Topic 2 Sources of Public International Law

Sources of law define how new rules are created, and how existing rules are modified or
abrogated
In international law, the main sources of law derive from the consent of states, expressed
formally and indirectly through treaties or more indirectly through state practice (customary
international law)
Starting point for identifying the content of international law is Article 38(1) of the Statute of
the ICJ
o (a) International conventions, i.e. treaties
o (b) International custom, i.e. customary international law
o (c) General principles of law
o (d) Judicial decisions and the teachings of publicists
Note:
o Emphasis on consent as the basis for international legal obligation
o No clear hierarchy of sources, though (d) referred to as subsidiary means for
determination of the rules of law
o States are the primary law-making actors
o International law-making is in reality more dynamic that suggested by Art. 38

Case Studies
SS Lotus (France v Turkey) (1927) PCIJ Ser A, No. 10
o French government tried to prove the existence of a rule (flag state has exclusive
jurisdiction over incidents on board its vessels on the high seas)
Used teachings of publicists, decision of municipal and international tribunals
and conventions
o Held: existence of rule not conclusively proved
Asylum Case (Colombia v Peru) [1950] ICJ Rep 266
o Colombian government sought to invoke American international law in generalan
alleged regional or local custom peculiar to Latin-American States
o Party which relies on custom must prove that this custom is established in such a
manner to be binding on the other party in accordance with constant and uniform
usage practiced by States in question
North Sea Continental Shelf Cases (Germany v Denmark) (Germany v Netherlands) [1969]
ICJ Rep 3
o Provision concerned shouldbe of a fundamentally norm-creating character such as
could be regarded as forming the basis of a general rule of law
o Perfectly possible for a rule set out in a treaty to become customary international law

Treaties
Manifestation of the express consent of states by agreement
The term conventions in Article 38(1)(a) of the Statute of the ICJ encompasses all binding
international agreements (treaties, protocols, understandings, pacts, accords, statutes,
covenants, charters etc).
Treaty defined in Art. 2 of the 1969 Vienna Convention on the Law of Treaties (VCLT) as an
international agreement concluded between States in written form and governed by
international law
Treaty may be a source of mere obligation (treaty contracts), but they may also have a
broader impact in establishing generalized standards if they lead to the development of new
customary international law
Treaties binding only upon the parties to them, and create no rights or obligations for third
states without their consent: VCLT, Art. 34
 Treaty that is signed but not ratified state has obligation to refrain from acts which would
defeat the object and purpose of the treaty: VCLT, Art. 18

Customary International Law

1. Constant and uniform usage, accepted as law: state practice
o Two components
An objective element (general practice)
Subjective or psychological element (accepted as law opinio juris sive
necessitates (belief that the practice is obligatory))
o Binds all states, even those that have never expressly or impliedly consented to a given
rule of custom (N.B. doctrine of persistent objector, below)
o Good general identification of the requirements for establishing custom in several
Australian cases Polyukhovich v Commonwealth (1991) 172 CLR 501 per Brennan J,
Victoria v Commonwealth (1996) 138 ALR 129
2. Regional custom
o Possible for a customary norm to emerge as between a small group of states (min. 2)
The Asylum Case (Colombia v Peru) [1950] ICJ Rep 266
Court noted that Colombian Government had to prove that the rule
invoked by it is in accordance with a constant and uniform usage
practiced by the states in question
o R (on the application of Al-Saadoon) v Secretary of State for Defence [2010] 1 All ER
271 (LMS)
Counsel for Iraq nationals rule of regional customary law of non-refoulement
to countries where the death penalty is available
No European state returns an individual to a country in which they are at
risk of the death penalty
Held: there could exist regional customary international law, but that law is not
made out in this case
Materials cited are not sources of law law established by treaty in the
European Convention on Human Rights
o Statements that express commitment cannot establish a free-
standing principle of customary law
3. Evidence of State Practice

Anything which demonstrates the choices and conduct of persons acting in their capacities as State
officials, or under the instructions or control of State officials, will provide evidence of State practice.
Stephen Hall, International Law (2nd ed, 2006) 33.

o General practice
Must generally be consistent over time, (normally) widespread, and involve
those states whose interests are likely to be affected by the relevant rule
Practice need not necessarily be entirely uniform
Nothing in principle preventing a rule of custom emerging very quickly
Military and Paramilitary Activities in and Against Nicaragua [1986] ICJ Rep
14, [186]
Practice of States applying the rule need to be of complete consistency,
nor in absolutely rigorous conformity
For custom to be deduced, it is sufficient that the conduct of States should,
in general, be consistent with such rules, and conduct inconsistent with
the rule should generally be treated as breaches of that rule, not as
indications of the recognition of a new rule
o Opinio juris
 Notionally as important as state practice, though often extensive state practice is
enough; conversely, where there is little state practice, opinio juris will assume
greater importance
North Sea Continental Shelf Cases [1969] ICJ Rep 3 (Harris, 21), and Military
and Paramilitary Activities in and against Nicaragua [1986[ ICJ Rep 14 give
requirements for establishing a rule of custom
Multilateral treaties good evidence of customary international law
(a) Declare or codify customary international law
(b) Crystallise custom
(c) Lead to the progressive development of custom
o The treaty provision said to establish customary norm needs to be
of a fundamentally norm-creating character
4. UN General Assembly resolutions as evidence of customary international law
o Un General Assembly resolutions:
Decision under Articles 4(2) (admission of new members), 5 (suspension form
membership), 6 (expulsion form membership, or 17 (UN budget) of the UN
Charter, they are legally binding on UN members
If they are recommendations they are not in an of themselves binding
If they are declarations of a universal character they may declare the existing
state of the law, or may give rise to the formulation of new customary norms
Be regarded as authoritative interpretation of the UN Charter
5. Persistent objectors
o A norm of customary international law will bind even states whose practice or opinio
juris has not contributed to its emergence
o A state that has persistently objected to a customary rule will not, however be bound by
it
o Anglo-Norwegian Fisheries Case (UK v Norway) [1951] ICJ Rep 116
Issue: whether there was a rule of customary international law prohibiting the
drawing of straight line baselines across bays wider than 10 miles
Held: rejection of the UKs argument that this was a customary limitation
applicable to Norway
Although the 10 mile rule had been adopted by certain States in their national
and treaties and conventions, other States have adopted a different limit
Hence, the rule has not acquired the authority of a general rule of
international law.
Additionally, the 10 mile rule would be inapplicable for Norway as she
has always opposed any attempt to apply it to the Norwegian coast
To succeed with [the] contention (not bound by a rule of customary international law), the state
concerned must be able to show that it had adopted and maintained a consistent policy of opposition
to the practice and to the establishing of any such rule as binding upon it. Donald W Greig, Sources of
International Law in Same Blay, Ryszard Piotrowicz and Martin Tsamenyi (eds), Public International
Law: An Australian Perspective (2nd ed, 2005) 52,60.

Other Sources of International Law

General principles of municipal law where these are applicable to international relations
Used to resolve disputes where treaties and custom could not provide guidance
General principles of international law and general principles of national law
o Diversion of Water from the Meuse Case [1937] PCIJ Rep, Ser A/B. No. 70.
Principles of equity long considered to constitute part of international law
o Part of natural law, not willed into existence by states or whose application to
international relations states have consented Stephen Hall, The Persistent Spectre:
Natural Law, International Order and the Limits of Legal Positivism (2001) 12
European Journal of International Law 269, 298.
Examples
 o Estoppel
o Legal professional Privilege
Case Concerning Questions Relating to the Seizure and Detention of Certain
Documents and Data (East Timor v Australia) ICJ
Judicial Decisions (municipal and international) and academic writings
Subsidiary means for the determination of rules of law
Spectacular growth of international courts, international judicial bodies are exerting a greater
influence on the development of international law than at any previous time
Though Art 59 of the Statute of the ICJ provides that the Courts decisions have no binding force
except between parties and in respect of the particular case, inevitably international judicial
decisions have precedential impact
Soft Law
A convenient description for a variety of non-legally binding instruments used in
contemporary international relations Alan Boyle and Christine Chinkin, The Making of
International Law (12007) 212-213
o Includes inter alia (among other things):
Inter-state conference declaration
UN General Assembly Instruments and Resolutions
Codes of conduct
Guidelines and recommendations of international organisations