of states or

just two states in their relations inter se.
• In Asylum Case, the ICJ held that the party relies on a custom must
prove that the rule invoked by it is in accordance with a constant and
uniform usage practised by the states in question.

• In Right of Passage over Indian Territory Case (Portugal v India),

the ICJ accepted argument that a rule of regional custom existed
between India and Portugal.

• The Court sees no reason why long continued practice between two
states accepted by them as regulating their relations should not form
the basis of mutual rights and obligations between the two states.
The subjective element-opinio juris
sive necessitatis
• To assume the status of customary international law the rule in
question must be regarded by states as being binding in law, i.e.
that they are under a legal obligation to obey it.

• This is a sort of tautological statement i.e. state practice is not law

unless state consider it as law.

• Nevertheless, the main purpose of the opinio juris sive necessitatis

is to distinguish between a customary rule and mere usage followed
out of courtesy or habit.
• Rules of international comity is simply based upon a consistent
practice of States not accompanied by any feeling of legal
obligations, e.g. the saluting by a ship at sea of another ship flying a
different flag.

• The distinction between those international rules which crate a legal

obligation and those which a state follows without being obliged to
do so is illustrated in the SS Lotus Case (France v Turkey):

• The question before the court was weather Turkey had the
jurisdiction to try the French officer of a French ship which had,
through his alleged negligence, collided with a Turkish merchant
ship on the high seas, causing loss of life.
• Turkey argued that in the absence to the contrary, there was a
permissive rule empowering her to try the officer.

• France, however, argued that there was a customary rule imposing

a duty on Turkey not to try the officer as previous practice showed
that ‘question of jurisdiction in collision cases…are but rarely
encountered in the practice of criminal courts…in practice
prosecutions only occur before the Courts of the state whose flag is
flown.’
• The Court rejected the French argument, stating:

‘Even if the rarity of the judicial decisions to be found among the

reported cases were sufficient to prove in point of fact the
circumstances alleged by the agent for the French government, it
would merely show that states had often, in practice, abstained from
instituting criminal proceedings, and not that they recognized
themselves as being obliged to do so; for only if such abstention
were based on their being conscious of having a duty to abstain
would it be possible to speak of international customs. The alleged
fact does not allow one to infer that states have been conscious of
having such a duty…’
 The persistent objector rule
• If during the formative stage of a rule of customary international law
a state persistently object to that developing rule it will not be bound
by it.

• This rule is known as the persistent objector rule.

• Once a customary rule has to come into existence, it will apply to all
states except any persistent objectors.

• However, as objecting state, on order to rely on the persistent

objector rule, must:
• Raise its objection at the formative stage of the rule in question;

• Be consistent in maintaining its objection;

• Inform other states of its objection. This is particularly important with

regard to a rule which has been almost universally accepted.

• If a state remains silent, its silence will be interpreted as

acquiescence to the new rule.

• The burden of proof is on the objective state.

 The relationship between treaties and
international customs
• Relationship is complex.

• They co-exist, develop each other, and sometimes clash.

• If there is a clash between a customary rule and provision of a treaty

then, because they are of equal authority (except when the
customary rule involved is of a jus cogens nature) whereupon being
superior it will prevail, the one that is identified as being the lex
specialis will prevail,

• The lex specialis will be determined contextually.

 Special rules of customary international law
jus cogens and rules creating erga omnes
obligations
• Jus cogens rules represent the highest source in the (informal) hierarchy of
sources of international law.

• The emphasis of jus cogens obligations is on their recognition by the

international community ‘as a whole.’

• The emphasis of erga omnes is on their nature. It mentioned embody moral

values which are of universal validity.

• They are binding because they express moral absolutes from which no
state can claim an exemption whatever its political, economic and social
organizations.
• The legal consequences of violating erga omnes obligations differ
from those for breach of the rules of jus cogens

• In addition to the consequences deriving from a breach of erga

omnes obligations further consequences, specified in Article 53 of
the Vienna Convention on the Law of Treaties (the VCLT), follow
from violations of the rules of jus cogens.
 General principles of international law

• If there is no treaty relevant to a dispute or there is no rule of

customary international law that can be applied to it, the ICJ is
directed under Article 38 of the Statute, to apply general principles of
international law.

• Still, no consensus among legal scholars as to the exact quality of

this source.

• To avoid gaps in the law.

• General principles of fairness and justice which are applied

universally in legal system around the world.

• Laches, good faith, res judicata, impartiality of judges etc.

 Judicial decision

• As there is no binding authority of precedent in international law,

international court and tribunal cases do not make law.

• Judicial decisions are, therefore, strictly speaking not a formal

source of law.

• However, they clarify the existing law on the topic and may, in some
circumstances, create a new principle in international law.

• They can also be considered evidence of state practice.

• Article 59 of the ICJ Statute ‘the decision of the court has no binding
force except between the parties and in respect of that particular
case.’

• However, the court itself frequently uses its previous decisions as

authority in later cases.

• North Sea Continental Shelf show that the court can contribute
significantly to the development of customary law.

• In connection with the jurisprudence of the court on maritime

delimitation…that the tendency of the court to follow and apply
earlier decisions rather than to investigate the practice of States
supposedly creative of custom had led to a situation in which it might
be said that maritime delimitation law was judge-made law rather
than customary law.
 The writing of publicists

• This source generally only constitutes evidence of customary law.

• However, learned writings can also play a subsidiary role in

developing new rules of law.

• The impact of writers on the corpus of international law is never

capable of scientific analysis.

• The degree to which judges of the ICJ rely on published works

(other than their own!) is rarely made clear as the practice of the
court is not to cite the views of scholars in decision, although legal
representatives before the court frequently refer to publicists in their
arguments.
 Equity

• This is a complex concept.

• Under Article 38(1) (c) of the ICJ Statute equity is understood to be:

• A general principle of international law and thus may be considered

as a material source of law.

• A way of infusing elements of reasonableness and ‘individualized’

justice whenever law leaves a margin of discretion to a court in
deciding a case. This is equity which operates within the boundaries
of law (equity intra legem).
• Under Article 38 (2), equity means that a decision may be made ex
aequo et bono, i.e. the court should decide the case not on legal
considerations but solely on what is fair and reasonable in the
circumstances of the case (equity contra legem).

• However, the parties must expressly authorize the court to decide a

case ex aequo et bono. So far, the ICJ has never delivered any
judgment based on Article 38 (2).
 Secondary law of IGOs

• There is disagreement whether secondary acts adopted by IGOs constitute

a source of law or whether, being a derivative source of law, they do not
form part of general international law.

• It is important to make a distinction between primary and secondary law of

IGOs.

• Primary laws refer to the founding treaties, i.e. treaty establishing the
relevant IGOs.

• Secondary law refer to acts adopted by IGOs on the basis of primary law.
• Under traditional international law, secondary acts cannot be qualified as a
separate source of international law.

• They are neither binding, nor abstract, nor general rules but derive from the
founding treaties, concern a specific area of law and produce legal effects
only in respect of member states of the relevant IGOs.

• However the positivist approach has been challenged by the establishment

of IGOs having almost universal membership (e.g. UN) and by globalization
which entails not only the increasing interdependence of states but also the
need to find swift and appropriate solutions to new problems facing the
international community.

• The better view, therefore, is that the secondary law of IGOs constitutes an
important source of international law.
 Declarations-an uncertain source?

• Whether a declaration by states is a source of international law

depends on the context in which it has been made.

• It is debatable whether declarations which produce legal effects are

a source of international law.
 Soft law

• Non-binding rules of international law are called ‘soft law’ whilst binding
rules are considered as ‘hard law.’

• Soft law is of relevance and importance to the development of international

law because it:

1. Has the potential of law-making, i.e. it may be a starting point for later
‘hardening’ of non-binding provisions (e.g. UNGA resolution may be
translated into binding treaties).

2. May provide evidence of an existing customary rule.

3. May be formative of the opinio juris or a state practice that creates a new
customary rule.
4. May be helpful as a means of a purposive interpretation of international law.

5. May be incorporated within binding treaties but in provisions which the

parties do not intend to be binding.

6. May in other ways assist in the development and application of general

international law.

7. The importance of soft law is emphasized by the fact that not only states but
also non-state actors participate in the international law making process
through the creation of soft law.

• Nevertheless, soft law is made up of rules lacking binding force, and the
general view is that it should not be considered as an independent, formal
source despite the fact that it may produce significant legal effects.
 Codification of International Law: The
contribution of the ILC
• The ILC established by the GA of the UN in 1947 is made up of 34 legal
experts representing the world’s major legal system.

• The two main task of the ILC are:

1. The codification of international law, which is defined as the more precise

formulation and systematization of the existing customary rules of
international law.

2. The progressive development of international law, which involves the

creation of new rules of international law either but means of the regulation
of a new topic or by means of the revision of the existing rules.

• Since its inception the ILC has fulfilled its tasks with great professionalism
and dedication, producing numerous high quality international treaties,
declarations resolutions and model laws.
 THANK YOU

contacts: [email protected]