Unit 2: The Sources of

International Law Part 1

Ella Siangandu

The Sources of International Law

(IL)
source refers to the origin of IL
Source is the process by which the rules become

identifiable as rules of law Tim Hillier (1998) P,

62
Source is not to be confused with the basis of IL
which is based on common consent of the
international community.
Its common to distinction between the formal &
material sources of IL
Formal - Formal source is the source from which
a legal rule derives its validity (Creates Law)

Sources of IL
Material provide evidence of the existence of

rules which when proven become legally binding

rules of general application.
Thus state practice, practice of interl organisations,
judicial decisions, writings of jurists& resolutions R
all material sources they indicate what the
obligations of states are rather than the method by
which those obligations become legally binding.
i.e. formal source of a particular rule may be
custom, although its material source may be found
in a treaty many years ago (Jennings & Watts (eds)
1992) p.23*

Article 38 of statute of the

international court of justice
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 recognised by the contesting states;
b, International custom, as evidence of a general practice
accepted as law;
c. The general principles of law recognised by civilised nations;
d. subject to the provisions of Articles 59*, judicial decisions and
teaching of the most highly qualified publicists of the
various nations, as subsidiary for the determination of the 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*
Court can decide a case ex aequo et bono Crt could apply equity
subject to parties of the dispute agreeing.

Article 38(1) - I
Art 38 is the traditional starting point for discussion of sources

of international law.
Apart from a few formal changes the article is similar to the
Statute of the Permanent Court of International Justice (PCIJ).
Art 38 does not use the term source but rather describes how
the Crt is to settle disputes which come before it for
settlement.
Art 38 does not refer to resolutions of the United Nations (UN)
or any international Organisation which resolutions may play a
significant role in IL and arguable constitute a sources of law.
A question that could be considered at the end of the session
is to consider the extent is Article 38 to be regarded to
constitute a comprehensive list of sources of international law.
Another question which arises from Art.38(1) is whether it
creates a hierarchy of sources.

Article 38(1) - II
No rigid hierarchy of sources
It is argued that it was the intention of the

draft man for the court to observe the order

in which they appear
It is obvious that treaties and custom are to
be regarded as important necessary to
grant treaties priority because it source of
mutual obligations of the parties.
Further reading on Article 38 Read Dixon
Textbook on International Law

International Conventions
Means treaties
Conventions/treaties are described by various names e.g.

covenant, modus vivendi, exchange of letters,

memorandum of understanding, protocols, accords,
Charter, pact or statute.*
Substance rather than name that is important
Article 2(1) (a) Vienna Convention on the Law of Treaties
(VCLT) 1969 - Defines a treaty as an international
agreement concluded between states in written form and
governed by international Law
Consensual engagement at international law
(Schwarzenberger)
Treaties may be bilateral or multilateral.
They may create a General & particular treaties

General Treaties- I
AKA traite loi or legislative treaties (Law making)

misleading term given the absence of any central

legislative authority in the international system
They are like legislation in the domestic scene
They are only binding on states that have signed
the treaties/ or become a party to treaty.
i.e. multilateral treaties or treaties to which a
significant number of states have become party and
which establish legal obligations between them.
Creates general norms for the future conduct of
parties- obligations created are the same for all
parties.

General Treaties- II
Multilateral treaties may be used for a variety of

purposes such as
Establishing a general legal regime
Creating international institutions
Examples of General Treaties
The Declaration of Paris Treaty, 1856 (neutrality in
maritime warfare)
The Hague Conviction 1899 & 1907 (Law of war &
neutrality)
The Geneva Protocol 1925 (prohibition of weapons)
Geneva Convention 1948
The United Nations Charter

Particular Treaties
2) Treaties concluded between a limited number of

states traite contrat bipartite or bilateral

treaties
Such treaties may be used to
Agree a boundary
Establish most favoured nation trade relations
Agree air transport routes etc.
Fitzmaurice Treaties sources of obligation rather
than sources of law
General Rule: Treaties are binding only upon the
states parties (pacta tertii nec nocent nec prosunt)

Exceptions
Exception to the general rule treaty can be

extended to parties who are not a party to treaty in

certain occasions;
North Sea Continental Shelf cases* (1969) ICJ Rep,
p.3;41 ILR 74.
Case had to determine the extent to which the
German Federal Republic was bound by the
provisions of the Continental Shelf Convention which
it had signed but not ratified.
Court held by eleven votes to six, that it was only
bound by the provisions of the first three articles of
the convention which was based on pre-existing
customary law.

Treaties may be capable of producing effects which are

objectively binding upon third parties;
a. Establishing a territorial regime for a particular
area (dispositive treaty)
Aaland Island LNOJ Official Supplement No 3, 1920, 18
B. Creating an international organisation
(constitutive treaty)
i.e. UN Charter Article 2(6) The org shall ensure that
states which are not members of the UN act in
accordance with these principles so far as may be
necessary for maintenance of international peace
and security.

Exceptions II
Reparations Case (1949) ICJ Rep, p 174; 16 ILR 318
The UN. Is a subject of international Law and is

capable of possessing international rights and

duties and . Has capacity to maintain its rights
by bringing international claims. P.174
C. Treaties can codify Customary International Law
Nicaragua v. US ( Paramilitary Activities Case)
(1986) ICJ Rep, p. 14; 76 ILR 349.
D. can also lead to creation of customary
international law (CIL)
North Sea Continental Shelf Cases (1969) ICJ Rep,
p. 3; 41 ILR 29

Treaty in question need not be in force to

produce such effects (countries cannot be

forced to comply)

International Customary Law- I

Art 38(1) (b) defines custom as:
evidence of general practice accepted as law
Need to show
1. General practice and
2. That the practice is accepted as law.

Therefore custom is a practice followed by those

involved because they feel legally obliged to
behave in such a way.
Custom must be distinguished from mere usage
such as acts done out of courtesy, friendship or
convenience rather that out of obligation.

International Customary LawII

Corresponds to proof of
1. Material element (corpus) &
2. Mental element (animus)
.States seeking to rely upon a rule of customary

international law in a dispute must prove its existence.

.Lotus Case (France v Turkey) PCIJ, Ser. A, no. 10 p. 18
.French ship collided with a Turkey ship killing 8 people
.Turkey prosecuted the 2 people from the French crew
.Court held in favour of Turkey.
.Asylum Case (Colombia v Peru), (1950) ICJ Rep. p. 266;
17 ILR 280.

Material element (corpus)

Evidence of this is derived from state

practice
However the evidence of state practice
alone is not sufficient to establish the
material element in the formation of
custom.
Must be shown that practice is
1. Uniform and consistent
2. Sufficiently general
3. of acceptable duration

Evidence of state Practice - where

to find it -I
State practice includes but not limited to activities could be

omissions.
Evidence of state practice consists of acts or statements
having legal significance can be found in the following:
1. Diplomatic correspondence & other diplomatic exchanges
2. The opinions of governmental legal advisers
3. Statement by competent government officials
4. Military manuals
5. Treaties
6. Domestic Legislation
7. International & national Court decisions
8. Memorials submitted to international tribunals
9. Statements and voting patters in international organisation
etc

Evidence of state Practice - where

to find it -II
These factors were listed in 1950 by the

International Law Commission as classical

forms of evidence of customary
international law
Value of the named examples of state
practice must be weighed according to
their reliability i.e.
Statements made in international political
forum may not have the same level of
credibility as the opinions of legal officers.
Statutes may be in force but may not be
enforced in fact by national authorities.

Uniform and consistent - I

Absolute (complete) uniformity and consistency is

NOT required
But core of state practice must exhibit these
criteria
Nicaragua v US (Paramilitary Activities Case) (1986)
ICJ Rep, 12 crt held that:
In order to deduce the existence of customary rules,
the crt deems it sufficient that the conduct of states
should, in general, be consistent with such rules,
and that instances of state conduct inconsistent with
a given rule should generally have been treated as
breaches of that rule not as indicators of the
recognition of a new rule.

However
Court went further & said
Reliance by a state on a novel right or an

unprecedented exception to the principle might,

if shared in principle by other states tend towards
a modification of customary international law
Leading decision Asylum case ICJ Reports (1950)
176-7
Crt held that before state practice could be
acknowledged as law the Colombian government
had prove that the rule invoked by it is in
accordance with a constant and uniform usage
practiced by the states in question.

Case between Colombia v Peru which concerned

political asylum after an unsuccessful rebellion in Peru

one of the leaders was granted asylum in the Colombian
embassy.
Colombia sought a guarantee of safe conduct of the
leader out of Peru which was refused.
Colombia took the matter to the ICJ & asked for a ruling
that Colombia as a state granting asylum was
competent to qualify the offence for the purposes of
granting asylum.
Colombia argued for the ruling on the basis of Art. 38 of
the statute of the Court which refers to Interl custom as
evidence of a general practice accepted as law

.
Facts brought to the knowledge of the Crt of so

much uncertainty, contradiction, fluctuation

and discrepancy in the exercise of diplomatic
asylum & in the official views expressed on
various occasions
Absence of inconsistency on the issue- practice
was influenced by political expediency.
On that basis Court found that it was
impossible to find any constant and uniform
usage accepted as law as there was too much
fluctuation and inconsistency.

ICJ made a similar ruling in

Fisheries case ICJ Reports (1951), 116 at

131.
Held there was no uniformity or consistency
of practice requiring States to limit closing
lines for bays to a maximum of 10 nautical
miles as argued by the UK.
Accordingly substantial uniformity is

required as illustrated in the Fisheries case*

- Crt refused to accept the existence of a
10 mile rule for bays.

Sufficiently general/Generality
Practice needs to be consistent.
Universality is not required does not require every state to do it
Under Art 38 (1) (b) what matters is that it has to be accepted as

law.
No requirement that a specific number of states needs to
participate in practice for it to reach the standard required for
the creation of custom.
Asylum case Colombian Government was asked to prove the
rule invoked in accordance with a constant and uniform usage
practised by the states in question.
It does not matter how many states are practicing as long as it is
constant & uniform.
In Fisheries Jurisdiction Case ( United Kingdom v Iceland)* ICJ
referred to the extension of a fishery zone up to 12 mile limit
which now appears to have been generally accepted.

Duration
No particular duration is required
No requirement that a practice must have

existed for a specific length of time.

Absence of emphasis on the time element.
If the two elements of custom are present
in strong measure (Uniform ,consistent and
generality) then time factor is insignificant.
This was evident in the North Sea
Continental Shelf Cases Cases involving
the federal Rep of Germany, Denmark &
Holland and a dispute over the continental
shelf.

North Sea Continental Shelf

Cases
ICJ said
Although the passage of only a short period

of time is not necessarily, or in itself, a bar

to the formation of a new rule of customary
international law. An indispensable
requirement would be that within the
period in question, short though it might
be, state practice should have been
both extensive and virtually uniform
and should moreover have occurred in such
a way as to show a general recognition that
a rule of law or legal obligation is involved.

Mental/Psychological element
(animus)
Opinio Juris Sive Neccessitatis ( It is a belief in the obligatory

nature of the conduct in question or necessity)

Mental element is a necessary element in the formation of
custom
Referred to as Opinio juris
Idea that it is not enough for formation of customary law that
there is a general, uniform and consistent state practice.
In order for this practice to constitute law, states must
recognise it blinding upon them as law.
State practice must be accompanied by a belief that the
practice is obligatory rather than merely convenient or
habitual.
OJ is the subjective conviction held by states that the
behaviour in question is compulsory & not discretionary.

Opinio juris
The belief of the obligatory nature of practice is called Opinio

juris.
In the Lotus case, PCIJ emphasised that Opinio juris was an
essential element in the formation of customary interl law.
View was restated in North Sea Continental Shelf Cases where
ICJ stated as rigorous as PCIJ in requiring proof of Opinio juris.
Not only must acts concerned amount to a settled practice,
but must also be such or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such a
belief, i.e. the existence of a subjective element is implicit in
the very notion of Opinio juris sive necessitatis. The states
concerned must therefore feel that they are conforming to
what amounts to legal obligation.

The existence of notion of Opinio juris makes it easy to

distinguish state practice amounting to law from other

state activities which states do out of friendship
However as much as it is easy enough to understand
the need for Opinio juris.
It is not so easy to see how it can be established.
It is very rare that we see state give an account for why
they have acted in a particular way.
On this issue ICJ said in North Sea Continental Shelf
Cases that the frequency or even habitual character
of practice is not enough to establish Opinio juris.
Implication is that cannot be inferred from practice
alone.

Relationship between Treaty &

Custom
Customary & treaty Law have equal authority.

However if there is a conflict between the two it is

the treaty law that prevails. This point is illustrated
by the Wimbledon case (1923)*
In case PCIJ while recognising that CIL prohibited the
passage of armaments through the territory of a
neutral state into the territory of belligerent state,
upheld the Treaty of Versailles Art 380, which
provides that Kiel canal was to be a free & open to
all commercial vessels & warships belonging to
states at peace with Germany.
In stopping a vessel of a state with which was at
peace, Germany was in breach of treaty obligations.

Tutorial
1. Article 38 is to be regarded to constitute a

comprehensive list of sources of

international law- Discuss