Sources of Public International

Law
Introduction
By
Dr Rahul Srivastava
BA LLB, LLM, MPhil and PhD in Public International Law
 Introduction- Notion
● The term „source of law” may mean different things.
● It may refer to either historical, ethical, social, or other
bases for a legal rule, or
● it may refer to legal rules as such. The notion will be used
here in the latter sense.
 Art. 38 of the Statue of International Court of
Justice (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.
 Hierarchy of sources of International Law
1. Primary sources: treaties, customary rules, unilateral
acts, general principles ;
2. Secondary sources: binding decisions of
international organizations, judicial decisions based
on principle of equity;
3. Subsidiary sources: other judicial decisions,
doctrine.
 Sources of International Law
● Treaties and conventions- Nuclear Test Ban Treaty;
● International Custom- prohibition of crimes against
humanity;
● General Principles of Law- lex specialis derogat legi
generali;
● Subsidiary Sources of judicial decisions and legal
publications- ICJ’CJEU cases, Brownlie textbook on
Principles of Public International Law, Yearbooks of
International Law.
 Hierarchy?
● Treaties and custom are equal, subsequent treaty can
displace previous custom, subsequent custom can
change treaty;
● Exception is jus cogens- non-derogable;
● Principles below treaties and custom, gap fillers,
natural law sources, rules common to all legal
systems, principle of equity, general principles of
international law.
 Hierarchy?
● Article 38 does not take into account the evolution of
international law;
● In practice, judicial decisions have more weight that writing
publicists;
● Reference to civilized nations is problematic;
● Jus cogens is not addressed;
● Act of IOs are not addressed.
● Does not reflect the importance of non-binding sources.
● Relative normativity is problematic according to Prof. Prosper
Weil
Other sources of law
●Unilateral acts of State, such as recognition;
●Resolutions of International
Organisations(IOs).
Treaties
 Introduction
The Vienna Convention on the Law of Treaties 1969 (VCLT)
was negotiated during the UN Conference on the law of Treaties
at Vienna in 1968-1969. It was opened for signature on 23 April
1969 and entered into force on 27 February 1980.
The law of treaties is a body of rules which provides a definition
of a treaty, and deals with matters relating to the conclusion,
entry into force, application, validity, amendment, modification,
interpretation, suspension and a termination of a treaty.
● It can be said that the law of treaties plays, in international
law, a role similar to that played by the law of contract in
municipal law.
Fundamental Principles of the Law of Treaties
The principle of free consent
It means that a State cannot be bound by a treaty to which
it has not consented, however there are some exceptions
to this rule. A State may express its consent in various
forms (Article 11).
 Fundamental Principles of the Law of Treaties
The principle of pacta sunt servanda (agreements must be
kept)
It is embodied in Article 26 VCLT which states that: Every
treaty in force is binding upon the parties to it and must be
performed by them in good faith.
The ICJ in the Case Concerning Gabcikovo-Nagymaros
Project stated, that Article 26 combines two equal elements:
the principle of pacta sunt servanda and the principle of good
faith. It his principle applies only to the treaties which are in
force.
Fundamental Principles of the Law of Treaties
The principle of good faith
Under this principle States are required to comply with
binding obligations imposed upon them by international
law, irrespective of whether such obligations derive from
treaties, customary rules, or any other source of
international law.
This principle is all encompassing as it even imposes
obligations on a State in the pre-ratification stage.
 The Definition of a Treaty under the VCLT
Article 2 (1)(a) defines a treaty as:
…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.
● A treaty may be described in a multitude of ways, as was
stated by the ILC. The names such as ‘convention’, ‘protocol’,
‘charter’, ‘pact’, ‘agreement’, ‘concordat’, or ‘joint
communiqué’.
 The Definition of a Treaty under the VCLT
To qualify as a treaty, the agreement must satisfy the following
criteria:
● It must be a written instrument (Article 3);
● The parties must be States (Article 6);
● It must be governed by international law. There are groups of
international agreements which fall under national law, e.g. the
purchase of property, or concessions agreements.
● It must be intended to create legal obligations, it must be
legally binding/intention to be bound.
 Pactum de Contrahendo, Pactum de Negotiando
It is a binding legal instrument under international law by
which contracting parties assume legal obligations to conclude
or negotiate future agreements.
● These concepts relate to obligations to reach an agreement
and to negotiate with a view of reaching an agreement. These
obligations often arise from an existing treaty, which binds
the parties to negotiate and, as is the case in → pactum de
contrahendo, to enter into further agreements.
 Formulation of Treaties
● States may adopt any procedure they choose to bring a
legally binding agreement into existence between them.
● However, in the absence of any other agreement, the
elaborate procedures set out in the VCLT apply; these
procedures reflect the practice which had developed
between States before the codification of the law in the
VCLT.
 Formulation of Treaties
Broadly, this procedure may be divided into two parts.
1. First comes the procedure of → negotiation and adoption
of the text of a treaty, and
2. Secondly the formal procedure whereby States express
their → consent to be bound by that text.
This, it may be observed here, generally but not invariably,
involves a two-step procedure, consisting of first, the
signature of the treaty, and second, its ratification.
 Conclusion of Treaties
Negotiation
This is carried out by the accredited representatives of the
States. Article 7(1) provides that it is someone equipped with an
instrument of „full powers” or a person who, from normal
practice appears to have such powers.
Article 7(2) indicates three categories of persons who are
deemed to have „full powers”: Heads of State, Heads of
Government and Ministers for Foreign Affairs; Heads of
diplomatic missions; Representatives accredited by States to an
international conference or to an international organization or
one of its organs.
 Conclusion of Treaties
Adoption of the text of a treaty
It is the first stage of the conclusion of a treaty.
Article 9 provides:
1)the adoption of the text of a treaty takes place by the consent
of all the States participating in its drawing up except as
provided in paragraph 2;
2) the adoption of the text of a treaty at an international
conference takes place by the vote of two thirds of the States
present and voting, unless by the same majority they shall decide
to apply a different rule.
 Conclusion of Treaties
Authentication of the agreed text
By authentication the parties agree that the definitive text of
the proposed treaty is correct and authentic and not subject to
alteration.
The text of a treaty is established as authentic and definitive:
by the signature, signature ad referendum or initialling by the
representatives of those States of the text of the treaty or of
the Final Act of a conference incorporating the text.
 Conclusion of Treaties
Consent to be bound
Article 11 provides: the consent of a State to be bound by a
treaty may be expressed by signature, exchange of
instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other means if so agreed.
Entry into force
● Conditions for entry into force are normally specified
in the treaty itself.
● Otherwise, a treaty enters into force as soon as consent
to be bound by the treaty has been established for all
the negotiating States (Article 24).
Deposit
● A depository is designed by the contracting parties to a
treaty.
● He is the custodian of the treaty and performs
administrative tasks relating to it.
● His functions and competences are set out in Articles
76 to 80.
 Registration
● The reason for registration and publication of a treaty is to
ensure transparency in the conduct of international relations.
● Article 102 of the UN Charter provides: every treaty and every
international agreement entered into by any Member of the
United Nations after the present Charter comes into force shall
as soon as possible be registered with the Secretariat and
published by it.
● However, failure to register a treaty has no effect on its
validity.
 Registration
● Article 102 was indented to prevent States from entering into
secret agreements without the knowledge of their nationals,
and without the knowledge of other States, whose interests
might be affected by such agreement.
● Secret diplomacy was condemned by the League of Nations as
it was felt that secret agreements were one of the causes of
World War I.
● It is to be noted that secret agreements are not unlawful and
although they are disapproved of and difficult to conceal, they
still exist.
Publication
● Subsequent to registration, a treaty will be officially
published in the UN Treaty Series, so that anyone can
consult it.
 Application of a treaty
In application of a treaty, three aspects are of interest:
1. Territorial application. In the absence of any territorial clause
or other indication to the contrary on the part of contracting
parties, a treaty is presumed to apply to all territories for
which the contracting States are internationally responsible
(Art. 29);
 Application of a treaty
2. Conflict between treaties. It can be resolved as follows:
If one of the treaties violates a rule of jus cogens, the treaty is
invalid;
If a treaty is in conflict with Article 103 of the UN Charter, its
provisions which are incompatible with the UN Charter are void;
if a treaty contains a conflict clause, it will indicate which treaty is
to be applied (Art. 30(2);
if treaty contradict each other and neither contains a conflict
clause, Articles 30 (3) and (4) applies. This provision endorses the
lex posteriori maxim: a later treaty supersedes an earlier treaty and
the lex specialis maxim: a specific treaty supersedes a general
treaty.
 Application of a treaty
3.Application of a treaty to a third party. The fundamental
principle is that a treaty applies only between the parties to it and
thus has no effect on a third (Art. 34) .
However, there are the following exceptions to that principle:
● If a treaty imposes an obligations on a third party, that treaty
provisions will become binding on the third party only if that
provision contains a rule of customary law;
● If a treaty confers a right on a third party, that party must
consent to it.
 Amendment
Article 39 provides that „A treaty may be amended by
agreement between the parties”. If all parties agree to the
amendment no difficulty arises. But in many multilateral
treaties it may not be possible to obtain unanimous agreement
to a proposed amendment.
Many treaties contain provisions for an amendment procedure.
In case where a treaty contains no reference to amendment,
Article 40 is of assistance.
 Modification
This occurs where a number of parties the treaty formally
agree to modify the effects of a treaty amongst themselves,
while continuing to be bound by the treaty in their relations
with the other parties.
This matter is covered by Article 41.
 Interpretation
Rules of interpretation are contained in Articles 31 and 32.
Article 31(1) provides that: „A treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light
of its object and purpose”.
Article 31(4):” A special meaning shall be given to a term if it
is established that the parties so intended”.
 Termination and Suspension of Treaties
The principles of pacta sunt servanda and of good faith entail
that a State cannot release itself from its treaty obligations
whenever it wishes.
However, there are circumstances where suspension or
termination of a treaty is justify.
The difference between suspension and termination is that:
● When a treaty is suspended it is still valid but its operation is
suspended temporarily.
● When a treaty is terminated it is no longer in force as it has
ended its existence.
 Termination and Suspension of Treaties
● To be effective, termination or suspension may only take place
as a result of the application of the provisions of the treaty
itself or the VCLT (Art. 42 (2)).
● Most treaties contain provisions on termination, and
termination provisions are usually closely linked to those on
the duration of the treaty.
Termination of a treaty- consequences
● According to Article 70, the termination of a treaty
releases the parties from any obligation further to
perform the treaty, from the date when such
denunciation or withdrawal takes effect (ex nunc). Ex
nunc is a legal term derived from Latin, and means
"from now on".
Suspension the treaty- consequences
According to Article 72, the suspension of the operation
of the treaty, releases the parties between which the
operation of the treaty is suspended from the obligation to
perform the treaty in their mutual relations during the
period of the suspension.
International
Custom
 Introduction
Article 38 (1)(b) of the ICJ Statue, defines international
custom, as evidence of a general practice accepted as law.
A customary rule requires the presence of two elements:
1. An objective element: a relatively uniform and constant
State practice, and
2. A psychological element: 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 is
referred to as the opinio juris sive necessitas.
 Introduction
● Custom may be either general or regional. General customs
are binding upon the international community as a whole.
Local and regional customs apply to group of States or just
two States in their relations inter se.
● Local customs may supplement or derogate from general
customary international law.
 The objective element
● This refers to what a State does with regard to a particular
matter and what its organs such as heads of State, foreign
ministers, other ranking officials, its legislature or its
judiciary say with regard to a particular matter.
● It is clear that major inconsistencies in practice will
prevent the creation of a rule of customary international
law.
● The complete uniformity is not required and minor
inconsistencies will not prevent the creation of a
customary rule provided that that is substantial uniformity.
The subjective element
● 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.
● The customary rules are simply based upon a
consistent practice of States accompanied by
feeling of legal obligation.
 The Relationship between Treaties and International
Custom
● The relationship between treaties and customary
international law is complex. They co-exist, develop each
other and, sometimes, clash.
● If there is a clash between them then, because they are of
equal authority, the one which is identified as being the
lex specialis will prevail.
General Principles of
International Law
 Introduction
● Article 38 (c) of the Statue of the ICJ refers to „the general
principles of law recognized by civilized nations.
● These principles are common to several national legal
systems and they are appropriate from the point of view of
international law.
● Some examples: the principle that a breach of an
obligation entails an obligation to make reparation; the
principle of res judicata; the principle of estoppel; the
principle of the admissibility of circumstantial evidence.
Judicial Decisions
● Article 38(1)(d) of the Statue of the ICJ directs the Court to
apply judicial decisions …as subsidiary means for the
determination of rules of law.
● Judicial decisions are not, therefore, 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.
● Precedent has no binding authority in international law.
The Writings of Publicists
● Article 38 (1) (d) directs the ICJ to apply the teachings of the
most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
● They constitute evidence of customary law and play a
substantial role in developing new rules of law.
Secondary Law of International
Governmental Organisations
(IGOs)
● There is a disagreement as to whether secondary acts adopted
by IGOs constitute a source of law or whether, they do not
form part of general international law.
● In this respect it is important to make a distinction between
primary and secondary law of IGOs.
● Primary law refers to the founding treaties, i.e. a treaty
establishing the relevant IGO.
 Introduction
● Secondary law refers to acts adopted by IGOs on the basis of
primary law.
● They constitute an important source of international law, when
two conditions are met:
1. They are legally binding, like decisions, regulations,
directives, and
2. They produce legal affects.
● Its ranking will depend on the IGOs concerned.
Declarations- An
Uncertain Source?
 Introduction
● Declarations are of various kind. They may be adopted by a
group of States, or by a Statue or by an IGO to express their
intention or views on a particular point.
● Whether a declaration produces legal effects depends on the
context in which it has been made.
● In international law some declarations produce legal effects
( e.g. when a State issues a protest objecting to an act or action
carried out by another State or recognises a particular situation,
or renounces a right) and some are source of obligation (e.g.
when a State promises to do something or to abstain from
doing something).
Soft Law
 Introduction
● International law consists of rules having varying degrees
of forces.
● Some of these rules contain binding obligations (e.g.
treaties) while others, such as resolutions or declarations are
non-binding.
● These non-binding rules are called „soft law”. So, soft-law
is made up of rules lacking binding force, and general view
is that it should not be considered as an independent, formal
source of international law.
 Introduction
Soft law is of relevance and importance to the development of
international law because it:
● Has the potential of law making;
● May provide evidence of an existing customary rule;
● May be formative of the opinio juris or of State practice that
creates a new customary rule;
● May be helpful as a means of an interpretation of international
law;
● May be incorporated within binding treaties but in provisions
which the parties do not intend to be binding.
Codification of International Law and Progressive
Development of International Law

International Law Commission

(ILC)
 Introduction
● The International Law Commission was established by the
General Assembly, in 1947, to undertake the mandate of the
Assembly, under article 13 (1) (a) of the Charter of the United
Nations to "initiate studies and make recommendations for the
purpose of ... encouraging the progressive development of
international law and its codification".
● Two main tasks of the ILC are:
1. The codification of international law;
2. The progressive development of international law, which
involves the creation of new rules of international law.
 Introduction
● It is composed of 34 members elected by the UN General
Assembly from candidates nominated by the Member
States. They serve in their individual capacity and are
independent of any government. They are elected on the
basis of equitable geographical distribution so as to
represent the major legal systems in the world.
● It holds its sessions in Geneva and meets annually in
open sessions for 10 weeks.
 Introduction
The following topics are on the programme of work of the
Commission: Immunity of State officials from foreign criminal
jurisdiction; Provisional application of treaties; Crimes against
humanity; Protection of the environment in relation to armed
conflicts; Protection of the atmosphere; Peremptory norms of
general international law (jus cogens);Succession of States in
respect of State responsibility; General principles of law; Sea-
level rise in relation to international law.
 Examples of the ILC’s accomplishments
the 1969 VCLT; the 2001 Draft Articles of State responsibility;
the 1949 Declaration of Rights and Duties of States; the 1949
Principles of International law recognised in the Charter of the
Nuremburg Tribunal and in the Judgement of the Tribunal; the
1954 Draft Code of Offences; the 1996 Draft Code of Crimes
against the Peace and security of mankind; the 1961 Vienna
Convention on Consular relations; the 2006 Draft principles on
the Allocation of loss in the case of Transboundary Harm
Arising out of Hazardous Activities; and all UN Conventions
relating to the law of the sea.