Sources of International Law

Sources of International Law
Dr. Raju KD
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL/-2011 1
Sources
1. Custom
2. Treaties
3. Decisions of judicial or arbitral tribunals
4. Juristic works
5. Decisions or determinations of the organ of
international institutions.
A.38 of ICJ statute
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 the 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.
Formal source
Legal procedures and methods for the creation of rules
of general application which are legally binding.
Municipal law constitutional machinery of law
making
Material source
Evidence of existing rules, when proved, have the
status of generally binding rules of general application.
It is difficult to maintain the difference between formal
and material source in international law.
Evidences of existing consensus among states
Decisions of the International Court of Justice
Resolutions of General Assembly
Law making multilateral treaties
Custom-usage
The term custom and usage are often used
interchangeably.
Usage represents the initial stage of custom.
Custom begins where usage becomes general.
Usage is an international habit of action that has not
yet received full legal attestation.
Usage may be conflicting
Custom may be unified and self-consistent.
Custom
Ancient Greece rules of war
Custom crystallise from practices or usages which have
evolved in three circumstances:
1. diplomatic relations between states declarations,
advises to states, official statements evidence of
usage.
2. Practice of international organs conduct or
declarations
Reparation Case advisory opinion of ICJ, 1949.
Custom
3. state laws, decisions of courts, administrative
practices.
The Scotia (1871) US Supreme Court
Adoption of maritime rules on preventing collision at
sea.
1863-Adoption of British Government - 1864
American congress adopted the same rules
Collision between Scotia and Berkshire
International Custom
A.38 of ICJ statute defines: evidence of a general
practice accepted as law.
legal norms that have developed through the
customary exchanges between states over time.
General recognition among states of a certain practice
as obligatory.
Opinio juris
Usage: it is a general practice which does not reflect a
legal obligation.
Custom
Customary international law is something done as a
general practice not because it is expedient or
convenient, but because it is considered law, out of a
sense of legal requirement (opinio juris).
Element 1: General practice.
Element 2: States do it out of a sense of legal
obligation.
What constitutes state practice?
How much practice is required?
How much consistency is required?
Requirements
Duration
Uniformity and Consistency
Repetition
Generality of a particular practice of states
Time immemorial not necessary
A peremptory norm (also called jus cogens, Latin for "compelling law")
is a fundamental principle of international law which is accepted by the
international community of states as a norm from which no derogation
is ever permitted.
Examples include various international crimes; a state which carries
out or permits slavery, genocide, war of aggression, or crimes against
humanity is always violating customary international law.
Duration
Uniformity, consistency and generality of practice
Passage of time
Complete uniformity is not required, but substantial
uniformity is required - Fisheries case, ICJ Reports
1951.
ICJ refused to accept the 10 mile rule for bays.
Asylum case, ICJ Reports 1950 the customary law
must be in accordance with a constant and uniform
usage practiced by the states in question. regional
custom.
The Paquete Habana (1900)
The Paquete Habana case relied on edicts and
agreements as far back as 1403.
The Paquete Habana and the Lola were Cuban fishing
boats that were seized by the U.S. during the Spanish-
American war.
The U.S. District Court said that the Navy had acted
within its authority, under Federal statute.
Cubans argued violation of international law
Established rule of international law had existed to
protect small fishermen from wartime seizures.
Asylum Case (1950)
Haya de la Torre, Peruvian national granted asylum in
Columbian embassy in Lima.
Political asylum
No match between domestic law and international law
Variety of conflicting and contradictory evidence
shows it is not a custom.
Concurrence of the major powers of that field.
Asylum case
Facts:
Torre, the unsuccessful leader of a military rebellion in Peru in 1948,
sought political asylum in the Columbian embassy in Lima. Peru refused to allow
Torre to leave the country, and insisted he be given over to Peru to be tried for
military rebellion. Dispute referred to the ICJ, which first decided that Columbia
had no treaty right to declare that Torre was entitled to the status of a
political offender eligible for political asylum. The ICJ then turned to customary
international law.
Issue:
Whether there is an custom so established that it is binding to allow Columbia to grant
political asylum.
Holding: No evidence as to custom allowing Columbia to grant political asylum and
binding Peru
Portugal v. India (1960)
Customary relations between nations becoming
binding.
Portugal had territory within India, and India wouldnt
let the Portuguese move their military and equipments
back and forth to the enclaves.
India asserted the rights that Portugal had enjoyed,
and the right of passage only applied to civil activities.
ICJ held that a particular practice between two states
only, which is accepted by them as law, may give rise to
a binding customary rule between the two.
Generality of practice
Complements that of consistency.
Lotus case, absence of protest is not an evidence of
general acceptance.
Court not accepted the continuous conduct as prima
facie evidence of a legal duty and required a high
standard of proof.
Fisheries Jurisdiction case, United Kingdom v. Iceland:
extension of a fishery zone up to 12 mile (not 10) limit
is now accepted among states as a preferential rights
for coastal states.
Evidence
Diplomatic correspondence
Policy statements
Press releases
Opinions of official legal advisors
Official manuals
Comments by governments on international relations
International and national judicial decisions
The wordings in treaties
The practice of international organisations.
Uniformity
Some degree of uniformity amongst state practices was
essential before a custom could come into existence.
Anglo Norwegian Fisheries Case ICJ Reports 1951.
Measuring the breadth of the territorial sea using
straight line between projections.
Insufficient uniformity of behavior.
Opinio juris sive necessitatis.
an opinion of law or necessity
A general practice accepted as law.
Practice consistent with international law
The burden of proof
The ICJ accepts existence of an opinio juris on the
bases of evidence of a general practice.
Positive evidence of recognition of the validity of the
rules in question in the practice of states.
Lotus case
Lotus French ship
Boz-Kourt turkish ship
Essential ingredient of obligation was lacking and the
practice remained a practice, nothing more.
Court was not ready to accept continuous conduct as
prima facie evidence of a legal duty and required a
high standard of proof of the issue of opinio juris.
Opinio juris is a matter of inference from all element
of the alleged customary rule.
West Rand gold Mining Co v. R, - the test of general
recognition. KDR/IIT KGP/RGSOIPL/-2011 21
The standard of proof
North Sea Continental shelf case and in Nicaragua v.
United States
A new customary rule to be formed, not only must the
acts concerned amount to a settled practice but they
must be accompanied by the opinio juris sive
necessitatis.
Right of passage over Indian territory, ICJ Reorts 1960
a special right has to give affirmative proof of a sense
of obligation on the part of the territorial sovereign.
North Sea Continental Shelf Cases (1969)
There are 3 ways the treaty could have become binding
customary international law:
The treaty re-stated a pre-existing custom.
The treatys rule crystallized customary law that had been
in the process of formation.
Both extensive and virtually uniform in the sense of the
provision.
Holland & Denmark argued that this treaty had generated
a new customary law, a new norm of international law
binding on everyone.
The ICJ therefore held that there was no customary
international law for
KDR/IIT the Dutch/Danish position.
KGP/RGSOIPL/-2011 23
Nicaragua v. U.S. (1986).
Customary law may be a source of international law in

international disputes.
It is separate from treaty law and convention law, as it must
be applied even if the countries are parties to a treaty.
The court held that it is no longer okay to settle disputes
with force, a customary norm.
Custom
The evidence of objection must be clear and there is
probably a presumption of acceptance which is to be
rebutted.
Unequivocally manifested a refusal to accept the rules.
If a party pleas a regional custom as a practice, the
proponent must prove that it has become binding on
the other member.
Treaties
Binding force of treaties
Obligations arising from express agreement
Multilateral law making treaties to which a majority of
states are parties.
Treaties
Law making treaties treaty contracts
Conclusions of international conferences
Resolutions of the United National General Assembly
Drafts adopted by the International Law Commission
The Hague Convention of Paris 1856 and 1907 on Law
of war and neutrality.
Genocide Convention 1948
Case laws
North Sea Continental Shelf Cases: To what extent the
German Federal Republic was bound by the provisions of
the Continental Shelf Conventions which it had signed but
not ratified.
Equidistance rule for apportionment of common
continental shelf.
11:6 ICJ held that first 3 articles of the Convention were
emergent or pre-existing customary law.
Even if norms of treaty origin crystallize as new principle or
rules of customary law, the customary norms retain a
separate identity even if the two norms appear identical in
content.
Treaties
Law making treaties real source of international law
Treaty contracts obligations between specific
countries.
257 treaties between 1864 and 1914.
Inadequacy of custom in dealing the new needs of the
international community.
Enunciating universal international law
Laying down general or fairly general rules.
Treaties
Role of international conventions
Agreements
Pacts
Charters
Declarations
Law making treaties universal application norm
creating character.
Treaty contracts bilateral or small number of states.
Consent of parties
Treaties or Conventions
Law making treaties
Conclusions of international conferences
Resolutions of the United National General Assembly
Drafts adopted by the International Law Commission
The Hague Convention of Paris 1856 and 1907 on Law
of war and neutrality.
Genocide Convention 1948
Treaties
Law making treaties Treaty contracts
Those arrangements whereby states elaborate their
perception of international law upon any given topic or
establish new rules which are to guide them for the
future in their international conduct.
Vienna Convention on Diplomatic Relations of 1961.
Parties do not sign and ratify the treaty are not bound
by its terms.
Treaties
North Sea Continental Shelf Cases, ICJ reports 1969.
When a treaty reflects a customary law, non-parties are also
bound.
A Treaty+opinio juris = custom
Customary law apply separately than the treaty law.
Sometimes treaty law may apply to non-parties.
Article 2(6) of UN Charter: - the organization shall ensure
that states which are not members of the UN act in
accordance with these Principles so far as may be necessary
for the maintenance of international peace and security.
Treaty contracts
These are not law-making instruments in themselves
since they are between only small number of states or
signatories.
Lay down special obligations between parties only.
It may create a customary law by general acceptance
and customization.
A treaty may be of considerable evidentiary value, if it
crystallized into law by an independent process.
Bilateral treaties
Bilateral treaties may provide evidence of customary
rules.
Final Act of an intergovernmental conference adopted
an agreement unanimously even though not
adopted-obvious importance.
E.g: the principles of international law recognised by
the Charter of the Nuremberg Tribunal and Judgment
of the Tribunal.
Kind of law making treaties
Universal international law charter of United
Nations.
Laying down general rules.
Case laws
North Sea Continental Shelf Cases: To what extent the
German Federal Republic was bound by the provisions
of the Continental Shelf Conventions which it had
signed but not ratified.
11:6 ICJ held that first 3 articles of the Convention
were emergent or pre-existing customary law.
Even if norms of treaty origin crystallize as new
principle or rules of customary law, the customary
norms retain a separate identity even if the two norms
appear identical in content.
General Principles of Law Recognised by Civilized Nations
A.38(1)(c) of the statute of the ICJ.
Rules and principles recognised in the domestic laws
of all recognised nations.
If there is no law available on a new point or situation,
the Judge will apply, justice, equity or considerations of
public policy by using analogy and try to guide the
legal system.
Fill the gap in the international law non liquet
a non liquet is a situation where there is no applicable
law.
Cases
Chorzow Factory case 1928 Germany-Poland
Every violation of law involves an obligation to make
reparations.
Pacta sunt servanda ("agreements must be kept)
international agreements are binding.
the principle refers to private contracts, stressing that
contained pacts and clauses are law between the
parties, and implies that non-fulfilment of respective
obligations is a breach of the pact.
Judicial decisions
Subsidiary means for the determination of rules of law
rather than as a source of law.
A.59 of the ICJ statute no binding force except the
parties to the dispute and the particular case.
Doctrine of precedent not applicable
Fisheries Case baseline method for delimiting the
territorial sea.
Domestic courts
Important source of evidence
Important source of growth of customary international
law.
E.g. extradition law uniform use of courts.
Leads directly to the growth of customary rules of

international law.
Arbitral tribunals
Decisions of tribunals Permanent Court of
Arbitration created by the Hague Conference of 1899
and 1907.
Alabama Claims Arbitration 1872
Pious Fund case 1902
Behring Sea Fisheries Arbitration case (1910)
Juristic works or writings
Subsidiary source not an independent source of law
sometimes juristic opinion lead to the formation of
international law.
A.38 of the statute of the ICJ teachings of the most
highly qualified publicists of the various nations.
Evidence of customary rules
Grotius
Pufendorf
Vattel
Positivist theories made emphasis on sovereign rights
Juristic works
Re jure Gentium 1934 AC 586
Question was whether actual robbery was an essential
element in the crime of piracy at international law.
After considering the juristic opinion court held that
robbery was not an essential element in piracy jure
gntium.
Good faith
A.2(2) of the UN charter
Nuclear Test Cases- ICJ Reports 1974 one of the
basic principle governing the creation and
performance of legal obligations is the principle of
good faith.
Equity
Rann of Kutch Arbitration India and Pakistan 1968
Equity formed part of international law.
North Sea Continental Shelf cases directed a final
delimitation between West Germany, Holland and
Denmark, in accordance with equitable principles.
Barcelona Traction case
Libya Malta Case ICJ Reports 1985.
Justice according to the rule of law.
Equity
Rules of equity can be found in the 1982 Law of the
Sea Convention.
A.59 conflict between coastal and other states
regarding the exclusive economic zone are to be
resolved on the basis of equity.
A.83 delimitation of continental shelf also.
A.5 Non navigational Uses of International
Watercourses states shall utilize an international
watercourse in an equitable and reasonable manner
Other sources
Resolutions of UN General Assembly
state practice
Opinio juris
Outer Space Convention 1963
Legality of the Threat or Use of Nuclear Weapons
advisory opinion.
If there is lot of opposition and abstentions lack of
opinio juris -
ILC - 1947
Progressive development of international law and
codification.
Prepare a draft international conference emergence
of a treaty.
Law of the Sea Convention 1958
Diplomatic Relations 1961
Consular Relations 1963
Law of the Treaties - 1969
Other bodies
UNCITRAL United Nations Commissions on
International Trade Law.
UNCTAD United Nations Conference on Trade and
Development
UNESCO -
Hierarchy of Sources
Treaties
Lex specialis derogat legi benerali
Treaties between states have priority as against general
rules of customary law between the same states.
Erga omnes - obligations or rights toward all.
A.53 of the convention on the Law of Treaties, 1969 a
treaty will be void if at the time of its conclusion,
conflicts with a per-emptory norm of general
international law.
Jus cogens
No derogation would be permitted by way of local or
special custom.
Which can be modified only by a subsequent norm of
general international law.
Public policy in legal order.
A.53 of the Vienna Convention of the Law of Treaties
establishment of the proposition as a rule of general
international law.
Acceptance of that rule as a peremptory norm by the
states as a whole.
A.64 of Vienna Convention
if a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with
that norm becomes void and terminates.
E.g.-prohibition of threat or user of force in the terms
laid down in article 2, para 4 of the UN charter
Principle of Pacta Sunt Servanda S.26 of the Vienna
Convention.
Any international treaty in the interest of
international community as a whole.
Thank you

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