THE SOURCES OF

INTERNATIONAL LAW

 At the end of this topic the students

should be able to:
List all the sources of IL
Define and distinguish different types
of treaties
Describe the formation and elements of
customary law
Describe the interrelationship between
treaties and customary law
Assess the importance of judicial
decision and writings of eminent jurists
as sources of IL

 Sources of international law

means those origins from where
international law attains its
authority and coercive agency.

* Article 38(1) of the Statute of the

ICJ provides that in determining the
rules of international law the Court
shall apply:
* (a) International Conventions whether
general or particular, establishing rules
recognised by the contesting states
* (b) International Custom, as evidence of
a general practice accepted by law
*(
c)
General
principles
of
laws
recognised by civilized nations
* (d) Judicial decisions and writings of
highly qualified publicists

 Article 38 is regarded as an
authoritative
statement
of
the sources of international
law.

* INTERNATIONAL CONVENTIONS
International conventions are generally
referred to as treaties.
What is a treaty?
Art. 2 Vienna Convention on Law of
Treaties
1969
(VCLT
1969)

an
international
agreement
concluded
between states in written form and
governed by international law, whether
embodied in a single document or in two
or more related instruments whatever its
particular designation.

 Treaties are referred to by

different
names:
agreements,
conventions,
covenants,
protocols, exchanges of notes,
pact, charter.
Treaties
can
multilateral,
global.

be
bilateral,
regional
and

 The
decisive
factor
for
a
particular instrument to be a
treaty is whether the instrument
is
intended
to
create
international legal rights and
obligations between the parties.
A state cannot use inconsistency
with domestic law as an excuse
for failing to comply with the
terms of a treaty.

 A treaty is based on consent

expressed
through
signature,
ratification, accession etc.
Once entered into effect, the treaty
is binding on the parties to it
principle of Pacta sunt servanda.
Article 26 of the VCLT 1969 : every
treaty in force is binding upon the
parties to it and must be performed
in good faith.

 Treaty-making capacity:
Entities generally regarded as
having treaty making capacity :
states and international
organisation.
States: head of state /head of
government and minster of foreign
affairs.

 Article
11
of
VCLT
1969
enumerates the ways in which a
state can express its consent:
By signature
By exchange of instruments
constituting a treaty
By ratification, acceptance
or approval
By accession

 Signature
The formal/official affixing
names to the text of treaty
the states representatives.
The effect of signature of
treaty depends on whether
not the treaty is subject
ratification.
If the treaty is not subject
ratification or is silent
this point, the instrument
presumed to be binding.

of
by
a
or
to
to
on
is

Exchange of instruments
the consent of states to
be bound is expressed by
the exchange itself if the
instruments so provide or
if it is otherwise agreed
by
those
states
that
exchange should have that
effect.

 Ratification
The approval of a treaty. Takes
place when the document of
ratification
is
exchanged
/
deposited.
Reasons for ratification: the
treaty
may
requires
legislation/
treaty
is
not
valid without consent on the
part of Parliaments.

 Accession
the formal agreement of a
country
to
an
international treaty if it
is unable to sign the
treaty for a reason. E.g.
the dateline for signature
has passed.

 Reservation to treaties a
unilateral statement made by a
state when signing, ratifying,
accepting, approving or acceding
to a treaty whereby it purports
to exclude or to modify the
legal
effect
of
certain
provisions of the treaty in
their application to that state.

 Article 19 of VCLT 1969 prescribe the

basic rule that a state may formulate a
reservation unless:
The reservation is prohibited by the
treaty.
The
treaty
provides
that
only
specified reservations which do not
include the reservation in question
may be made.
The reservation is compatible with
the object and purpose of the treaty.

 Only those states which have

accepted those treaty provisions
are bound, unless it can be
established that the treaty has
become
part
of
customary
international law.
Unlike customary rules, treaties
possess considerable precision.

 TERMINATION OF TREATIES:
Material breach
Article 60(3) defines a material
breach as
(a)Repudiation of the treaty not
sanctioned
by
the
present
Convention.
(b)Violation
of
a
provision
essential to the accomplishment
of the object and purpose of the
treaty.

Supervening impossibility of
performance
Article
61
limits
this
ground to the permanent
disappearance or destruction
of an object indispensible
for the execution of the
treaty.

 Fundamental change of circumstances

(rebus sic stantibus)
All treaties are concluded subject
to
an
implied
conditions
that
things remaining as they are.
It may not be invoked in relation
to a treaty establishing boundary
and if the change was caused by a
breach of its own international
obligations,
either
under
the
treaty in question or any other
international agreement.

*CUSTOMS

Customary
international
law
refers to law which has evolved
from the practice of states.
Examples of rules of customary law:
-giving
foreign
diplomats
criminal immunity
-recognise the right of innocent
passage
-protecting non-combatants during
international armed conflict

 The essential elements:

State practice
Opinio juris

State practice
Generality: Common and widespread
practice
among
a
significant
number of states is required.
Consistency: State practice must
be
reasonably
consistent

complete
consistency
is
not
required.

 What
acts
practice?

constitute

State

the actual words and actions

and omissions of states

The evidence of state practice:

Treaties
Judicial decisions
National legislation
Diplomatic correspondence
Opinions of national legal advisers
Resolutions
relating
to
legal
questions of
the General Assembly
Practice
of
international
organisations

 When there has been a widespread

and
consistent
state
practice,
silent
by
others
may
be
interpreted as acquiescence.
Presumption
of
acquiescence;
whether or not the states have
participated in the practice they
are presumed to have assented to
the
rule
unless
they
can
demonstrate
that
they
are
a
persistent objector.

 Opinio juris
The practice must be accepted
by states as law.
Absence
of
protests
and
objections against a practice
tends to prove that it is
accepted as law.

 Interaction
treaty :

between

custom

and

Codification (i.e treaty codify preexisting customary law)

Crystallisation (i.e treaty helps to
identify
incipient
rules
of
customary law)
Formation (i.e treaty is at the
basis of the formation of a new
customary law)

North Sea Continental Shelf cases

GENERAL PRINCIPLES OF LAWS

PRACTISED BY CIVILISED NATIONS

AS

Legal principles which are firmly

established in all or most of the
national legal systems; based on
natural justice / legal logic/ statutory
interpretation.

 To be utilised when the two primary

sources are unable to provide a solution.
E.g
The duty to provide reparation in the
event of a wrongful act
The principles of good faith
Estoppel
Proportionality
Nemo judex in causa sua
Res judicata

*JUDICIAL DECISIONS AND WRITINGS

OF HIGHLY QUALIFIED PUBLICISTS
As a subsidiary means for the
determination of rules of law.
Article 59 of the Statute of the
ICJ : the decisions of the court
has no binding force except
between
the
parties
and
in
respect of that particular case

 No concept of stare decisis in

respect of the decision of the
ICJ.
In
principle,
international
courts are not obliged to follow
previous decisions, however in
practice
they
almost
take
previous decisions into account
- Judicial consistency.

OTHER POSSIBLE SOURCES:

Resolutions of
organisations

organs

of

international

declare principles of IL in abstract terms or that

apply such rules to a particular case.
The General Assembly and the Security Council
resolutions are of particular importance.
E.g
GAR 217 A Universal Declaration of Human Rights
GAR 2131 Declaration on Non-intervention

Soft laws
a body of guiding principles, standards, rules of
conduct or declarations of policy which are not
strictly binding law.
Can be found in treaty not yet in force or in
resolutions or declarations of international
organisations.
E.g
1992 Rio Declaration on Development and
Environment

Equity
General principle of fairness and justice.
In the North Sea Continental Shelf case:
the ICJ incorporated equitable principles
into its statement of a rule fro the
determination
of
continental
shelf
boundaries.
In Gulf of Maine case: the court stated that
the concepts of acquiescence and estoppel
in IL follow from the fundamental principles
of good faith and equity.

THE HIERARCHY OF THE SOURCES:

Jus cogens a rule/ principle
in IL that is so fundamental
that it binds all states and
does not allow any exception.
E.g.
the
use
of
force,
genocide, slavery, piracy
Treaty
Custom
General principles