SOURCES OF INTERNATIONAL LAW

Formal sources refers to various processes by which rules come into existence, i.e. legislation, treaty making and
judicial decision making as well as the practice of states.
Material sources not concerned with how rules come into existence but rather with the substance and content of the
obligation. E.g. state practice, UN Resolutions, treaties, judicial decisions and the writings of jurists; referred to as
evidence of international law.
Article 38 of the Statute of the International Court of Justice is primarily a directive to the Court on how it should
resolve conflicts brought before it. Article 38 says:
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 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 ex aequo et bono, if the parties agree thereto.
Restatement (Third) of Foreign Relations Law of the United States, another source, says:
1. A rule of international law is one that has been accepted as such by the international community of states
a) in the form of customary law;
b) by international agreement; or
c) by derivation from general principles common to the major legal systems of the world.
2. Customary international law results from a general and consistent practice of states followed by them from a sense
of legal obligation.
- This statement contains the two basic elements of custom:
a. the material factor, that is, how states behave. Elements are duration, consistency, and generality of the practice of
states.
North Sea Continental Shelf Cases: . . Although the passage of only a short period of time is not necessarily, or of
itself, a bar to the formation of a new rule of customary international law on the basis of what was purely a
conventional rule, an indispensable requirement would be that within the period in question, short though it might be,
State practice, including that of states whose interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked 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.
Uniformity and generality of practice need not be complete, but it must be substantial. In Nicaragua v. United States
(ICJ Reports 1986), the Court said that the practice need not be in absolute conformity with the purported
customary rule. It said:
In order to deduce the existence of customary rules, the Court 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 indications of the recognition of a new rule.
b. and the psychological or subjective factor, that is, why they behave the way they do.
Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter
of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law. ... Even humanitarian consideration by itself does not constitute
opinio juris.
Nicaragua Case: Either the States taking such action or other States in a position to react to it, must have behaved so
that their conduct is 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 the opinio juris
sive necessitatis.
3. International agreements create law for the states parties thereto and may lead to the creation of customary
international law which such agreements are intended for adherence by states generally and are in fact widely
accepted.
4. General principles common to the major legal systems, even if not incorporated or reflected in customary law or
international agreements, may be invoked as supplementary rules of international law where appropriate.
DISSENTING STATES; SUBSEQUENT CONTRARY PRACTICE
Dissenting states will be bound by custom unless they had consistently objected to it while the custom was merely in
the process of formation. Dissent, however, protects only the dissenter and does not apply to other states. Moreover,
a state joining the international law system for the first time after a practice has become law is bound by such
practice.
It is also possible that after a practice has been accepted as law, contrary practice might arise. Such contrary practice
can cast doubt on the alleged law. Over time, if the contrary practice should gain general acceptance, it might instead
become the law.

EVIDENCE OF STATE PRACTICE AND OPINIO JURIS

These can be treaties, diplomatic correspondence, statements of national leaders and political advisers, as well as
the conduct of states. By themselves, however, they do not constitute customary law unless characterized by opinio
juris. The existence of opinio juris is a matter of proof. The burden of proving its existence falls on the state claiming
it. Opinio juris may be deduced from the attitude of parties and states to a particular law. Consent to such resolutions
is one of the forms of expression of an opinio juris.
INSTANT CUSTOM
It comes about as a spontaneous activity of a great number of states supporting aspecific line of action.