SOURCES OF INTERNATIONAL LAW - Chapter 2 PIL
Introduction
Treaties
Customs
General principles of law
Judicial decisions
Teachings
Formal and Material sources of IL
Formal- from which the legal rule derives its legal validity,conventions,customs,GPL(general
principles of law)
Material- denotes the derivation of the substantive content of the rule:Judicial decisions and
writings of publicists
Mostly derived from statutes formed by the ICJ
Article 38 of the Statue of ICJ
1. The court whose function is to decide in accordance with international law such disputes as
are submitted to it,shall apply;
A. International conventions
B. International customs
C. The general principles of law recognized by civilized nations
D. Subject to provisions of A 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
A59 - The decision of the court has no binding force except between the parties and in respect of
that particular case
1. This provision shall not prejudice the power of the court to decide a case ex aequo et bono ,
if the parties agree thereto - decision in which equity overrides all other rules.
Hierarchy of sources -
No rigid hierarchy
Treaties(T) and Customary laws(CL) are the important sources
Priority of T- source of mutual obligation of parties
Source(T) provide evidence of the formation of custom
Article2(1)(a) of the Vienna convention on law of treaties,1969
“Treaty” means and international agreement concluded between states in written form and
governed by international law whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.
VCLT doesn’t allow oral treaties , IL does allow oral treaties and these are not governed by the
Vienna Convention
Treaty can be in oral form- Oral form treaties are governed by the customary rules
Object of the treaty must be in consensus with the draft or charter
Duration of the treaty is determined by the Parties to the treaty.
Principles related to Treaties
1. Pacta sunt servanda - A 26 of VCLT “ every treaty in force is binding upon the parties and
must be performed by them in good faith”
2. Pacta tertiis nec nocent nec prosunt - Treaties created by several countries cannot bind
other states which are not parties to the treaty.
3. Reservations - State which is a party to the treaty can exempt itself from being bound by any
specific provisions of the treaty
4. Conditional Compliance- Compliance of the treaty may depend on the happening or non-
happening of a certain event
Customary practice
Definition of Customary law
“evidence of… law..” Art 38(1)!b)
Origin of custom- Roman tradition -consent that is attached to tradition
Savigny- consensus in state practice
Kelson- unconscious and unintentional law making arising from the collateral effect of the conduct
of States in their international relations
Akehurst- Customary international law is created by State practice
Criteria for the establishment of a custom
1. Continuation of a practice by a number of states over period of time
2. Practice is consistent with prevailing IL
3. General acquiescence in the practice by other states
Customary IL- two elements
1. State practice - material element
2. Opinio juris sive necessitatis -(belief or opinion of law) subjective conviction held by states
that the behaviour in question is compulsory - psychological element
State practice
Consistency of practice-
1. Complete uniformity is not required
2. Substantial uniformity is required
3. Freedom of determination
Psychological element
1. Legal conviction
2. Sense of obligation( NOT courtesy,fairness etc)
3. Feeling on the part of the states that on acting as they do they are fulfilling a legal action
• Customary law must be distinguished from mere usage
Case laws
• The Paquete Habana 175 US 677 (1900)
• SS Lotus case PCIJ 1927( France V Turkey)
• Asylum Case ICJ Rep 1950( Colombia V peru)
• Anglo-Norwegian Fisheries Case,ICJ Rep 1951(the Fisheries case)
• Federal Republic of Germany V Denmark; FRG V The Netherlands ICJ Rep 1969(North Sea
Continental Shelf)
• Military and Paramilitary Activities in and against Nicaragua ICJ Rep 1986( Nicaragua V USA)
Paquete habana
During the American Spanish war two ships Paquete Habana and Lola were detained by Americans
as prize capture of war
Vessel running in and out of havana and sailing under the Spanish Flag was a fishing smack regularly
engaged in fishing on the coast of Cuba
Owners of the vessels were not aware of the existence of a war until they were stopped by the US
authorities.
No incriminating material like arms were found on the fishermen and after learning of existence of
blockade, did not resist their arrest.
Court established the existence of a customary international law that exempted fishing vessels from
prize capture
Capture of both vessels as “unlawful and without probable cause” and ordered the proceeds of the
auction as well as any profits made from the cargo to be restored to the claimant “ with damages
and costs”.
SS LOTUS CASE
Facts - Collision occurred on the high seas in the Mediterranean between French steamer the Lotus,
and the Turkish steamer Boz-Kourt in which the latter sunk with the loss of eight Turkish sailors.
Upon the arrival of the Lotus at the Turkish port its French officer was arrested on the criminal
charge of involuntary manslaughter
Contention of France- Existence of customary rule of International law granting exclusive criminal
jurisdiction to the State the flag under which a vessel is flying. Lotus was flying the French flag - only
French courts have jurisdiction. Turkey was acting contrary to International law.
Turkey response - Jurisdiction exercised on the basis of the territorial principle since the
consequences of the French act had occurred on Turkish Territory.
Territorial Principle - First and foremost restriction imposed by IL - A state may not exercise its
power in any form in the territory of another State. IL does not prohibit a State from exercising
jurisdiction in its own territory in respect of any case which relates to acts which have taken place
abroad.
What is not prohibited is permitted under IL
Effects of the offence produced on the Turkish vessel becomes impossible as there is no rule of IL
which prohibits Turkey from prosecuting. Prosecution justified from the POV of the territorial
principle.
Findings of the court -
No rule of customary IL established the exclusive jurisdiction of the State whose flag was flown on
ship
No rule of IL in regard to collision cases that criminal proceedings are exclusively within the
jurisdiction of the State whose flag is flown.
Prosecution justified from the POV of the territorial principle.
Asylum Case ( Colombia V Peru)
Following an unsuccessful coup in Peru in 1948, the leader of the rebel movement , de la Torre
sought refuge and ‘diplomatic asylum’ in the Colombian embassy in Lima, capital city of Peru
Colombia sought and Peru refused a safe conduct to allow de la Torre out of the country.
Issue - Whether a local custom existed in Latin America permitting one State to grant political asylum
and offer consequential protection to the asylum seeker.
Whether Colombia as the State granting asylum is competent to qualify the offence for the purpose
of the asylum.
Asylum- sanctuary given by one country to a citizen of another country to protect the person from
arrest or prosecution.
Prosecution - act of maltreatment on the basis of religion,race,sexual orientation or the belief that
differs from those of the prosecutor.
Colombian govt relied on an alleged regional or local custom peculiar to Latin American States.
Party which relies on customs of this kind must prove that this custom is established in such a
manner that it has become binding on other party.
Held- Colombian govt could not prove the existence of such a custom
Existence of custom could not be invoked against Peru which repudiated it by refraining from
ratyfying the Montevideo Conventions on Political Asylum,1933 and Montevideo Conventions on
Political Asylum and Refugee,1939
Peru = Objector to the custom
Anglo-Norwegian Fisheries
Facts - Norwegian method was to draw straight lines(baseline) from selected points on the coast
from which the breadth of the territorial sea could be measured.
UK objected to the method of delimitation employed by Norway to define its territorial sea
Norway - necessary because of the fragmented nature of the coastline, and baselines assumed a
regular pattern
One consequence was that a greater proportion of water on the landward side of the baseline
became “internal waters”.
Issue - UK obejected to the delimitation of the territorial sea carried out by Norway by two Royal
Decrees of 1935 and 1937
UK’s objection- customary rule of IL that ‘closing lines’ along the mouths of bays could be no longer
than 10 nautical miles.
Methods to determine extent of territorial sea -
1. Low water mark rule
2. Arcs of circles method
3. Straight base-lines method
Held - Such a rule (10 nm) did not exist in general customary IL , due to inconsistent State practice
“ in any event the ten mile rule would appear to be inapplicable as against Norway as she has always
opposed any attempt to apply it to the Norwegian coast”
Norway = Persistent Objector.
Persistent Objector Rule
1. POR concerns the scope of application of a customary IL or its ‘opposability’
2. Two decisions of the ICJ - Asylum case and fisheries case
1. . ‘ …whilst a practice is developing into a rule of general law, if a State persistently and
openly dissents from the rule, it will not be bound by it …’ - International law Association London
Conference (2000) Committee on formation of Customary International Law
CORE ELEMENTS OF POR
1. Requirement of objection- Silence is not seen as objection
2. Objection must be persistent - Single or isolated objections will not suffice
3. Objection must be consistent(degree of internal coherence) - persistent but inconsistent
objection is likely to be insufficient
4. Fourthly, the objection must be timely- occurrence prior binding norm of customary IL. ‘
Subsequent objection’ after the customary norm in question has formed will not avail the objector.
North Sea Continental Shelf case ( FRG v Denmark ; FRG v The Netherlands)
Facts - FRG and Denmark, FRG and the Netherlands, submitted a dispute over the delimitation of
their shared Continental Shelf to the ICJ.
D &N - application of the Equidistance principle (EP)
FRG - Refused EP due to the concavity of the coastal configuration. Instead, ‘just and equitable
share’ of the continental shelf to all the coastal states.
Delimitation of the continental shelf to be decided according to customary IL because the
Continental Shelf Convention 1958 had not entered into force for all parties to the dispute(FRG was
not a signatory to the Convention)
Court’s tasks was to identify the rules which bound these States, and circumstances in which
customary IL can be created.
ISSUE - 1. Whether the delimitation of the continental shelf contained in the Art 6 of the Geneva
Convention 1958- the equidistant principle- has become a customary law
2 . What principles and rules of IL are applicable to the delimitation between the parties in the
North Sea which belong to each of them beyond the boundary?
A 6 of geneva convention - “ same continental shelf is adjacent to the territories of two or more
States whose coasts are opposite each other, the boundary of the continental shelf.. determined by
agreement between them. In the absence of agreement.. boundary is the median line.. equidistant
from the nearest points of the baselines.
Findings
1. Court held that if the Geneva Convention was not in its origins of a mandatory rule of customary
international law in the use of the equidistance principle, then the subsequent effect cannot be
constitute such a rule
2. Equitiy and equitable principles and factors to be taken into account by the parties:
i) general configuration of the coasts
ii) location of natural resources of the shelf
iii) length of each States coast
- Court did not suggest a particular line or boundary
- Three states achieved a practical compromise based on non-equidistance negotiated boundaries
that extended the "German Corridor" to the middle of the North Sea.
General Practices of International Law
General Principles of law (GPL)
1. Third source of IL
2. Two major opinions -
i. GPL- embraces general principles in domestic jurisprudence that can be applied to international
legal questions
ii. GPL - transformation of natural law of universal principles of law applicable toall of mankind into
specific rules of IL.
GPL = Fair hearing.
Cases
1. Netherlands V US(Island of Palmas Case) 2 RIAA 829(1928)
2. UK V Albania(Corfu Channel Case) ICJ Rep 1949
3. Australia V France: New Zealanad V France( Nuclear Tests Cases) ICJ Rep 1974
4. Administrative Tribunal case, ICJ Reports 1954
Corfu Channel Case ( UK V Albania)
Facts - October 1946, British warships sought to pass through the North Corfu Strait.
Two British war ships were badly damaged by mines, allegedly laid by Albania
This strait was used for International navigation
Issue was whether the passage of British warships was 'innocent', so as to be permissible under
customary IL. ( a channel is a small water body that connects two large water bodies)
International custion = States in time of peace have a right to send their warships through straits
used for International navigation between two parts of the high seas without the previous
authorization of a coastal State, provided that the passage is innocent
Unless otherwise prescribed in an International convention there is no right for a coastal State to
prohibit such passage through straits in time of peace.
Albanian Arguments
1. Soveriegnity of Albania was violated because the passage of the BRitish warships on Oct 1946, was
not an innocent passage
2. Reasons - 1. The passage was not an ordinary passage, but a political mission: the ships were
manuevering and sailing in diamond combat formation with soliders on board. 2. Position of the
guns was not consistent with innocent passage 3. number of the sips and their armament showed an
intention to intimidiate and not merely to pass.
UK arguments
1. Object of sending the warships through the Strait was not only to carry out a passage for purposes
of navigation, but also to test Albania’s approach towards the innocent passge
2. The mission was designed to affirm a right(consistent with the requirements of international law)
which had been unjustly denied
3. The UK further claimed that the mooring of the mines by Yugoslavia had been carried out either
with the support or knowledge of Albania.
IL principles involved - i. State responsibility
Ii. Territorial soveriegnity
Iii. Use of Force
Principles -
1. Indirect evidence - circumstantial evidence
2. Compensation
Aus V France: New Zealand V France( Nuclear Tests Cases) ICJ Rep 1974
Australia and NZ brought proceedings against France arising from nuclear tests conducted by France
in the South Pacific
Before the Court had an oppurtunity to hear in full the merits of the case, statements were made by
French authorities indicating that France would no longer conduct atmospheric nucelar tests
The court held that due to these statements by France, the claim of Australia and NZ no longer had
any purpose and so the Court did not have to decide the issues in the case.
Principle of good faith
Unilateral declaration - Declarations made by way of unilateral acts, concerning legal or factual
situtations, may have the effect of creating legal obligations. State is legally required to follow a
course of conduct consistent with the declaration
Temple of Preah Vihear case ICJ Reports 1962
Facts - Cambodia claimed, as successor state to France, soveriegnity over an area of land which
included the Temple of Preah Vihear
One of the key pieces of evidence Cambodia relied on was a map made in 1907 that showed the
temple to be in French territory, and that map was sent to the authorities of Siam (now Thailand).
