Sources of International Law

Sources of international law cannot be equated with causes of international law.

(illustrate with a stream of water example given by Oppenheim).

Sources of International Law are two-fold:

First, express consent (treaty)

Second, implied consent (CIL)

The statute of ICJ recognizes the sources of International Law (treaty and custom
both) under article 38 in its four fold enumeration.

Note: matters can be referred to UN only by state parties.

All member states of the United Nations are ipso facto parties to the ICJ Statute by
virtue of Article 93 of the United Nations Charter.

Non-members of UN can also become parties to ICJ statute

Example: Switzerland was a part of ICJ statute before becoming party to UN in

2002

This has to be accepted by UNGA on the recommendation of UNSC.

Mainly, four sources under Article 38 of ICJ Statute

1. international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

2. international custom, as evidence of a general practice accepted as law;

3. the general principles of law recognized by civilized nations;

4. 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.

International Custom
custom must not be confused w usage

The Essence of Custom under Article 38 is that it should constitute ‘evidence of

general practice accepted as law’

At times, Int'l law has witnessed repeal of treaty by custom. Example: In the law
of sea, the Geneva convention of 1958 were repealed by international custom which
grew during 1970s and was finally codified into UN convention on the law of the sea
in 1982.

Article 38 has two basic elements

1. State Practice (Material Facts i.e., Actual behaviour of states).

a. State practice includes practice of states and covers every activity of the organs
and officials of a state in an international context.

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 b. the proceedings of international ORGANISATIONS may constitute State
practice inasmuch as the statements made by and the actions of governmental
representatives within an organisation contribute towards the corpus of state
conduct. Example: Barcelona Traction Case.

2. Opinio Juris (Psychological/subjective belief that such behaviour is law). [cite

kopelman, pg 27 G Singh]

It was noted in Libya/Malta case, that the substance of Customary Law must be
‘looked for primarily in the actual practice and opinion juris of states.’

Note: firstly, state practice has to be found, in order for us to move to the second
stage (opinion juris).

State Practice standalone cannot form a customary international law. Because of

the fact that many times states tend to do acts which are not completely legally
binding. Thus, without opinio juris element, true dictate of the international law will
be misleading. (Just because something is extensively practices by the states
doesn’t mean it shall be construed as a custom).

{Example 2: Abstention in Nuclear attacks is because circumstances have

fortunately not arisen, not because of existing or nascent custom. Cite: One of the
arguments, in Case Concerning Advisory Opinion of the ICJ on the legality of the
threat or Use of Nuclear Weapons. }

Thus, the opinion juris sive necessitatis was culled out by Francois Grey as an
attempt to differentiate legal custom from mere social usage.

Put simply, that’s where the difference between customs and customary
international law lies. The Court explained the concept of opinio juris and the
difference between customs (i.e. habits) and customary law:

“Not only must the acts concerned amount to 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 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. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation.
The frequency, or even habitual character of the acts is not in itself enough. There
are many international acts, e.g., in the field of ceremonial and protocol, which are
performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.”

Customary International Law: State Practice (overt action) + Opinio Juris (subjective
conviction).

Once there is sufficient practice together with opinio juris, a new rule of custom will
emerge.
Subject only to what is known as the “persistent objector” principle the new rule
binds all
States. The persistent objector principle allows a State which has persistently
rejected a new
rule even before it emerged as such to avoid its application

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 While answering cite these following casees

SS Lotus [two fold elements were missing]

Continental Shelf [acts must have been carried out with the sense of legal
obligation. Not out of pure convenience]; Germany v. Italy

Advisory opinion of the ICJ on the legality of the threat or use of nuclear
weapons

Paquete Habana

Asylum

Right to passage

Note: The Asylum and Right of Passage cases show that international law
recognises the existence of a special custom or local custom.

Treaty
Two types

Law making: UN Charter (General) and Refugee Convention (Particular)

Treaty contract

One view is that the treaty rules are indisputably superior to customary rules.

According to another view, custom is capable of annulling treaty rules to the same
extent as a treaty cancels out a custom. [cite: Akehurst]

I agree with this view

Example: Contemporarily instances of treaties modifying customary norms are

on the increase. However, customs have also annulled treaties (Law of Seas in
Geneva Convention 1958)

Hierarchical Preference?

Correct view: The correct view is the treaty and custom are different forms
of one essential element i.e. agreement of subjects of international law.
[Cite: Surya P Sharma, Treaties as Source of International Law 1979].
Therefore, these have identical legal force and are mutually reinforcing.
These do not oppose each other but interact and supplement each other. -
From G Singh

Also refer to this same section at

https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?
article=1854&context=cklawreview

https://dash.harvard.edu/bitstream/handle/1/13548459/The Sources of
International Law.pdf?sequence=1&isAllowed=y (last section)

General Principles of Law

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 It means the principles so general as to apply within all systems of law that have
achieved a comparable state of development.

Whether general principles of law are a distinct source of int'l law.

Some soviet authors opinion that general principles of law means general principles
of int'l law and not the principles common to the municipal legal system. They point
out that western jurists treat fundamental legal principles of burgeois, or capitalist
systems as principles common to the municipal legal system

above-mentioned view is not true because there are similar principles in capitalist
and socialist system ex: Res Judicata

Correct view is General principles are primary source of international law because
these are valid through all kinds of human societies.

Judicial Decision and Teaching of Jurists

Stare decisis not adopted by ICJ but somewhat adopted its substance.

Jurists

The present day int'l law is much more certain and most part of it exists in
conventional and customary form. Therefore, "teachings of publicists" has gone
down below in hierarchy of int'l law.

Another point for considering their teaching as subsidiary is because of two

reasons

apparent National bias

divergence of views among writers

Cite (lauterpacht)

Modern sources of Int'l Law

Whether UNGA resolutions are legally binding for the states?

Partly yes!

Detailed Answer: Refer to Pg 50 of Gurdeep Singh

1. South-West Africa Voting Procedure Case

2. Western Sahara Case

Conclusion: What emerges from an analysis of the abovementioned cases

is the proposition that legal effect may be given to the collective
pronouncements of the UNGA despite their non-binding character.

ILC Draft Articles as source of Int'l Law

ILC members are persons of recognised competence in Int'l law, the draft articles
that they prepare over the years could be considered as writings of highly qualified
publicists in the field of PIL. [cite: Robert beckman and Dagmare Butte,
"Introduction to Int'l law" 2014]

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