THE NATURE, DEVELOPMENT, SCOPE & SOURCES OF INTERNATIONAL

LAW
1.0 Definition and scope
According to Bentham’s classic definition, international
law is a collection of rules governing relations between
states. It is a mark of how far international law has
evolved that this original definition omits individuals and
international organizations—two of the most dynamic and
vital elements of modern international law. Furthermore, it
is no longer accurate to view international law as simply a
collection of rules; rather, it is a rapidly developing
complex of rules and influential—though not directly
binding—principles, practices, and assertions coupled with
increasingly sophisticated structures and processes. In its
broadest sense, international law provides normative
guidelines as well as methods, mechanisms, and a common
conceptual language to international actors—i.e., primarily
sovereign states but also increasingly international
organizations and some individuals. The range of subjects
and actors directly concerned with international law has
widened considerably, moving beyond the classical questions
of war, peace, and diplomacy to include human rights,
economic and trade issues, space law, and international
organizations. Although international law is a legal order
and not an ethical one, it has been influenced
significantly by ethical principles and concerns,
particularly in the sphere of human rights. International
law is distinct from international comity, which comprises
legally nonbinding practices adopted by states for reasons
of courtesy (e.g., the saluting of the flags of foreign
warships at sea). In addition, the study of international
law, or public international law, is distinguished from the
field of conflict of laws, or private international law,
which is concerned with the rules of municipal law—as
international lawyers term the domestic law of states—of
different countries where foreign elements are involved.
International law is the body of law that governs the
relations and conduct of sovereign states with each other,
as well as with international organizations and
individuals. It is a complex and dynamic system of law that
covers a wide range of topics, including trade, human
rights, diplomacy, environmental preservation, and war
crimes. International law is different from domestic law in
a number of ways. International law is an independent
system of law existing outside the legal orders of
particular states. It differs from domestic legal systems
in a number of respects. For example, although the United
Nations (UN) General Assembly, which consists of
representatives of some 190 countries, has the outward
appearances of a legislature, it has no power to issue
binding laws. Rather, its resolutions serve only as
recommendations—except in specific cases and for certain
purposes within the UN system, such as determining the UN
budget, admitting new members of the UN, and, with the
involvement of the Security Council, electing new judges to
the International Court of Justice (ICJ). According to John
Austin, law is the command of the sovereign, and the
indeterminacy of sovereign at the international level and
the lack of coercive force had made him classify
international law as mere positive morality. Thus, there
must be a legislative authority enacting the rule of
conduct and enforcing physical sanction. So based on what
he said, it can be concluded that any rule which is not
enacted by any superior or legislative authority, cannot be
regarded as a law and moreover, if laws are violated,
sanctions must be imposed. Based on that, it can be said
that rules are only morally and ethically valid if they
aren’t issued by any sovereign authority. If we apply this
theory to International law, we will see there is no
legislative power over the society, based on which Austin
concluded that International laws are merely based on
ethics and morality and are not true law.
It is pertinent to mention that there is no system of
courts with comprehensive jurisdiction in international
law. The ICJ’s jurisdiction in contentious cases is founded
upon the consent of the particular states involved. The UN
Security Council may authorize the use of force to compel
states to comply with its decisions, but only in specific
and limited circumstances; essentially, there must be a
prior act of aggression or the threat of such an act.
Moreover, any such enforcement action can be vetoed by any
of the council’s five permanent members (China, France,
Russia, the United Kingdom, and the United States). Because
there is no standing UN military, the forces involved must
be assembled from member states on an ad hoc basis.
International law is a distinctive part of the general
structure of international relations. In contemplating
responses to a particular international situation, states
usually consider relevant international laws. Although
considerable attention is invariably focused on violations
of international law, states generally are careful to
ensure that their actions conform to the rules and
principles of international law, because acting otherwise
would be regarded negatively by the international
community. The rules of international law are rarely
enforced by military means or even by the use of economic
sanctions. Instead, the system is sustained by reciprocity
or a sense of enlightened self-interest. States that breach
international rules suffer a decline in credibility that
may prejudice them in future relations with other states.
Thus, a violation of a treaty by one state to its advantage
may induce other states to breach other treaties and
thereby cause harm to the original violator. Furthermore,
it is generally realized that consistent rule violations
would jeopardize the value that the system brings to the
community of states, international organizations, and other
actors. This value consists in the certainty,
predictability, and sense of common purpose in
international affairs that derives from the existence of a
set of rules accepted by all international actors.
International law also provides a framework and a set of
procedures for international interaction, as well as a
common set of concepts for understanding it. Examples of
these frame work include but not limited to The United
Nations Charter-which establishes the United Nations and
its goals, The Geneva Conventions-which regulate the
 conduct of war, The Universal Declaration of Human Rights-
which guarantees basic human rights to all people, The
Convention on the Law of the Sea-which establishes rules
for the use of the oceans, The World Trade Organization
(WTO) agreements- which regulate international trade.
International law has a vast scope, covering a wide range
of topics that affect global affairs.
1.01 Some key areas within its scope include:
I. International peace and security: International law
establishes rules and norms to help prevent and resolve
conflicts between states. It also regulates the use of
force and the conduct of war.
II. Human rights: International law protects the
fundamental rights and freedoms of all people,
regardless of their nationality. It also establishes
mechanisms to hold states accountable for human rights
abuses.
III. Trade and investment: International law provides a
framework for the regulation of international trade and
investment. It helps to promote free and fair trade,
and it protects the rights of investors.
IV. Environmental protection: International law addresses a
range of environmental issues, including climate
change, pollution, and biodiversity conservation. It
helps to coordinate global efforts to protect the
environment.
V. International organizations: International law
establishes and regulates the activities of
international organizations, such as the United Nations
and the World Trade Organization. It helps to ensure
that these organizations operate effectively and that
they are accountable to their members.
1.02 General Principles of International Law
a. Sovereign Equality: All states are equal under
international law regardless of factors like size,
power, or economic development. This principle is
enshrined in the UN Charter.
b. Good Faith: States must engage in good faith in
upholding their duties under international law and
fulfilling the purpose of treaties and other
agreements.

c. Non-Intervention: States cannot interfere directly

in matters within the domestic jurisdiction of
other states. This preserves states’ sovereignty.

d. Prohibition of Force: States cannot use aggressive

force against the territorial integrity or
political independence of other states. Exceptions
include self-defense and collective security
actions authorized by the UN Security Council.

e. Peaceful Settlement of Disputes: States should

resolve disputes peacefully without threatening or
using force. Methods include negotiation, inquiry,
mediation, conciliation, arbitration, and judicial
settlement.

f. Self-Determination of Peoples: Groups with a

coherent identity and connection to a defined
territory have the right to collectively determine
their political status and freely pursue economic,
social, and cultural development.

g. Sovereign Immunity: States and their property are

immune from the jurisdiction of the courts of
other states, fostering mutual respect and
cooperation. Exceptions can be made, such as for
commercial transactions between states and private
entities.
h. Pacta Sunt Servanda: Agreements must be kept. This
general principle creates an obligation for states
to uphold treaties and other international
agreements made in good faith. Under international
law, "every treaty in force is binding upon the
parties to it and must be performed by them in
good faith. This entitles states party to the
Vienna Convention on the Law of Treaties (signed
23 May 1969 and entered into force on 27 January
1980) to require that obligations instituted by
treaties be honored and to rely on such
obligations being honored. This basis of good
faith for treaties implies that a party to a
treaty cannot invoke provisions of its municipal
(domestic) law as justification for negligence of
its obligations pursuant to the treaty in
question. The only limits to application of pacta
sunt servanda are the peremptory norms of general
international law, which are denominated "jus
cogens", i.e. compelling law.

i. Jus Cogens: Jus Cogens are also known as

peremptory norm of general International Law. It
is a fundamental and overriding principle of
international law. It is absolute in nature which
means that there can be no defense for the
commission of any act that is prohibited by jus
cogens. Jus cogens are Fundamental, overriding
principles of international law that cannot be
violated by any state through treaties or customs.
Jus Cogens is a rule or principle in international
law that is so fundamental that it binds all
states and does not allow any exceptions. It is
basically a compilation of norms that lays down
the international obligations which are essential
for the protection of the fundamental interest of
the international community and any violation of
these norms is thereby recognized as a crime
against the community as a whole. Such rules
(sometimes called peremptory norms) will only
amount to jus cogens rules if they are recognized
as such by the international community as a whole.
Under article 53 of the ICJ statute, a treaty that
conflicts with an existing jus cogens rule is
void, and under article 64, if a new jus cogens
rule emerges, any existing treaty that conflicts
with it automatically becomes void. States cannot
create regional customary international law that
contradicts jus cogens rules. Most authorities
agree that the laws prohibiting slavery, genocide,
piracy, and acts of aggression or illegal use of
force are jus cogens laws. Some suggest that
certain human rights provisions (e.g. those
prohibiting racial discrimination) also come under
the category of jus cogens. In Bosnia and
Herzegovina v Serbia and Montenegro [2007] Serbia
was alleged to have attempted extermination of the
Muslim population of Bosnia and Herzegovina which
led to violations of the Convention on the
Prevention and Punishment of the Crime of
Genocide, thereby invoking an article of the
genocide convention. Justice Lauterpacht in this
case defined jus cogens as a concept which is
superior to both customary law and treaty as it
stands on the very fundamentals of natural law and
humanity. He also associated jus cogens with the
general principles of law and said that
irrespective of its origin, jus cogens encircles
all the fundamentals of a necessary law at the
international level and hence, is the superior-
most in hierarchy. It was unanimously held in this
case that Serbia was neither directly involved nor
was complicit in it but it rather committed a
breach of genocide convention by failing to
prevent it from occurring, the genocide convention
being a part of jus cogens. Relatedly, in Republic
of Nicaragua v. the United States of America
 (1984), The U.S. decided to plan and undertake
activities against Nicaragua. Armed interventions
were led by the U.S. in Nicaragua and they also
undertook the military and paramilitary forces in
and against Nicaragua. The Court held that the
United States violated its customary international
law obligation of not to use force against another
State when it directly attacked Nicaragua.

2.0 Historical development

While the origins of the modern system of international law
can be traced back 400 years, the development of the
concepts and practices that would underpin that system can
be traced back to ancient historical politics and
relationships thousands of years old. Important concepts
are derived from the practice between Greek city-states and
the Roman law concept of Jus gentium (which regulated
contacts between Roman citizens and non-Roman people).
2.01 Early history
Basic concepts of international law such as treaties can be
traced back thousands of years. Early examples of treaties
include around 2100 BC an agreement between the rulers of
the city-states of Lagash and Umma in Mesopotamia,
inscribed on a stone block, setting a prescribed boundary
between their two states. Around 1000 BC, an agreement was
signed between Ramses II of Egypt and the king of the
Hittites establishing "eternal peace and brotherhood"
between their two nations: dealing with respect for each
other's territory and establishing a form of defensive
alliance. Early Islamic law's principles concerning
military conduct and the treatment of prisoners of war
under the early Caliphate are considered precursors to
international humanitarian law. The many requirements on
how prisoners of war should be treated included, for
example, providing shelter, food and clothing, respecting
their cultures, and preventing any acts of execution, rape
or revenge.
2.02 Nation-states
After the fall of the Roman Empire and the collapse of the
Holy Roman Empire into independent cities, principalities,
kingdoms and nations, for the first time there was a real
need for rules of conduct between a large international
community. Without an empire or a dominant religious
leadership to moderate and direct international dealings,
most of Europe looked to Justinian's code of law from the
Roman Empire, and the canon law of the Catholic Church for
inspiration. International trade was the real catalyst for
the development of objective rules of behaviour between
states. Without a code of conduct, there was little to
guarantee trade or protect the merchants of one state from
the actions of another. Economic self-interest drove the
evolution of common international trade rules, and most
importantly the rules and customs of maritime law. As
international trade, exploration and warfare became more
involved and complex, the need for common international
customs and practices became even more important.
2.03 Hugo Grotius
International practices, customs, rules and treaties
proliferated to the point of complexity. Several scholars
sought to compile them all into organized treatises. The
most important of these was Hugo Grotius, whose treatise De
Jure Belli Ac Pacis Libri Tres is considered the starting
point for modern international law. Before Hugo Grotius,
most European thinkers treated law as something independent
of mankind, with its own existence. Some laws were invented
by men, but ultimately they reflected the essential natural
law. Grotius was no different, except in one important
respect: Unlike the earlier thinkers, who believed that the
natural law was imposed by a deity, Grotius believed that
the natural law came from an essential universal reason,
common to all men. This rationalist perspective enabled
Grotius to posit several rational principles underlying
law. Law was not imposed from above, but rather derived
from principles. Foundation principles included the axioms
that promises must be kept, and that harming another
requires restitution. These two principles have served as
the basis for much of subsequent international law. Apart
from natural-law principles, Grotius also dealt with
international custom, or voluntary law. Grotius emphasized
the importance of actual practices, customs and treaties—
what "is" done—as opposed to normative rules of what "ought
to be" done. This positivist approach to international law
strengthened over time. As nations became the predominant
form of state in Europe, and their man-made laws became
more important than religious doctrines and philosophies,
the law of what "is" similarly became more important than
the law of what "ought to be."

2.04 Peace of Westphalia

The Westphalian treaties of 1648 were a turning point in
establishing the principle of state sovereignty as a
cornerstone of the international order. The Peace of
Westphalia which brought to an end the Eighty Years’ War
between Spain and the Dutch and the German phase of the
Thirty Years’ War. The peace was negotiated, from 1644, in
the Westphalian towns of Münster and Osnabrück. The
Spanish-Dutch treaty was signed on January 30, 1648. The
treaty of October 24, 1648, comprehended the Holy Roman
emperor Ferdinand III, the other German princes, France,
and Sweden. England, Poland, Russia, and the Ottoman Empire
were the only European powers that were not represented at
the two assemblies. Some scholars of international
relations credit the treaties with providing the foundation
of the modern state system and articulating the concept of
territorial sovereignty. The Peace of Westphalia confirmed
the Peace of Augsburg (1555), which had granted Lutherans
religious tolerance in the empire and which had been
rescinded by the Holy Roman emperor Ferdinand II in his
Edict of Restitution (1629).

2.05 The League of Nations

Following World War I, as after the Thirty Years' War,
there was an outcry for rules of warfare to protect
civilian populations, as well as a desire to curb
invasions. The League of Nations, established after the
war, attempted to curb invasions by enacting a treaty
agreement providing for economic and military sanctions
against member states that used "external aggression" to
invade or conquer other member states. An international
court was established, the Permanent Court of International
Justice, to arbitrate disputes between nations without
resorting to war. Meanwhile, many nations signed treaties
agreeing to use international arbitration rather than
warfare to settle differences. International crises,
however, demonstrated that nations were not yet committed
to the idea of giving external authorities a say in how
nations conducted their affairs. Aggression on the part of
Germany, Italy and Japan went unchecked by international
law, and it took a Second World War to end it. It is
pertinent to point that at the end of the first world war,
the influence of United States Increased making it a key
player in international politics and relations. During this
period the Soviet Union was also birthed. One of the major
issues with the constituents of the league of the nation
was the absence of the US as a member of the league nation
despite her strong influence. Despite its failure to ensure
that another war did not break out, the era of the league
of nation is considered important because of the following
fundamental change in legal thinking:
A. War should be prevented.
B. Disputes shall be settled in other ways like
negotiation and arbitration other than the use of
force.
C. Shift from classical bilateralism to multilateralism

2.06 The postwar era

After World War II, as after the First World War and the
Thirty Years' War, there was a strong desire to never again
endure the horrors of war endured by the civilian
populations. The League of Nations was re-attempted through
another treaty organization, the United Nations. The
postwar era has been a highly successful one for
international law. International cooperation has become far
more commonplace, though of course not universal.
Importantly, nearly two hundred nations are now members of
the United Nations, and have voluntarily bound themselves
to its charter. Even the most powerful nations have
recognized the need for international cooperation and
supports, and have routinely sought international agreement
and consent before engaging in acts of war.
2.07 Nürnberg Trials
These are series of trials held in Nürnberg, Germany, in
1945–46, in which former Nazi leaders were indicted and
tried as war criminals by the International Military
Tribunal. The indictment lodged against them contained four
counts: (1) crimes against peace (i.e., the planning,
initiating, and waging of wars of aggression in violation
of international treaties and agreements), (2) crimes
against humanity (i.e., exterminations, deportations, and
genocide), (3) war crimes (i.e., violations of the laws of
war), and (4) “a common plan or conspiracy to commit” the
criminal acts listed in the first three counts. The
authority of the International Military Tribunal to conduct
these trials stemmed from the London Agreement of August 8,
1945. On that date, representatives from the United States,
Great Britain, the Soviet Union, and the provisional
government of France signed an agreement that included a
charter for an international military tribunal to conduct
trials of major Axis war criminals whose offenses had no
particular geographic location. Later 19 other nations
accepted the provisions of this agreement. After 216 court
sessions, on October 1, 1946, the verdict on 22 of the
original 24 defendants was handed down. Three were
sentenced to life imprisonment: Rudolf Hess, Walther Funk,
and Erich Raeder. Twelve of the defendants were sentenced
to death by hanging. Ten of them—Hans Frank, Wilhelm Frick,
Julius Streicher, Alfred Rosenberg, Ernst Kaltenbrunner,
Joachim von Ribbentrop, Fritz Sauckel, Alfred Jodl, Wilhelm
Keitel, and Arthur Seyss-Inquart—were hanged on October 16,
1946. Hermann Göring committed suicide before he could be
executed. In rendering these decisions, the tribunal
rejected the major defenses offered by the defendants.
First, it rejected the contention that only a state, and
not individuals, could be found guilty of war crimes; the
tribunal held that crimes of international law are
committed by men and that only by punishing individuals who
commit such crimes can the provisions of international law
be enforced.

2.08 Cold War

The Cold War was a period of global geopolitical rivalry
between the United States and the Soviet Union (USSR) and
their respective allies, the capitalist Western Bloc and
communist Eastern Bloc, which lasted from 1947 until the
dissolution of the Soviet Union in 1991. The term cold war
is used because there was no direct fighting between the
two superpowers, though each supported opposing sides in
regional conflicts known as proxy wars. In addition to the
struggle for ideological dominance and economic influence
and an arms race in both conventional and nuclear weapons,
the Cold War was expressed through technological
competitions such as the Space Race, espionage, propaganda
campaigns and psychological warfare, far-reaching trade
embargoes, and sports diplomacy. The Cold War deformed the
traditional international law that had developed over
centuries to facilitate and regulate political, economic
and other human relationships across national boundaries.
It could hardly have been otherwise. For almost half a
century, the world lived in a state of neither war nor
peace. The independence and rights of choice of smaller
states were restricted by larger neighbors in their own
interest and, it was often avowed, in the interest of
systemic security. The slow effort to centralize
authoritative coercive force and to restrict the freedom of
unilateral action, the hallmark of civilized Political
arrangements and the major acknowledged defect of
international law, was impeded by an international security
system that accorded a veto power to each of the major
protagonists. That ensured its ineffectiveness. Even the
freedom of the oceans, one of the most venerable struts of
the international system, which had reserved five-sevenths
of the planet as a public highway for exchange, was
attenuated to facilitate weapons development. As soon as
outer space became accessible, it, too, became part of the
military arena. Most importantly decolonization ensued
during this period increasing both the membership of the UN
and the number of sovereign states. Also during this period
formation of some international organization started.
2.09 Post-Cold war to present day
 It is characterized by large actors like states,
international organization, corporations and
individuals.
 Balance of power has changed.
 Trend of regionalism where disputes are settled at the
regional level
 New legal problems like international terrorism,
cybersecurity and environmental protection arose.
3.0 International law and municipal law (Monism and
Dualism)
In principle, international law operates only at the
international level and not within domestic legal systems—a
perspective consistent with positivism, which recognizes
international law and municipal law as distinct and
independent systems. Conversely, advocates of natural law
maintain that municipal and international law form a single
legal system, an approach sometimes referred to as monism.
Such a system, according to monists, may arise either out
of a unified ethical approach emphasizing universal human
rights or out of a formalistic, hierarchical approach
positing the existence of one fundamental norm underpinning
both international law and municipal law. A principle
recognized both in international case law (e.g., the
Alabama claims case between the United States and the
United Kingdom following the American Civil War) and in
treaties (e.g., Article 27 of the 1969 Vienna Convention on
the Law of Treaties) is that no municipal rule may be
relied upon as a justification for violating international
law.
It must be stated from the outset that the main determinant
of the relationship between international law and municipal
law is the supreme law or constitution of the respective
states. That is to say, a person cannot ascertain in
abstract the implication or application of a treaty or a
state except he or she considers first and foremost, what
the constitution of that state says. In a nutshell, the
constitution and its provisions are the drivers of the
relationship between international law and municipal law.
The above assertions have been described through two main
theories of state which are the monist theory and the
dualist theory. According to proponents of the monist
theory, both international law and municipal law flow from
one source, the source of law. That is to say that
international law and domestic law are one and the same. By
implication, in a monist state, international law becomes
operational once the state in concern has ratified it. In a
monist state, there exists no clear-cut dichotomy between
international law and domestic law in their applications.
Furthermore, the constitution or supreme law of a monist
state as a matter of necessity usually contains provisions
that declare that international law and municipal law have
the same applicational force. The applicational force here
is usually played out in terms of enforcement of the
provision of the international treaty in question. Also,
international law will usually prevail over municipal law
in a monist state, in the event of a conflict between the
two. Senegal and Benin Republic are examples of monist
states. Dualist theorists are of the view that although
international law and municipal law are laws, they however
differ in their nature, in the process of application and
enforcement. They equally believe that municipal law are in
a different sphere from international law. According to the
dualist theorists, because international law and municipal
law are different, they must not be applied evenly at the
domestic sphere. That is to say, international law should
be applied in a differential manner at the domestic level.
They are equally of the opinion that municipal law should
determine how international law is to be applied
domestically. Due to this argument, most dualist states
consider their supreme law to be higher than international
law as far as the applicational force domestically is
concerned. In Abacha v Fawehinmi, the court stated the
superior nature of the constitution in relation to
international law. The position of international law within
municipal law is more complex and depends upon a country’s
domestic legislation.
Most importantly, treaties must be distinguished from
customary international law. Treaties are written
agreements that are signed and ratified by the parties and
binding on them. Customary international law consists of
those rules that have arisen as a consequence of practices
engaged in by states. The Constitution of the United States
stipulates (Article VI, Section 2) that treaties “shall be
the supreme Law of the Land.” Treaties are negotiated by
the president but can be ratified only with the approval of
two-thirds of the Senate (Article II)—except in the case of
executive agreements, which are made by the president on
his own authority. Further, a treaty may be either self-
executing or non-self-executing, depending upon whether
domestic legislation must be enacted in order for the
treaty to enter into force. (see section 12 of the 1999
constitution). In the United States, self-executing
treaties apply directly as part of the supreme law of the
land without the need for further action. Whether a treaty
is deemed to be self-executing depends upon the intention
of the signatories and the interpretation of the courts. In
Sei Fujii v. State of California (1952), for example, the
California Supreme Court held that the UN Charter was not
self-executing because its relevant principles concerning
human rights lacked the mandatory quality and certainty
required to create justiciable rights for private persons
upon its ratification; since then the ruling has been
consistently applied by other courts in the United States.
In contrast, customary international law was interpreted as
part of federal law in the Paquette Habana case (1900), in
which the U.S. Supreme Court ruled that international law
forbade the U.S. Navy from selling, as prizes of war, Cuban
fishing vessels it had seized.
3.01 Facts of the Paquette Habana Case (1900)
In April 1898, two fishing vessels, the Paquete Habana and
the Lola, separately sailed from the Spanish colony of
Cuba. Both were eventually captured by merchant vessels
comprising the United States blockade of the island, which,
unbeknownst to the crew, had been instituted amid rising
tensions between the two countries. President William
McKinley proclaimed that the blockade was "in pursuance of
the laws of the United States, and the law of nations
applicable to such cases." Shortly thereafter, the Spanish–
American War was officially declared, and McKinley issued
another proclamation stating that the war would be
conducted "in harmony with the present views of nations and
sanctioned by their recent practice" and establishing rules
for the capture of prizes; however, there was no mention of
fishing vessels. The Paquete Habana and the Lola were
ultimately taken to Key West, Florida, where they were
auctioned by the federal district court, which has
jurisdiction over prize cases. Admiral William T. Sampson,
who commanded the blockade, justified the seizures by
stating that most fishing vessels flying under the Spanish
banner were manned by well-trained seamen with prior naval
experience who could be called up to fight for Spain. The
U.S. also relied on the longstanding international practice
of capturing enemy vessels as prizes of war. The owners of
the vessels appealed to the U.S. Supreme Court, citing a
centuries-long tradition of nations exempting fishing
vessels from prize capture, even during war. At the time of
capture, neither vessel had evidence of aiding the enemy,
no arms were found on board, and no attempts were made to
run the blockade or to resist capture. On appeal, the U.S.
government argued that it had complied with international
law under which there was precedent for the executive of a
nation, through his military commanders, to exercise
discretion as to whether there was an exemption of fishing
vessels from prize capture. Both parties in the case were
invoking customary international law, the prevailing and
long-running practices and norms that are observed and
accepted by most countries as obligations, but differed as
to what it permitted with respect to prizes.
Decision of the Court
In a 6–3 decision authored by Justice Gray, the Supreme
Court ruled that coastal fishing vessels are exempt from
capture as prizes of war under customary international law,
which, barring a "controlling executive or judicial
decision," must be incorporated into the corpus of U.S.
law. The Court cited lengthy legal precedents in support of
this conclusion, which it described as an "ancient usage
among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law. In
1403, King Henry IV of England decreed his officers leave
fisherman alone during times of war. He then signed a
treaty with France reaffirming this act between both
parties. Similarly, in 1521, a treaty between Emperor
Charles V of the Holy Roman Empire and Francis I of France
exempted fishing vessels from capture, on the basis that
both nations would face widespread hunger if fishermen did
not feel safe to set sail. Among the most oft-cited and
famous quotes of the decision concerned the relationship of
international law to domestic U.S. law:

International law is part of our law, and

must be ascertained and administered by the
courts of justice of appropriate jurisdiction
as often as questions of right depending upon
it are duly presented for their
determination. For this purpose, where there
 is no treaty and no controlling executive or
legislative act or judicial decision, resort
must be had to the customs and usages of
civilized nations, and, as evidence of these,
to the works of jurists and commentators who
by years of labor, research, and experience
have made themselves peculiarly well
acquainted with the subjects of which they
treat. Such works are resorted to by judicial
tribunals, not for the speculations of their
authors concerning what the law ought to be,
but for trustworthy evidence of what the law
really is.

The Supreme Court decision reversed the district court and

ordered that the proceeds of the auctions, as well as any
profits made from the vessels' cargo, be restored to the
claimants "with damages and costs."

The United Kingdom takes an incorporationist view, holding

that customary international law forms part of the common
law. British law, however, views treaties as purely
executive, rather than legislative, acts. Thus, a treaty
becomes part of domestic law only if relevant legislation
is adopted. The principle that a treaty rule is not
applicable by English courts until passed into law by an
act of Parliament has judicial backing. Thus, in R. v.
Chief Immigration Officer, ex parte Bill, where the basic
question was the interpretation of some immigration rules
made under the immigration Act 1971, the appellant argued
that these rules should be interpreted and applied by
immigration officers in accordance with Article 8 of the
European Convention on Human Rights to which British is a
signatory. Delivering judgment, Lord Denning said inter
alia:
When Parliament is enacting a statute, or the
secretary of state is framing rules, the
 courts will assume that they had regard to
the provisions of the Convention and intended
to make the enactment accord with the
Convention, and will interpret them
accordingly. But I would dispute altogether
that the convention is part of our law.
Treaties and declarations do not become part
of our law until they are made law by
parliament.’
In an earlier case, Salomon v. Commissioners of Customs and
Excise, the Appeal Court was asked to interpret an
ambiguous provision of the Customs and Excise Act 1952, an
Act of Parliament intended to give effect in England to
1950 Convention on the Valuation of Goods for Customs
purposes. The court stated, after reasoning in accordance
with transformation theory that in cases where the terms of
an act are clear and unambiguous, they must be given effect
to even though they might be at odds with treaty
provisions, but that in cases where they are ambiguous and
capable of two or more interpretations, the court must pick
the one that is most in line. With the ‘treaty,’ for there
is a prima facie presumption that parliament does not
intend to act in breach of international law.’ The
principle that no treaty can have the effect of law in
England unless and until it is so passed into law by an Act
of Parliament proceeds from the fear that the Queen (the
executive) might otherwise increase. The same principle
applies in other countries where the English common law has
been accepted (e.g., the majority of Commonwealth states
and Israel).
Although the incorporationist view as adopted by the UK
regards customary law as part of the law of the land and
presumes that municipal laws should not be inconsistent
with international law, municipal laws take precedence over
international law in cases of conflict. Those common-law
countries that have adopted a written constitution
generally have taken slightly different positions on the
incorporation of international law into municipal law.
Ireland’s constitution, for example, states that the
country will not be bound by any treaty involving public
funds without the consent of the national legislature, and
in Cyprus treaties concluded in accordance with its
constitution have a status superior to municipal law on the
condition of reciprocity. In most civil-law countries, the
adoption of a treaty is a legislative act. The relationship
between municipal and international law varies, and the
status of an international treaty within domestic law is
determined by the country’s constitutional provisions. In
federal systems, the application of international law is
complex, and the rules of international law are generally
deemed to be part of the federal law. Although a treaty
generally becomes operative only when it has been ratified
by a national legislature, EU countries have agreed that
regulations and decisions emanating from EU institutions
are directly applicable and enforceable without the need
for enabling legislation—except for legislation permitting
this form of lawmaking, which is adopted upon the country’s
entry into the union (e.g., Britain’s adoption of the
European Communities Act in 1972).
4.0 Sources of international law
Article 38 (1) of the ICJ’s statute identifies three
sources of international law: treaties, custom, and general
principles. Because the system of international law is
horizontal and decentralized, the creation of international
laws is inevitably more complicated than the creation of
laws in domestic systems.
4.01 Treaties (Signature and Ratification)
According to Article 1, of the 1969 Vienna Convention on
the Law of Treaties, a treaty is defined as an
international agreement between states in written form and
governed by international law, whether embodied in a single
document or in two or more related instruments and whatever
its particular designation Treaties are known by a variety
of terms—conventions, agreements, pacts, general acts,
charters, and covenants—all of which signify written
instruments in which the participants (usually but not
always states) agree to be bound by the negotiated terms.
Some agreements are governed by municipal law (e.g.,
commercial accords between states and international
enterprises), in which case international law is
inapplicable. Informal, nonbinding political statements or
declarations are excluded from the category of treaties.
Treaties may be bilateral or multilateral. Treaties with a
number of parties are more likely to have international
significance, though many of the most important treaties
(e.g., those emanating from Strategic Arms Limitation
Talks) have been bilateral. A number of contemporary
treaties, such as the Geneva Conventions (1949) and the Law
of the Sea treaty (1982; formally the United Nations
Convention on the Law of the Sea), have more than 150
parties to them, reflecting both their importance and the
evolution of the treaty as a method of general legislation
in international law. Other significant treaties include
the Convention on the Prevention and Punishment of the
Crime of Genocide (1948), the Vienna Convention on
Diplomatic Relations (1961), the Antarctic Treaty (1959),
and the Rome Statute establishing the International
Criminal Court (1998). Whereas some treaties create
international organizations and provide their constitutions
(e.g., the UN Charter of 1945), others deal with more
mundane issues (e.g., visa regulations, travel
arrangements, and bilateral economic assistance). Countries
that do not sign and ratify a treaty are not bound by its
provisions. Nevertheless, treaty provisions may form the
basis of an international custom in certain circumstances,
provided that the provision in question is capable of such
generalization or is “of a fundamentally norm-creating
character,” as the ICJ termed the process in the North Sea
Continental Shelf cases (1969). A treaty is based on the
consent of the parties to it, is binding, and must be
executed in good faith. The concept known by the Latin
formula pacta sunt servanda (“agreements must be kept”) is
arguably the oldest principle of international law. Without
such a rule, no international agreement would be binding or
enforceable. Pacta sunt servanda is directly referred to in
many international agreements governing treaties, including
the Vienna Convention on the Law of Treaties (1969), which
concerns treaties between states, and the Vienna Convention
on the Law of Treaties Between States and International
Organizations or Between International Organizations
(1986). There is no prescribed form or procedure for making
or concluding treaties. They may be drafted between heads
of state or between government departments. The most
crucial element in the conclusion of a treaty is the
signaling of the state’s consent, which may be done by
signature, an exchange of instruments, ratification, or
accession.
Ratification is the usual method of declaring consent—
unless the agreement is a low-level one, in which case a
signature is usually sufficient. Ratification procedures
vary, depending on the country’s constitutional structure.
Treaties may allow signatories to opt out of a particular
provision, a tactic that enables countries that accept the
basic principles of a treaty to become a party to it even
though they may have concerns about peripheral issues.
These concerns are referred to as “reservations,” which are
distinguished from interpretative declarations, which have
no binding effect.
States may make reservations to a treaty where the treaty
does not prevent doing so and provided that the reservation
is not incompatible with the treaty’s object and purpose.
Other states may accept or object to such reservations. In
the former case, the treaty as modified by the terms of the
reservations comes into force between the states concerned.
In the latter case, the treaty comes into force between the
states concerned except for the provisions to which the
reservations relate and to the extent of the reservations.
An obvious defect of this system is that each government
determines whether the reservations are permissible, and
there can be disagreement regarding the legal consequences
if a reservation is deemed impermissible. A treaty is
expected to be interpreted in good faith and in accordance
with the ordinary meanings of its terms, given the context,
object, and purpose of the treaty. In certain cases, a more
flexible method of treaty interpretation, based on the
principle of effectiveness (i.e., an interpretation that
would not allow the provision in question to be rendered
useless) coupled with a broader-purposes approach (i.e.,
taking into account the basic purposes of the treaty in
interpreting a particular provision), has been adopted.
Where the treaty is also the constitutional document of an
international organization, a more programmatic or purpose-
oriented approach is used in order to assist the
organization in coping with change. A purpose-oriented
approach also has been deemed appropriate for what have
been described as “living instruments,” such as human
rights treaties that establish an implementation system; in
the case of the European Convention on Human Rights of
1950, this approach has allowed the criminalization of
homosexuality to be regarded as a violation of human rights
in the contemporary period despite the fact that it was the
norm when the treaty itself was signed. A treaty may be
terminated or suspended in accordance with one of its
provisions (if any exist) or by the consent of the parties.
If neither is the case, other provisions may become
relevant. If a material breach of a bilateral treaty
occurs, the innocent party may invoke that breach as a
ground for terminating the treaty or suspending its
operation. The termination of multilateral treaties is more
complex. By unanimous agreement, all the parties may
terminate or suspend the treaty in whole or in part, and a
party specially affected by a breach may suspend the
agreement between itself and the defaulting state. Any
other party may suspend either the entire agreement or part
of it in cases where the treaty is such that a material
breach will radically change the position of every party
with regard to its obligations under the treaty. A breach
of a treaty is generally regarded as material if there is
an impermissible repudiation of the treaty or if there is a
violation of a provision essential to the treaty’s object
or purpose. The concept of rebus sic stantibus (Latin:
“things standing thus”) stipulates that, where there has
been a fundamental change of circumstances, a party may
withdraw from or terminate the treaty in question. An
obvious example would be one in which a relevant island has
become submerged. A fundamental change of circumstances,
however, is not sufficient for termination or withdrawal
unless the existence of the original circumstances was an
essential basis of the consent of the parties to be bound
by the treaty and the change radically transforms the
extent of obligations still to be performed. This exception
does not apply if the treaty establishes a boundary or if
the fundamental change is the result of a breach by the
party invoking it of an obligation under the treaty or of
any other international obligation owed to any other party
to the treaty. There are two important stages in treaties
making; signature and ratification. The signing of a treaty
is a symbolic assent of the state to the instrument.
Ratification is the process by which a state establishes
its consent to be bound by the treaty. The implementation
of domestication is the process by which a treaty validly
entered into is enacted as legislation so it can have an
effect in the domestic environment. The first two stages
are executive acts while the third involves the
legislature.

4.02 Custom
The ICJ’s statute refers to “international custom, as
evidence of a general practice accepted as law,” as a
second source of international law. Custom, whose
importance reflects the decentralized nature of the
international system, involves two fundamental elements:
the actual practice of states and the acceptance by states
of that practice as law (Opinio Juris). The actual practice
of states (termed the “material fact”) covers various
elements, including the duration, consistency, repetition,
and generality of a particular kind of behaviour by states.
All such elements are relevant in determining whether a
practice may form the basis of a binding international
custom. The ICJ has required that practices amount to a
“constant and uniform usage” or be “extensive and virtually
uniform” to be considered binding. Although all states may
contribute to the development of a new or modified custom,
they are not all equal in the process. The major states
generally possess a greater significance in the
establishment of customs. For example, during the 1960s the
United States and the Soviet Union played a far more
crucial role in the development of customs relating to
space law than did the states that had little or no
practice in this area. After a practice has been
established, a second element converts a mere usage into a
binding custom—the practice must be accepted as opinio
juris sive necessitatis (Latin: “opinion that an act is
necessary by rule of law”). In the North Sea Continental
Shelf cases, the ICJ stated that the practice in question
must have “occurred in such a way as to show a general
recognition that a rule of law or legal obligation is
involved.” Once a practice becomes a custom, all states in
the international community are bound by it whether or not
individual states have expressly consented—except in cases
where a state has objected from the start of the custom, a
stringent test to demonstrate. A particular practice may be
restricted to a specified group of states (e.g., the Latin
American states) or even to two states, in which cases the
standard for acceptance as a custom is generally high.
4.03 General principles of law
A third source of international law identified by the ICJ’s
statute is “the general principles of law recognized by
civilized nations.” These principles essentially provide a
mechanism to address international issues not already
subject either to treaty provisions or to binding customary
rules. Such general principles may arise either through
municipal law or through international law, and many are in
fact procedural or evidential principles or those that deal
with the machinery of the judicial process—e.g., the
principle, established in Chorzow Factory (1927–28), that
the breach of an engagement involves an obligation to make
reparation. Accordingly, in the Chorzow Factory case,
Poland was obliged to pay compensation to Germany for the
illegal expropriation of a factory. Perhaps the most
important principle of international law is that of good
faith. It governs the creation and performance of legal
obligations and is the foundation of treaty law. Another
important general principle is that of equity, which
permits international law to have a degree of flexibility
in its application and enforcement. The Law of the Sea
treaty, for example, called for the delimitation on the
basis of equity of exclusive economic zones and continental
shelves between states with opposing or adjacent coasts.

4.04 Other Sources

Article 38 (1) of the ICJ’s statute also recognizes
judicial decisions and scholarly writings as subsidiary
means for the determination of the law. Both municipal and
international judicial decisions can serve to establish new
principles and rules. In municipal cases, international
legal rules can become clear through their consistent
application by the courts of a number of states. A clearer
method of law determination, however, is constituted by the
international judicial decisions of bodies such as the ICJ
at The Hague, the UN International Tribunal for the Law of
the Sea at Hamburg (Germany), and international arbitral
tribunals.

4.05 Soft law

Soft law is used to describe principles or rules that
aspire to law, but are not yet widely agreed to be part of
international law. They are principles or rules that are
often followed by states in practice, but where the
practice is not consistent enough, widespread enough, or
merely enough to argue that the rule in question has become
customary international law or is a general principle of
law. Soft law is very much a creation of publicists writing
about international law. Soft law can also take the form of
UN General Assembly resolutions, which are not binding—
except with respect to certain organizational procedures—
but they can be extremely influential. These resolutions
may assist in the creation of new customary rules, both in
terms of state practice and in the process of establishing
a custom by demonstrating the acceptance by states of the
practice. For this to occur, a resolution must contain
generalizable provisions and attract substantial support
from countries with diverse ideological, cultural, and
political perspectives. Examples of such resolutions
include the Declaration on the Granting of Independence to
Colonial Countries and Peoples (1960), the Declaration on
the Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space (1963), and the
Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States (1970).

Furthermore, Unilateral actions by a state may give rise to

legal obligations when it is clear that the state intends
to be bound by the obligation and when its intention is
publicly announced. An example of such a case was France’s
decision to stop atmospheric nuclear testing during
litigation at the ICJ between it and Australia and New
Zealand (1974) concerning the legality of such testing.
Unilateral statements also may constitute evidence of a
state’s views on a particular issue. Even when an
instrument or document does not entail a legal obligation,
it may be influential within the international community.
The Helsinki Accords (1975), which attempted to reduce
tensions between the Soviet Union and the United States
during the Cold War, was expressly not binding but had
immense political effects.