THE SOURCES OF

INTERNATIONAL LAW
*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.
 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.
 A state cannot use inconsistency
with domestic law as an excuse for
failing to comply with the terms of a
treaty.
 Treaty-making capacity:
subjects of international law
(those possess international
personality i.e states, international
organisations) can make treaties.

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.
 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 of
names to the text of treaty by the
states representatives.
The effect of signature of a treaty
depends on whether or not the
treaty is subject to ratification.
If the treaty is not subject to
ratification or is silent on this
point, the instrument is presumed
to be binding.
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.
 Interaction between treaty and
custom treaty as a material source of
customary law:
It may be declaratory of a rule of
customary IL.
It may crystallise a rule of customary IL
It may serve to generate a rule of
customary IL

Treaty as a material source of customary

law:
North Sea Continental Shelf cases
 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

Common and widespread practice

among a significant number of states
is required.

State practice must be reasonably

consistent complete consistency is
not required.
 What acts constitute State
practice?

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.
GENERAL PRINCIPLES OF LAWS AS
PRACTISED BY CIVILISED NATIONS

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:

General Assembly resolutions

declare principles of IL in abstract terms or that
apply such rules to a particular case.

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.
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.
Treaty
Custom
General principles