Chapter 2

THE SOURCES OF INTERNATIONAL LAW

What sources are.

The task of ascertaining what the laws are in the domestic sphere is a relatively simple matter.
Domestic laws are found in statute books and in collections of court decisions. It is an altogether
different matter with international law. In the absence of a centralized legislative, executive and
judicial structure, there is no single body able to legislate and there is no system of courts with
compulsive power to decide what the law is nor is there a centralized repository of international
law. Thus, there is the problem of finding out where the law is. This problem is exacerbated by
the anarchic nature of world affairs and the competing sovereignties. Nevertheless international
law exists and there are “sources” where, with some effort, the law can be found.

Sources are often classified into formal sources and material sources. Authors, however, differ
in defining these concepts. Formal sources can refer to the various processes by which rules
come into existence. Thus, for instance, legislation is a formal source of law. So are treaty
making and judicial decision making as well as the practice of states. Material sources, on the
other hand, are not concerned with how rules come into existence but rather with the substance
and content of the obligation. They identify what the obligations are. In this sense, state practice,
UN Resolutions, treaties, judicial decisions and the writings of jurists are material sources in so
far as they identify what the obligations are. They are also sometimes referred to as “evidence”
of international law.

The doctrine of sources lays down conditions for verifying and ascertaining the existence of legal
principles. The conditions are the observable manifestations of the “wills” of States as revealed
in the processes by which norms are formed — that is, treaty and state practice accepted as law.
The process of verification is inductive and posi- tivistic. It is the process of finding what laws
the states themselves have created and what laws they are willing to place themselves under. It is
a manifestation of the fact that international law is characterized by individualism.
It is interesting, however, that the most widely accepted statement of the “sources” of
international law, that is, Article 38(1) of the Statute of the International Court of Justice, does
not speak of sources. Rather, Article 38 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.1

Article 38 is a declaration by states that these are the laws under which they are willing to
be bound. Thus, another statement of sources is the Restatement (Third) of Foreign
Relations Law of the United States which 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.

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.

Briefly, therefore, the “sources” of international law are custom, treaties and other
international agreements, generally recognized principles of law, judicial decisions and teachings
of highly qualified and recognized publicists. We shall discuss these sources one by one.

Custom or customary law.

Custom or customary international law means “a general and consistent practice of states
followed by them from a sense of legal obligation.” (Restatement) This statement contains the
two basic elements of custom: the material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave the way they do.
The material factor: practice of states or usus
The initial factor for determining the existence of custom is the actual behavior of states
(usus). This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration (diuturnitas) can be either short or long. An example of customary
law that is the result of long, almost immemorial, practice is the rule affirmed in The Paquete
Havana on the exemption of fishing vessels from capture as prize of war.
 We are then brought to the consideration of the question whether, upon the facts
appearing in these records, the fishing smacks were subject to capture by the armed vessels of
the United States during the recent war with Spain.
By an ancient usage among civilized nations, beginning centuries ago, and gradually
ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching
and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from
capture as prize of war.
In the North Sea Continental Shelf Cases,3 however, the Court indicated that a short
duration, by itself, will not exclude the possibility of a practice maturing into custom provided
that other conditions are satisfied:
. . . 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 con-ventional 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.
Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. The basic rule on consistency, that is, continuity and repetition,
was laid down in the Asylum Case (ICJ Reports 1950). The facts in the case were as follows:
On October 3rd, 1948, a military rebellion broke out in Peru; it was
suppressed the same day. On the following day, a decree was published
charging a political party, the American People’s Revolutionary Party,
with having prepared and directed the rebellion. The head of the Party,
Victor Raul Haya de la Torre, was denounced as being responsible. With
other members of the party, he was prosecuted on a charge of military
rebellion....

On January 4th, 1949, the Colombian Ambassador in Lima informed

the Peruvian Government of the asylum granted to Haya de la Torre, at the
same time he asked that a safe-conduct be issued to enable the refugee to
leave the country. On January 14th, he further stated that the refugee had
been qualified as a political refugee. The Peruvian Government disputed
this qualification and refused to grant a safe-conduct. A diplomatic
correspondence ensued which terminated in the signature, in Lima, on
August 31st, 1949, of an Act by which the two Governments agreed to
submit the case to the International Court of Justice.

The decision of the ICJ was against Colombia:

Finally, as regards American international law, Colombia had not

proved the existence, either regionally or locally, of a constant and
uniform practice of unilateral qualification as a right of the State of refuge
 and an obligation upon the territorial State. The facts submitted to the
Court disclosed too much contradiction and fluctuation to make it possible
to discern therein a usage peculiar to Latin America and accepted as law.
It therefore followed that Colombia, as the State granting asylum, was
not competent to qualify the nature of the offence by a unilateral and
definitive decision binding on Peru.

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.

Opinio juris
Once the existence of state practice has been established, it becomes necessary to
determine why states 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. As the Nicaragua case again put it:
... [f]or 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. 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.
It should be noted that it is also possible for customary law to develop which will bind
only several states, or even only two states. But the party claiming it must prove that it is also
binding on the other party. In the Asylum case, this was not proved. But this was proved in the
case of Right of Passage over Indian Territory (ICJ Reports 1960) where the right of Portugal to
pass through Indian territory was recognized.
Dissenting states; subsequent contrary practice
Would dissenting states be bound by custom? Yes, unless they ha4 consistently objected
to it while the custom was merely in the process of formation. The authority that is usually used
for this is the Anglo-Norwegian Fisheries* case where the ICJ said that a coastline delimitation
rule put forward by England “would appear to be inapplicable as against Norway, in as much as
she has always opposed any attempt to apply it to the Norwegian coast.” 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.
What effect would such contrary practice have? In Fisheries Jurisdiction Case (Merits)? the
opinion was expressed that such contrary practice can cast doubt on the alleged law. It noted
“great uncertainty as to the existing customary law on account of the conflicting and discordant
practice of States.” It concluded that the uncertainty had “an unsettling effect on the
crystallization of a still evolving customary law on the subject.” ... It might be added that, over
time, if the contrary practice should gain general acceptance, it might instead become the law.

Evidence of state practice and opinio juris

Having said all of the above, what are the acceptable evidence of state practice? Various
forms of evidence may point to state practice. 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. In Nicaragua v. United States where one of the issues was whether
the prohibition of the use of force was customary law, the ICJ said:
It considers that this opinio juris may be deduced from, inter alia, the
attitude of the Parties and 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.” Consent to such resolutions is one of the forms of expression of
an opinio juris with regard to the principle of non-use of force, regarded as
a principle of customary international law, independently of the
provisions, especially those of an institutional kind, to which it is subject
on the treaty-law plane of the Charter.

“Instant custom”
Is there such a thing as “instant custom?” Quite obviously, what is referred to as “instant
custom” is not the product of constant and prolonged practice. Rather it comes about as a
spontaneous activity of a great number of states supporting a specific line of action. In the after-
math of the attack on the Word Trade Center in New York, a coalition of forces arose in a matter
of months supportive of the action taken by the United States against Osama Bin Laden. At least
one writer has suggested that this united action may have given birth to instant customary law
classifying the attack as an armed attack under Article 51 of the UN Charter justifying collective
self-defense. What was peculiar about this collective action was that the object of defense was
not an attack from a state but from a non-state organization.

Usus and opinio juris in Humanitarian Law: The Martens Clause

The Martens Clause refers to a paragraph found in the 1899 Hague Peace Convention. It
says: “Until a more complete code of laws of war has been issued, the High Contracting parties
deem it expedient to declare that, in cases not included in the Regulations adopted by them, the
inhabitants and belligerents remain under the protection and the rule of the principles of the law
of nations as they result from the usages established among civilized peoples, from the laws of
humanity, and the dictates of the public conscience.
This was first inserted by the Russian publicist Fyodor Martens and has found its way
into a number of treaties including the 1949 Vienna Convention and the First Additional Protocol
of 1977. It has been cited by, among others, the ICJ in the Legality of the Threat or Use of
Nuclear Weapons.
What the clause does is to put the “laws of humanity” and the “dictates of public
conscience” on the same level as “usages of states” or usus thus suggesting that even without
practice or usus or at least without consistent practice there can emerge a principle of law based
on laws of humanity and the dictates of public conscience. In other words, one need not wait for
thousands of civilians to be killed before a ban becomes effective.

Treaties.
Another important source are treaties or international agreements, whether bilateral or
multilateral. Treaties determine the rights and duties of states just as individual rights are
determined by contracts. Their binding force comes from the voluntary decision of sovereign
states to obligate themselves to a mode of behavior.
While treaties are generally binding only on the parties, the number of the contracting
parties and the generality of the acceptance of the rules created by the treaty can have the effect
of creating a universal law