LECTURE 2

Sources of International Law

• International Law: Public International Law
Versus Private International Law.
• The sources of international law
• =Treaties
• =Customary international law
• =General principles of law recognised by ‘civilized’ nations
• =Good faith.
• =Estoppel
• =Norms
• =Judicial decisions
• =Teachings of the most highly qualified publicists.
• =General international law.

• =Obligations erga omnes

• =Jus cogens
• =‘Soft law’
• =Comity 11
• =Domestic law 11

• Subjects and objects of, and actors in, international law 12

• National liberation movements 13
• NGOs 13
 Sources on international law
• 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.

• So in essence, according to article 38 of the ICJ Statute these are

the sources:
• (a) Treaties between States; (b) Customary international law
derived from the practice of States; (c) General principles of law
recognized by civilized nations; and, as subsidiary means for the
determination of rules of international law: (d) Judicial decisions
and (e) the writings of “the most highly qualified publicists”.
What is a “Custom” in international law”?

Customary international law refers to

international obligations arising from
established state practice, as opposed to
obligations arising from formal written
international treaties. According to Article
38(1)(b) of the ICJ Statute, customary
international law is one of the sources of
international law
 What is “Comity” in law?
• What is “Comity”= Are generally principles or rules of
politeness, convenience or goodwill observed by Governments
and Courts.
• In other words, COMITY are “the legal principle that political
entities (such as States, Nations, or Courts from different
jurisdictions) will mutually recognize each other's legislative,
executive, and judicial acts.

• (Or “In law, comity is "a practice among different political

entities (as countries, states, or courts of different
jurisdictions)" involving the "mutual recognition of legislative,
executive, and judicial acts“).
treaties that seek to unify or harmonize States’ substantive domestic law, such as on
carriage by air or sea, or intellectual property.

UNCITRAL is that part of the United Nations charged with promoting the
harmonization of international trade law. But, the name, UNIDROIT, is most
misleading. It is neither part of the United Nations, nor even a UN specialised
agency. It is an international organization with sixty-three Member States that seeks
to harmonize domestic laws, especially commercial. Since 1964, it has concluded
eleven conventions.

A legal matter may raise issues of both international law and conflict of laws,
particularly on questions of jurisdiction. Today, the distinction between international
law and conflict of laws can be blurred as more international law, treaties in
particular, reaches down into the internal legal order, as exemplified by the law of
the European Union. Nevertheless, it is still vital to appreciate the distinctions
between different categories of law, their purpose and how they develop.
Transnational law
This term seems to have been invented to describe the study of any aspect of law
that concerns more than one State, in particular conflict of laws, comparative law
(the study of how the domestic laws of different States deal with a particular area
or issue of domestic concern), supranational law (European Union law) and
public international law, particularly in the commercial field. It may bring useful
insights into the development of law, in particular how different types of law may
influence others. But, one should not be led into believing that we are now living
in a world where all laws of whatever type are rapidly converging. Within many
Transnational law
This term seems to have been invented to describe the study of any aspect of law that
concerns more than one State, in particular conflict of laws, comparative law (the study of
how the domestic laws of different States deal with a particular area or issue of domestic
concern), supranational law (European Union law) and public international law, particularly in
the commercial field. It may bring useful insights into the development of law, in particular
how different types of law may influence others. But, one should not be led into believing
that we are now living in a world where all laws of whatever type are rapidly converging.
Within many States, especially federations, (even a semi-federation such as the United
Kingdom), there are separate systems of domestic law, and this is likely to continue for a long
time.

THE NATURE OF INTERNATIONAL LAW

International law is sometimes called public international law to distinguish it
from private international law, though, as already explained, even the latter
term can lead to misunderstandings. Whatever the connections which international
law has with other systems of law, it is clearly distinguished by the fact
that it is not the product of any one national legal system, but of States. The
United Nations now has 192 States which are Members. They now account for
the vast majority of States which make up our world. In the past, international
law was referred to as the Law of Nations.10
2 Handbook of International Law
THE NATURE OF INTERNATIONAL LAW

International law is sometimes called Public International

Law (such as in your LLB programme) to distinguish it from
private international law, though, as already explained, even
the latter term can lead to misunderstandings. Whatever
the connections which international law has with other
systems of law, it is clearly distinguished by the fact that it is
not the product of any one national legal system, but of
States. The United Nations now has 193 States which are
Members. They now account for the vast majority of States
which make up our world. In the past, international law was
referred to as the Law of Nations.
BRIEF HISTORICAL NOTE ON INTERNATIONAL LAW

Although it has developed over many centuries, international law as

we know it today is commonly said to have begun with few people
such as the Dutch jurist and diplomat, Grotius (Hugo de Groot),
1583–1645, and with the Peace of Westphalia 1648. That event
marked not only the end of the Thirty Years War, but also the end of
feudalism (and, with the Reformation, general obedience to the
Pope), and the establishment of the modern State with central
governmental institutions that could enforce control over its
inhabitants and defend them against other States. But since those
States had to live with each other, there had to be common rules
governing their external conduct.

Although rudimentary rules had been developing ever since civilized

communities had emerged, from the mid-seventeenth century they
began to evolve into what we now recognize as international law.
BUT IS INTERNATIONAL LAW REALLY LAW?
Unfortunately, this question is still being asked, and not only by law students.
The answer depends on what is meant by ‘law’. Whereas the binding nature of domestic law
is not questioned, new law students are usually confronted with the issue: is international law
merely a collection of principles that a State is free to ignore when it suits it? Whereas
newspapers report ordinary crimes on a daily basis, it is usually only when a serious breach of
international law is alleged to have occurred that the media take notice. This can give a
distorted impression of the nature of international law. Because it has no easy sanction for its
breach, and there is no international police force or army that can immediately step in,
international law is often perceived as not really law. Yet, the record of even the most
developed domestic legal systems in dealing with crime does not bear close scrutiny.

Although it is as invidious as comparing apples and oranges, in comparison with domestic

crime States generally do comply rather well with international law. If, as Hart (in the The
Concept of Law, Oxford, 1961) argued, law derives its strength from acceptance by society
that its rules are binding, not from its enforceability, then international law is law.

As we will see when considering in detail the sources of international law, its binding force
does not come from the existence of police, courts and prisons. It is based on the consent
(express or implied) of States, and national self-interest: if a State is seen to ignore
international law, other States may do the same. The resulting chaos would not be in the
interest of any State. While the language of diplomacy has changed over the centuries from
Latin to French to English, international law has provided a vitally important and constantly
developing bond between States.
BUT IS INTERNATIONAL LAW REALLY LAW? (Cont)
As this course will show, today in many areas of international law the rules are well settled. As
with most domestic law, it is how the rules are to be applied to the particular facts that cause
most problems.

The reason of existence of international law is that relations between States should be
governed by common principles and rules. Yet, what they are is determined by national
interest, which in turn is often driven by domestic concerns. Those matters on which
international law developed early on included the immunity of diplomats and freedom of the
high seas. The latter was crucial to the increase in international trade.
To look at the question from a more mundane point of view, international law is all too real
for those who have to deal with it each day. For example, some foreign ministry legal
departments are large: (For example, in America, the US State Department [equivalent to our
Foreign Relations Ministry] has some 200 legal advisers; the UK Foreign and Commonwealth
Office (FCO) has about forty legal advisors, including some eight posted abroad in Brussels,
Geneva, New York, The Hague, and elsewhere. (Normally, to qualify to be an official
International Relations legal adviser in the Ministry of Foreign Affairs in Namibia one must
first be qualified to practice law Namibia. Like other legal advisers to ministries of foreign
affairs elsewhere, the task of the Foreign Affairs legal advisers is to advise on a host of legal
matters (both international and domestic) that arise in the conduct of foreign affairs. They
also have the conduct of cases involving international law in international, foreign and
domestic courts and tribunals.
BUT IS INTERNATIONAL LAW REALLY LAW? (Cont)
The legal departments of other foreign ministries elsewhere are often staffed by
diplomats who have legal training but may not be qualified to practice law; and they
may well alternate between legal and political posts. Most foreign ministries have
few, if any, legal advisers who during their careers do little other than law. But, if
international law is not law, then legal advisers to foreign ministries are all drawing
their salaries under false pretences.

Although, fortunately, more students are studying international law, it is not easy for
a young private legal practitioner to practice it. Even in large law firms that have
international law departments, the bulk of the work is international commercial
arbitration. The involvement of legal practitioners in international law is usually
incidental to their normal domestic work. Most of those who appear before
international courts or tribunals are professors of international law who may not
even be practitioners in their own domestic legal system. But
there are also jobs for international lawyers in the United Nations and other
international organisations, and NGOs.
BUT IS INTERNATIONAL LAW REALLY LAW? (Cont)

INTERNATIONAL LAWYERS
Sometimes the media will describe a person as an ‘international lawyer’, yet at most he may
have a practice with many foreign clients, and be concerned more with foreign law and
conflict of laws. Yet, when the media is full of stories questioning the lawfulness of a State’s
actions, some domestic lawyers rush to express their, often critical, opinions. They are not
always wrong, but can display a lack of familiarity with international law, apparently believing
that the reading of a textbook or an (apparently simple) instrument such as the UN Charter is
enough. The fact that some textbooks are lucid and make international law accessible, does
not mean that a domestic lawyer, however eminent, can become an expert on it overnight.
The difficulties that the judges of the Supreme Court may have in grappling with international
law in eminent cases, despite having been addressed by several experts in international law,
may be amply demonstrated by their differing separate judgments at times. Some domestic
lawyers do sometimes specialize in particular areas of international law such as aviation,
human rights or the environment, without necessarily having first a good grounding in
international law generally. Yet, an expert in tax law will necessarily have a sound knowledge
of contract, tort and other basic areas of domestic law.
Without such knowledge, it would be difficult to advise effectively.
THE SOURCES OF INTERNATIONAL LAW
International law differs from domestic law in that it is sometimes even more difficult to find
out what the law is on a particular matter. Domestic law is usually more certain and found
mostly in legislation and judgments of a hierarchy of courts. In contrast, international law is
not so accessible, coherent or certain.

There is no global legislature (the UN General Assembly does not equate to a national
legislature), and no (at least formal) hierarchy of international courts and tribunals. In
Namibia, Article 144 of the Namibia Constitution states that international agreements binding
upon Namibia “shall form part of the law of Namibia”. At least this is clear.
But beyond this, almost nothing more is clearer. The rest on a given topic you need to find it
in up-to-date textbooks, and other sources.
These textbooks and other sources will explain that international law is derived from various
sources, which are authoritatively listed in Article 38(1) of the Statute of the
International Court of Justice (annexed to the UN Charter, see its Article 92) as:
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 recognised by civilized nations;
d. subject to the provisions of Article 59,16 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.
Treaties
THE SOURCES OF INTERNATIONAL LAW (Cont)

Treaties

The reference in (a) above to ‘international conventions’ is to bilateral and multilateral

treaties. For the moment, it is enough to say that, as with domestic legislation, treaties now
play a crucial role in international law. Important areas of customary international law have
now been codified in multilateral treaties which are widely accepted even by States which are
not parties to such treaties.

In consequence, custom and the other sources of international law are no longer as important
as they used to be. But that does not mean that custom is on a lower level than treaties.

There is no formal hierarchy of the sources of international law. As between parties to a

treaty, the treaty binds them. As between a party to a treaty and a non-party, custom will
apply, including custom derived from treaties.
General principles of law, judgments and the opinions of writers are of less importance as
sources. Butthey are still relevant. (The law of treaties is dealt
with in some detail in a separate lecture in your course outline (Topic 3: The Law of Treaties).

Customary international law

Customary international law – or simply ‘custom’ – must be distinguished from
‘customary law’. The latter term usually refers to domestic law which is an
important part of the law of some States and deals largely with family matters,
THE SOURCES OF INTERNATIONAL LAW (Cont)

Customary international law

Customary international law – or simply ‘CUSTOM’ – must be distinguished from ‘customary

law’. The latter term usually refers to domestic law which is an important part of the law of
some States (in our case, African Traditional Law) and deals largely with family matters, land
and such like (refer to your notes on Namibian Customary law).

In international law, a rule of custom evolves from the practice of States, and this can take a
considerable or a short time. There must first be evidence of substantial uniformity of practice
by a substantial number of States.

For example, In 1974, the ICJ found that a rule of custom (now superseded) that States had
the exclusive right to fish within their own 12 nautical mile zone had emerged (in the case
Fisheries Jurisdiction (UK v. Iceland; Germany v. Iceland), ICJ Reports (1974), p. 3, at pp. 23–6;
55).
State practice can be expressed in various ways, such as governmental actions in relation to
other States, legislation, diplomatic notes, ministerial and other official statements,
government manuals (as on the law of armed conflict), certain unanimous or consensus
resolutions of the UN General Assembly and, increasingly, in soft-law instruments (see
below). The first
such resolution was probably Resolution 95(I) of 11 December 1946 which
affirmed unanimously the principles of international law recognised by the
THE SOURCES OF INTERNATIONAL LAW (Cont)
Customary international law (cont)

State practice (Cont)

Sometimes recognition will be reflected in a court judgment reached after legal argument
based on the extensive research and writings of international legal scholars. In themselves,
neither judicial pronouncements, nor a favourable mention in a UN resolution, even when it is
adopted by a large majority, are conclusive as to the emergence of a new rule of custom.
(See what the ICJ said in the Namibia, Advisory Opinion, ICJ Reports (1971), p. 6; paras. 87–
116)). But, note that in Nicaragua v. US (Merits) (1986) the International Court of Justice
found that the acceptance by States of the Friendly Relations Declaration of the UN General
Assembly [UNGA Res. 2625(XXV); ILM (1970) 1292] constituted opinio juris that the Charter
prohibition on the use of force now also represented a new rule of custom.

There is however a growing tendency for international courts and tribunals, without making a
rigorous examination of the evidence, to find that a new rule of custom has emerged. In the
recent Tadić case (the decision of the Appeals Chamber: www.icty.org, Case IT-94-1, paras. 65
et seq.; 105; ILR 453) the International Criminal Tribunal for the Former Yugoslavia ruled that
it had jurisdiction over war crimes committed during an internal armed conflict, even though
its Statute does not provide for this.

Establishing opinio juris can be difficult, and everything will depend on the circumstances. It is
easiest when the purpose of a new multilateral treaty is expressed to be codification of
customary international law. Even if the treaty
THE SOURCES OF INTERNATIONAL LAW (Cont)
Customary international law (cont)

State practice (Cont)

Establishing opinio juris can be difficult, and everything will depend on the circumstances. It is easiest when the
purpose of a new multilateral treaty is expressed to be codification of customary international law. Even if the treaty
includes elements of progressive development, if it is widely regarded by States as an authoritative statement of the
law, and constantly and widely referred to, it will soon come to be accepted as reflecting the rules of custom,
sometimes even before it has entered into force. This was certainly the case with the Vienna Convention on the Law of
Treaties 1969, which even now has only just over one hundred parties.

Although some provisions of the UN Convention on the Law of the Sea 1982 (UNCLOS) went in many respects
beyond mere codification of rules of custom, the negotiations proceeded on the basis of consensus (See H. Caminos
and M. Molitor, ‘Progressive Development of International Law and the Package Deal’ (1985) AJIL 871–90 )). It was
therefore that much easier, during the twelve years before UNCLOS entered into force, for most of its provisions to be
accepted as representing customary international law.
(For further understanding See the cases “Legality of Nuclear Weapons”, Advisory Opinion (UN), ICJ Reports (1996),
p. 226, paras. 64–73; 110 ILR 163. The point is even more so for those advisory opinions which deal with highly
political issues: see, for example, not only the advisory opinion on the Legality of Nuclear Weapons, but also the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004), p. 136; 129 ILR
37; ILM (2004) 1009, and the request in 2008 for an advisory opinion on whether the unilateral declaration of
independence by Kosovo is in accordance with international law. (We will see more advisory opinions, later in the
course).
Pinochet (No. 3) [2000] 1 AC 147; [1999] 2 WLR 825; [1999] 2 All ER 97; 119 ILR 135.
THE SOURCES OF INTERNATIONAL LAW (Cont)
Customary international law (cont)

State practice can be expressed in various ways, such as governmental actions in relation to
other States, legislation, diplomatic notes, ministerial and other official statements,
government manuals (as on the law of armed conflict), certain unanimous or consensus
resolutions of the UN General Assembly and, increasingly, in soft-law instruments (see
below). The first such resolution was probably Resolution 95(I) of 11 December 1946 which
affirmed unanimously the principles of international law recognised by the Charter of the
Nuremberg International Military Tribunal and its judgment.

When a State that has an interest in the matter is silent, it will generally be regarded as
acquiescing in the practice. But if the new practice is not consistent with an established rule of
custom, and a State is a persistent objector to the new practice, the practice either may not
be regarded as evidence of new custom or the persistent objector may be regarded as having
established an exception to the new rule of custom. This is a controversial matter. But to
amount to a new rule of custom, in addition to practice there must also be a general
recognition by States that the practice is settled enough to amount to an obligation binding on
States in international law. This is known as opinio juris (not the opinions of jurists).

Sometimes recognition will be reflected in a court judgment reached after legal argument
based on the extensive research and writings of international legal scholars. In themselves,
neither judicial pronouncements, nor a favourable mention in a UN resolution, even when
it is adopted by a large majority, are conclusive as to the emergence of a new rule
 “Ius Cogens” (peremptory norm)
• Jus cogens (or ius cogens) is a Latin phrase
that literally means “compelling law.” It
designates norms from which no derogation is
permitted by way of particular agreements. It
stems from the idea already known in Roman
law that certain legal rules cannot be
contracted out, given the fundamental values
JUS COGENS (OR IUS COGENS)
Jus cogens (or ius cogens) is a Latin phrase that literally means “compelling law.” It
designates norms from which no derogation is permitted by way of particular
agreements.
It stems from the idea already known in Roman law that certain legal rules cannot
be contracted out, given the fundamental values they uphold.

Most states and authors agree that jus cogens exists in international law. Opinions
diverge however as to its exact content, sources, means of identification, and
application, as well as to its precise effects and role within the international legal
order. Despite persistent debates on these matters, jus cogens is now referred to in
several legal instruments within and beyond the law of treaties. The 1969 and 1986
Vienna Conventions on the Law of Treaties stipulate that a treaty is void if it
conflicts with jus cogens (Art. 53 and 64). The same is true for unilateral
declarations, following the guiding principles adopted by the International Law
Commission in 2006 (Principle 8). According to the Articles on Responsibility
finalized by the same commission in 2001 and 2011, states as well as international
organizations shall cooperate to bring to an end any serious breach of jus cogens,
and shall not recognize as lawful a situation created by such a breach, nor render
aid or assistance in maintaining such situation (Art. 41/2001 and 42/2011).
Jus Cogens (or Ius Cogens)=(Cont)
Moreover, if states or international organizations are to violate jus cogens, they
cannot invoke any circumstance precluding the wrongfulness of their conduct, such
as necessity or force majeure (Art. 26). Finally, countermeasures shall not affect jus
cogens obligations (Art. 50/2001 and 53/2011). No exhaustive list of peremptory
norms has been drawn officially, but it is commonly accepted as including the
prohibition of the use of force between states, the prohibition of slavery, racial
discrimination, torture and genocide, as well as peoples’ right to self-determination.

Given the limited number of jus cogens rules and set of effects attached to them,
practice and case law are not abundant. In contrast, much scholarly attention has
been paid to this controversial topic. Depending on the theoretical perspective
adopted, the content and function of jus cogens can be described in very different
terms. Hence there are no univocal answers to the fundamental or technical
questions raised by the definition and application of jus cogens. Authors provide
various solutions in this respect, the appreciation of which very much depends on
whether they suit one’s very own representations of what international legal order
is and how it works.
 “General principles of law recognized by civilized nations”.
• Included in the list of sources of international law in Article 38 of the
International Court of Justice Statute are “general principles of law
recognized by civilized nations” (i.e. general principles of fairness and
justice which are applied universally in legal systems around the
world).
• "General Principles of law recognized by civilized nations" is a phrase or
designation that has come into prominence because it refers to a
source of international law made applicable by the. Statute of the
Permanent Court of International Justice, now the. International Court
of Justice.' But the use of general principles for the purpose of
adjudication antedates the creation of the court. “Lauterpacht says,
that “What until now was done spontaneously by individual arbitrators
and arbitration conventions, received here the sanction of the
community of the family of nations”.
 “Soft law” and “hard law”
• The term "soft law" refers to quasi-legal instruments which do not have any
legally binding force, or whose binding force is somewhat weaker than the
binding force of traditional law, often contrasted with soft law by being
referred to as "hard law".

• The generic term soft law covers a wide range of instruments of different
nature and functions that make it very difficult to contain it within a single
formula. Its only common feature is that it is in written form, but the other
characteristics are variable and negotiable and they constitute an “infinite
variety.”

• Soft laws are legally non-binding instruments that are utilized for a variety of
reasons, including to strengthen member commitment to agreements, reaffirm
international norms, and establish a legal foundation for subsequent treaties.
• Contents
• Foreword to the First Edition page xxv
• Preface to Second Edition xxvii
• Acknowledgements xxxi
• Table of treaties xxxii
• Table of MOUs xliv
• Table of cases xlv
• Glossary of legal terms liv
• List of abbreviations lviii
• 1 International law 1
• Introduction 1
• Private international law 1
• Transnational law 2
• The nature of international law 2
• But is international law really law? 3
• International lawyers 4
• The sources of international law 5
• Treaties 5
• Customary international law 6
• General principles of law recognised by ‘civilized’ nations 8
• Good faith 8
• Estoppel 8
• Norms 8
• Judicial decisions 9
• Teachings of the most highly qualified publicists 9
• General international law 9
• Obligations erga omnes 10
• Jus cogens 10
• ‘Soft law’ 11
• Comity 11
• Domestic law 11
• Subjects and objects of, and actors in, international law 12
• National liberation movements 13
• NGOs 13