UNIT 2: THE

SOURCES OF
INTERNATIONAL
LAW PART 2

THE RELATIONSHIP BETWEEN

CUSTOMARY & TREATY

Custom & treaty should never be thought to

be in competition of each other
Both major sources of law
Relationship between treaty & custom
Treaty may codify custom or lead to the
development of new customary law through
state practice.

WHERE CUSTOM & TREATY ARE

COMPLEMENTARY

Where custom & treaty law stipulate the same or similar

legal obligationsRead the case Nicaragua v USA
Parties to the treaty will be bound by the treaty & nonparties will be bound by custom.
Case makes it clear that custom does not cease to bind
a state even if it is a party to a treaty stipulating the
same obligations.
In this case, state is bound by both custom & treaty law.
In Nicaragua case both USA and Nicaragua were bound
by the prohibition on the use of force as provided for
under the UN Charter (the treaty) & by a similar
obligation in customary law.

WHERE CUSTOM & TREATY

CONFLICT

If the treaty is later in time than custom- Treaty

will prevail- this is because treaties are based on
consensus.
Where contrary custom is developed following the
adoption of the treaty the possible is unclear
however
Where custom is later in time than the treaty
implication is that custom will prevail especially
since non-parties to the treaty would be bound by
custom.
Another view is that treaty will continue to govern
the relations between the parties even through a
new practice has developed.

ICJ will try and avoid a situation where it will

rule that custom & treaty are conflicting.
In Continental shelf delimitation the
equidistance principle was interpreted in a
manner which would not impinge the
development of customary international law.
This same situation was followed in AngloFrench Continental Shelf Case (1979) 18 ILM
397
The general superiority of treaties is displaced
where the rules of jus cogens are concerned.

Art 53 of the Vienna Convention on the law

of Treaties 1969 states;
[A] treaty is void if, at the time of its
conclusion, it conflicts with a peremptory
norm of general IL... a peremptory norm
of general IL is a norm accepted &
recognised by the International community
of states as a whole as a norm from which no
derogation is permitted & which can only be
modified only by a subsequent norm of
general IL having the same character.

JUS COGENS

Rules of jus cogens are rules of customary international

law that are so fundamental that they cannot be
modified by treaty.
Any treaty provision which conflict with a rule of jus
cogens is void.
This is true regardless of whether the rule jus cogens
developed before or after the treaty came into force
(Art. 64 Vienna Convention on the law of Treaties 1969)
In reality it is very unlikely that that peremptory norms
are changed into new rules
Unfortunately, there an absence of universal agreement
as to which rules of customary international L have
attained the status of jus cogens therefore no examples
are given under Art.53 VCLT.

EXAMPLES OF JUS COGENS

following judgement in Nicaragua v USA an example of jus

cogens is the prohibition of the use of armed force in
international relations
The sovereign equality of states
Freedom in the high seas
The right of self-determination (case concerning East
Timor (Portugal v Australia) 1995 ICJ Rep 89
The prohibition of genocide
Therefore a treaty concluded between two states with the
purposes of intending to help each in attacking another
state such a treaty will be unlawful & void.
Treaties intended to establish military alliances such as
NATO are not contrary to jus cogens because they concern
mutual defence which is lawful.

GENERAL PRINCIPLES OF LAW

Para 1( C) of Art 38, Court may consider
general principles of law recognised by
civilised nations;
Phrase is included for the purposes of
excluding primitive or underdeveloped
systems
Restricted to main system of law with a
particular state.

GENERAL PRINCIPLES OF LAW- II

Provision included in statute in order to

avoid NON LIQUET or a situation in which
judgment may not be given in a case by
reason of the absence of any IL on the point.
General principles could be either
Substantive or procedural
Include rules & norms common in all legal
systems
Concepts which have been borrowed from
municipal legal systems.

EXAMPLES OF GENERAL
PRINCIPLES OF LAW- I
The right of legal persons to go to court to
settle disputes
The right to be heard by a court before
judgement is pronounced.
[US Diplomatic & Consular Staff in Tehran case
(US v Iran) 1980 ICJ Rep 3
Nicaragua v USA

EXAMPLES OF GENERAL
PRINCIPLES OF LAW- II
Obligation to make reparation for violation of
law
Chorzow Factory Case (Merits), PCIJ, ser, A, no
17.p29; 4 ILR 258
.the court observes that it is a principle of
IL, & even a general conception of law, that
any breach of an engagement involves an
obligation to make reparations p.29

EXAMPLES OF GENERAL
PRINCIPLES CONT.

Res judicata
Cannot be a judge in your own cause
Effect of the Award of the UN Administrative
Tribunal (1954) ICJ Rep. 53; 21 ILR.
Principle of estoppel or preclusion as used in
domestic legal system.
Idea that no man shall profit from his own
wrong or one cannot rely on his own breach
Eastern Greenland Case (1993), PCIJ,
Temple case, ICJ Rep (1962),

TEMPLE CASE, ICJ REP (1962),

Case involved Thailand (formerly Siam) & Cambodia,

formerly part of French Indo-China.
Two states were in dispute over section of the
frontier
Cambodia successfully relied on a map of 1907 which
the predecessor French authorities has produced at
the request of the Siamese Government.
The map clearly showed the Temple area as part of
the French Indo-China.
The Siamese authorities , far from protesting at
error, had thanked the French for preparing the map
& requested for a number of copies.

TEMPLE CASE CONT.

Siamese prince paid a state visit to the

disputed area & was officially received by
the French authorities.
The two events together were seen by the
ICJ as conclusive & found that Thailand was
precluded by its conduct from denying the
frontier indicated on the map

JUDICIAL DECISIONS- I

Not a formal source of IL

Regarded as authoritative evidence of state of
law
Art 38(1) (d) they are referred to as subsidiary
means for determination of rules of law
Idea is that Courts role is to apply the law & not
make it
Art 59 of Statute of ICJ role of crt is to settle
disputes and not shape the law
Under art 59 decisions of crt has no binding force
except on parties to the dispute on that
particular case.

JUDICIAL DECISIONS- II

Art 59 rules out doctrine of stare decisis (or binding

precedent.
However it is obvious that Crt has contributed
towards shaping of IL
In its decision ICJ would turn to maintain consistency
Ie case on Exchange of Greek & Turkish populations
(1925) PICJ crt referred to precedent from its
advisory the wimbledon case in respect to the idea
that treaty obligations do not in any way lead to the
abandonment of sovereignty.
Reparations crt relied upon its previous advisory
opinion (competence of ILO to regulate , incidentally,
the personal work of the employer (1925) PCIJ.

Art 38 (1) (d) of statute of ICJ is not

restricted to international decisions
But also extends to decisions by national
courts
International tribunals regardless of whether
they are ad hoc or permanment

THE WRITING OF PUBLICISTS

Art 38 (1) d includes teaching of the most highly

qualified publicists of the various nations, as
subsidiary for the determination of the rules of
law
Source only constitutes material or evidence of IL
Today the writings of the most respected lawyers
cannot create law!
Past writings of publicists was highly regardedWriters played significant role in the development
of IL thus their incorporation within Art 38
i.e. Grotius and many others

EQUITY- I
Art 38 (2) statute of ICJ
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.
Equity- used in sense of consideration of fairness
or reasonableness, Justice.
Equity is source of IL in the sense that it could
influence the manner in which the substantive
law is applied.

EQUITY- II

Equity is an important factor in producing a decision

Diversion of water from the River Meuse (937), PCIJ;
Judge Hudson held principles of equity have long
been considered to constitute a part of IL & as such
have often been applied by international tribunals
Judge further stated; equality is equity & stated a
state seeking the interpretation of a treaty must
itself have completely fulfilled the obligations of
that treaty
(could also argue that it is equitable principle of
estoppel in its operation)

ICJ confirmed the view Continental Shelf

(Tunisian/Libyan Arab Jamahiriya) case
(1982)
Equity is a legal concept is a direct emanation
of the idea of justice. the court is bound to
apply equitable principles as part of IL & to
balance up the various consideration which it
regards as relevant in order to produce an
equitable result.

OTHER SOURCES

Acts of International Organisation

Omitted from list of materials that Crt may
consider in settling disputes
i.e. Resolutions of the General Assembly
General rule: Resolutions are not binding on
member states
Exceptions: Resolution concerned with the
internal matters of the UN i.e. admission of new
states, election to security council, budget,
appointment of judges all legally binding.
Issue within competence of the UN

RESOLUTIONS OF THE UN
GENERAL ASSEMBLY

However there are certain resolutions are

law-making in character or external effect
These will be affirming the general norms
accepted in IL by majority of states
UN GAs adoption of Declarations ie
Declaration on Principles of IL concerning
Friendly Relations & Co-operation among
states (GA Resolution 2625 (XXV) (1970).
The Declaration on the granting of
Independence to Colonial Countries &
peoples (GA R no1514 (1960)

However some declaration by the GA are not

intended to express legal rights & obligations
E.g The Universal Declaration of Human Rights
(GA Res 217) which expressly stated to proclaim
a standard of achievement
Rio Declaration on the Environment 1992
soft law
Not binding on states
Function of soft law is to act as a signpost to
the international community to signal the
direction in which it is thought appropriate that
CIL might develop.

SUMMARY -I

Traditional starting point for sources of IL is

Art 38 of SICJ.
Treaties only way states can create IL
knowingly.
Treaties may be bilateral or multilateral
They only bind states that become a parties
However could promote development of
customary law

SUMMARY - II

Customary International Law (CIL) Is law

which has evolved from the practice of states
Customary law is derived from general,
uniform & consistent state practice together
with a belief that the practice is obligatory
(opinio Juris).
A treaty may modify or replace CIL
However there are some fundamental rules
of CL (rules of jus cogens) that may not be
changed by treaty.

SUMMARY - III

General principles of Law- derived from all legal

systems- rules common to all legal systems.
Principles of equity, general principles of IL.
Judicial decisions
Subsidiary means for determination of law
In practice play a role in clarifying sources of
law
Include decisions of ICJ, International tribunals,
courts & national courts.
Writing of Publicists provide support for the
sources of law, could provide clarification,
subsidiary.

SUMMARY - IV

Omitted in art 38 of SICJ

But can play a role in clarification of
customary law, development of CL
Could include resolutions of General
Assembly,
Security Council

READINGS ON SOURCES OF IL

Harris - Chapter 2
Dixon Chapter 2
Hiller Chapter 3
Brownlie Chapter 1