Sources of Public
International Law
SUGANYA JEBA
► “International law can be defined solely by the
ways in which its norms are created”
- Hans Kelson
► Every international situation is capable of being
determined as a matter of law’
- Oppenheim
Art. 38 of the Statute of ICJ
► 2nd Chapter – ‘Competence’
► “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, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law 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.
► 2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
Customary International Law
► Also called “General International Law” – one of the most
important and authoritative sources of international law
► Under domestic law –
► Customs emerge in primitive societies – subconsciously
► Become rules of conduct
► Legitimacy
► not because of codification (at least initially) – but through
historical legitimacy (like social sanctions and pressures)
► Over time loses importance as it is cumbersome
Practice of States
► Objective element – ‘what’ factor
► Do or abstain
► State behaviour – As State organs (not in independent capacity)
► Factors:
► Duration:
► Domestic laws – time immemorial
► International law –duration is not important – you have instant customs –
Grotian moment – Space laws, new kind of prohibited weapons emerge
(Jericho)
Customs under international law
► Not the case under international law – it is a dynamic source of
law – reason: decentralised legal system
► Has an aura of historical legitimacy
► Not cumbersome – but viewed as a dynamic source of law
► Two ingredients/two element theory: (Libya/Malta case;
Nicaragua case; Jurisdictional Immunities case)
► General Practice
► Evidenced as law
► Factors (contd.)
► Continuity and repetition – Actual requirement
► Asylum case – Constant and uniform
► But absolute rigid conformity – not necessary – Nicaragua case
► Anglo Norwegian Fisheries case – Some degree of uniformity
► North Sea Continental Shelf case – Extensive and virtually uniform
► Recurrent, general , consistent, regular, repeated,
► By plurality of States – Does not mean every State in the world
► Eg: delimitation of maritime zone – does not bother land-locked States
Accepted as Law
► Subjective element – ‘why’ factor
► Opinio juris sive necessitatis (opinion of law or necessity)
► That there is a legal obligation to do or abstain from the
practice
► Usage v. Custom – foreign aid offered to country A but
not country B
► North Sea Continental Shelf case
Question 1
Failure to act – does it amount to evidence of
practice
► If yes, imply that Chad, Sri Lanka, Germany – agreed not to space
missions to moon?
► Failure to act itself not sufficient – only if you feel an obligation to
not act
► Incapacity or unwillingness – not custom
► Abstention is custom – only if the abstention is based on a conscious
duty to abstain (Lotus case)
Lotus case
Lotus case
► Absence of previous criminal prosecution in similar
circumstances – as tacit consent to a custom
► Court: abstention = custom only if there is a conscious
duty to abstain
Do States always follow?
► Customary international law - Established by virtue of a pattern
Absence of protest
Acquiescence by
Claim by States interested
other States
in the matter
► Nature of expression of will of the State: through tacit consent or
acquiescence
► Implies – actual protests needed to break legitimacy
► Inconsistency – form a new rule?
► Nicaragua case: Inconsistency does not mean anything other than breach
► Persistent Objector and Subsequent Objector
► Persistent objector – always opposed the existence of the custom/ from
its inception – not bound
► But not all protests amount to persistent objection – many cases – purely
formal or to exert diplomatic pressure somewhere else
► Subsequent objector – only if the objection is accepted by other States
(an exception)
► Otherwise, can be held responsible for breach
Regional Customs
► Only for a region or even just two States
► Require higher standards of proof
► Asylum case (Colombia and Peru)
► Passage case (India, Portuguese)
Treaties
► Modern and more deliberate method
► Known by different names – Conventions, International
Agreements, Pacts, General Acts, Charters, Statutes, Covenants,
Declarations etc.
► A written agreement whereby the States participating bind
themselves legally to act in a particular way or to abstain from doing
certain acts or to set up certain rights and obligations between them
or to set up particular relations/interactions between themselves
► May constitute international institutions and act as Constitutions
► Governed by Vienna Convention on the Law of Treaties, 1969
Treaty – definition – Art. 2(1)(a)
► "Treaty" means an 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
► Based on express consent of the contracting parties
► Not sign or ratify not bound (North Sea Continental Shelf case)
► Exception: because of necessity – may extend to non-parties. Eg: UN Charter, UNCLOS
► Binding force of a treaty – Pacta Sunt Servanda – Art. 26 (“agreements must be kept”) –
perform in good faith – which is a principle of customary international law
Treaties
Law-Making Treaty-Contra
Treaties cts
Law-making treaties
► Also known as normative treaties - Prescribe rules of conduct
► On a given theme - States elaborate their perception of international law –
purpose: to establish new rules to guide their conduct or that of other personalities
– would be binding
► Involves a large number of States
► Examples: Antarctic Treaty, Genocide Convention
► May codify existing customary rules – eg: Vienna Convention on Diplomatic
Relations, 1961
► May create customs – “Provisions of Norm Creating Character”
Treaty Contracts
► Only between small number of States and on a limited topic
► But to that extent and between those States – it is a source
General Principles of Law
► Situation being considered by Courts – no treaty or custom covering
that exact point
► Deduce a rule – by analogy from existing general principles that
guide the legal system
► To close the gap uncovered in international law – non liquet
► ‘Every international situation is capable of being determined as a
matter of law’ (Oppenheim’s International Law)
► It is a separate source of law but of fairly limited scope
Every jurisdiction has certain common
themes/principles
Case Principle
► Chorzow Factory case ► Indemnity
► German Settlers in Poland ► Private rights acquired under existing law
do not cease of sovereignty
► Corfu Channel case/ Administrative
Tribunal case/ Genocide Convention ► Res judicata
(Bosnia and Herzegovina v. Serbia and
Montengro)
► Temple case/Serbian Loans case/ELSI
case/ Cameroon v. Nigeria ► Estoppel
Other General Principles
► Proportionality – in use of force; conduct of hostilities; maritime limitations;
counter-measures in WTO; investment laws; international humanitarian laws
► Good faith – UN Charter (Art. 2(2)); Res. 2625; Nuclear Tests case
► Ex injuria jus non oritur – flowing from wrongful conduct cannot be determine
the law – Gabcikovo-Nagymaros Project case
► Limited liability company – Barcelona Traction case
Equity and International Law
► Generalised principles or concepts – ‘community value-judgements’
- do not themselves constitute binding legal norms
► But elementary principles of humanity – lie at the base of
international legal norms (Legality of the Threat or Use of Nuclear
Weapons Advisory Opinion)
► Diversion of Water from the Meuse case
► Rann of Kutch Arbitration between India and Pakistan (1968)
► North Sea Continental Shelf cases
► Barcelona Traction case
► Diallo case – Quantification of compensation for non-material injury necessarily
rests on equitable considerations
► UNCLOS – Arts. 74, 83
► Convention on the Law of the Non-Navigational Uses of International
Watercourses, 1997
Judicial Decisions
► Subsidiary means – but of immense importance
► Statute of ICJ - Art. 59 – doctrine of precedence does not apply
► But very often relied upon by States in disputes and textbooks
► Even the ICJ closely examines its previous decisions
► Therefore aid in the development of international law
► Anglo-Norwegian Fisheries case – Statement on criteria for the recognition of
baselines from the measure of territorial sea – now part of 1958 Geneva Convention on
the Territorial Sea and Contiguous Zone
► Reparations case – Legal Personality of international institutions
► Genocide Convention – Reservation to treaties
► Nottebohm case – Maritime delimitation
► But does not approve all the cases – Lotus case position – abandoned in the
Geneva Convention on the Law of the Sea
► Includes national courts’ rulings and international arbitral awards
► Example: Alabama Claims arbitration – opened the era of peaceful settlement of
international disputes
► Island of Palmas case arbitration
► Growing significance of case laws witnessed during ICTY, ICTR – cite each
other’s decisions whether to support or disagree
• Effective
Nicaragua case control Test
• Overall control
Tadic case test
Genocide
• Effective
Convention
Control
(Bosnia v.
Serbia) Test
Writers
► The teachings of the most qualified publicists of the various nations
► Historically, the influence of academic writers and jurists was profound
► Grotius, Pufendorf, Bynkershoek and Vattel etc
► Now, declined
► Currently, textbooks are helpful in arranging and bringing a structure to the study
► Sometimes, in specialised areas like ‘governments in exile’ – works of jurists like
Stefan Talmon are still referred to
Question - 2
Why are the sources under Art. 38 considered sources of
international law?
► ‘In accordance with international law’
► All members of the UN are ipso facto parties to the Statute
of ICJ
► Thus, no serious contention – of universal appeal
Other possible sources
► Resolutions and declarations of UNGA
► Not binding [(unlike those of the Security Council (Arts. 24 and 25 of the
Charter)] – Art. 12 of the UNC – merely recommendatory
► But may evidence State practice – may become binding custom
► Nicaragua Case - Can gather Opinio Juris
► 1960 Decolonisation resolutions, Res. 2625 together changed the principle of
self-determination into a legal right – evolution of opinio juris
► How?
► Near universal membership in the UNGA – enormously enhances the value of the
organ
► Thus, if a resolution is adopted with universal consent – then yes – may even
evidence customs – (Nicaragua case, Legality of the Threat or Use of Nuclear
Weapons AO)
Soft laws
► Particular non-binding instruments may be treated as soft laws
► May be called as recommendations, guidelines, codes of practice or
standards
► Soft laws are not binding but may have a huge influence
► Eg: Helsinki Final Act, 1975
► Why: more flexible, easier to conclude, and easier to adhere to
► Certain areas have generated more soft laws than others
► International economic law, international environmental law
International Law Commission
► Established in 1947
► Objective: Progressive development of international law and its codification
► Membership: Africa, Asia, America, and Europe – 34 members
► Term: 5 years – appointed from lists submitted by governments
► May be aided by various outside bodies in its deliberation
► Several important Conventions – grown out of Commission’s work
► Decide topic – Prepare draft – Submit to States for their comments – UN convenes
an international conference
► Also issues reports and studies
► Draft Declaration on Rights and Duties of States, 1949, Draft
Articles on State Responsibility, 2001
► Have been referred in the judgments of the ICJ
Other bodies that study and development
of the law
► UNCITRAL
► UNCTAD
► ILO
► UNESCO
► Committee on the Principles of International Law
► Independent bodies: International Law Association, Institut de Droit International
Question - 3
Which is better/superior source – conventions or customs?
Hierarchy
► Each source mentioned in Art. 38 are capable of developing new law
as well as in identifying
► International courts and tribunals existing in a non-hierarchical
fashion
► Judicial decisions and writings clearly have a subordinate function
► General principles of law – complement customs and treaties
Treaty v. Customs
► Lex posterior derogate priori – Later rule prevails over prior rule –
but only if they conflict
► If both coexist/state the same thing - one does not supersede another
– both have separate existence (Nicaragua case)
► Lex specialis derogate generali – special rule prevails over general
rule
► Exception: if the general rule is jus cogens
Jus cogens and obligation erga omnes
► Certain norms enjoy higher status than others
► Two types
► Significant overlap between the two
► Obligation erga omnes:
► obligation of a State towards the international community as a whole
► All States can be held to have a legal interest in their protection
► Eg: outlawing aggression, genocide (Genocide Convention case),
protection from slavery, racial discrimination, right to
self-determination (East Timor case)
Jus Cogens
► VCLT Art. 53 – peremptory norms of general international law
► VCLT Art. 64 – if a new peremptory norms emerges - any existing
treaty which is in conflict with that norm becomes void and
terminates
► No derogation permitted by way of local or special customs
► No reservations that offend jus cogens norms are possible
► What are peremptory norms?
Peremptory norms
► Accepted and recognised by the international community of States
as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having the same character
► The concept rests on the acceptance of fundamental and superior
values within the system and reflects natural law thinking
Examples
► International Law Commission: prohibition on the
use of force, genocide, slave trade, piracy
► International Court : Prohibition of torture
(Belgium v. Senegal)
► No clear agreement on other areas
Question - 4
Does the sovereign State derive its competence and legitimacy of
actions from international law? Or is it free to act in a manner that is
not in breach?
► SS Wimbledon
► Limits maybe placed on sovereignty by entering into a treaty
► Lotus case
► Restrictions on sovereignty cannot be presumed
► International law is a permissive international order
