Lecture 3

Sources of International law

• The question of sources is fundamental in any system of law.

• Law making is a continuous activity in any viable legal system.

• International legal system can accommodate the changing requirements for regulation by: law making in new areas; and by upgrading and refinement of existing laws, in the light of its law sources.

• Considering the sources of international law it is realized that the term “sources” implies many different, sometimes, conflicting meaning.

Article 38 of the 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 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 the rule 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 thereto.

• Treaties, custom, and principles of law, are sometimes referred to as "primary sources",

• Judicial decisions and the teachings of publicists are sometimes referred to as “subsidiary” or "secondary sources" or “evidence of international law rules”.

• George Schwarzenberger proposed the term ‘law creating process’ for primary sources i.e. treaties, customs and general principles of law; and ‘law determining agencies’ for subsidiary means for determination of law, i.e. judicial practice and doctrines.

• Herbert Briggs pointing “the confusion of the term “sources” describes it as “the methods or procedures by which international law is created.”

• Oppenheim discussing its various meanings differentiates between formal and material sources: formal being the source from which the legal rule derives its legal validity; and material providing the substantive content of that rule, e.g. the formal source of custom may have its material source found in a treaty concluded.

• Discussing the difference between basis of law (common consent of international community), causes of law (particular circumstances in the development of communities, suggesting need for a rule of conduct), and sources of rules of law (process by which it first becomes identifiable as a rule of conduct with legal force and from which it derives its legal validity).

• Sources of the rules of law distinct from the basis of the law, are as a whole related to the basis of the legal system.

(Sir Robert Jennings, Sir Watts Arthur, Oppenheim’s International Law, (Indian Branch: Peerson Education, 1996), 23.

• According to Salmond,

“a formal source is that from which a rule of law derives its force and validity. The material sources, on the other hand, are those from which is derived the matter and not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the nature and the law.”

(J. W Salmond, Jurisprudance, 7th ed. (London: Sweet and Maxwell, 1924).

1) Article 38 1(a) of SICJ: ‘International Convention’

‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting states’.

• Whenever an international dispute is decided, its first application of the law is to find a treaty application on the issue.

• In the presence of a treaty on related issue the decision is based on it.

• Historically treaties are the second source of international law.

• They were developed to give particularity to rules of mutual conduct, than was provided by a custom.

• The word ‘convention’ means a treaty and whatever the nomenclature is, the substance is the same: it is an agreement made between two or more States or other subjects of international law.

• Long before the establishment of UN and ICJ, in the 19th and 20th centuries, many treaties and conventions played a great role in the development of international law, such as Geneva Convention 1864, Hague Conventions of 1899 and 1907, Treaty of Locarno 1925.

• After establishment of UN in 1945, treaty acquired the most important mode of development of international law, starting from Bill of Rights and under the United Nations Treaty Series many thousand treaties have been registered with the United Nations.

• According to Article 2 of the Vienna Convention on the Law of Treaty 1969, ‘treaty’ is defined as:

“an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.

• Consent to a treaty may be expressed by signature, ratification, or accession, and is binding on the parties to it, who shall perform the treaty in good faith by applying the maxim pacta sunt servanda.

• Applicable to all types of treaty: multi lateral or bilateral, universal or regional.

• Treaties which codify already existing customary law or which have in fact attained the status of customary law are binding on non-party states as well.

• Example: International Humanitarian Law (Geneva Conventions and Hague Conventions), Genocide Conventions, Convention Against torture (CAT)1984, Vienna Convention on Diplomatic Relations, 1961, UN Charter 1945 and Universal Declaration of Human Rights (UDHR) 1948.

• Treaties could be a direct source of international law or reflective of a customary or general principles of law as evidence.

• International treaties could be a) law making treaties or b) treaty contracts.

a) Law- making Treaties• Law-making treaties are those agreements 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.

• Such lawmaking treaties, of necessity, require the participation of a large number of states to emphasize this effect, and may produce rules that will bind all.

• Law making treaties could be either enunciating rules of universal international law, e.g, Un Charter, or one laying down general principles such as Geneva Conventions on the Law of the Sea (1958 and 1960) or Vienna Convention on the Law of Treaties, 1969.

(L.N. Tandon and S .K. Kapoor International Law,(Lahore: Mansoor Book House, 2010), 101-102, and Malcolm N. Shaw, International Law,( United Kingdom: Cambridge University Press 2008), 95).

• Provisions of Law-making treaty are directly the source of international law.

Starke, J.G.(Joseph Gabriel), An Introduction to International law , (London: Butterworths, 1977), 48.

b) Treaty Contracts

• Treaties dealing with special agreements between parties to the contract.

• The provisions of such treaties are binding only on the parties to the treaty.

• Such treaties also help the formation of international law through the operation of the principles governing the development of customary rules.

• Treaties

– A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law (something binding under the laws of one state is not international)

– Treaties are binding and legally enforced upon the parties to it

– Treaties can be bilateral or multilateral

• Question: Can a treaty be made orally?

2) Article 38 1 (b) SICJ: ‘International Custom’

• ‘international custom, as evidence of general practice accepted as law’.

• According to the Right of Passage Case: Portugal v. India (1960), there are 2 types of custom:

a) general

b) local/regional

• General:

Customary rules binding upon international community as a whole.

• Local/regional:

Applicable to a group of states or just 2 states in the relations inter se.

• “Custom is the oldest and the original source of international law as well as law in general.”

(Jennings, Arthur, Oppenheim’s International law, 25).

• ‘It is the foundation stone of the modern law of the nations’.

(Dixon Martin, International Law, (London: Blackstone Press Limited, 2000), 28).

• ‘When a usage receives the general acceptance or recognition by the states in their mutual relations, it is understood that such habit or usage has become right as well as obligation of the states; it becomes a custom’.

(Tandon and Kapoor, International Law, 95).

• However, although a custom is widely followed, it does not make it a rule of international law unless it is accepted by the states as legally binding in order to be considered rules of international law, referred to as opinio juris.

• Two essential elements:

a) practice, and

b) opinio juris.

• In Advisory Opinion on the Use of Nuclear Weapons (1996), it was held that

‘no rule can be created on opinion juris without state practice’.

• Judicial application of international custom is understood in the ICJ rulings in S.S. Lotus case, North Sea continental Shelf case, Nicaragua v. Unites States of America case, West Rand Central Gold Mining Company Ltd. v. R.,Asylum case between Columbia and Peru, Advisory Opinion On use of Nuclear Weapons (1996).

• In S.S. Lotus case (Turkish International Water) PCIJ series A, No 10, (1927), it was held that

“a new rule of customary international law cannot be created unless both these elements as discussed are present.”

• In North Continental shelf case, ICJ Rep. 1969, at p.3, p.44, it was held

“not only must the acts concerned be a settled practice, but they 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 requiring it, the states concerned must feel they are conforming to what amounts to a legal obligation.”

(Cited by Jennings, Arthur Oppenheim’s International law, 28).

• In Nicaragua v. Unites States of America case (1986), it was held that

“in order to deduce the existence of customary rules the court deems it sufficient that the conduct of the states in general should be consistent with such a rule and that instances of state conduct inconsistent with a given rule should have been treated as breach of that rule not as indication of the recognition of a new rule.”

(Shaw, International Law,78).

• In West Rand Central Gold Mining Company Ltd. v. R. (1905) 2K.B. 291, a test regarding the general recognition of custom was laid down.

• The court ruled that for a valid international custom it is necessary that it should be proved by satisfactory evidence that the custom is of such nature that it has received general consent of the States and no civilized State shall oppose it.”

(Cited in Tandon and Kapoor International Law, 99).

• Asylum Case: Columbia v. Peru (1950)

• ICJ described custom as ‘ a constant and uniform usage, accepted as law’.

• Meaning: those areas of state practice which arise as a result of a belief by states that they are obliged by law to act in the manner described.

ICJ held that: ‘where a local or regional customs is alleged, it is the duty of the proponent to prove that this custom is established in such a manner that it has become binding on the other party’.

• Although an international court in the first instance is bound to consider an applicable treaty provisions, in case of doubt, it is interpreted against the customary rule.

• In case of any conflict of a treaty provision with a jus cogen, it will prevail over the treaty.

3) Article 38 1 (c) SICJ : General principles of Law recognized by the civilized nations

• Third source of international law.

• Most modern jurists accept that ‘general principles of law’ are principles of law common to all national legal systems, in so far as they are applicable to relations of States.

(Peter Malanczuk , Akehurst’s Modern Introduction to International Law, (London: George Allen & Unwin , 1997); Dixon, Textbook on International Law, Cassese, Anthonio, International Law, (Oxford University Press, 2001) 156).

• ‘Principles’ refer to

a) certain principles and procedure

b) principles of good faith

c) principles of res judicata

• They also mean rules or standards which we find repeated in much the same form in the developed systems of law, either due to common origin, or expressing a necessary response to certain basic needs of human associations.

• Examples are: the rules of pacta sunt servanda, that contracts must be kept; reparation must be made for damage caused by fault; the right of self defense for the individual against attack on his person, family, or community against clear and present danger; for one’s own cause no one can be a judge; and that the judge must hear both sides.

(J.E.S. Fawcett, The Law of Nations,( London, 1968), 24-25).

• The most important general principle, inherent in international legal rules, is that of good faith, enshrined in the United Nations Charter, and its elaboration in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970.

• Article 2(2) United Nations Charter: ‘all Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter’.

• Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970, where it referred to the obligations upon states to fulfill in good faith their obligations resulting from international law generally, including treaties. It therefore constitutes an indispensable part of the rules of international law generally.

(described by Shaw, International Law, 104)

• The main objective of inserting the third source in Article 38 is to fill in gaps in treaty and customary law and to meet the possibility of a non liquet.

• Non liquet means the possibility that a court or tribunal could not decide a case because of a ‘gap’ in law.

• Example, the ICJ applied the doctrine of non liquet in the Nuclear Weapons case, Advisory Opinion, (1997) 35 ILM 809 and 1343.

• Examples of cases where judicial applications of general principle of law can be found:

Arbitration Tribunal in the AMCO v. Republic of Indonesia case, Nuclear Tests case, Chorz´ow Factory case in 1928, Barcelona Traction case (1970) and Administrative Tribunal case.

• Arbitration Tribunal in the AMCO v. Republic of Indonesia case, where it was stated that:

‘the full compensation of prejudice, by awarding to the injured party the damnum emergens and lucrum cessans is a principle common to the main systems of municipal law, and therefore, a general principle of law which may be considered as a source of international law’.

‘One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this cooperation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral obligation’.

(Nuclear Test case (Australia v France), Judgment of 20 December 1974, ICJ Rep. 1974, 268, para, 46).

• In the Chorz´ow Factory case in 1928, PCIJ, Series A, No. 17, 1928, p. 29; 4 AD, p. 258, which followed the seizure of a nitrate factory in Upper Silesia by Poland, the Permanent Court of International Justice declared that :

‘it is a principle of international law and even a general concept of law, that any breach of an engagement involves an obligation to make reparation’.

• The Court also regarded it as: a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law.

(cited by Shaw, International Law).

• Eastern Carelia Case (11923)

‘one of the fundamental principles of international law is independence of state’.

• In Barcelona Traction Case (1970), for example, the Court has acknowledged the concept of the ‘limited liability company’ to be found in domestic law systems.

• In the Administrative Tribunal case, the Court dealt with the problem of the dismissal of members of the United Nations Secretariat staff and whether the General Assembly had the right to refuse to give effect to awards to them made by the relevant Tribunal.

• In giving its negative reply, the Court emphasized that:

“according to a well-established and generally recognized principle of law, a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute.”

4) Article 38 1 (d) SICJ: judicial decisions andthe teachings of the most highly qualified publicists of

the various nations.

‘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 the rule of law’.

a) Judicial Decisions

• Judicial decisions do not make law but are declaratory of pre-existing law qualifying them as, indirect, law identifying or material sources of law.

• Article 59 of the Statute of the International Court of Justice, provides that:

‘decisions of the courts have no binding force, except for the parties and in respect of the case concerned’.

• This provision shows that:

a) Decision of the ICJ has no binding authority.

b) ICJ does not make law.

• In practice, the ICJ will follow the previous decisions so as to have judicial consistency, or if it does not follow, the court will distinguish its previous decisions from the case actually being heard.

(case: Interpretation of Peace Treaties, 1950).

• Contrary to the Common Law, the doctrine of precedence does not exists in international law, still we find that the Court itself in its decisions, the states in their disputes and legal writers in their scholarly works quote judgments of PCIJ and ICJ as an authority.

• Thus even as a subsidiary source, judicial decisions are important in the determination of the existence of the legal rules and their content.

• A unanimous, or almost unanimous, decision plays an important role in the progressive development of the law, e.g. the decisions and advisory opinions in the Reparation, Genocide, Fisheries, and Nottebohm cases have had decisive influence on general international law.

• Reparations for Injuries Suffered in the Service of the United Nations case, (1949) ICJ Rep. 174,

• Reservations to the Genocide Convention case, (1951) ICJ Rep. 15.

• Anglo-Norwegian Fisheries case, (1951) ICJ Rep., 116.

• Nottebohn case, (1955) ICJ Rep. 4.

b) ‘the teachings of the most highlyqualified publicists of the various nations’.

• With marked influence in the history of international law from 16th-18th centuries writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were considered authorities in determining the scope, form and content of international law; today juristic writings are considered a material or evidential source only.

• Textbooks are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the writings of even the most respected international lawyers cannot create law.

Other Sources of PIL

• Article 38 of ICJ is not exhaustive statement for describing sources of international law as since its formulation in 1945, many changes in the international community have taken place.

• Other Sources which have contributed and are considered important in the constant development of the international law include: declarations of Security Council, binding on member states; Non-legally binding instruments, often referred to as “soft law”, such as declarations, resolutions, and recommendations adopted by the UN General Assembly and various international organizations; and conferences, International comity and morality; and equity, (a) in the sense of considerations of fairness and reasonableness,(b) in a more strictly legal sense regarded as forming part of certain rules of law, general principles of law, or (c) in the sense of Article 38 (2) of ICJ, which empowers the court , if the parties to a case agree, to decide the case ex aequo et bono.

a) Declaration of Security Council

• Security Council has the competence to adopt resolutions under articles 24 and 25 of the UN Charter binding on all member states of the organization.

b) Soft Law

• According to Professor Antonio Cassese, soft law instruments, short of reaching full consensus of view to agree for a binding commitment, have three main common features; 1) indicative of modern trends, 2) matters of new concern for international community, and 3) having economic, political or other factors.

c) Resolutions of UN General Assembly

• Resolutions of the General Assembly are generally not legally binding and are merely recommendatory, putting forward opinions on various issues with varying degrees of majority support.

• This reflects the intention that the GA was to be basically a parliamentary advisory body with the binding decisions being taken by the Security Council.

• Nowadays, the situation is somewhat more complex. The Assembly has produced a great number of highly important resolutions and declarations, which have definite impact upon the direction adopted by modern international law.

• The manner of states’ voting and the explanations given upon such occasions reflect evidence of state practice and states’ consideration of law.

• The Court in the Nicaragua case tentatively expressed the view that the opinio juris requirement could be derived from the circumstances surrounding the adoption and application of a General Assembly resolution.

• It noted that the relevant opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the parties [i.e. the US and Nicaragua] and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

(ICJ Reports, 1986, pp. 14, 99–100; 76 ILR, pp. 349, 433–4. Shaw, International Law, 6th ed., 115).

d) International Organizations

• Over the 50 years after establishment of UN and ICJ the most significant change in the international community has been the increased number of international organizations and their significant role.

e) Conferences

• Contribute to the formation of international law, but indirectly.

f) International Comity and Morality

• Mutual relations of states are based on the principle of comity and morality, rules which are not legally binding.

• Oppenheim gives the example of exemption of custom duty granted to diplomatic envoys not as rule of international law but as a rule of comity.

• Though comity is not a source of international law but many a rule which formerly was a rule of international comity only is nowadays a rule of international law.

(Jennings, Arthur, Oppenheim’s International law, 51).

g) Equity

• In the Barcelona Traction case (I.C.J. rep. (1970), pp. 3,5, Sir Gerald Fitzmaurice emphasized the need for a body of rules and princiles of equity in the field of international law.

(Cited by Tandon and Kapoor, International Law, 109).

• The tribunal in the Rann of kutch arbitration held that since equity formed part of international law the parties were free to present and develop their case with reliance on principle of equity.

• In such case equity requires legal character and is applied not just as equity but as part of a legal rule.

(Jennings, Arthur, Oppenheim’s International law, 44).

h) Ex aequo et bono

• Ex aequo et bono: Latin term meaning "according to the right and good" or "from equity and conscience".

• In the context of arbitration it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand.

• ICJ has not yet given any judgment on the basis of Article 38 (2).

i) State Papers, State Guidance and Judicial Reasons

• State papers exchanged during their mutual diplomatic relations, state guidance for their officers by their legal advisors, and judicial reason through which principles are discovered, could also be some other subsidiary sources of international law.

Conclusion

• Article 38 is quite comprehensive in detailing major formal and material sources of international law; describing treaties, customs and general principles as the major formal sources; providing general principles as filling the gaps between customary rules and treaties; and as subsidiary means providing judicial decisions, which has now become a trend setting evidence of immense value in determining the rules of law, reflected in the teachings of the most highly qualified publicists of the various nations which are also described as subsidiary means, under the same provision of the article.

• Judicial decisions however, will remain subsidiary as they are fact specific and apply to the states concerned only.

• Subject to states’ concerned consent provision of equity is also available in Article 38 (2) SICJ.

• However, the article cannot be considered totally exhaustive in its provisions as other subsidiary means provided in the preceding paragraphs are also contributive in the complexed ever growing matters of international community, in the spheres of public as well as private international law.

• Since treaties have become a major source of international law, considering the statement of international conventions and treaties as the only considerable way in creation of international law, it is quite clear from the above discussion, that it is not correct.

• It is also concluded that one of the distinctive feature of international law making is the absence of any hierarchy between custom and treaties as sources of law, with even more force of jus cogens or peremptory norms of general international law, prohibition against torture or non refoulement for instance.

• States may not derogate from jus cogens through treaties or customary rules even. It follows that jus cogens is hierarchically superior to all the other rules of international law.