FACULTY OF LAW

NAME: HARRISON MUBIRU

COURSE UNIT: LLB 413 INTERNATIONAL LAW 1
YEAR: LLB 4
STUDENT NO: 118456
ASSESSMENT: CAT 1

Question: No state can become bound by International law unless it expresses its consent to
become bound. With respect to each of the sources of International law evaluate this claim.
International Law consists of rules and principles of general application dealing with the conduct
of states and of international organizations and with their relations inter se, as well as with some
of their relations with persons, whether natural or juridical. The Oxford Dictionary defines
‘international law’ as: the law of nations, under which nations are regarded as individual
members of a common polity, bound by a common rule of agreement or custom; opposed to
municipal law, the rules binding in local jurisdictions.

Basis of international law

International law does not have law-making institutions. Hence, man-made laws, in the sense of
legislative enactments or Acts of Parliament, do not form the basis of the international legal
system; rather, international law is based principally on the consent of those States that agree to
be bound by it. It is only when States accept to form international law that international law can
exist. How States consent to the formation of international law can, however, vary. States may
explicitly agree to set out the rules of international law that they wish to apply and to be applied
to them in their relations, and this can be done in treaties or conventions; such an agreement can
also emerge from the customary practices of States. These two modes (treaty and custom).

According to Oppenheim, the ‘common consent’ cannot mean, of course, that all states must at
all times expressly consent to every part of the body of rules constituting international law, for
such common consent could never in practice be established. The membership of the
international community is constantly changing; and the attitude of individual members who may
come and go must be seen in the context of that of the international community as a whole, while
dissent from a particular rule is not to be taken as withdrawal of consent to the system as a
whole.

The limits to State consent as the basis for international law

There are instances in which State consent is precluded. These include situations concerning a
special class of norms and with regard to some existing customs. We will now consider some
examples of these instances.

While State consent is crucial to the formation of international law, there are certain aspects of
international law in relation to which State consent is practically irrelevant. Once a norm is
categorized as a peremptory norm (that is, the most fundamental in the hierarchy of norms),
States cannot consensually derogate from such a norm. A State cannot, for example, consent to
the commission of the crime of genocide on its territory simply because it has not ratified the
1948 Genocide Convention; neither can a State, in present times, permit slave trade on its
territory for any reason. The prescription of genocide and slavery are now widely regarded as
peremptory norms by States, because they are so fundamental to the existence of humankind that
a disturbance of them threatens that very foundation.

Sources of international law

Article 38(1) of the ICJ Statute provides that: 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 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. This
provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.

Treaties

The first source referred to in Article 38(1) of the ICJ Statute is ‘conventions, whether general or
particular, establishing rules expressly recognized by the contesting states. Treaties are the most
certain, popular, and important source of international law. They are created by the deliberate
acts of two or more States (known as the ‘signatories’, or ‘State parties’) coming together and
writing down their agreements (and also disagreements) over specific issues and the rights
deriving from such, as well as the obligations attaching thereto. In other words, a treaty contains
certain obligations that a State undertakes to perform in return for certain rights.

According to Anthony D’Amato, ‘Thrashing customary international law’ (1985) 81 AJIL 81,
notes that: treaty is obviously not equivalent to custom; it binds only the parties, and binds them
only according to the enforcement provisions contained in the treaty itself. However, rules in
treaties reach beyond the parties because a treaty itself constitutes state practice.
In the Federal Republic of Germany v. The Netherlands (1969) ICJ REP 3 (The North Sea
Continental Shelf Cases), the main issue for determination in this case concerned the
delineation of the North Sea continental shelf involving the Netherlands, the Federal Republic of
Germany, and Denmark. The Netherlands and Germany concluded two bilateral agreements in
1964, while Denmark and Germany concluded two agreements in 1965. The question that arose
for the Court’s determination was whether some rules of the 1958 Geneva Convention on the
Continental Shelf applied to non-parties to that convention. Netherlands and Denmark argued
that Article 6 of the Convention, dealing with equidistance, applied to non-parties to that
Convention by virtue of that provision having become a rule of customary international law.
Held: By a majority of eleven votes to six, that this Convention did not apply to nonparties.

Customs

Article 38(1) (b) of the ICJ Statute refers to international custom as evidence of general practice
accepted as law. According to s. 102(2) of the Restatement of the Law (Third), Foreign Relations
Law of the United States, published by the American Law Institute in 1987: Sources of
international law customary international law results from a general and consistent practice of
states followed by them from a sense of legal obligation. It is important always to remember that
an international custom is an act done, or omitted to be done, by States in circumstances in which
such an act or omission is regarded as having legal effects on all States that recognize it. A legal
custom carries with it specific obligations and is so-called in international law if participating
States are aware that such an obligation exists, a violation of which could attract sanctions. There
is no custom in international law if a usage does not create legal obligations. An act or omission
is not a custom if States do not feel that they are bound by law to follow it. Custom in its legal
sense means something more than mere habit or usage; it is a usage felt by those who follow it to
be an obligatory one. There must be present a feeling that, if the usage is departed from, some
form of sanction probably, or at any rate ought to, fall on the transgressor.

The criteria for determining customs: State practice and opinio juris

Article 38(1) of the ICJ Statute lays down two criteria for proving the existence of custom in
international law: (a) general practice; and (b) the acceptance of this practice as law. For there to
be custom in international law, it is necessary that a usage is generally practiced by States. Also,
that practice must be accepted by those and other States as creating a legal obligation. Therefore,
in order to determine custom, we need to look at how Key points Sources of international law
Page 12 of 52 States regularly behave in respect of an issue or a situation. Thus State practice
can be objectively determined. All we have to do is to look at a series of actions and reactions by
a State towards a given situation.

The second criterion is much more complicated. To determine how States feel about a practice is
to inquire into the psychological being of States. What this criterion requires is that we look into
the mind of a State and discern whether it accepts a particular practice as constituting a legal
obligation. The problem with this rather subjective criterion is that it is often difficult to
understand how a single human mind works, let alone the mind of a State, comprising millions of
individuals. A State is an abstract entity, operated by thousands of officials with millions of
motives.

In Colombia v. Peru (1950) ICJ REP 266 (The Asylum Case), following a failed attempt to
overthrow the government of Peru in 1948, the coup leader, Mr Haya de la Torre, was granted
refuge in the Colombian embassy in Lima, the capital of Peru. Colombia then attempted to fly
the rebel out of Peru, but the Peruvian government refused to allow him passage. Colombia
claimed before the ICJ that, as the asylum-granting nation, it was entitled, under a regional
custom in Latin America, to qualify the offence for the purpose of the asylum. Held: The parties
which rely on a custom of this kind must prove that this custom is established in such a manner
that it has become binding on the other party. The Colombian Government must prove that the
rule invoked by it is in accordance with a constant and uniform usage practised by States in
question in such a manner that it has become binding on the other Party.

In Federal Republic of Germany v. Denmark, Federal Republic of Germany v. The

Netherlands (1969) ICJ REP 3 (The North Sea Continental Shelf Cases), it was held that not
only must the act concerned amount to a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a
subjective element, is implicit in the very notion of the opinio juris sive necessitatis.
In Nicaragua v. United States (Merits) (1986) ICJ REP 14 (Military and Paramilitary
Activities in and against Nicaragua, or the Nicaragua Case), court noted that the mere fact
that States declare their recognition of certain rules is not sufficient for the Court to consider
these as being part of customary international law, and as applicable as such to those States.
Bound as it is by Article 38 of its Statute to apply, inter alia, international custom ‘as evidence of
a general practice accepted as law’, the Court may not disregard the essential role played by
general practice. Where two States agree to incorporate a particular rule in a treaty, their
agreement suffices to make that rule a legal one, binding upon them; but in the field of
customary international law, the shared view of the Parties as to the content of what they regard
as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio
juris of States is confirmed by practice.

State practice is a total sum of how States behave in respect of a particular issue or situation. To
establish State practice, one needs to look at a combination of many things. The easiest point at
which to start is to consider what States do. Nothing could be more assuring of State practice on
any given subject than how a State acts in relation to that issue. However, apart from what States
do, it is also important to look at what States say. What States say about an issue can be seen in
comments made by State officials in newspapers, official publications, and from statements
made in the parliament and at conferences. We can also look into historical records, and listen to
radio and television interviews of government officials. By what States say, we can easily infer
the position of the State on that particular issue, such as whether it considers itself under an
obligation to act in a particular manner.

According to Brownlie the material sources of custom are very numerous and include the
following: diplomatic correspondence, policy statements, press releases, the opinions of official
legal advisers, official manuals on legal questions, e.g. manuals of military law, executive
decisions and practices, orders to naval forces etc., comments by governments on drafts
produced by the International Law Commission, state legislation, international and national
judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in
the same form, the practice of international organs, and resolutions relating to legal questions in
the United Nations General Assembly.

For how long should State practice have existed?

In order to constitute a customary rule of international law, how long should States have
practised a usage? A habitual act or omission that will constitute custom does not need to have
existed for a very long period of time. While some reasonable length of time certainly helps in
establishing the profile of a custom, especially in terms of its stability and consistency, it is not
required that the custom has existed from time immemorial. A long practice is not necessary; in
fact, the customary rules relating to airspace and the continental shelf have emerged from fairly
recent practice. What is important is that, no matter how long or how short the period for which a
rule has existed, it must have been practised consistently by a generality of States. ‘Generality’,
in this context, means a great number of States, not all of them. In most of the cases in which it
decided on State practice, the ICJ did not emphasize the time element in State practice.

According to Akehurst as regards the quantity of practice needed to create a customary rule, the
number of States participating is more important than the frequency or duration of the practice.
Even a practice followed by a few States, on a few occasions and for a short period of time, can
create a customary rule, provided there is no practice which conflicts with the rule.

In the Federal Republic of Germany v. Denmark, Federal Republic of Germany v. The

Netherlands (1969) ICJ REP 3 (The North Sea Continental Shelf Cases), it was held that
although the passage of only a short period of time is not necessarily, or of itself, a bar to the
formulation of a new customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the period in question,
short though it might be, State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in the sense of the provision
invoked;—and should moreover have occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved.

Consistency of State practice

In this case, Peru v Columbia (the asylum case) the ICJ offered what is generally considered
to be the leading statement on the issue of consistency of State practice: The party which relies
on a custom...must prove that this custom is established in such a manner that it has become
binding on the other party. The Colombian Government must prove that the rule invoked by it is
in accordance with a constant and uniform usage practiced by States in question, and that this
usage is the expression of a right appertaining to the States granting asylum and a duty
incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which
refers to international custom ‘as evidence of a general practice accepted by law’. The facts
brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much
fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views
expressed on different occasions; there has been so much inconsistency in the rapid succession of
conventions on asylum, ratified by some States and rejected by others, and the practice has been
so much influenced by considerations of political expediency in the various cases, that it is not
possible to discern in all of this any constant and uniform usage accepted as law with regard to
the alleged rule of unilateral and definitive qualification of the offence.

Opinio juris

Opinio Juris is a psychological element which deals with how States feel about a practice. The
States concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself enough. There are
many international acts e.g. in the field of ceremonial and protocol, which are performed almost
invariably, but which are motivated only by considerations of courtesy, convenience or tradition,
and not by any sense of legal duty.

General principles of law

The third source of international law listed in Article 38(1) is ‘the general principles of law
recognized by civilized nations’. The phrase ‘civilized nations’ was previously used to describe
States with well-developed legal systems that could cater for complex relations amongst nations.
For example, in Petroleum Development Ltd v. Sheikh of Abu Dhabi (1951) 18 ILR 144 (the
Abu Dhabi Arbitration), the arbitrator found that the law of Abu Dhabi contained no legal
principles that could be applied to modern commercial instruments, and could not therefore be
applied to oil concessions. However, the phrase often implied a more general distinction between
developed and undeveloped States, and was used during the colonial era to distinguish between
colonial governments and the colonized peoples. Thus, in ancient times, only general principles
of law developed and practised by ‘civilized nations’ qualified as a source of international law.
However, following the formation of the United Nations, the phrase ‘civilized nations’ has been
Key points Sources of international law Page 31 of 52 replaced by ‘peace-loving nations’ under
Article 4 of the UN Charter. All nations are now considered ‘civilized’.

In International Law: A Treatise, Vol. 1: Peace (8th edn, ed. H. Lauterpacht, London: Longmans,
1955), Oppenheim states that: the intention is to authorize the Court to apply the general
principles of municipal jurisprudence, in particular of private law, in so far as they are applicable
to relations of States.

Advisory Opinion Concerning the International Status of South West Africa (1950) ICJ
REP 133 (The South West Africa Cases), court stated that international law has recruited and
continues to recruit many of its rules and institutions from private systems of law, Article 38(1)
(c) of the Statute of the Court bears witness that this process is still active the way in which
international law borrows from this source is not by means of importing private law institutions
‘lock, stock and barrel’, ready-made and fully equipped with a set of rules. It would be difficult
to reconcile such a process with the application of the ‘general principles of law’. In my own
opinion, the true duty of the international tribunals in this matter is to regard any features or
terminology which are reminiscent of the rules and institutions of private law as an indication of
policy and principles rather than as directly importing these rules and institutions.

Teachings from most highly qualified publicists from various nations

Article 38(1) of the International Court of Justice (ICJ) Statute provides that: The Court, whose
function is to decide in accordance with international law such disputes as are submitted to it,
shall apply: (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.

Historically, of course, the influence of academic writers on the development of international

law has been marked. Writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were
the supreme authorities of the sixteenth to eighteenth centuries and determined the scope, form
and content of international law1. Because of the lack of supreme authorities and institutions in

1
INTERNATIONAL LAW Sixth edition Malcolm N. SHAW QC Sir Robert Jennings Professor of International Law
University of Leicester pg 112
the inter-national legal order, the responsibility is all the greater upon the publicists of the
various nations to inject an element of coherence and order into the subject as well as to question
the direction and purposes of the rule.

Of course, the claim can be made, and often is, that textbook writers merely reflect and reinforce
national prejudices2, but it is an allegation which has been exaggerated. It should not lead us to
dismiss the value of writers, but rather to assess correctly the writer within his particular

environment.

In conclusion, international law is based on consent of the parties. However, there are situations
where consent is not necessary such as the case with jus cogens where states are bound.

References.

Ademola Abass: International Law, Texts, Cases and Materials, second Edition, Oxford 2014

Brownlie (1998) Principles of Public International law, Clarendon press

Montevideo Convention on Rights and Duties of States of 1933.

Advisory Opinion Concerning the International Status of South West Africa (1950) ICJ REP
133 (The South West Africa Cases).

The Federal Republic of Germany v. Denmark, Federal Republic of Germany v. The Netherlands
(1969) ICJ REP 3 (The North Sea Continental Shelf Cases).

Nicaragua v. United States (Merits) (1986) ICJ REP 14 (Military and Paramilitary Activities in
and against Nicaragua, or the Nicaragua Case).

Federal Republic of Germany v. Denmark, Federal Republic of Germany v. The Netherlands

(1969) ICJ REP 3 (The North Sea Continental Shelf Cases).

2
See e.g. Huber in the Spanish Zone of Morocco case, 2 RIAA, pp. 615, 640; 2 AD, pp. 157,
164 (note). See also Carty, Decay of International Law?, pp. 128–31
Colombia v. Peru (1950) ICJ REP 266 (The Asylum Case)