Maiza Ridzuan 2018

SOURCES OF INTERNATIONAL LAW

• Sources of international law are the materials and processes out of which the
rules and principles regulating the international personalities are developed.
• Rules are extracted and analyzed from the sources.
Definition • According to Lawrence and Oppenheim there is only one source of IL i.e. the
consent of nation.But Brierly considers customs and reasons as the main
sources of IL.

Article 38(1) of the statute of the International Court of Justice is widely recognized as the most
authoritative statement as to the sources of International law.

(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;
Introduction Article 38 of (c) the general principles of law recognized by civilized nations;
ICJ (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:

Critiques
‣ 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.

‣ 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.
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‣ 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.

‣ 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.

‣ 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 are known by a variety of terms-conventions, agreements, pacts, general acts, charters,
statutes, declarations and covenants.

• 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.

• Types of international treaties; International treaties can be broadly divided into two types:
i. Law making treaties (L)-Universal or general relevance.
ii. ii. Treaty contracts (T)- between two or small number of countries.

Treaties i) Law making treaties.

‣ It is conducted between many states and creates general rules binding the states.
‣ Law making treaties lay down rules of general or universal application and are intended
for future and continuing observance.
‣ Lawmaking treaties or conventions are the main source of international law since, the
basis of all international law is consent.
‣ Examples: a. The Hague Convention of 1899 and 1907 (on law of war and neutrality), b.
The Geneva Protocol of 1925 (on prohibited weapons), c. The Genocide Convention of
1948,

ii) Treaty Contracts

‣ Deals with a special matter between contracting states only
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‣ Treaty contracts resemble contracts in that they are concluded to perform contractual
rather than normative functions
‣ Example: Indo Nepal treaty on trade and transit, Indo Nepal treaty on Peace and
Friendship.
‣ Create particular law between the signatories.
‣ But is also source of universal rule also.
‣ Example: . Briand Kellogg Pact 1928 (a treaty for the renunciation of war between USA
and France became so attractive that other states also subscribe to its principle of non-
use of force, so if more and more states consent to the rule of treaty contract universal
rule is established.

• The article 38 (1) of the statute of the International Court of Justice recognises “International
Customs”, as a source of international law.
• The ICJ’s statute refers to international customs, as “evidence of a general practice accepted as
law”.
• 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.

• 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
International
to be to become law.
Customs
• 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.
Objective • It would suffice that conduct is generally consistent with the rule and that
elements 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.
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• 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.
• 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
Subjective
the French officer of a French ship which had, through his alleged negligence,
element
collided with a Turkish merchant ship on the high seas, causing loss of life.
(opinio juris
• Turkey argued that in the absence to the contrary, there was a permissive rule
sive
empowering her to try the officer.
necessitates)
• 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…’

• 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
The except any persistent objectors.
persistent • However, as objecting state, on order to rely on the persistent objector rule,
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.
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• 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.

• Relationship is complex.
• They co-exist, develop each other, and sometimes clash.
R/ship • If there is a clash between a customary rule and provision of a treaty then,
between because they are of equal authority (except when the customary rule involved
treaties and is of a jus cogens nature) whereupon being superior it will prevail, the one
customs 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.

• The general principles of law are those principles which have got recognition from all the states
and by all the legal systems of the world.
• The general principles of law are based on justice and equity.
• They include basic principles of law which are indisputable.
• They provide a mechanism to address international issues not already subject either to treaty
provisions or to binding customary rules.
Why general principles of law are included?
General • The main reason why this source is included in ICJ because a situation may arise when there is
principles of absence of law relating exactly to the point.
law • International law has no method of legislating to provide rules to regulate new situations
neither it follows principle of past precedents. Hence, the provision of general principle was
established as a source of law to fill the gap and solve the problem of non liquet (a situation
when the court refuses to settle disputes on the ground that rules are not available).
• Case involving general principle of law: Permanent Court of International Justice (PCIJ) in
Mosul Boundary Case (1925) applied the principle of natural justice that No one can be judge
in his own suit

Judicial • Article 38 recognises a judicial decisions as a subsidiary source of international law but not
decisions an actual source.
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• Article 59 of the Statute of ICJ provides that: The decision of the court haves no binding force
except between the parties in respect of that particular case.
• While the doctrine of precedent does not exist in international law, one still finds that states
in disputes and textbook writer quote judgments of the permanent court and the ICJ as
authoritative decisions.

Judicial decisions of the municipal courts

• The laws of a specific state and decisions of the municipal courts are not in general, source of
international law, since, they do not create legally binding obligations for other state.

• Article 38 of statute of ICJ recognises ‘ the teachings of the most highly qualified publicists of
the various nations’ as a subsidiary means for the determination of rules of international law.
• Writers such as Gentilli, Grotius,Vatted etc, were the supreme authorities of the 16th and 18th
Writings of
centuries and determined the scope, form and content of international law.
Publicists
• The various international judicial and arbitral bodies in considering their decisions consult and
quote the writings of the teaching juristic authorities, when need arises.

• It is a term often used in international law when a matter is to be decided according to

principles of equity rather than by points of law.
Ex-Aequo Et • Article 38(2) of the Statute of the International Court of Justice provides that the court may
Bono decide cases ex aequo et bono, if the parties agree thereto.
• Example: In 1984 the ICJ decided a case using "equitable criteria" in creating a boundary in the
Gulf of Maine for Canada
• 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
Soft laws 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.